The Department of Homeland Security (DHS) "No Match" rule, which was originally scheduled to go into effect on September 19, 2007, continues to encounter challenges to its implementation, making the actual date (if ever) of implementation of the rule unclear.

On August 15, 2007, DHS published a regulation which would require employers to resolve discrepancies between their employee records and the records of DHS or the Social Security Administration (SSA). The SSA already sends out such letters when the name reported by the employer does not match the SSA record for that person's Social Security Number. Under the new regulation, the employer has effectively 90 days to resolve the discrepancy and re-verify the individual's employment authorization. If the employer cannot resolve the "no match" problem within the 90 days, the employer must either terminate the individual's employment or continue the employment and risk civil and criminal liability from DHS for employment of an unauthorized worker. Employers often receive "no match" letters due to clerical errors, or failure to register a change of name after marriage; the person who is the subject of a no-match letter is often, in fact, authorized to work in the U.S.

Several groups, including the AFL-CIO, the ACLU, and the National Immigration Law Center filed a lawsuit, challenging the implementation of the no match rule, and on August 31, 2007, a federal judge issued a temporary restraining order, enjoining DHS and SSA from implementing the no match rule. The plaintiffs in the lawsuit claimed (among other violations) that the regulation was published by DHS without completion of the required Initial Regulatory Flexibility Analysis, which is required by the Regulatory Flexibility Act (RFA) and the Small Business Regulatory Enforcement Fairness Act.  The plaintiffs contacted the Small Business Administration (SBA), requesting that the SBA intervene as an amicus curiae ("friend of the court") with respect to their RFA claim.

On September 18, the SBA Office of Advocacy notified DHS that in response to the plaintiffs' request, the SBA had determined that DHS improperly certified that the no match rule would not have a significant impact on a substantial number of small entitles, and that the SBA must work with DHS to correct the RFA problems with the no match rule, and to assist the court by providing the SBA's expertise on the RFA.

While the SBA advised that it will not join the lawsuit as an amicus, it is significant that another federal agency has issued a statement that the DHS issued the no match regulation in violation of the RFA, and essentially bolstering one of the central claims of the plaintiffs. This does not guarantee either that the plaintiffs will win their lawsuit, or that the regulations will be overturned, but it does suggest that the no match rule will be delayed for quite some time, while the court and the agencies determine how best to proceed.

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