New No Match Letters Can't Be Sent for the Time Being
The San Francisco Chronicle reported today that Judge Charles Breyer has issued a nationwide preliminary injunction barring enforcement of the new "no-match rules." The injunction will remain in effect until the trial of the underlying case or if it is reversed on appeal. Judge Breyer's opinion can be found on Pacer and the case is American Federal of Labor v. Michael Chertoff, N.D. Calif. Case No. 3:07-CV-04472-CRB.
If the no-match rule had been enforced, the Department of Homeland Security would have immediately issued no-match packets to 140,000 employers identifying no matches for 8 million employees. The employers would have been required to comply with the rule (described in my earlier post on this issue) within 90 days. The opinion describes the anticipated difficulties in complying with the rule within 90 days.
An important issue for employers to be concerned about is whether receipt of a no-match letter issued under the old rule still can be interpreted as constructive knowledge that the employer is employing an illegal worker. Judge Breyer refused to hold that the receipt of a no-match letter could never constitute constructive knowledge of employing an illegal worker.
The court also held that the rule did not contravene the governing statute, but its adoption raised serious questions regarding whether the rule was arbitrary and capricious, an exercise of ultra vires authority, and promulgated in violation of the Regulatory Flexibility Act.
