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United States: Court Enjoins New DHS Employment Regulations Targeting Illegal Immigrants

(Nov. 2, 2007) On October 10, the U.S. District Court for the Northern District of California granted a preliminary injunction against the Department of Homeland Security ("DHS"), preventing DHS from implementing new regulations designed to make it more difficult for employers to hire and retain employees who are illegal immigrants.

The Social Security Administration ("SSA") tracks employee earnings for the purposes of calculating Social Security benefits. Every year employers submit statements to notify SSA of earnings by employees, and SSA attempts to match these statements with records of individuals on file. If a mismatch occurs, SSA notifies the employer by means of a "no-match" letter. Under new DHS regulations, this no-match letter would be considered legal notice to the employer that the employee in question is not authorized to work in the United States, and the employer could face civil and criminal penalties if the situation is not resolved within 90 days. At the time of the ruling, SSA was poised to mail 140,000 no-match letters to employers, affecting 8 million employees.

The plaintiffs, including business and labor organizations, sued to stop implementation of the new regulations. The court granted the plaintiffs' motion for a preliminary injunction, blocking implementation of the new regulations pending litigation to determine their validity. The court found that the "balance of harms" greatly favored the plaintiffs, and that the plaintiffs had raised serious issues, including whether the regulatory process violated the Regulatory Flexibility Act, and whether DHS had changed its position on no-match letters in an arbitrary and capricious manner by not publishing a reasoned analysis explaining the change. (American Federation of Labor v. Chertoff, No. C 07-04472 CRB (N.D. Cal. Oct. 10, 2007) available at