The Department of Homeland Security (DHS) has released an
advance copy of the Final Supplemental No-Match rule. It is not
surprising that the substance of the rule, and the safe harbor
procedure set forth therein, have not changed substantively from
the August 2007 No-Match Safe Harbor rule.
In the preamble to the final rule, the DHS clarified two
additional points. First, the DHS will not impute constructive
knowledge to employers who become aware of individualized
correspondence from the Social Security Administration (SSA) to a
worker seeking to confirm that worker's earnings. This
correspondence, known as a DECOR letter, will not trigger liability
or the safe-harbor procedure. Instead, only the employer no-match
letter, known as an EDCOR letter, could create constructive
knowledge and the risk of liability; albeit, minimally, a highly
disfavorable factor in an ICE investigation. Second, the DHS
clarified that an employer will not be liable if it does not
