The Department of Homeland Security is rescinding its controversial “no-match” regulation targeting employers with undocumented workers, according to a final rule published in the Oct. 7 Federal Register (74 Fed. Reg. 51,447).

The no-match rule--also called the safe harbor rule--required the Social Security Administration to inform employers when it sent them no-match letters that they needed to resolve discrepancies or face liability. The letters were sent to employers when a certain percentage of their employee Social Security numbers did not match information in government records.

The Bush administration issued the rule in 2007, but it was challenged in the U.S. District Court for the Northern District of California by a coalition of labor, business, and immigrant rights groups. The court blocked the rule before it went into effect (58 BTM 329, 10/16/07). In early 2008, DHS issued revisions to the rule to address issues raised in the court case (59 BTM 106, 4/1/08).

Later, reflecting the change in presidential administrations, DHS in July 2009 announced its intention to rescind the rule.

DHS issued a proposed rule rescinding the no-match regulation Aug. 19 (60 BTM 265, 8/25/09) and in the final rule said it intends to adopt the proposed rule without changes. The rule will take effect 30 days from the date of publication in the Federal Register, or Nov. 6.

“After further review, DHS has determined to focus its enforcement efforts relating to the employment of aliens not authorized to work in the United States on increased compliance through improved verification, including participation in E-Verify, ICE Mutual Agreement Between Government and Employers (IMAGE), and other programs,” the department said.

In July, the Senate moved by unanimous consent to approve an amendment to the fiscal year 2010 homeland security appropriations bill that would have effectively blocked DHS from rescinding the regulation (60 BTM 218, 7/14/09). DHS officials were not immediately available Oct. 6 to comment on the effect that action would have on its latest decision, but an agency representative told BNA in July that the Senate's action had been “designed to prevent real progress on immigration enforcement.”

Chamber Concerned About E-Verify

In the final rule, the department said it had received 22 comments during the 30-day comment period from individuals, professional associations, unions, trade organizations, and advocacy organizations.

A comment from the U.S. Chamber of Commerce called the proposed rescission “a positive step by DHS” but said the group was concerned by “language in the no-match rule's rescission stating that the voluntary E-Verify program without additional statutory safeguards and/or modifications will be the new focus of DHS enforcement.”

In the final rule DHS said that the E-Verify and IMAGE programs “do not replace the no-match rules per se” but that a shift of “enforcement priorities and focus” was responsible for the agency's decision to rescind the regulation.

Angelo Amador, the chamber's executive director for immigration policy, told BNA Oct. 6 that DHS's decision to rescind the rule was a “bittersweet victory” for the chamber, which was happy to see the rule rescinded but disagreed with the agency's rationale for doing so. Amador said DHS was going to “over-rely on E-Verify,” which his organization believes is a flawed system. “We wish [DHS] would sit down with us to work to make rules that are not so burdensome to employers,” Amador said.

Meanwhile, Ana Avendaño, associate general counsel and director of the AFL-CIO's immigrant worker program, told BNA she believes that DHS realized the rule was an ineffective immigration enforcement tool. “It affected both American and foreign workers,” Avendaño said, adding that rescinding the rule was “the right thing to do.”

DHS: Guidance Not Lacking

DHS said that some commenters had favored the controversial no-match rule on the grounds that rescission of the rule would “just create uncertainty and more room for unscrupulous employers to continue to hire and retain workers they know or should know are not authorized to work,” or because guidance for employers was needed concerning what to do when faced with a no-match letter.

DHS always has provided such guidance, the final rule said, and the agency did not believe that the safe harbor provisions of the proposed no-match rule would be as effective as other means of assistance to employers.

Copyright 2009, The Bureau of National Affairs, Inc.