The August 19, 2009 Federal Register will contain a proposed regulation formally rescinding the DHS August 2007 no-match safe harbor rule. This move was heralded in prior statements by Homeland Security Secretary Janet Napolitano.

The August 2007 safe harbor rule was quite controversial and was the subject of a preliminary injunction issued by the U.S. District Court for the Northern District of California. Although DHS attempted to respond to the court's concerns about the rule by means of a March 2008 supplemental rule-making, the rule remained subject to the injunction pending further litigation. The publication of a proposed rule to rescind the August 2007 rule reflects the current Administration's decision to abandon the litigation.