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United States: Agency Rescinds Employment Regulations Targeting Employers of Immigrants

(Oct. 20, 2009) The U.S. Department of Homeland Security (DHS) has rescinded a 2007 regulation intended to prevent employers from employing undocumented immigrants, the enforcement of which had been enjoined by a federal court.

The 2007 regulation, known as the “no-match rule,” would have required the Social Security Administration, when it discovers a mismatch between employer statements of earnings by employees and records of the employees on file, to send the employer a legal notice that the employee is not authorized to work in the United States and that the employer could face penalties. A coalition of labor, business, and immigrant rights organizations sued to prevent DHS from enforcing the rule, and in October 2007, the U.S. District Court for the Northern District of California entered an order enjoining its enforcement. (See Gary Robinson, Court Enjoins New DHS Employment Regulation Targeting Illegal Immigrants, GLOBAL LEGAL MONITOR, Nov. 2007, at 31, available at http://www.loc.gov/law/news/global-monitor/2007_glm_11.pdf.)

On October 6, 2009, DHS issued a final notice rescinding the no-match rule. DHS said that as part of an ongoing government-wide reexamination of regulatory processes, it had determined that “a more appropriate utilization of DHS resources would be to focus enforcement/community outreach efforts on increased compliance through improved verification,” including increased participation in an electronic employment eligibility verification system of the U.S. Citizenship and Immigration Services known as “E–Verify,” and other compliance programs. (Safe-Harbor Procedures for Employers Who Receive a No-Match Letter: Rescission, 74 Fed. Reg. 51447 (Oct. 7, 2009), available at http://www.gpo.gov/fdsys/pkg/FR-2009-10-07/pdf/E9-24200.pdf.)