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As you know, on October 23, 2008, the Department of Homeland Security (DHS) issued the Supplemental Final Rule on the Safe Harbor Procedure for Employers Who Receive Social Security Administration's (SSA) No-Match Letters.

This supplemental final rule (which expands upon the March 2008 proposed rule) included additional legal analysis and a Final Regulatory Flexibility Analysis, but ultimately re-issued the August 2007 no-match final rule "without substantive change."

There seems to be some confusion as to whether this supplemental final rule is subject to the preliminary injunction in the AFL-CIO, et al. v. Chertoff ordered by the U.S. District Court for the Northern District of California on October 10, 2007. The preliminary injunction remains in effect. As part of the litigation team, we want to clarify that this supplemental final rule is still subject to the court-ordered injunction. While it is true that DHS had the authority to finalize the rule, it is also true that DHS cannot implement the rule without the court's consent.

The government expects the supplemental final rule to be published in the Federal Register in the next two weeks, and a previously-scheduled October 31, 2008 status conference in the case has been vacated. In its place, the court has scheduled both a status conference and a case management conference for November 21, 2008. At that time counsel for the parties are expected to address the briefing schedule for the government's intended motions to dissolve the preliminary injunction and for summary judgment. In the meantime, DHS cannot implement the rule until and unless the injunction is dissolved. Please also remember that the SSA has decided that it will not send any no-match letters to employers until the litigation is resolved.

If you have any questions about this issue or about the litigation, please contact Nora Preciado at For a summary of how the supplemental final rule affects the litigation, see,

National Immigration Law Center