Court Grants Preliminary Injunction Preventing ICE and SSA from Implementing New “Mismatch” Rules

A federal judge in the United States District Court for the Northern District of California has issued a preliminary injunction that prevents the Department of Homeland Security (DHS) from implementing new rules in connection with Social Security “mismatch” letters. The injunction also stops the Social Security Administration (SSA) from sending notices to employers informing them of the new rules.

By way of background, DHS published a final rule, to be effective September 14, 2007, requiring employers who receive a “mismatch” letter from the SSA or DHS to take steps within 90 days to resolve the mismatch. Under the rule, employers who failed to take those steps and who continued to employ the “mismatched” worker would risk a finding that they had knowingly continued to employ an unauthorized worker. A consortium of unions and business groups filed a lawsuit in August 2007 seeking a preliminary injunction on several grounds. On August 31, the District Court issued a temporary injunction, which prevented the implementation of the safe harbor rule until a hearing could be scheduled. On October 10, the preliminary injunction was granted.

The preliminary injunction is not the final action on this matter—it only bars the implementation of the new rules until the lawsuit is resolved. The government may challenge the injunction. If the government’s challenge is successful, the new mismatch rules could take effect while the lawsuit continues. There will certainly be further developments in this lawsuit, and Seyfarth Shaw will continue to provide updates as they occur. For more information regarding the recent history of these new “mismatch” rules, please visit www.immstar.com and click on “Immigration Updates.”

Seyfarth Shaw LLP offers extensive immigration and I-9 expertise to assist employers in auditing their current I-9s, in training their personnel in the proper completion of I-9s, and in developing and implementing state-of-the-art work authorization policies.