Summary of October 2008 Final No-Match Rule and August 2007 Enjoined Final Rule


In August 2007, a long awaited "no-match letter" regulation from US Immigration and Customs Enforcement was released. It quickly was challenged in court and the rule was barred from taking effect by a federal district court. In October 2008, claiming that it had met the court’s objections, the agency released a final rule which takes effect immediately upon publication. Despite the fact that the rule is virtually identical to the enjoined rule, ICE claimed the rule is new and that it had the authority to issue it despite the court injunction.

The No-Match rule describes the obligations of employers when they receive no-match letters from the Social Security Administration or receive a letter regarding employment verification forms from the Department of Homeland Security. The rule also provides "safe harbors" employers can follow to avoid a finding the employer had constructive knowledge that the employee referred to in the letter was an alien not authorized to work in the US. Employers with knowledge that an immigrant worker is unauthorized to accept employment are liable for both civil and criminal penalties.

The October 2008 rule finalized a proposed rule released on March 21, 2008.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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