On November 23, 2007, Judge Charles R. Breyer granted a stay at the request of the Department Of Homeland Security ("DHS"), effectively putting a hold on the litigation surrounding the provisions of the DHS's "Safe Harbor" rule. The rule, which was published in the Federal Register on August 15, 2007, would have required the Social Security Administration to inform employers that they could face civil and criminal penalties if they failed to follow DHS's "Safe Harbor" procedures upon receipt of a "No Match" letter.
The stay has been granted until March 24, 2008, giving DHS an opportunity to review its regulations and to revise them according to the concerns articulated by the judge in granting his preliminary injunction on October 10, 2007. DHS has ordered a Regulatory Flexibility Act analysis in order to determine the rule's effect on small businesses. DHS has argued that continued litigation over a rule that is currently under revision would be a waste of judicial resources, and that DHS is planning to file a motion to vacate the preliminary injunction at the conclusion of its rule revision.
In granting the stay, Judge Breyer ordered that DHS make monthly reports to the court regarding the status of the revised rule. The plaintiffs see the granting of the stay as a limited victory in that DHS has tacitly admitted that the rule as issued was legally flawed. One of their main arguments has been that using a Social Security "No Match" letter as a means to identify immigration status could lead employers and employees into a bureaucratic nightmare, where simple computer system errors could result in severe hardship and irreparable harm to mistakenly identified lawful workers. Plaintiffs remain doubtful that DHS can in any way revise the rule to guarantee that US workers would not be adversely impacted.
We caution employers to continue to be diligent in the maintenance of their I-9 records, and to have a procedure for dealing with "No Match" letters despite the lack of an official rule. As previously announced, the Social Security Administration will not be issuing "No Match" letters for information obtained from 2006 filings. In addition, we remind all employers to use only the new Form I-9, which was recently issued by the United States Citizenship and Immigration Services, going forward.
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