DHS Stands Firm on 'No Match' Rule

Enjoined by a San Francisco federal judge last fall from implementing a rule that would make U.S. employers liable if they continue to employ workers whose W-2 earning statements don't match Social Security records, the U.S. Department of Homeland Security appealed. And when it published a "supplemental" proposed rule today, it stuck to its guns and made no changes in the rule, which it issued Aug. 15, 2007.

DHS maintains the rule does not require employers to comply with any new mandate, even though Judge Charles Breyer concluded the rule threatens employers with higher compliance costs and millions of workers with a higher risk of termination. The agency in today's supplemental rule estimated potential costs businesses of various sizes might incur, saying they range from under $4,000 for the smallest firms with under 20 percent of their workforces being unauthorized workers to around $33,000 for the largest firms with 80 percent undocumented in their workforces.

DHS also said it considered and rejected five alternatives to its rule. The alternatives were no action; an industry-specific approach addressing only industries with high numbers of undocumented workers, including agriculture and restaurants; phased implementation for small employers; extended time allowed for small employers; and mandatory steps without providing a safe harbor, which the August 2007 rule provides.

The lawsuit that resulted in Breyer's injunction was filed by the AFL-CIO, two large unions, and the U.S. Chamber of Commerce against DHS and the Social Security Administration.

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