In July, the U.S. Department of Homeland Security (DHS) announced it will rescind the infamous "no-match" rule initiated by the Bush administration in 2006. This action is the culmination of years of work by NRCA, other business groups and organized labor to defeat the ill-conceived government regulation.
NRCA believes the no-match rule is fundamentally flawed, would adversely affect employers and employees in the roofing industry, and would do little to curtail illegal immigration. NRCA, a co-chair of the Essential Worker Immigration Coalition, was a plaintiff in litigation that successfully blocked implementation of the no-match rule.
The rule's shortcomings
DHS first proposed the no-match rule in 2006 after Congress failed to enact immigration reform legislation. Despite strong opposition, DHS moved forward with a final rule in August 2007.
If implemented, the rule would require employers to terminate employees who receive Social Security Administration (SSA) "no-match" letters—which indicate an employee's Social Security number or other personal data do not match the SSA's records—if the discrepancy cannot be corrected within 90 days.
The rule is highly problematic because the SSA often is incapable of resolving problems within 90 days. Employers who fail to terminate employees caught in this situation, regardless of underlying circumstances, would be liable to prosecution with increased penalties.
Among the most serious problems with the no-match rule is that the SSA database used to generate no-match letters has a high error rate, a fact that has been well-documented by government auditors. As such, the rule would result in the wrongful termination of employees who are legitimately authorized to work but unable to resolve a no-match problem caused by erroneous data in the SSA database.
Additionally, the no-match rule purportedly aims to provide employers with a new "safe harbor" to protect themselves from liability for knowingly hiring an illegal alien. Instead, it mandates new requirements for employers and would expand the scope of what is considered "constructive knowledge" under federal immigration statutes.
Rescinding the rule
Ultimately, the no-match rule failed under the Bush administration because DHS refused to address legitimate concerns voiced by NRCA and its coalition partners. In AFL-CIO et al. v. Chertoff, U.S. District Court Judge Stephen Breyer ruled that in developing the rule, DHS failed to conduct an analysis of the rule's economic impact on small businesses as mandated by the Regulatory Flexibility Act. An independent analysis of the rule clearly demonstrated it would disproportionately affect small employers.
DHS issued a supplemental no-match rule in 2008 that purportedly aimed to address the issues underlying the court injunction, but it contained no substantive changes from the original proposal. At the request of NRCA and other plaintiffs, Breyer refused to lift the injunction.
Early this year, with litigation expected to continue for months or even years, NRCA urged new DHS leadership under President Obama to rescind the rule.
On Aug. 19, DHS formally published its rescission proposal. The agency issued a final rescission rule Oct. 7, which will become effective 30 days after its publication.
A major victory
The defeat of the no-match rule is a major victory for the coalition that opposed the rule. However, this is just one step toward reforming U.S. immigration laws, and DHS has indicated it will focus its enforcement efforts to expand the E-Verify program and other initiatives now that the no-match rule has been rescinded. NRCA will continue to support immigration enforcement efforts that avoid unduly burdening employers and employees.
Duane L. Musser is NRCA's vice president of government affairs.
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