Business and immigrant-advocacy groups don’t like a new Dept. of Homeland Security proposal that seeks to provide further justification for a 2007 DHS “no match” rule cracking down on companies that systematically hire illegal immigrants. Critics say the proposed supplemental rule, published on March 26 in the Federal Register, does little to assuage their concerns that the rule would result in firing many workers who are U.S. citizens and also prove costly for businesses.


DHS published the new proposal to address issues raised by a federal district court judge who last October temporarily enjoined the rule from being implemented. DHS contends its proposal will help employers ensure they are not employing unauthorized workers and adds that one reason it issued the original no-match rule was to clear up confusion among companies about what they must do when they get no-match letters.

But criticism of the new proposal is widespread. Freeman Smith, the American Subcontractors Association’s director of government relations, says, “From our perspective, it changes absolutely nothing....They didn’t address any of the business community’s concerns. They just did the bare minimum that they had to do to get the preliminary injunction lifted.”

On the other side of the political spectrum, the National Immigration Law Center says legal citizens will find their jobs terminated because of errors in the Social Security Administration’s database.

Supplemental 'No Match' Proposal Changes
Provides more explanation about why DHS established the policy.
Withdraws language from the August 2007 rule interpreting the anti-discrimination provisions of the Immigration Reform and Control Act of1986.
Provides a regulatory flexibility analysis.


The proposal does add a cost-benefit analysis of the earlier DHS rule, as required by the Regulatory Flexibility Act. It also deletes the earlier rule’s language that attempted to reinterpret anti-discrimination provisions of existing immigration law. DHS Secretary Michael Chertoff says, “This supplement specifically addresses the three grounds on which the district court based its injunction.”

Industry groups say the supplemental regulation’s 110-page impact analysis underestimates the no-match rule’s true cost. “It would appear that they have failed miserably at even performing minimally their duties under the Regulatory Flexibility Act,” says Craig Brightup, the National Roofing Contractors Association’s vice president for government relations.

Brightup adds that DHS has consistently underestimated the percentage of errors contained in the Social Security Administration’s no-match database. He says that 90 days the period DHS allows for employers to clear up discrepancies between a worker’s Social Security number and name is insufficient.

The deadline for comments on the proposal is April 25. DHS also is pursuing its appeal of the October injunction.