(Dec. 14) The Department of Homeland Security has until March 24 to measure the impact of its “no match” regulation on small businesses, but Homeland Security Secretary Michael Chertoff may not want to wait that long.

The U.S. Department of Justice on Dec. 4 filed a notice of appeal on behalf of the Department of Homeland Security in an attempt to proceed with the blocked no-match regulation.

Produce industry leaders believe that the no match regulation would compel agricultural employers to terminate substantial numbers of workers. It is widely believed the majority of workers in labor-intensive agriculture have false documents and have mismatched Social Security numbers.

The government’s Dec. 4 appeal seeks to overturn the Oct. 10 preliminary injunction granted by Judge Charles Breyer of the Northern District of California that stopped DHS from implementing its no-match regulation.

Granted on the ground the regulation’s impact on small businesses was not properly considered, the preliminary injunction was brought following court action against the rule by labor and business groups, including the United Fresh Produce Association.

The December appeal was a second avenue by DHS to get the regulation enacted, since Judge Breyer on Nov. 23 granted the DHS a stay on the lawsuit until March 24 so the agency could conduct additional rulemaking to answer issues raised by the court.

The stay and the Dec. 4 appeal is a two-pronged strategy to remove roadblocks to the rule, the DHS said.

“By pursuing these two paths simultaneously, my aim is to get a resolution as quickly as possible so we can move the no-match rule forward and provide honest employers with the guidance they need,” Chertoff said in a statement Dec. 5.

On Dec. 12, Chertoff said the department sympathizes with employers who deal with a largely illegal workforce, but he said DHS won’t back down from enforcement efforts.

He said the right way to approach the plight of employers is to address their need for legal labor.

“I also know there’s a wrong way to address that concern, and the wrong way is to shut our eyes to law-breaking and create what I call a silent amnesty, and we will not do that,” he said.

Chertoff vowed to make sure the department works with the court so the regulation can be enforced in 2008.

Cathy Enright, the vice president of government affairs in Western Growers' Washington, D.C., office, said the troublesome impact of the regulation may indeed be felt in 2008 by growers.

“(The court) has essentially moved it down the road, so we will be facing in the spring the same issues we faced in the fall,” she said.