No-Match Letter Update

Two weeks ago we told you about a pending immigration case with important ramifications for all employers - Immigration - Employers Caught in the Crossfire.

A Federal judge in San Francisco had temporarily blocked enforcement of new Federal immigration regulations. Those new rules seek to require employers to take action after receiving notice that a Social Security number given by an employee does not match Social Security Administration records.

Oral arguments were heard on October 1, 2007 on whether to continue the enforcement ban. The judge has now entered his ruling.

This case is important because employers need to know what rules they must follow. As discussed in Immigration - Employers Caught in the Crossfire, employers face a number of immigration related issues including worker shortages, immigration sanctions, discrimination liability, possible unionization activity and general employment law concerns.

The Federal judge decided that the government is enjoined (prohibited) from enforcing the new immigration regulations while the lawsuit is pending. It could be many months before the case goes to trial. In the meantime, the government could ask the U.S. Ninth Circuit Court of Appeals to allow the regulations to go into effect while the San Francisco case is proceeding. It is hard to believe, however, that the Ninth Circuit Court of Appeals would side with the government.

Some are calling on Congress to solve the problem by legislation. Given the Congress' earlier failures to enact immigration law reform and with the 2008 Presidential campaign having already begun, it does not seem likely that the House, Senate and White House will reach agreement.

So where does this leave you as an employer? . . .  In limbo.

You, like all employers, are obligated to follow current laws. You cannot hire illegal aliens. But you cannot discriminate on the basis of race or national origin either. If the government wants to bring action against an employer, they will likely rely on current I-9 regulations and other laws. You should take a few minutes to make sure your I-9 records are complete and fully comply with existing law.