The Dept. of Homeland Security is continuing its push to put in place a regulation aimed at cracking down on the hiring of illegal immigrants. The AFL-CIO and other groups in 2007 won a court injunction, blocking the rule. That prompted DHS on Oct. 23 to issue a new “supplemental final rule,” which spells out what companies must do to be shielded from liability when the Social Security Administration tells them that the name and Social Security number on an employee’s W-2 form don’t match the agency’s records. But the unions and other critics don’t like the new “no match” regulation. The next move will take place in federal court.

The no-match regulation’s path hasn’t been smooth. DHS issued a proposal in 2006 and in August 2007 published what it hoped would be a final rule, which was to take effect the following month. But the AFL-CIO, American Civil Liberties Union and National Immigration Law Center filed a lawsuit in U.S. District Court for the Northern District of California. In October 2007, Judge Charles R. Breyer granted a preliminary injunction, preventing DHS from implementing the rule.

DHS Secretary Michael Chertoff says the department now will ask the court to lift the 2007 injunction. “The additional information in this supplemental rule addresses the specific items raised by the court, and we expect to be able to quickly implement it,” he says.

A Regulation’s Bumpy Two-Year Path
June 14, 2006 DHS publishes proposed no-match rule in Federal Register.
Aug. 15, 2007 DHS publishes final no-match rule.
Aug. 29, 2007 AFL-CIO, ACLU and others file suit in federal district court, seeking injunction to block rule.
Aug. 31, 2007 Court issues temporary restraining order.
Oct. 10, 2007 Court grants preliminary injunction.
March 26, 2008 DHS publishes proposed revised rule.
Oct. 23, 2008 DHS issues revised supplemental final rule and says it will ask court to lift injunction.

However, Chertoff predicts groups that challenged the earlier DHS rule will object to the new one. AFL-CIO President John Sweeney says, “No matter how many times the administration repackages this rule, relying on the error-filled Social Security database is a recipe for disaster for both American workers and the economy.”

The American Subcontractors Association “raised a number of objections” to the new rule when it was proposed in March, says David Mendes, ASA communications director. ASA contends DHS didn’t follow Paperwork Reduction Act requirements and failed to account for the cost the rule would impose on employers, Mendes says. Those fighting the DHS rule cite a U.S. Chamber of Commerce-commissioned study that pegs the cost to companies at $1 billion annually.

Chertoff says there can be “innocent explanations” for a no-match letter, such as when a worker gets married and doesn’t change the last name on a W-2. But he says if “someone is using phony documents and is not authorized to work, then you have to make sure you bring your employment situation into compliance with the law.”