Interim Designation of Acceptable Documents for Employment Verification

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 274a

[INS NO. 1818-96]

RIN 1115-AE94

Interim Designation of Acceptable Documents for Employment

Verification

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Interim rule with request for comments.

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SUMMARY: The Illegal Immigration Reform and Immigrant Responsibility

Act of 1996 (IIRIRA) amended existing law by removing certain documents

from the list of acceptable documents for use in the employment

eligibility verification process. By law, those changes take effect no

later than September 30, 1997, and this rule implements those changes.

Although the Immigration and Naturalization Service (Service) is in the

process of developing proposed rules to revise and streamline the

employment verification process, together with revised forms and

guidance, those rules are not yet ready to be promulgated. Thus, in

promulgating this interim rule to implement the changes striking

certain documents from the statutory list, the Service is also

exercising available regulatory authority to restore many of the

existing documents, insofar as possible, by designating them to be

retained on the list of acceptable documents until further notice. This

notice is intended to retain the status quo as much as possible at this

time, pending the completion of action on the document reduction

program, which will be accomplished in a separate rulemaking action.

DATES: This interim rule is effective September 30, 1997.

Comment date: Written comments must be submitted on or before

December 1, 1997.

ADDRESSES: Please submit written comments, in triplicate, to the

Director, Policy Directives and Instructions Branch, Immigration and

Naturalization Service, 425 I Street, NW., Room 5307, Washington, DC

20536. To ensure proper handling, please reference INS No. 1818-96 on

your correspondence. Comments are available for public inspection at

the above address by calling (202) 514-3048 to arrange for an

appointment.

FOR FURTHER INFORMATION CONTACT:

Marion Metcalf, Special Assistant, HQIRT, 425 I Street NW., Washington,

DC, 20536; (202) 307-6596; or email at [email protected].

Please note that the email address is for further information only and

may not be used for the submission of comments.

SUPPLEMENTARY INFORMATION: The Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (IIRIRA), Pub. L. 104-208, enacted on

September 30, 1996, amended the employer sanctions provisions of

section 274A of the Immigration and Nationality Act (Act) to require a

reduction in the number of documents acceptable for completion of the

Employment Eligibility Verification form (Form I-9). These amendments

must be in effect no later than September 30, 1997. This interim rule

is necessary to implement the changes required by IIRIRA.

The Service is currently developing a document reduction initiative

which will result in a number of changes in this area, including

eliminating various documents from the existing lists, revising the

Form I-9, and developing new guidance for employers and employees

regarding the employment verification process. Those changes, when

finalized, will implement the changes enacted by IIRIRA as well as

respond to other concerns about the present process. However, that

initiative, which the Service intends to publish as a proposed rule in

a separate rulemaking action within the next 6 months, is not yet ready

for promulgation.

At this time, the Service must amend its rules to take account of

the statutory changes that take effect September 30, 1997. However,

although IIRIRA deleted certain documents from the statutory list of

acceptable documents, the Act also retained (in amended form) the

authority of the Attorney General to designate specific documents as

acceptable in addition to the statutory list. Accordingly, in amending

existing regulations to take account of these statutory changes, the

Service at the same time is also acting to restore the use of some of

those documents by exercising available authority (as amended by

IIRIRA) to continue to designate certain documents as acceptable for

employment verification until completion of the separate document

reduction initiative.

By this means, as discussed in more detail below, the Service is

acting to designate foreign passports with specified Service work

authorization stamps in two instances as ``List A'' documents--that is,

as documents evidencing both identity and work authorization. This rule

also expands the existing receipt rule to ensure that certain refugees

and lawful permanent residents will still be able to meet the

employment verification requirements even though they do not yet have a

required document. Finally, even though IIRIRA eliminates birth

certificates as a specific statutory ``List C'' document--this is, as a

document evidencing employment authorization--this rule reflects a

determination (as a matter of discretionary regulatory authority) to

designate birth certificates as an acceptable document for this

purpose. (This designation of birth certificates will continue only

until completion of the separate rulemaking proceeding. The Service

intends to propose elimination of the use of birth certificates, as

well as certain other existing documents, in that proposed rule.)

The result of the statutory changes and the new designations

embodied in this interim rule is that all of the existing ``List A''

documents will be retained, except for the following three kinds of

documents: a Certificate of U.S. Citizenship; a Certificate of

Naturalization; and a foreign passport not meeting the standards set

forth in this interim rule, as discussed below. As to those three

documents, there is no statutory authority to retain them on ``List

A.'' In addition, there will be no change at all at this time with

respect to either ``List B'' documents (evidencing identity) or ``List

C'' documents (evidencing employment authorization).

The purpose of this interim rule is to maintain the status quo as

much as possible during this transitional period so as to avoid

confusion and disruption in the employment verification process at this

time. Although some changes are required by law, the Service recognizes

that these changes are necessarily being implemented with little

advance public notice, and without any revisions to the existing Form

I-9 and the published Handbook for Employers (Form M-274). Accordingly,

as explained below, in order to minimize confusion and disruption, the

Service will exercise its discretion to forgo enforcement actions

against employers who continue to act in reliance upon and in

compliance with existing employment verification

[[Page 51002]]

forms, guidance, and procedures. This policy will remain in effect

until the new document reduction program, together with a revised Form

I-9 and guidance to employers, can be implemented in the separate

rulemaking proceeding.

The following discussion explains in more detail the background of

this regulatory action; the specific changes being made in this interim

rule; and the basis for the interim designations of certain documents

as implemented in this rule.

Background on Document Reduction

The Act, as amended, currently requires persons or entities to

verify the employment eligibility and identity of all new hires. The

Employment Eligibility Verification form (Form I-9) was designated for

that purpose. Newly hired individuals must attest to the status that

makes them eligible to work and present documents that establish their

identity and eligibility to work. Employers and recruiters and

referrers for a fee (as defined in section 274(a)(1)(B)(ii) of the Act

and 9 CFR 274a.2(a)) must examine and documents and attest that they

appear to be genuine and to relate to the individual. They may not

specify a document or combination of documents that the individual must

present. To do so may violate section 274B of the Act.

The statutory framework, implemented by regulation at 8 CFR 274a.2,

provides for three lists of documents: documents that establish both

identity and employment eligibility (List A documents); documents that

establish identity only (List B documents); and documents that

establish employment eligibility only (List C documents).

Scope of the Interim Rule

To implement IIRIRA, this interim rule amends the regulations to:

(1) Remove the certificate of United States citizenship and the

certification of naturalization as documents acceptable under List A;

(2) Retain the designation of a foreign passport with temporary

evidence of permanent resident status as a document acceptable under

List A, and limit the use of a foreign passport with a Form I-94 to

those nonimmigrants who are authorized to work for a specific employer;

and

(3) Clarify and expand the receipt rule under which work-eligible

individuals who are unable to present a required document may present a

receipt under certain circumstances.

This interim rule also exercises regulatory authority to continue

the designation of birth certificates as documents acceptable under

List C. Accordingly, no change to List C is necessary at this time.

Enforcement Postponed for Employers and Recruiters or Referrers for a

Fee With Respect to Changes Made to the List of Acceptable Documents in

This Interim Rule

To minimize confusion among the employment community and the

potential for discriminatory hiring practices, this rule makes at this

time only those changes to the current regulations needed to ensure

that the current regulations conform with the statutory amendments made

by IIRIRA. Consequently, this rule reduces the list of documents

acceptable for employment verification under List A, and retains birth

certificates (which are currently on List C) as acceptable for

employment verification purposes. This means that List C remains in

effect without change.

This rule does not include a revised Form I-9. Employers and

recruiters and referrers for a fee are to continue to use the current

version of the Form I-9 (edition 11/21/91) to complete the employment

verification process until the Form I-9 is revised. As a result, the

Service has determined in its prosecutorial discretion not to seek a

civil money penalty, until further notice, for any violations based

upon the changes made by this rule to the list of acceptable documents.

The Service intends to propose more comprehensive changes to the

employment verification process, a further reduction in the number of

acceptable documents, and a revision to the Form I-9 in a forthcoming

rulemaking. The public will be provided an opportunity to comment on

any proposed changes at that time. Thus, the Service will withhold

enforcement of civil money penalties for violations associated with

these changes and committed before the effective date of a final rule

containing the revised Form I-9, so that employers or recruiters or

referrers for a fee will not be penalized if they accept documents that

were previously acceptable but were removed from the list by this

interim rule.

Section 412(a) of IIRIRA--Amending the Documents Acceptable Under List

A and List C

Section 412(a) of IIRIRA amends the Act with respect to List A and

List C documents. To implement this provision in a way that would cause

the least confusion to the public and to minimize the potential for

discriminatory hiring practices, this rule amends the regulations to

reduce the current number of List A documents but to designate certain

foreign passports in two instances. This rule does not reduce the

current number of List C documents. Instead, this rule retains the

documents currently listed as List C documents in the regulations as

acceptable List C documents under IIRIRA.

A. Documents Evidencing Both Identity and Employment Eligibility (List

A)

Section 412(a) of IIRIRA amends section 274A(b)(1)(B) of the Act

which governs the documents that individuals may present to establish

both identity and employment eligibility. Section 412(a) of IIRIRA

eliminates three documents from the statutory list: (1) Certificate of

United States citizenship; (2) certificate of naturalization; and (3)

an unexpired foreign passport with an endorsement that indicates

eligibility for employment. The documents remaining on the list by

statute are: a United States passport; a resident alien card; an alien

registration card; or other document designated by the Attorney

General. Each document designated by the Attorney General must meet

three conditions: The document must not only contain a photograph and

personal identifying information, and constitute evidence of employment

authorization, but it now must also contain ``security features to make

it resistant to tampering, counterfeiting, and fraudulent use.''

To implement section 412(a) of IIRIRA, this rule amends the current

regulations to limit the documents that evidence both identity and

employment authorization to:

(1) A United States passport;

(2) An Alien Registration Receipt Card or Permanent Resident Card

(Form I-551);

(3) A foreign passport with a Temporary I-551 stamp;

(4) An Employment Authorization Document (EAD) issued by the

Service which contains a photograph (Form I-766), Form I-688, Form I-

688A, or Form I-688B); and,

(5) In the case of a nonimmigrant alien authorized to work for a

specific employer incident to status, a foreign passport with an

Arrival-Departure Record (Form I-94) bearing the same name as the

passport and containing an endorsement of the alien's nonimmigrant

status, so long as the period of endorsement has not yet expired and

the proposed employment is not in conflict with any restrictions or

limitations identified on the Form I-94.

[[Page 51003]]

1. Service-Issued Employment Authorization Document

This rule retains the Employment Authorization Document (Forms I-

766, I-688, I-688A, and I-688B) as an acceptable List A document. These

forms meet the three statutory conditions that limit the Attorney

General's authority to designate additional List A documents. First,

these Service-issued forms all contain a photograph and additional

identifying information of the bearer, including a fingerprint of the

bearer and the bearer's date of birth. Second, the forms are evidence

that the Service has granted employment authorization to the bearer.

Third, the Service has designed each of the forms to contain security

features that make them resistant to tampering, counterfeiting, and

fraudulent use.

2. Foreign Passports With an I-551 Stamp

This rule designates foreign passports as acceptable evidence of

identity and employment authorization, but limited to two instances.

The first relates to aliens lawfully admitted for permanent residence

under section 101(a)(20) of the Act. Persons newly admitted for or

adjusted to lawful permanent residence may receive evidence of that

status through a stamp in their passports. The stamp serves as

temporary evidence of permanent resident status until the individual

receives Form I-551 from the Service. If the stamped endorsement

includes an expiration date, the document must be reverified by the

employer on the Form I-9. The newest versions of the Form I-551 also

bear an expiration date but the actual Form I-551 need to be reverified

when the card expires; only the stamp must be reverified when expired.

3. Foreign Passports With Form I-94

The second instance in which a foreign passport is designated as a

List A document is when it is presented with Form I-94 indicating a

nonimmigrant classification that enables the alien to work with a

specific employer incident to his or her nonimmigrant status until the

expiration date specified on the form.

Aliens in classes identified in Sec. 274a.12(b) are authorized

employment with a specific employer incident to status. The Service

does not currently require aliens in these classes to obtain an

employment authorization document--i.e., a Form I-688B or Form I-766--

and does not plan to implement such a requirement at this time. The

documentation that a nonimmigrant alien is issued to demonstrate that

he or she is authorized to work incident to status with a specific

employer is the Form I-94 with an endorsement that specifies the

alien's nonimmigrant status. In addition to the regulations at

Sec. 274a.12(b), the current version of the Handbook for Employers (M-

274) enumerates for employers and recruiters or referrers for a fee the

applicable nonimmigrant classifications. These classifications include:

foreign government officials and their employees (A-1, A-2, A-3);

foreign government officials in transit (C-2, C-3); nonimmigrant treaty

traders or investors (E-1, E-2); nonimmigrant students engaged in on-

campus employment or curricular practical training (F-1);

representatives of international organizations and their employees (G-

1, G-2, G-3, G-4, G-5); temporary workers or trainees (H-1, H-2A, H-2B,

H-3); information media representatives (I); exchange visitors (J-1);

intra-company transferees (L-1); aliens having extraordinary ability in

the sciences, arts, education, business, or athletics and accompanying

aliens (O-1, O-2); athletes, artists or entertainers (P-1, P-2, P-3);

international cultural exchange visitors (Q); aliens having a religious

occupation (R); officers and personnel of the armed services of nations

of the North Atlantic Treaty Organization and representatives,

officials, and staff employees of NATO (NATO-1, NATO-2, NATO-3, NATO-4,

NATO-5, NATO-6); and citizens of Canada or Mexico pursuant to the

provisions of the North American Free Trade Agreement (TN).

The IIRIRA provides that the Attorney General ``may prohibit or

place conditions on ``specific document if the Attorney General finds

that the document ``does not reliably establish [employment]

authorization or identity or is being used fraudulently to an

unacceptable degree.'' The Service finds that documentation issued to

or used by nonimmigrants does not reliably establish employment

eligibility except for documentation indicating a nonimmigrant

classification that authorizes employment with a specific employer

incident to status. The interim rule, therefore, places the following

condition on the foreign passport with a Form I-94: that the foreign

passport with the Form I-94 is only acceptable where the individual is

authorized to work incident to status with a particular employer, and

the Form I-94 indicates an employer-specific nonimmigrant

classification. Such documentation may be used only for purposes of

establishing eligibility to work for the approved employer. This

restriction does not relieve employers of the requirement to abide by

any terms or conditions specified on any documentation issued by the

Service. Similarly, the restriction does not permit employers to

require individuals to present a specific document. The restriction

does mean that a Form I-94 endorsed to permit employment incident to

status with a specific employer may not be accepted as evidence of

eligibility to work for other employers.

4. Conditions Qualifying Foreign Passports With the I-551 Stamp or Form

I-94 as a Proper Designation

The Service finds that, in the above instances, foreign passports

meet the three conditions that authorize the Attorney General to add

documents to List A. First, foreign passports bear a photograph and

identifying information (such as the birth date and physical

characteristics of the bearer). Second, they are evidence of employment

authorization when they bear a temporary I-551 stamp or are presented

together with Form I-94 endorsed with a nonimmigrant classification

that authorizes employment with a specific employer incident to status.

Finally, foreign passports contain security features to make them

resistant to tampering, counterfeiting, and fraudulent use. Temporary

I-551 stamps are made with secure ink and meet internal Service

standards. Form I-94 is only acceptable with a foreign passport in

employer-specific situations in which the employer examining the Form

I-94 for employment verification purposes is the same employer who

petitioned for the alien to receive his or her nonimmigrant status or

is otherwise approved to accept the alien for employment. Note that

employers are required to reverify the individual's eligibility to work

when the stamped authorization expires.

B. Documents Evidencing Employment Authorization (List C)

Section 412(a) of IIRIRA amends section 274A(b)(l)(C) of the Act by

removing the certificate of birth in the United States (or other

certificate found acceptable by the Attorney General as establishing

United States nationality at birth) from the statutory list of

acceptable documents that may be used to establish employment

authorization for compliance with the employment verification

requirements.

The inclusion of the unrestricted social security account number

card on List C remains undisturbed by section 412(a) of IIRIRA. Thus,

this rule does not amend the current regulations with

[[Page 51004]]

respect to the social security account numbered card; it remains on the

list of acceptable documents as before.

Under section 274A(b)(1)(C)(ii), as amended, it is within the

Attorney General's authority to designate ``other documentation

evidencing authorization of employment in the United States which the

Attorney General finds, by regulation, to be acceptable for purposes of

this section.'' Exercising that authority, the Attorney General finds

that the remaining documents listed in the current regulations are

acceptable List C documents. These documents are:

(1) A Certification of Birth Abroad issued by the Department of

State, Form FS-545;

(2) A Certification of Birth Abroad issued by the Department of

State, Form DS-1350;

(3) An original or certified copy of a birth certificate issued by

a State, county, municipal authority, or outlying possession of the

United States bearing an official seal;

(4) A Native American tribal document;

(5) A United States Citizen Identification Card, INS Form I-197;

(6) An identification card for use of a resident citizen in the

United States, INS Form I-179; and

(7) An unexpired employment authorization document issued by the

Service.

The finding to retain all the List C documents currently listed in

the regulations for this rule is necessary to minimize confusion and

the potential for discriminatory hiring practices that otherwise might

result if this rule removed documents from the current list without

first providing an opportunity for public comment or an education

period. This rule enables employers and recruiters or referrers for a

fee to continue to rely upon the List C documents that are stated on

the current version of the Form I-9.

The Service is aware of the congressional intent expressed by

section 412(a) of IIRIRA to remove the birth certificate from the

statutory list of acceptable documents. The designation of birth

certificates for purposes of this interim rule is an exercise of the

Attorney General's regulatory authority only during this transitional

period until the document reduction initiative is complete. The Service

will propose removal of the birth certificate as well as certain other

List C documents in a future proposed rule that will follow this

interim rule. The Service will consider public comments before

implementing such a change. The Service, therefore, retains the birth

certificate in this interim rule because its abrupt removal potentially

would cause much confusion to the public.

Receipts

As a result of this rule's amendments to the regulations governing

List A documents, this rule must concurrently amend the regulations

governing the use of receipts, Sec. 274a.2(b)(1)(vi). This amendment is

necessary to ensure that certain refugees and lawful permanent

residents will be equipped to meet the employment verification

requirements if they are unable to present a required document as a

result of the reduction to the list of acceptable List A documents

required by IIRIRA. In so doing, this amendment restructures the

current rule relating to receipts.

1. Current Regulations

Current regulations permit individuals to present a receipt showing

that they have applied for a replacement document if the individual is

unable to provide a required document or documents at the time of hire.

The individual must then present the required document or documents

within 90 days of the hire. This provision provides flexibility in

situations where, for example, an individual has lost a document.

2. Interim Rule

The interim rule provides that an employer or recruiter or referrer

for a fee must accept a receipt that appears to be genuine on its face

and appears to relate to the individual presenting it in lieu of the

required document, unless the individual indicates or the employer or

recruiter or referrer for a fee has actual or constructive knowledge

that the individual is not authorized to work. It reinforces that a

receipt for an application for initial work authorization or an

extension of expiring work authorization is not acceptable. It also

extends that receipt rule to reverification.

(1) Three instances in which receipts are acceptable.

(a) Application for a replacement document. The rule permits the

use of receipts in three instances. The first instance is when the

individual presents a receipt for the application for a replacement

document. An application for initial work authorization or an extension

of expiring work authorization, however, its not acceptable.

(b) Form I-94 indicating temporary evidence of permanent resident

status. The second instance is when the individual presents the arrival

portion of the Form I-94 that the Service has marked with a temporary

I-551 stamp and has affixed with the alien's picture. The Service may

issue this document if an alien is not in possession of his or her

passport and requires evidence of lawful permanent resident status.

Although this document provides temporary evidence of permanent

resident status, it does not contain sufficient security features.

Consequently, it does not meet the statutory requirements provided by

IIRIRA for inclusion on List A. This rule, therefore, extends the

receipt rule to include the Form I-94 with a temporary I-551 stamp and

the alien's picture. This document serves as a receipt for Form I-551

for 180 days.

(c) Form I-94 indicating refugee status. The third instance is when

the individual presents the departure portion of Form I-94 containing a

refugee admission stamp. The Service recognizes the importance of newly

admitted refugees being able to seek employment promptly upon arrival

in the United States. The Service has been working with the Social

Security Administration (SSA) to ensure prompt issuance of social

security cards which carry no employment restrictions to refugees. In

most instances, the Service believes that refugees will receive social

security cards timely and will be able to present them to employers.

The Service also intends to give refugees the option of obtaining a

Form I-766 EAD, but recognizes that in most instances refugees will be

able to obtain a social security card faster. Refugees may wish to

obtain the Form I-766 EAD so that they will have a Service-issued

document with a photograph. In order to ensure that refugees are still

able to work if they encounter delays in obtaining cards from either

the SSA or the Service, the Service introduces a special receipt rule.

Under this rule, a Form I-94 with a refugee admission stamp constitutes

a receipt evidencing eligibility to work. It is not, however, a receipt

for a specific document. The refugee is permitted to present either an

unrestricted social security card or a Form I-766 EAD at the end of the

90-day receipt period. If the refugee presents a social security card,

the refugee will also need to present a List B document. If the refugee

presents a Form I-766 EAD, he or she does not need to present another

document.

(2) Receipts are not acceptable where the individual is hired for

less than three business days.

To correspond to this interim rule's expansion in the use of

receipts, this rule amends 8 CFR 274a.2(b)(1)(iii) in which a reference

to receipts is made. This paragraph of the regulations

[[Page 51005]]

governs the employment verification requirements in the case of an

individual whose employment is less than three business days.

Currently, the regulations preclude an individual hired for less than

three business days from presenting a receipt for the application of a

replacement document in lieu of a required document. This rule extends

this prohibition to any type of receipt.

Good Cause Exception

This interim rule is effective on September 30, 1997, although the

Service invites post-promulgation comments and will address any such

comments in a final rule. For the following reasons, the Service finds

that good cause exists for adopting this rule without the prior notice

and comment period ordinarily required by 5 U.S.C. 553.

Pursuant to section 412(e)(1) of IIRIRA, the document reduction

provisions of section 412(a) of IIRIRA are effective on September 30,

1997, unless the Attorney General designates an earlier date. If the

Attorney General does not designate a date through this interim rule,

the provisions will go into effect without regulations, and a gap will

be left wherein certain individuals who are authorized to work will not

be in possession of an acceptable document under the Act as amended by

IIRIRA for employment verification purposes. In addition, the Form I-9

will not be revised at this time. The Service is concerned that mass

confusion among the employment community would result over which

documents currently listed in the regulations and on the Form I-9 would

remain acceptable to meet the employment verification requirements.

This confusion would heighten the potential for discriminatory hiring

practices.

To prevent the potential for confusion of the public and

discriminatory hiring practices, and to ensure that documents

acceptable for employment verification are designated to correspond to

all classes of individuals authorized to work in the United States, the

Service is issuing this rule. In order to respond to these concerns,

this rule designates additional documents as acceptable, beyond those

documents specifically enumerated in the Act as revised. In the absence

of this action by the Service, the changes made by IIRIRA would result

in an immediate further narrowing of the list of acceptable documents.

Because of the imminent effective date of the statutory changes made by

IIRIRA, this rule is being made effective as of September 30, 1997,

without prior comments from the public. For these reasons, the Service

finds that it would be unnecessary and contrary to the public interest

to delay the effective date of this rule.

Regulatory Flexibility Act

The Commissioner of the Immigration and Naturalization Service, in

accordance with 5 U.S.C. 605(b), has reviewed this interim rule and, by

approving it, certifies that this rule does not have a significant

economic impact on a substantial number of small entities. This rule is

a short-term measure and very limited in scope, only modifying a small

portion of the entire employment verification process. It also does not

introduce new forms. As a result, this rule would not require small

entities to significantly change established practices. In addition,

until further notice, the Service will not penalize persons or entities

that commit violations based upon the changes to the list of acceptable

documents made by this rule.

Executive Order 12866

This rule is considered by the Department of Justice, Immigration

and Naturalization service, to be a ``significant regulatory action''

under Executive Order 12866, section 3(f), Regulatory Planning and

Review. Accordingly, it has been submitted and approved by the Office

of Management and Budget.

Executive Order 12612

The regulation adopted herein will not have substantial direct

effects on the States, on the relationship between the National

Government and the States, or on the distribution of power and

responsibilities among the various levels of government. Therefore, in

accordance with Executive Order 12612, it is determined that this rule

does not have sufficient federalism implications to warrant the

preparation of a Federalism Assessment.

Executive order 12988 Civil Justice Reform

This interim rule meets the applicable standards set forth in

sections 3(a) and 3(b)(2) of E.O. 12988.

Unfunded Mandates Reform Act of 1995

This rule will not result in the expenditure by State, local and

tribal governments, in the aggregate, or by the private sector, of $100

million or more in any one year, and it will not significantly or

uniquely affect small governments. Therefore, no actions were deemed

necessary under the provisions of the Unfunded Mandates Reform Act of

1995.

Small Business Regulatory Enforcement Fairness Act of 1996

This rule is not a major rule as defined by section 804 of the

Small Business Regulatory Enforcement Act of 1996. This rule will not

result in an annual effect on the economy of $100 million or more; a

major increase in costs or prices; or significant adverse effects on

competition, employment, investment, productivity, innovation, or on

the ability of United States-based companies to compete with foreign-

based companies in domestic and export markets.

Paperwork Reduction Act

This interim rule does not impose any new reporting or

recordkeeping requirements. The information collection requirements

pertaining to the employment verification process have been approved

for use by the Office of Management and Budget under the Paperwork

Reduction Act of 1995 (Pub. L. 104-13). The OMB control number for this

collection is contained in 8 CFR 299.5, Display of control numbers.

List of Subjects in 8 CFR Part 274a

Administrative practice and procedure, aliens, employment,

penalties, reporting and recordkeeping requirements.

Accordingly, part 274a of chapter I of title 8 of the Code of

Federal Regulations is amended as follows:

PART 274a--CONTROL OF EMPLOYMENT OF ALIENS

1. The authority citation for part 274a continues to read as

follows:

Authority: 8 U.S.C 1101, 1103, 1324a; 8 CFR part 2.

2. Section 274a.2 is amended by:

a. Revising paragraph (b)(1)(iii);

b. Revising paragraph (b)(1)(v)(A); and by

c. Revising paragraph (b)(11)(vi), to read as follows:

Sec. 274a.2 Verification of employment eligibility.

* * * * *

(b) * * *

(1) * * *

(iii) An employer who hires an individual for employment for a

duration of less than three business days must comply with paragraphs

(b)(1)(ii)(A) and (b)(1)(ii)(B) of this section at the time of the

hire. An employer may not accept a receipt, as described in paragraph

(b)(1)(vi) of this section, in lieu of the required

[[Page 51006]]

document if the employment is for less than three business days.

* * * * *

(v) * * *

(A) The following documents, so long as they appear to relate to

the individual presenting the document, are acceptable to evidence both

identity and employment eligibility:

(1) United States passport (unexpired or expired);

(2) Alien Registration Receipt Card or Permanent Resident Card,

Form I-551;

(3) An unexpired foreign passport that contains a temporary I-551

stamp;

(4) An unexpired Employment Authorization Document issued by the

Immigration And Naturalization Service which contains a photograph,

Form I-766; Form I-688, Form I-688A, or Form I-688B;

(5) In the case of a nonimmigrant alien authorized to work for a

specific employer incident to status, an unexpired foreign passport

with an Arrival-Departure Record, Form I-94, bearing the same name as

the passport and containing an endorsement of the alien's nonimmigrant

status, so long as the period of endorsement has not yet expired and

the proposed employment is not in conflict with any restrictions or

limitations identified on the Form I-94.

* * * * *

(vi) Special rules for receipts. Except as provided in paragraph

(b)(1)(iii) of this section, unless the individual indicates or the

employer or recruiter or referrer for a fee has actual or constructive

knowledge that the individual is not authorized to work, an employer or

recruiter or referrer for a fee must accept a receipt for the

application for a replacement document or a document described in

paragraphs (b)(1)(vi)(B)((1) and (b)(1)(vi)(C)((1) of this section in

lieu of the required document in order to comply with any requirement

to examine documentation imposed by this section, in the following

circumstances:

(A) Application for a replacement document. The individual:

(1) Is unable to provide the required document within the time

specified in this section because the document was lost, stolen, or

damaged;

(2) Presents a receipt for the application for the replacement

document within the time specified in this section; and

(3) Presents the replacement document within 90 days of the hire

or, in the case of reverification, the date employment authorization

expires; or

(B) Form I-94 indicating temporary evidence of permanent resident

status. The individual indicates in section 1 of the Form I-9 that he

or she is a lawful permanent resident and the individual:

(1) Presents the arrival portion of Form I-94 containing an

unexpired ``Temporary I-551'' stamp and photograph of the individual,

which is designated for purposes of this section as a receipt for Form

I-551; and

(2) Presents the Form I-551 within 180 days of the hire or, in the

case of reverification, the date employment authorization expires; or

(C) Form I-94 indicating refugee status. The individual indicates

in section 1 of the Form I-9 that he or she is an alien authorized to

work and the individual:

(1) Presents the departure portion of Form I-94 containing an

unexpired refugee admission stamp, which is designated for purposes of

this section as a receipt for either the Form I-766 or a social

security account number card that contains no employment restrictions;

and

(2) Presents, within 90 days of the hire or, in the case of

reverification, the date employment authorization expires, either an

unexpired Form I-766; or a social security account number card that

contains no employment restrictions together with a document described

under paragraph (b)(1)(v)(B) of this section.

* * * * *

Dated: September 25, 1997.

Doris Meissner,

Commissioner, Immigration and Naturalization Service.

[FR Doc. 97-25920 Filed 9-29-97; 8:45 am]

BILLING CODE 4410-10-M