10.12.07

A U.S. District Judge in California issued a preliminary injunction Wednesday against enforcement of the Social Security "no-match" rule, barring the Department of Homeland Security from sending out no-match letters that were consistent with the new rule.

The preliminary injunction, which applies nationwide, means that DHS cannot enforce the rule unless and until it wins a trial on the merits or successfully appeals. The AFL-CIO, the American Civil Liberties Union, the National Immigration Law Center, and a coalition of San Francisco business groups have sued the government, alleging that the rule represents a change from past practice and imposes new burdens on employers.

Judge Charles R. Breyer of the Northern District of California found that the plaintiffs had shown a significant likelihood of success on the merits and had raised serious questions as to whether the rule was "arbitrary and capricious." A different judge had granted the plaintiffs a temporary restraining order on August 31.

Michael Chertoff, Secretary of DHS, expressed disappointment with the court's decision and said that the agency was considering an appeal.

Despite the court's order, Constangy continues to recommend that employers follow the "safe harbor" guidelines in the DHS rule because those guidelines are designed to protect employers.

To read Judge Breyer's decision,  go to the link here. To read Constangy's August 20 Client Bulletin on the no-match rule, click here. To read Constangy's update on the temporary restraining order, click here.

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