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USGNN Original StoryDHS Revises Proposed Immigrant Employment Regulation

On March 26, the United States Department of Homeland Security (DHS) a supplemental proposed rule to its "Safe-Harbor Procedures for Employers Who Receive a No-Match Letter." This is the latest update in the path of a regulation that is intended to control the employment of illegal immigrants.

The eventual outcome of the regulation has potential to impact glazing subcontractors and manufacturers alike as, according to DHS, the construction industry in general is considered to be among those at high-risk for abuse of social security numbers in employment.

On August 10, 2007, DHS issued its regulation outlining the specific steps an employer should take upon receiving a "no-match" letter from the Social Security Administration that informed the employer that an employee's name and Social Security number do not match government records, and is therefore possibly unauthorized to work in the United States. (CLICK HERE to read that story.)

In September 2007 a temporary restraining order was granted against the DHS as part of a lawsuit filed by the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO). (CLICK HERE to read that story.) DHS responded with a hold on the pending lawsuit until March 2008, giving the department time to develop this revised rule. (CLICK HERE for that story.)

In the course of the lawsuit, the District Court for the Northern District of California concluded that AFL-CIO had raised serious questions about three aspects of the regulation. Specifically, the court questioned whether DHS had: (1) Supplied a reasoned analysis to justify what the court viewed as a change in the Department's position-that a no-match letter alone may be sufficient to put an employer on notice, and thus impart constructive knowledge, that employees referenced in the letter may not be work-authorized; (2) exceeded its authority by interpreting the anti-discrimination provisions of the Immigration Reform and Control Act of 1986; and (3) violated the Regulatory Flexibility Act by not conducting a regulatory flexibility analysis.

The supplemental proposed rule addresses each of these points and offers several changes, although none of the changes are to the punitive employer requirements. Comments on the new proposal are being accepted through April 25, after which a final rule will be developed.

CLICK HERE to visit the Federal Register, and search for “Safe-Harbor Procedures for Employers Who Receive a No-Match Letter” to reach the document.

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