No Match? No Thanks: How the Department of Homeland Security’s No-Match Rule Puts the Jobs of Legal Immigrants in Jeopardy

This Note analyzes the potential harms to authorized, legal, foreign-born workers from the Department of Homeland Security’s regulation, Safe-Harbor Procedures for Employers Who Receive a No-Match Letter. No-match letters inform employers of discrepancies between the employ-er’s records and the Social Security Administration’s records. Although no-match letters were previously considered benign, the No-Match Rule would give the once innocuous letters the power to trigger criminal and civil liability under the Immigration and Nationality Act. The No-Match Rule would give the letters this power by amending the regulatory defini-tion of constructive knowledge and by establishing safe-harbor proce-dures for employers who receive such letters.This Note addresses the landscape of immigration law and the role that the various regulatory agencies play in the process. After conducting a thorough analysis of the effects that the No-Match Rule would have on employers and authorized, legal foreign-born workers, the author con-cludes that the No-Match Rule does not pass muster under the Adminis-trative Procedure Act. The author argues that the rule violates the APA because DHS acted in an arbitrary and capricious manner by failing to provide a rational explanation for the No-Match Rule, and by failing to consider the No-Match Rule’s effect on aspects of sanctioning employers to curb illegal immigration that Congress deemed important. In addition, the No-Match Rule violates the APA because DHS, in carrying out the proposed No-Match Rule, would act outside the scope of its statutory authority. The author concludes by recommending that DHS should not implement the No-Match Rule.

The full text of this Note is available to download as a PDF.