Temporary Restraining Order Granted to Stay Implementation of New DHS Rule on Unauthorized Aliens
On August 23, 2007, we notified you in a posting on HOA Legi-Slate that a new Department of Homeland Security (DHS) Rule, Safe Harbor Procedures for Employers Who Receive a No-Match Letter, was slated to go into effect on September 14, 2007. The Rule addresses the implications for employers who knowingly retain the employment of unauthorized aliens and steps employers should take to avail themselves of "safe harbor" when receiving notice from the Social Security Administration (SSA) or DHS that records an employer submits relative to an employee do not match SSA or DHS records.
On August 31, 2007, United States District Court Judge Maxine M. Chesney of the Northern District of California stayed implementation of the Rule when she signed a Temporary Restraining Order and Order to Show Cause Regarding Preliminary Injunction (TRO). In the TRO, Judge Chesney found that the Plaintiff's "raised serious questions as to whether the new Department of Homeland Security rule is inconsistent with statute and beyond the statutory authority of the Department of Homeland Security and the Social Security Administration. The Court also finds that Plaintiffs have demonstrated that the balance of harms tips sharply in favor of a stay based on Plaintiffs' showing that they and their members would suffer irreparable harm if the rule is implemented while Defendants would suffer significantly less harm from a delay in the implementation of the rule pending consideration of Plaintiffs' claims." The Plaintiffs and critics of the Rule contend that implementation of the Rule will have a dramatic and detrimental impact on the workforce in the United States.
DHS has been ordered to appear on October 1st in United States District Court to show cause why the Rule should be implemented and why a preliminary injunction should not be issued further delaying implementation of the Rule. We will provide you with updates on implementation of the Rule as they occur. In the meantime, if you receive a letter from SSA or DHS indicating that the records you submitted on an employee do not match SSA or DHS records, we recommend that you comply with the steps outlined in our August 23rd posting.