No match is no more.
Agricultural employers won't have to worry how they will comply with Bush administration "no-match" rules in the wake of the Oct. 7 decision by the Obama administration to rescind the regulations.
"We were very gratified to see that this issue has been dropped from the court system and now we can get it back to where it really belongs with the Department of Homeland Security," said Jasper Hempel, executive vice president and general counsel with Irvine, Calif.-based Western Growers. "We always felt that the no-match regulation was so onerous and didn't serve any of the industries that use immigrant labor."
The Bush administration first approved the no-match rule in August 2007 in an attempt to address the issue of undocumented workers. However, the Department of Homeland Security rule was never implemented because a group of industry and labor groups - including the United Fresh Produce Association, U.S. Chamber of Commerce and four other plaintiffs - won a court injunction in part based on the lack of a regulatory impact analysis for small businesses.
The no-match regulation set out guidelines that employers were obliged to follow or face possible I-9 violations and fines in the event of a workplace audit.
In an Oct. 7 Federal Register notice about the decision the Department of Homeland Security has determined to focus its enforcement efforts on increased compliance through improved verification, including participation in E-Verify, ICE Mutual Agreement between Government and Employers, and other programs. The final rule is effective Nov. 6.
In a statement to members, Robert Guenther, senior vice president of public policy for United Fresh Produce Association, Washington, D.C., said the no-match regulation would have been a time-consuming burden. Guenther said United will "continue to oppose processes that create uncertainties and disruptions throughout a broad sector of our produce work force."
While generally good news, the Department of Homeland Security notice didn't go far enough, said Frank Gasperini, executive vice president of the Washington, D.C.-based National Council of Agricultural Employers.
"We had hoped they would actually say that if Social Security sent a no match letter (to employers) they would not use it to trigger an audit," he said. "There is still some concern in that if you get a no-match letter that could be seen as constructive knowledge that the employee may not be legal" he said.
The Social Security Administration has not sent out no-match letters for a couple of years, and Gasperini said it was uncertain when or if they would resume.