DHS Rescission of Safe-Harbor Procedures for Employers Who Receive a No-Match Letter

Although the term “rescission of safe-harbor procedures” sounds like a negative, in fact, the Department of Homeland Security’s (DHS) rescission of these safe harbor procedures relieves employers of responsibilities that were onerous and had dubious impact towards meeting the administration’s goal of reducing unauthorized employment.

 On August 15, 2007 DHS released the final version of the Immigration and Customs Enforcement (ICE) regulation, “Safe Harbor Procedures for Employers Who Receive a No-Match Letter.”  These regulations greatly increased the burden on employers who received a social security “no match” letter or discrepancy notice from DHS to take certain steps or face criminal and civil liability for unlawfully employing individuals without employment authorization.

Unfortunately, this proposed DHS regulation made the law more unclear for many employers.  How many no-match letters could they receive and have the employee “fix?”  What if the employee brought back something that appeared genuine with a different name?  Employees were also caught in the middle.  Many employees would be the subject of these letters based on a name change due to marriage, a typographical error or for some other innocuous reason.  And forget about having the Social Security Administration (SSA) fix the error in the 90 days prescribed by the regulation.  In the lawsuit challenging the rule, the former Secretary of the Social Security Administration stated that it would be close to impossible to get an error fixed in the database and provide an individual with the proof needed to satisfy the regulation within 90 days.

 All I can say is good riddance to this “safe harbor.”