Pilot Programs for Employment Eligibility Confirmation

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

[INS No. 1872-97]

Pilot Programs for Employment Eligibility Confirmation

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Notice.

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SUMMARY: This notice prescribes guidelines under which employers may

elect to participate in one or more of three pilot programs for

employment eligibility confirmation to be conducted by the Immigration

and Naturalization Service (Service) with the involvement of the Social

Security Administration (SSA). This notice also requests comments from

employers and other interested parties on the pilots. The Commissioner

of the Service invites employers in states where the three pilot

programs for employment eligibility confirmation will be conducted to

contact the Service to elect to participate in one or more of them. The

pilot programs build on the experience of the Service and SSA over the

last 5 years in developing and operating employment verification pilot

programs with the goal of enabling participating employers to verify

their newly hired employees' work eligibility quickly, easily, and

accurately.

DATES: There is no deadline for submission of election forms to

participate in an employment verification pilot program(s), but

interested employers should send their completed election forms to the

Service as soon as possible to maximize their opportunity to

participate.

ADDRESSES: Please submit your election forms, requests for information

and any comments you may have on the pilot programs to the Immigration

and Naturalization Service, 425 I Street, NW., ULLICO Building, 4th

Floor, Washington, DC 20536, Attention: SAVE Program Branch--Election

Forms and/or Comments.

FOR FURTHER INFORMATION CONTACT:

John E. Nahan, Immigration and Naturalization Service, SAVE Program,

425 I Street, NW., ULLICO Building, 4th Floor, Washington, DC 20536,

telephone (202) 514-2317.

SUPPLEMENTARY INFORMATION:

I. Statutory Authority

Title IV, Subtitle A of the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. 104-208, 110

Stat. 3009, enacted on September 30, 1996, provides that all United

States employers, subject to eligibility for participation,

geographical limitations, and limitations of available Service and SSA

resources, may elect to participate in one or more of three employment

verification pilot programs to be conducted by the Service. The three

pilot programs are: (1) the Basic Pilot; (2) the Citizen Attestation

Pilot; and (3) the Machine-Readable Document Pilot.

II. Purpose

The purpose of these pilot programs is to implement IIRIRA's

mandate to test three methods of providing an effective,

nondiscriminatory work eligibility verification procedure focusing on

electronic verification. Through an automated confirmation system,

employers will match information provided by employees on the Form I-9,

Employment Eligibility Verification, against existing information

contained in SSA's or the Service's databases to confirm that an

individual is eligible to work.

III. General Description of the Pilot Programs for Employment

Eligibility Confirmation

The IIRIRA requires the Service to conduct three distinct pilot

programs, each of which can last no longer than 4 years, unless

otherwise directed by Congress. The programs include: (1) the Basic

Pilot; (2) the Citizen Attestation Pilot; and (3) the Machine-Readable

Document Pilot. Participation in the pilots will be voluntary on the

part of employers, except with regard to the executive and legislative

branches of the Federal Government and certain employers found to be in

violation of sections 274A(e)(4) or 274B(g) of the Immigration and

Nationality Act (Act), 8 U.S.C. 1101 et seq., in states where the

pilots are being conducted. Although the decision for an employer to

participate is voluntary, verification may not be selective; all

employees subject to verification under the terms of a pilot program

must be verified by an employer participating in that pilot.

A. Mandatory Elections

1. Federal Government Participation

Certain Federal Government entities are required by Section 402(e)

of IIRIRA to elect to participate in at least one of the three pilot

programs. The Secretary of each department of the executive branch is

required to make an election of one or more of the pilot programs, but

may limit the election to hiring in those states or geographic areas

covered by the pilot(s) selected, and to specified divisions within the

department, as long

[[Page 48310]]

as all hiring by such divisions and in such locations is covered. In

the legislative branch, each Member of Congress, each officer of

Congress, and the head of each agency of the legislative branch that

conducts hiring in a state in which a pilot program will operate must

participate in at lest one pilot programs. Governmental entities

required to participate in a pilot program must return the election

form to the Service. The Service's acceptance of elections by employers

required to make elections is subject to the constraints of available

resources and the pilot eligibility requirements.

2. Violators of the Act

Orders finding employers liable under sections 274A(e)(4) or

274B(g) of the Act for knowingly employing unauthorized aliens, or

under section 274B(g) of the Act for unfair immigration-related

employment practices, may require the subject of the order to

participate in a pilot program with respect to hiring, recruitment, or

referral of individuals in a state covered by such a program. This

provision will be the subject of forthcoming regulations or other

necessary implementing action by the authorities responsible for

issuing such orders. Persons or entities subject to such orders should

not return the election form to the Service, unless they desire to

participate voluntarily in a pilot program.

Persons or entities required to participate in a pilot program who

fail to comply with the requirements of the pilot program, with respect

to an individual, are subject to civil penalties under section 274A of

the Act.

B. Confirmation System Requirements

Section 404(d) of IIRIRA requires that the confirmation system to

be established to service employers participating in the three pilot

programs be designed and operated to:

(1) maximize reliability and ease of use, consistent with

protecting the privacy and security of the underlying information;

(2) respond to all appropriate inquiries and to register times when

such inquiries are not received;

(3) include appropriate safeguards to prevent unauthorized

disclosure of personal information; and

(4) have reasonable safeguards against the system's resulting in

lawful discriminatory practices based on national origin or citizenship

status, including the selective or unauthorized use of the system to

verify eligibility, the use of the system prior to an offer of

employment, and the exclusion of certain individuals from consideration

for employment as a result of a perceived likelihood that additional

verification will be necessary, beyond what is required for most job

applicants.

All the pilots will have a number of features and safeguards in

common to meet these requirements. The confirmation system will contain

safeguards designed to protect the integrity of personal information

contained in SSA and Service databases, including passwords, access

codes, and user identification numbers. The information provided

through the confirmation system will be limited only to that necessary

to satisfy the employer's need to verify work eligibility. Necessary

manuals and training material will be provided to employers. The

Service will designate one or more individuals in each Service district

office covering an area in which a pilot program is being implemented

to assist the public, as well as provide information and assistance

from the Service's SAVE Program in Washington, DC.

C. Memorandum of Understanding (MOU)

No employment eligibility confirmation information will be

exchanged between the employer and the Service or SSA under a pilot

program unless and until the employer has entered into an MOU with the

Service and SSA (if applicable), stating in detail the terms and

conditions applicable to that pilot. The MOUs for each pilot will

contain appropriate undertakings on the part of the employer regarding

its responsibilities under the pilot including, but not limited to, the

following:

(1) the employer agrees that it will not initiate any verification

procedure until after the employee has been hired and the Form I-9 has

been completed;

(2) the employer agrees that it will verify all new employees

subject to verification under the terms of the pilot;

(3) the employer agrees to display prominently appropriate notices

to inform employees and prospective employees about its participation

in the pilot and to provide anti-discrimination information; and

(4) the employer agrees not to take any adverse action against an

employee based upon his or her employment eligibility status while SSA

or the Service is processing a verification request, unless the

employer obtains knowledge that the employee is unauthorized;

(5) the employer agrees to provide access to its employment records

to the Service and SSA, and its agents or designees for the purpose of

pilot evaluation; and

(6) the employer agrees that the information provided to it through

the confirmation system will be used to supplement and confirm the Form

I-9 verification of identity and work authorization of newly hired

employees, and not for any other purpose.

Violation of these conditions will be grounds for immediate

termination of the employer's participation in the pilot, and for

appropriate legal action. In particular, information received by the

Service or SSA in the course of the pilot indicating that the employer

has engaged in unlawful immigration-related employment practices will

be referred to the Special Counsel for Immigration-Related Unfair

Employment Practices within the Civil Rights Division of the Department

of Justice.

Except as otherwise specifically designated by IIRIRA, all legal

obligations pertaining to employment verification and to the obtaining

and use of SSA or other Federal Government information, including anti-

discrimination protections, will continue to apply to pilot program

participants. Section 403(d) of IIRIRA states that no person or entity

participating in a pilot program shall be civilly or criminally liable

under any law for any action taken in good faith reliance on

information provided through the confirmation system.

Under section 402(b) of IIRIRA, an employer participating in any of

the three pilot programs obtains the benefit of a rebuttable

presumption that it has not violated section 274A(1)(A) of the Act--

which provides civil penalties for knowingly employing an unauthorized

alien--with respect to the hiring of any individual if it obtains

confirmation of the identity and employment eligibility of the

individual in compliance with the terms and conditions of the pilot

program.

D. Unfair Immigration-Related Employment Practices

An employer participating in any of the pilots agrees not to

discriminate unlawfully against any individual in hiring, firing, or

recruitment practices because of his or her national origin or, in the

case of a protected individual, as defined in section 274B(a)(3) of the

Act, because of his or her citizenship status. Such illegal practices

can include discharging or refusing to hire eligible employees because

of their foreign appearance or language. An employer also violates the

anti-discrimination provision if it requests more or different

documents than are required under

[[Page 48311]]

section 274B of the Act, or refuses to honor documents that on their

face reasonably appear to be genuine, if done with the purpose or with

the intent of discriminating against an individual because of his or

her citizenship or national origin. Violation of the unfair

immigration-related practices provisions of the Act could subject an

employer to civil penalties pursuant to section 274B of the Act.

E. Evaluation of Pilot Programs

Section 405 of IIRIRA requires that the Service report to Congress

on the Basic Pilot, the Citizen Attestation Pilot, and the Machine-

Readable Pilot programs and make recommendations on whether they should

be continued or modified. To assist in evaluating the pilots and

developing these reports, the Service or auditors contracted by the

Service may contact participating employers to review work records

created during the pilot(s), and to solicit their views and the views

of their employees concerning these pilot programs.

F. Equipment Requirements

The Service and SSA will provide the verification services

contemplated by the employment verification pilot programs at no cost

to employers, but employers will be responsible for providing the

equipment needed to make inquiries. Equipment needed for participation

in the Basic Pilot and the Machine-Readable Document Pilot includes a

personal computer with a modem, and a touch-tone telephone (and modem,

if the same device) on a phone line which results in only one phone

number being recognized as the originating phone number, regardless of

whether it is controlled through a switch, private branch exchange, or

direct outward dialing--this line should be an analog voice grade line.

Equipment required for the Citizen Attestation Pilot is a personal

computer and a modem. For the Machine-Readable Document Pilot, a

machine to read the machine-readable documents will be necessary in

addition to the Basic Pilot equipment. No decision has been made yet as

to exactly what machine will be used for the Machine-Readable Document

Pilot, or as to whether employers will be responsible for providing it.

The requirements for the Machine-Readable Document Pilot will be

defined in a separate Memorandum of Understanding (MOU) between the

Service, SSA, and the participating employer.

IV. Basic Pilot

The Basic Pilot requires participating employers to verify

employment authorization for all new employees, regardless of

citizenship. The IIRIA mandates that the Basic Pilot be offered to

employers in at least five of the seven states with the highest

estimated population of aliens who are not lawfully present in the

United States. The Service has estimated the population of aliens who

are not lawfully present in the United States to be highest in the

states of California, Texas, New York, Florida, and Illinois, and is

soliciting elections to participate from employers in those five

states.

A. Changes to Form I-9 Procedures for the Basic Pilot

Unlike Service employment verification pilots to date, the Basic

Pilot involves changes to Form I-9 employment verification procedures.

Except as specifically provided, however, all employment eligibility

verification requirements generally applicable to employers apply

equally to pilot participants. The only specific change to document

examination procedures for employers participating in the Basic Pilot

will be that ``List B'' identity documents without a photograph will

not be acceptable, for the following reasons:

(1) Documents referred to in section 274A(b)(1)(B)(ii) of the Act

must be designated by the Service as suitable for the purpose of

identification in a pilot program. The documents referred to by this

statutory citation include all Form I-9 ``List A'' documents acceptable

for both identity and employment eligibility under 8 CFR

274a.2(b)(1)(A), except for the U.S. Passport (expired or unexpired).

The Service hereby designates all Form I-9 ``List A'' documents,

identified by current Service regulations, as suitable for the purpose

of identification in a pilot program. The U.S. Passport (expired or

unexpired) is also suitable for the purpose of identification in a

pilot program as a statutory Form I-9 ``List A'' document, without the

need for specific designation by the Service. As a result of this

designation of suitable documents, employment verification procedures

involving ``List A'' documents, showing both identity and employment

eligibility, will remain unchanged for participants in the Basic Pilot,

and for participants in the Citizen Attestation and Machine-Readable

Document pilots, to the extent that those pilots adopt Basic Pilot

procedures;

(2) The IIRIRA requires that a document referred to in section

274A(b)(1)(D) of the Act contain a photograph of the individual. This

statutory citation refers to Form I-9 ``List B'' documents that

establish identity only under 8 CFR 274a.2(b)(1)(B). ``List B''

documents do not necessarily include photographs. However, only ``List

B'' documents with photographs may be accepted for purposes of identity

verification by employers participating in the Basic Pilot, or in the

Citizens Attestation or Machine-Readable Document pilots, to the extent

that those two pilots adopt Basic Pilot procedures. The Service does

not anticipate issuing a new version of the Form I-9 specifically for

employment verification pilot participants;

(3) The IIRIRA states that the employer has complied with the

employment eligibility verification requirements of section 274A(b)(1)

of the Act with respect to examination of a document if the document

reasonably appears on its face to be genuine and to pertain to the

individual whose identity and work eligibility is being confirmed. This

provision does not alter, for pilot program purposes, the standards for

document examination applicable to all U.S. employers under sections

274A(b)(1) and 274B(a)(6) of the Act; and

(4) The IIRIRA provides that if the Service finds that a pilot

program would reliably determine, with respect to an individual,

whether the person with the identify claimed by the individual is

authorized to work in the United States, and whether the individual is

claiming the identity of another person, it may waive the requirement

that a Form I-9 ``List C'' employment eligibility document also be

presented if the employee presents a List B identity document rather

than a ``List A'' identity and employment eligibility document. The

pilot programs are designed to make reliable determinations of work

eligibility, and the Service will consider as they proceed whether

waiving the ``List C'' requirement is appropriate. Any such

determination prior to implementation of the pilot programs, however,

would be premature.

B. Basic Pilot Verification Procedures

The Basic Pilot involves separate verification checks (if

necessary) of the SSA and Service databases, using automated systems to

verify Social Security account numbers (SSNs) and alien registration

numbers. The verification procedures will be initiated after the

employee has been hired and the Form I-9 completed. Employers must

verify all newly hired employees

[[Page 48312]]

without exception, and must make verification inquiries within 3 days

of the hiring (unless the automated system to be queried is temporarily

unavailable, in which case the time period is extended to accommodate

employers attempting, in good faith, to make inquiries during the

period of unavailability).

In all cases, the verification inquiry will go first to SSA. If

necessary, the SSA response will instruct employers to use the

Service's automated verification procedures. The automated verification

procedures are designed to verify the employee's work eligibility

within 3 work days of the initial call to SSA. If the automated

procedures do not result in verification, a ``tentative

nonconfirmation'' will result. In that case, the employer will inquire

of the employee whether he or she wishes to contest the tentative

nonconfirmation. If so, the employee will be referred to secondary

verification, which will require him or her to contact or visit an SSA

or Service office, as appropriate, within 8 Federal Government work

days of being notified by the employer of the tentative

nonconfirmation.

A tentative nonconfirmation received from either SSA or the Service

does not mean that the employee is not authorized to work, and

employers may not interpret it as such. There are many reasons why a

work-authorized individual may be the subject of a tentative

nonconfirmation, including mistakes on the Form I-9 by either the

employer or the employee, inaccurate data entry by the employer, legal

change of the employee's name, or erroneous, incomplete, or outdated

Government records. Although it does not mean that the employee is not

work-authorized, a tentative nonconfirmation means that a work-

authorized employee must, without fail, take advantage of his or her

secondary verification opportunity to correct the situation if he or

she wishes to continue employment.

SSA Verification--the Automated System

After completing the Form I-9, the employer will access the SSA

database using a touch-tone telephone to input the employee's name,

SSN, and date of birth, as recorded on the Form I-9. If the data input

by the employer matches the SSA database and shows the employee to be

work-authorized, the employer will receive a confirmation of employment

eligibility. If the information does not match SSA records, or if the

employment eligibility of the employee is not confirmed, the employer

will receive further instructions. In some cases, the employer will be

instructed to initiate the Service verification procedures. In other

cases, the SSA response shall constitute a tentative nonconfirmation.

The employer will record appropriate transaction codes received from

SSA on a verification transaction record form. Social Security personal

earnings account information will not be accessible to the employer

through the SSA verification process.

a. SSA Secondary Verification

If the employer receives a tentative nonconfirmation of an employee

from SSA, the employer must notify the employee and determine whether

or not the employee will contest the tentative nonconfirmation. If the

employee does not contest the tentative nonconfirmation, it will be

considered a final nonconfirmation. If the employee contests the

tentative nonconfirmation, he or she must visit an SSA field office

within 8 Federal Government work days to resolve any discrepancy in SSA

records, including updating the database if appropriate. The SSA and

the Service have 10 Federal Government work days within which to

respond to contested tentative nonconfirmation cases. During this

period, the employer may not terminate or take adverse against the

employee based upon his or her employment eligibility status. At the

expiration of the 8-day period, the employer will make another

telephone inquiry of the SSA database, which will result in

confirmation, a second and final nonconfirmation, or additional

verification instructions.

2. Service Verification--the Automated System

The Service's automated verification will take place only as may be

directed by the SSA verification response. Participating employers

access the Service database using personal computers with a modem. To

conduct an initial query of the Service database, the employer keys in

certain information from the employee's Form I-9. The Service database

will respond within seconds either by confirming work authorization, or

by requiring more information relating to Form I-9 employment

eligibility documentation in order to permit the Service to conduct

further searches of its records. The result of the further searches

will be available through the automated system within 3 Federal

Government work days. If the Service is unable to confirm work

authorization based upon the automated process, a tentative

nonconfirmation results.

a. Service Secondary Verification

An employee who is the subject of a tentative nonconfirmation after

completion of an automated Service verification check is provided a

secondary verification opportunity to verify his or her employment

status. In these cases, the employer must notify the employee of the

tentative nonconfirmation and determine whether or not he or she will

contest the tentative nonconfirmation. If the employee does not contest

the tentative nonconfirmation, it will be considered a final

nonconfirmation. If the employee contests the tentative

nonconfirmation, he or she must contact the Service within 8 Federal

Government work days for resolution of his or her case. The employer

will instruct the employee to call a Service toll-free telephone number

or visit a local Service office within that time period. The SSA and

the Service have 10 Federal Government work days within which to

respond to contested tentative nonconfirmation cases. During this

period, the employer may not terminate or take adverse action against

the employee based upon his or her employment eligibility status,

unless the Service determines, within that time, that the employee is

not work-authorized.

Within or at the conclusion of the 10-day period for secondary

verification, an employer will receive one of the following messages

via the electronic confirmation system concerning the employee's work

eligibility: (1) if the employee contacts the Service and verifies his

or her employment eligibility, the employer will receive an

``employment-authorized'' confirmation; (2) if the employee contacts

the Service but the Service determines that the employee is not work-

authorized, the employer will receive an ``unauthorized'' response

(final nonconfirmation); (3) if the employee does not contact the

Service to resolve his or her case, the employer will receive a ``no

show'' response, which shall also constitute a final nonconfirmation

for purposes of the pilot; or (4) if in some cases the Service needs

more than 10 work days to resolve a case, the employer will receive a

``case in continuance'' response, and the employee should continue to

work until a definitive answer is received from the Service. If

necessary, based on the secondary verification contact, the Service

database will be updated. The employer will record appropriate

verification codes received from the Service, either by printing the

verification screen and attaching it to

[[Page 48313]]

the Form I-9, or recording the verification code on the Form I-9.

3. Consequences of Final Nonconfirmation

An employer receiving a final nonconfirmation from SSA or the

Service with regard to an employee may terminate the employee, and

shall not be civilly or criminally liable under any law for the

termination, as long as the action was taken in good faith reliance on

information provided through the confirmation system. If the employer

does not terminate an employee after final nonconfirmation, the

employer must notify the Service. If the employer fails to notify the

Service of continued employment after receiving final nonconfirmation,

the failure is deemed a violation of section 274A(a)(1)(B) of the Act

for failure to comply with proper hiring procedures, and the employer

may be assessed a civil monetary penalty of between $500 and $1,000. An

employer continuing to employ an individual after receiving a final

nonconfirmation also could be subject to legal penalties under section

274A(a)(1) of the Act. Section 403(a)(4)(C)(iii) of IIRIRA establishes

a rebuttable presumption that an employer who continues to employ an

individual after receiving final nonconfirmation has knowingly employed

an unauthorized alien.

V. The Citizen Attestation Pilot

The Citizen Attestation Pilot provides different verification

procedures depending on whether or not the employee attests on the Form

I-9 that he or she is a U.S. citizen or national. Except as specified

in section 403(b) of IIRIRA, the Citizen Attestation Pilot is the same

as the Basic Pilot. The Citizen Attestation Pilot is required to

operate in at least five states, or, if fewer, all of the states in

which each driver's license and identification card contains a

photograph of the individual, and which have been determined by the

Attorney General to have sufficient application and issuance procedures

to make their driver's licenses and identification cards resistant to

counterfeiting, tampering, and fraudulent use.

Section 656(b) of IIRIRA directed the Department of Transportation

(DOT) to promulgate regulations regarding issuance procedures for

state-issued driver's licenses and identification cards, and the

acceptable secure format for such licenses and cards. As the Citizen

Attestation Pilot progresses, and once the DOT regulations are

promulgated, the Service will make further determinations based on

those regulations whether actual or prospective Citizen Attestation

Pilot states meet DOT requirements. At present, the Service has not

made any determination that any state's procedures are inadequate for

participation in the pilot. In order to implement IIRIRA's directive to

begin the Citizen Attestation Pilot, and to give as many employers as

possible the opportunity to express interest in participating in a

pilot, the Service is soliciting elections for the Citizen Attestation

Pilot from employers in all states. Based on further determinations as

to licensing procedures in states with sufficient employer interest,

the Service will decide which states will be the initial sites for the

Citizen Attestation Pilot.

A. Changes to Form I-9 Procedures for the Citizen Attestation Pilot

As in the Basic Pilot, the Service designates all Form I-9 ``List

A'' documents identified by current Service regulations at 8 CFR

274a(2)(b)(1)(A) as suitable for purposes of identification of

employees (regardless of citizenship) for the Citizen Attestation

Pilot. Also, only ``List B'' identity documents with photographs may be

accepted from any employee by employers participating in the Citizen

Attestation Pilot. In all other respects, the Form I-9 procedures for

employees who do not attest on the Form I-9 that they are U.S. citizens

or nationals are the same as those applicable to all U.S. employers

under section 274A of the Act.

The Form I-9 procedures applicable to employers participating in

the Citizen Attestation Pilot in the case of employees attesting to

U.S. citizenship or nationality in section 1 of the Form I-9 are,

however, quite different. The only ``List A'' document that an employer

may accept from such an employee is a U.S. passport (expired or

unexpired). If the U.S. citizen or national employee presents a ``List

B'' identity document, it must contain a photograph. United States

citizen or national employees are not required to present a social

security card or other ``List C'' document evidencing employment

authorization in addition to a ``List B'' identity document with

photograph.

1. Waiver of Document Presentation Requirement

For a subset of employers within the Citizen Attestation Pilot

(fewer than 1,000 employers to be selected at the discretion of the

Service), employees who attest to U.S. citizenship or nationality on

the Form I-9 do not have to produce any documentation at all. In those

cases, only section 1 of the Form I-9 will be completed. Normal

retention and inspection requirements will continue to apply to such

Forms I-9, as they do to all Forms I-9 completed by participants in any

pilot program.

B. Citizen Attestation Pilot Automated Verification Procedures

In the case of employees attesting to U.S. citizenship or

nationality on the Form I-9 as described above, no further verification

will take place. For alien employees, the process will be identical to

the ``Service Verification'' procedures described for the Basic Pilot.

The Citizen Attestation Pilot will not use SSA verification procedures.

VI. The Machine-Readable Document Pilot

The Machine-Readable Document Pilot is identical to the Basic Pilot

in all respects, and the above discussion of the Basic Pilot applies to

it in full, except for the geographic scope of the pilot and for one

additional feature. If an employee subject to employment eligibility

verification presents a driver's license or identification card

containing a machine-readable SSN issued by the state in which the

pilot program is being conducted, the employer will make an inquiry to

SSA through the confirmation system by using the machine-readable

feature. Integrating the machine-readable feature with the SSA database

presents particular technical challenges. As a result, employers

electing to participate in the Machine-Readable Document Pilot, and

selected for participation in it, may be offered the otherwise

identical Basic Pilot before the machine-readable feature is available,

with later phase-in of that feature.

The Machine-Readable Document Pilot is required to operate in at

least five states or, if fewer, all of the states that include a

machine-readable SSN on their driver's licenses and identification

cards. The Service has determined for the purposes of the Machine-

Readable Document Pilot that the state of Iowa includes machine-

readable SSNs on some or all of its driver's licenses and

identification cards. Employers in that state may elect to participate

in this pilot.

VII. Eligibility for Participation in the Pilot Programs

A. General Criteria

Subject to the specific limitations for each pilot, and to the

constraints of available resources, any person or entity that conducts

any hiring, or any recruiting or referral for a fee subject to

[[Page 48314]]

section 274A(a)(1)(B)(ii) of the Act, in a state in which a pilot

program will operate, may elect to participate in the pilot. In other

words, any employer or other entity subject to the employment

eligibility verification requirements of section 274(a)(1) of the Act

is eligible. ``State'' includes the District of Columbia, Puerto Rico,

Guam, and the Virgin Islands of the United States in addition to the 50

states. All participants must be willing to sign and comply with the

MOU for their respective pilot, which will contain more specific terms

and conditions of the pilot. The participation of any employer in any

pilot may be terminated by the Service because the employer has

substantially failed to comply with its obligations under the pilot

program.

Employers electing to participate in a pilot program may request

that their election apply to all their hiring in each of the states in

which the pilot will take place, or that it be limited to its hiring in

one or more applicable states, or to one or more places of hiring

within a state. The Service will endeavor to honor employers'

preferences to the extent available resources and pilot availability

permits. Multi-site employers may elect more than one pilot if they

hire employees in at least one location within the geographic area

covered by each pilot elected. However, each hiring location may only

participate in one pilot, any preference may be given to employers not

otherwise able to participate in a pilot over those who wish to

participate in more than one pilot.

Section 402 of IIRIRA permits the Service to provide for employers'

elections to extend to states to which the pilot programs are not

operating, but in which the employer hires. The Service will determine

when it is feasible to provide for such extensions outside pilot states

based on employer demand and available resources.

1. Basic Pilot Eligibility

Employers in California, Texas, New York, Florida, and Illinois may

elect to participate in the Basic Pilot. The Service has estimated that

these states have the highest population of aliens who are not lawfully

present in the United States. At present, the SSA verification system

can service no more than approximately 2,000 employers. As a result,

initial demand for the Basic Pilot may substantially exceed

availability.

2. Citizen Attestation Pilot Eligibility

Employers in all states (including the District of Columbia, Puerto

Rico, Guam, and the Virgin Islands of the United States) may elect to

participate in the Citizen Attestation Pilot, but the Service reserves

the right to limit the pilot to certain states based on the level of

employer interest and on further determinations as to state licensing

procedures. The Service may restrict the number of employers that may

participate in the Citizen Attestation Pilot in order to produce a

representative sample of employers and to reduce the potential impact

of fraud, as well as limitations based on available resources that may

apply to any or all of the pilots. The number of employers

participating in the Citizen Attestation Pilot for whom document

presentation requirements are waived under section 403(b)(4) of IIRIRA

may be further restricted in order to provide a representative sample

of employers, and in no event will exceed 1,000 employers.

3. Machine-Readable Document Pilot Eligibility

Employers in Iowa may elect to participate in the Machine-Readable

Document Pilot. The Service has determined that Iowa issues driver's

licenses and similar identification documents containing a machine-

readable SSN. As the Machine-Readable Document Pilot uses the same SSA

system limited at present to no more than approximately 2,000 employers

as the Basic Pilot, initial availability of this pilot will also be

very limited.

VIII. Project Restrictions

The Service may limit participation in any or all of the three

pilots by rejecting employers' elections, or by limiting their

applicability to certain states or places of hiring based on its

determination that there are insufficient resources available to

provide appropriate services under the pilot program to the employer.

The lifespan of each pilot program is limited to 4 years, beginning on

the first day the pilot is in effect.

IX. Request for Comments

Section 402(d) of IIRIRA mandates consultation with representatives

of employers (and recruiters and referrers) in the development and

implementation of the pilot programs. The details of these pilot

programs are still being developed, and are subject to refinement and

modification in the course of implementation. The Service encourages

all interested parties, including but not limited to representatives of

employers (and recruiters and referrers), to participate in this

process by providing written comments to the Service in response to

this notice regarding any aspect of the IIRIRA-mandated employment

eligibility confirmation pilot programs. Comments should be mailed to

the Immigration and Naturalization Service, 425 I Street, NW., ULLICO--

4th Floor, Washington, DC 20536, Attention: SAVE Program, Pilot

Comments.

X. OMB Reporting Burden

The information collection requirement (Form I-876) has been

approved by the Office of Management and Budget provisions of the

Paperwork Reduction Act. The OMB control number for this information

collection is 1115-0217.

Dated: September 9, 1997.

Doris Meissner,

Commissioner, Immigration and Naturalization Service.

Note: The Form I-876 is provided as an attachment to this notice

can be reproduced.

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