The Department of Homeland Security ("DHS") recently published its supplemental proposed rule regarding how employers should respond to social security no-match letters and notices of suspect documents. The supplemental proposed rule did not change any part of the Final Rule issued by the DHS on August 15, 2007 (see Schiff Hardin Labor and Employment Update, August 17, 2007), but instead clarified the Final Rule's intentions. The DHS issued this clarification in response to the U.S. District Court for the Northern District of California's issuance of a temporary restraining order on August 30, 2007, against the Social Security Administration ("SSA") restraining the SSA from sending out its social security no-match letters (see Schiff Hardin Labor and Employment Update, September 7, 2007).

In the supplemental proposed rule, the DHS explains that the Final Rule was intended to remind employers of their obligation to take action in response to their receipt of a social security no-match letter and/or a notice of suspect documents (issued by the DHS following an audit of an employer's Employment Eligibility Verification forms (Forms I-9)). As stated by the DHS in the supplemental proposed rule, "[l]ike an SSA no-match letter, a 'notice of suspect documents' calls into question the validity of an employee's identifying information, and thus places employers on notice that the subject employees might be unauthorized to work in the United States."

The supplemental proposed rule also addressed other concerns raised by the district court when it issued the restraining order. Specifically, the proposed supplemental rule rescinds certain anti-discrimination language contained in the preamble language of the Final Rule and provides an initial regulatory flexibility analysis to address the court's concerns about potential costs to employers.

The DHS published the supplemental proposed rule in the Federal Register as a discretionary request for public comment. The question remains whether the district court will lift the restraining order imposed on the SSA as a result of the supplemental proposed rule.