Reduction in the Number of Acceptable Documents and Other Changes to Employment Verification Requirements

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 274a and 299

[INS No. 1890-97]

RIN 1115-AE94

Reduction in the Number of Acceptable Documents and Other Changes

to Employment Verification Requirements

agency: Immigration and Naturalization Service, Justice.

action: Proposed rule.

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summary: The Illegal Immigration Reform and Immigrant Responsibility

Act of 1996 (IIRIRA) amended existing law by eliminating certain

documents currently used in the employment eligibility verification

(Form I-9) process. This rule proposes to shorten the list of documents

acceptable for verification. Currently, newly hired individuals may

choose from among 29 documents to establish their identity and

eligibility to work in the United States. The proposed rule cuts that

number approximately in half. In addition, the proposed rule clarifies

and expands the receipt rule, under which individuals may present a

receipt instead of a required document in certain circumstances. It

also explains that employers may complete the Form I-9 before the time

of hire or at the time of hire, so long as they have made a commitment

to hire and provided that the employer completes the Form I-9 at the

same point in the employment process for all employees. The proposed

rule also details reverification requirements and includes a proposal

for a new employment eligibility reverification form (Form I-9A), adds

the Federal Government to the definition of ``entity,'' and clarifies

the Immigration and Naturalization Service's (Service or INS) subpoena

authority. In addition to making those changes, the Service proposes to

restructure the rule to make it easier to

[[Page 5288]]

understand, use, and cite. A copy of the draft Form I-9, which includes

the proposed Form I-9A and an expanded instruction sheet, is being

published as an attachment to this rule. This rule is intended to

simplify and clarify the verification requirements.

dates: Written comments must be submitted on or before April 3, 1998.

Comments received after this date will be considered if it is practical

to do so, but the Service is able to ensure consideration only for

comments received on or before this date.

addresses: Written comments: Please submit written comments, one

original and two copies, 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. 1890-97 on your correspondence.

Comments are available for public inspection at the above address by

calling (202) 514-3048 to arrange for an appointment.

To assist reviewers, where possible, comments should reference the

specific section or paragraph which the comment addresses. Although

this is not required, it would assist reviewers if, in addition to the

requested copies, a copy of the comments is provided on a floppy disk

in plain text or WordPerfect 5.1 format. Written comments should be

specific, should be confined to issues pertinent to the rule, and

should explain the reason for any recommended change.

Electronic comments: With this proposed rule, the Service is

testing for the first time the possibility of accepting comments

electronically. Comments may be sent using electronic mail (email) to:

[email protected] The need to submit copies of the comments is waived

for comments submitted by email. Electronically filed comments that

conform to the guidelines of this paragraph will be considered part of

the record and accorded the same treatment as comments submitted on

paper. Comments should reference INS No. 1890-97 in the subject line

and the body of the message. The comments should appear either in the

body of the message or in a WordPerfect 5.1 attachment. The Service

cannot guarantee consideration of attachments submitted in other

formats. Comments submitted electronically must also contain the

sender's name, address, and telephone number for possible verification.

for further information contact: Marion Metcalf, Policy Analyst, HQIRT,

425 I Street NW., Washington, DC, 20536; (202) 514-2764; 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:

Why is the Service Proposing These Changes?

The Service is proposing these changes in response to recent

legislation, IIRIRA, and as a result of an ongoing review which was

triggered by the rule's having been in effect for 10 years. Many of the

proposed changes represent the culmination of a long-term effort to

reduce the number of documents acceptable for employment verification.

Which IIRIRA Provisions Does This Rule Implement?

IIRIRA, enacted on September 30, 1996, makes several amendments to

the employer sanctions provisions of section 274A of the Act. This rule

proposes to implement the amendments in:

(1) Section 412(a) of IIRIRA, which requires a reduction in the

number of documents that may be accepted in the employment verification

process;

(2) Section 412(d) of IIRIRA, which clarifies the applicability of

section 274A of the Act to the Federal Government; and

(3) Section 416 of IIRIRA, which clarifies the Service's authority

to compel by subpoena the appearance of witnesses and the production of

evidence prior to the filing of a complaint.

What About the Other Employment-Related IIRIRA Amendments?

This is one of four rules the Service is proposing to implement

IIRIRA amendments to section 274A of the Act. In addition to this rule,

the Service is developing and will publish proposed rules to:

(1) Implement changes to the application process for obtaining

employment authorization from the Service. The proposed rule will

include a revision to the Application for Employment Authorization,

Form I-765, revisions to Subpart B of Part 274a, and employment

verification requirements for F-1 students authorized to work on

campus;

(2) Implement section 411(a) of IIRIRA, which allows employers who

have made a good faith attempt to comply with a particular employment

verification requirement to correct technical or procedural failures

before such failures are deemed to be violations of the Act;

(3) Implement section 412(b) of IIRIRA, which applies to employers

that are members of an association of two or more employers. For an

individual who is a member of a collective bargaining unit and is

employed under a collective bargaining agreement between one or more

employee organizations and the multi-employer association, the employer

can use a Form I-9 completed by a prior employer that is a member of

the same association, within 3 years (or, if less, the period of time

that the individual is authorized to work in the United States).

What is the Ten-Year Review the Service Is Conducting?

Section 610 of the Regulatory Flexibility Act (RFA) requires

agencies to review rules which have a significant economic impact on a

substantial number of small entities every 10 years. Service

regulations at 8 CFR 274a, Subpart A--Employer Requirements, fall under

this review requirement.

Section 610 of the RCA requires a review of regulations ``to

minimize any significant economic impact of the rule on a substantial

number of small entities in a matter consistent with the stated

objectives of applicable statutes.'' The RFA requires consideration of

five factors: (1) Continued need for the rule; (2) nature of complaints

or comments received from the public; (3) complexity of the rule; (4)

extent to which the rule overlaps, duplicates, or conflicts with other

Federal rules and, to the extent feasible, with State and local

governmental rules; and (5) length of time since the rule has been

evaluated or the degree to which technology, economic conditions, or

other factors have changed in the area affected by the rule.

The Service concluded that it would be in the public interest to

conduct the required review in conjunction with implementing the IIRIRA

amendments. By coordinating the publication of this notice with the

publication of a proposed rule, the Service can give the public a

clearer indication of the kinds of changes under consideration and

provide an opportunity to submit a single set of comments. The Service

began by conducting an internal review of the regulations at 8 CFR part

274a. The Service reviewed past public comment, questions asked of the

Service's Office of Business Liaison, issues surfaced by field offices,

and similar sources. Through this process, the Service identified areas

in the regulations for reconsideration. The results of that internal

review are reflected in the proposed rule. This proposed rule,

therefore, reflects a

[[Page 5289]]

comprehensive reinvention effort, including a restructuring and other

changes intended to address concerns raised by the public during the 10

years that these requirements have been in effect.

How Does This Rule Relate to the Service's Earlier Document Reduction

Proposals?

The Immigration Reform and Control Act (IRCA), enacted in 1986,

amended the Act to require persons or entities to hire only persons who

are eligible to work in the United States. The Act, as amended,

requires persons or entities to verify the work-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 or referrers for a fee (as defined in

section 274A(a)(1)(B)(ii) of the Act and 8 CFR 274a.2(a)), must examine

the 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, currently 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 work eligibility only (List C documents).

When the law was new, a consensus emerged that a long, inclusive

list of documents would ensure that all persons who are eligible to

work could easily meet the requirements. When the Service first

published implementing regulations in 1987, the Supplementary

Information noted that List B, in particular, had been expanded in

response to public comment. As early as 1990, however, there was

evidence that some employers found the list confusing. In its third

review of the implementation of employer sanctions, the General

Accounting Office (GAO) reported that employer confusion over the

``multiplicity'' of acceptable documents contributed to discrimination

against authorized workers. See Immigration Reform: Employer Sanctions

and the Question of Discrimination, March 29, 1990, General Accounting

Office (GAO/GGD-90-62.

The first step the Service took to correct this problem was to

ensure that the complete list of documents appeared on the Form I-9

when the form was revised in 1991. In 1993, the Service published a

proposed rule to reduce the number of documents acceptable for

verification. That proposed rule eliminated numerous identity documents

from List B and two employment eligibility documents from List C.

Response to the proposed rule among the approximately 35 comments was

mixed. Some commenters expressed support for the changes. Others

questioned the need to reduce the lists, suggesting that confusion over

the lists had been addressed by listing all the documents on the Form

I-9.

In 1995, the Service published a supplement to the proposed rule.

The supplement proposed a few additional changes to the lists of

documents and responded to public comments concerning updating and

reverification procedures for the Form I-9. The supplement received

only five public comments.

The legislative history for IIRIRA indicates that Congress believed

that the changes proposed in the proposed rule and supplement did not

go far enough, stating:

The number of permissible documents has long been subject to

criticism. The INS published a proposed regulation in 1993 (with a

supplement published on June 22, 1995) to reduce the number of

documents from 29 to 16. This proposal, however, does not reflect

the consensus of opinion that documents should be reduced even

further, and that documents that are easily counterfeited should be

eliminated entirely. (See H.R. Rep. No. 104-469, at 404-05 (1996).)

Congress recognized that the Service's ability to reduce the list

of documents further was constrained by the number of documents listed

in the law. In IIRIRA, Congress eliminated several documents while

giving the Attorney General discretion to amend the list by regulation.

These changes are discussed in more detail in the sections pertaining

to the proposed lists of acceptable documents.

On September 4, 1996, the Service published a partial final rule at

61 FR 46534 which added the Employment Authorization Document, Form I-

766 (the I-766 EAD), a new, counterfeit-resistant card, to List A. The

Service began to issue the I-766 EAD in February 1997. The final rule

did not provide sunset dates for any existing List A documents. It did,

however, reinstate a provision at 8 CFR 274a.14, which had been stayed

and suspended, and that terminated miscellaneous employment

authorization documentation issued by the Service prior to June 1,

1987. The latter step was necessary because in the years prior to IRCA,

some of the temporary, non-standard employment authorization documents

issued by the Service did not bear an expiration date. Although the

Service believes that few, if any, individuals were still in 1996

relying upon pre-1987 temporary documents, this action ensures that

such documents are no longer valid.

Comments in response to both the 1993 and 1995 proposals asked the

Service to delay publication of a final rule, citing the potential for

congressional action. This proposed rule implements section 412(a) of

IIRIRA and is separate from the 1993 proposed rule and 1995 supplement.

The 1993 proposed rule and 1995 supplement will not be finalized.

On September 30, an interim rule was published in the Federal

Register at 62 FR 5100. The interim rule was a stopgap measure,

required by the effective date provision for section 412(a) of IIRIRA.

The amendments to the list of documents were to take effect ``with

respect to hiring (or recruitment or referral) occurring on or after

such date (not later than 12 months after the date of enactment of

[IIRIRA] as the Attorney General shall designate.'' Because 12 months

after the date of enactment of IIRIRA was September 30, 1997, the

interim rule designated September 30, 1997, as the effective date for

the amendments. The goal of the interim rule was to maintain the status

quo to the extent possible under the IIRIRA document provision. On

October 6, 1997, President Clinton signed legislation) Pub. L. 105-54)

extending the deadline for the designation of the effective date from

12 months to 18 months. Congress and the administration took this

action in the interest of minimizing disruption and confusion in the

business community. The Service considered withdrawing the interim

rule. It decided, however, that the goal of minimizing confusion was

better served by leaving the interim rule in place. The Service is

withholding enforcement of violations related to the changes while the

interim rule is in place.

What Changes are Made by This Proposed Rule?

This proposed rule contains provisions to implement three IIRIRA

sections and other amendments to subpart A of part 274a. It also

proposes to restructure the regulation to make it easier to use and

cite. The Provisions currently contained in subpart A are proposed to

be reorganized into the following sections.

[[Page 5290]]

Section 274a.1 Definitions.

Section 274a.2 Why is employment verification required and what

does it involve?

Section 274a.3 What documents are acceptable for employment

verification?

Section 274a.4 How long are employers and recruiters or

referrers required to retain the Form I-9 and what must be retained

with it?

Section 274a.5 Under what circumstances may employers and

recruiters or referrers rely on a Form I-9 that an individual

previously completed?

Section 274a.6 What happens when the Government asks to inspect

Forms I-9?

Section 274a.7 What is the prohibition on hiring or contracting

with unauthorized aliens and what defense can be claimed?

Section 274a.8 what are the requirements of state employment

agencies that choose to verify the identity and employment

eligibility of individuals referred for employment by the agency?

Section 274a.9 Can a person or entity require an individual to

provide a financial guarantee or indemnity against potential

liability related to the hiring, recruiting, or referring of the

individual?

Section 274a.10 How are investigations initiated and employers

notified of violations?

Section 274a.11 What penalties may be imposed for violations?

This reorganization is intended to make the regulation easier to

use, understand, and cite. For example, the paragraph that explains

that a parent or guardian may attest to the identity minor under 18 who

cannot present an identity document is currently found at 8 CFR

274a.2(b)(1)(v)(B)(3). The citation for this paragraph becomes 8 CFR

274a.3(b)(2) in the proposed reorganization, a much shorter citation. A

table providing a cross-reference from the new to the old sections

appears at the end of this supplementary information section for ease

of reference.

The Service welcomes comment on this restructuring and suggestions

for other ways to make the regulation easier to use and understand. The

Service recognizes the widespread impact of this regulation and is

committed to making the requirements as straightforward as possible.

The public is invited to submit alternative outlines for consideration

or to suggest other ways to approach the restructuring.

The Service has taken several steps to adopt a ``plain English''

approach to this regulation. This effort was focused more intensely on

the verification provisions currently at Sec. 274a.2 than on the

remainder of the regulation, and the Service is open to comments

concerning whether additional changes would be helpful. In addition,

the public is encouraged to comment on the practice of using question-

and-answer format in the regulation. The proposed rule states the

section headings in question form. The Service seeks comments on

whether this practice is useful to persons who use the regulation and

whether it should be extended to subheadings.

In addition, this proposal encompasses substantive changes intended

to:

(1) Include the Federal Government in the definition of ``entity;''

(2) Clarify the definition of ``recruit for a fee;''

(3) Clarify the timing permitted for completion of the Form I-9;

(4) Specify reverification requirements, in response to public

comment received on the 1993 proposed document reduction rule and 1995

supplement;

(5) 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;

(6) Shorten the list of documents acceptable for verification;

(7) Require the attachment and retention of copied documentation to

the Form I-9; and

(8) Add a reference to the Service's authority to compel by

subpoena the attendance of witnesses and production of evidence prior

to the filing of a complaint.

The remainder of this supplementary information describes the

changes in the order in which they appear in the proposed rule.

Section 274a.1--Definitions

Entity

The employer sanctions provisions apply to persons and entities.

Section 412(d) of IIRIRA includes any branch of the Federal Government

in the term ``entity.'' Accordingly, this proposed rule amends the

definition of ``entity'' currently in the regulations at 8 CFR

274a.1(b) to include the Federal Government.

Recruit for a Fee

The proposed rule amends the definition of the term ``recruit for a

fee'' at 8 CFR 274a.1(e) to remove overlap between the definitions of

``recruit for a fee'' and ``refer for a fee.'' Currently, the

definition of ``recruit for a fee'' includes the act of soliciting a

person, as well as the act of referring a person, with the intent of

obtaining employment for that person. Thus, for a person or entity to

be deemed to be recruiting, the person or entity must both solicit a

person and refer that person. This overlap clouds the distinction

between the two terms that is carefully maintained in the Act. The

amendment eliminates the overlap by limiting the definition of

``recruit for a fee'' to the act of soliciting a person for a fee with

the intent of obtaining employment for that person.

Recruiter or Referrer for a Fee

The proposed rule adds to 8 CFR 274a.1 a definition for the term

``recruiter or referrer for a fee.'' This language is being moved from

8 CFR 274a.2(a) and does not represent a substantive change.

Employer

The definition of ``employer'' at 8 CFR 274a.1(g) remains

unchanged. However, language from this definition pertaining to an

agent or anyone acting directly or indirectly in the interest of the

employer is currently repeated in Sec. 274a.2 in certain instances

where the term ``employer'' is used. This rule eliminates such language

because it is already a part of the definition of employer and,

therefore, unnecessary to repeat.

Section 274a.2--Why is Employment Verification Required and What Does

It Involve?

This section now contains a discussion of why verification must be

completed on Form I-9, an overview of the verification process,

specifications of the time for completing the Form I-9, and

reverification requirements.

This rule proposes to amend the general discussion in 8 CFR

274a.2(a) introducing the employment verification requirements in

several respects. As proposed, the rule:

(1) Adds references to a form proposed for reverification, the

Employment Eligibility Reverification form, Form I-9A. This proposal is

discussed in further detail in the reverification discussion;

(2) Adds the information that the Form I-9 may now be downloaded

from the Service World Wide Web site; and

(3) Updates the discussion of the beginning date for the

verification requirements in 1987.

Section 274a.2(b) previously covered all of the verification

process. It now contains only an overview of the process and sets forth

the basic requirements for completing Form I-9. It contains language

reinforcing that the employee has the choice of which of the acceptable

documents to present.

What Are the Requirements for Preparers and Translators?

The rule proposes to simplify the requirements for preparers and

translators who assist employees in completing section 1 of the Form I-

9.

[[Page 5291]]

Current regulations provide that preparers or translators must read the

Form I-9 to the individual. The rule proposes to amend the current

regulations by providing that the preparer or translator must provide

such assistance as is necessary for the individual to understand and

complete the form. This change provides needed flexibility for

preparers and translators to adequately assist individuals completing

section 1 of the Form I-9.

What Are the General Requirements for Documents That May Be Presented

in the Verification Process?

The proposed rule includes the statement that only original,

unexpired documents that appear on their face to be genuine and to

relate to the individual presenting the documents can be accepted by

employers and recruiters or referrers for a fee. These requirements

apply to all three lists of documents, as well as to acceptable

receipts. Currently, the regulations permit use of expired United

States passports and expired identity documents. The proposed rule will

require any document presented to be unexpired.

Why Is the Service Proposing To Permit Only Unexpired Documents in All

Cases?

The Service notes that many states have taken steps to improve the

integrity of their document-issuance procedures and the fraud-

resistance of the documents they issue. The United States Department of

State has taken similar steps with respect to passport issuance. If

individuals are allowed to present expired documents, the verification

process gains no benefit from those measures. The Service believes that

the integrity of the verification process will be improved by a

requirement that employees present only unexpired documents.

The Service recognizes that the requirement that individuals

present unexpired documents may impose a cost on persons seeking

employment. The Service anticipates and encourages public comment on

this point. The Service is especially interested in the views of

employers and recruiters or referrers for a fee concerning whether such

a requirement simplifies verification for them, and of persons involved

in assisting welfare recipients in transitioning to work concerning the

burden imposed by the requirement. To that end, what follows is some of

the analysis underlying our decision.

Replacing an expired United States passport is expensive ($55, plus

an additional $30 for expedited service). Because a passport remains

valid for 10 years, however, some employers have questioned whether an

expired passport is a reliable identification document. They note that

a person's appearance can change a great deal in 10 years. In addition,

the Service does not believe that continuing to permit employees to

present expired passports would be of help to most low income

individuals, those for whom the cost of replacement documents would be

the most serious issue, because they would be unlikely to have obtained

a passport in the first place. Finally, the Service believes that most

employers would prefer a simple requirement that documents be unexpired

to a list that included exceptions to the rule.

The Service also researched the cost of obtaining an identity

document in 10 states representing a wide range geographically and in

population size. The cost of an identification card was the primary

focus, because an individual who needs to drive must have an unexpired

driver's license for that purpose, and otherwise an individual would

not need to obtain a driver's license solely for verification purposes.

In all but one of the states contacted, the cost of an identification

card is lower than the cost of a driver's license. The charge for the

card in those states ranges from $4 to $15 and averages around $10. In

four states, the identification card does not expire, so it represents

a one-time cost and the requirement that documents be unexpired would

not be an issue.

Sec. 274a.2(c)--Time for Completing Form I-9

This section states when the Form I-9 must be completed, with

separate paragraphs discussing employers, hires for duration of less

than 3 days, recruiters and referrers, and receipts.

May an Employer Require Completion of Form I-9 Before an Employee

Starts To Work? Must an Employer Always Give Employees 3 Days To

Present Documentation?

This section contains one addition pertaining to when the Form I-9

must be completed. The regulations require section 1 of the Form I-9 to

be completed by the individual at the time of hire and section 2 of the

Form I-9 to be completed by the employer, or recruiter or referrer for

a fee, within 3 business days of the date of hire (unless the duration

of employment is less than 3 business days).

Current regulations are silent as to whether an employer, or

recruiter or referrer for a fee, may complete the Form I-9 prior to the

date that the individual is hired. in the past, employers have asked if

they are permitted to require individuals to present the necessary

documentation at the time of hire rather than within 3 business days of

the hire. Service policy has been stated in the Handbook for Employers,

the M-274. The Handbook for Employers states that an employer may

complete the Form I-9 before the day that an individual starts work,

but after the individual has been offered employment and has accepted

the job, provided that the employer completes the Form I-9 at the same

point in the employment process for all employees. The proposed rule

incorporates in the regulations this longstanding Service

interpretation of the employment verification requirements. The

proposed rule permits the employer, or recruiter or referrer for a fee,

to complete the Form I-9 prior to the date that an individual begins

work, so long as the Form I-9 is completed after the hiring commitment

is made and this practice is uniformly applied to all employees.

Section 274a.2(d)--Reverification of Employment Eligibility When

Employment Authorization Expires

Current regulations require employers and recruiters or referrers

for a fee to reverify on the Form I-9 if an individual's employment

authorization expires. Reverification on the Form I-9 must occur no

later than the date work authorization expires. The Service receives

numerous questions from the public concerning this requirement. In

response to questions and comments, the Service is attempting to

clarify the reverification requirements in this proposed rule.

What Is the Form I-9A?

The Service proposes creation of the Form I-9A as a supplement to

the Form I-9 which may be used for reverification. Form I-9A is

structured similarly to the Form I-9, in that it has a section to be

completed by the employee, a preparer/translator block, and a section

to be completed by the employer. Form I-9A is shorter, however,

containing only the information needed for reverification. The form

provides blocks for two reverifications and may be duplicated as

needed.

Why Is the Service Proposing Creation of Form I-9A?

The Service does not seek to impose an increased burden on the

public by proposing this supplemental form. Rather, the Service is

attempting to respond to earlier comments from employers. Currently,

the updating and

[[Page 5292]]

reverification section on the Form I-9 contains an attestation for the

employer only. In response to the 1993 proposed rule, several employers

expressed the belief that the employee also should be required to

attest to his or her continuing eligibility to be employed. This

suggestion was incorporated in the Service's 1995 supplement. Adding an

employee attestation to the updating and reverification section,

however, also made it necessary to add a preparer/translator block. The

result was a form that was crowded and difficult to complete. The

Service considered simply requiring employers to complete a new Form I-

9 when they reverified. Before doing so, however, the Service wished to

obtain suggestions from employers concerning whether a reverification

form would be more convenient. It seemed possible that a reverification

form would help employers better understand when reverification is--and

is not--required. For example, some employers apparently reverify

identity documents when they expire, even though this is not required.

Form I-9A provides no space for entering information about identity

documents, which helps to reinforce that they need not be reverified.

Although Form I-9A is intended to simplify reverification, the

Service seeks comment on whether employers would prefer to use the Form

I-9 for reverification as well as verification at the time of hire. The

proposed rule makes it clear that employers may elect to either use

Form I-9A or complete a new Form I-9 for verification. The Service

would appreciate comment on whether employers have a preference. If the

comments reveal a strong and clear preference to use Form I-9 for

reverification, and against creation of an additional form, the Service

will not promulgate Form I-9A.

Who Is Exempt From Reverification?

The proposed rule also makes it clear that reverification does not

apply to United States citizens or nationals or to lawful permanent

residents. There is one exception: lawful permanent residents who

present a foreign passport with a temporary I-551 stamp must present

the actual Form I-551 when the stamp expires. However, under no other

circumstance is reverification necessary for lawful permanent

residents, even if their Alien Registration Receipt Card or Permanent

Resident Card, Form I-551 expires or they naturalize.

How Does an Employer Know When Work Authorization Expires?

The proposed rule also states that an expiration date for work

authorization, triggering the reverification requirement, may appear in

either section 1 or section 2 of the Form I-9 or Form I-9A. Some

employers have expressed uncertainty about whether they are responsible

for information in both sections of the form.

Section 274a.3--What Documents Are Acceptable for Employment

Verification?

To implement section 412(a) of IIRIRA, and meet the Service's

longstanding document-reduction objectives, this rule proposes to amend

the current regulations governing the lists of documents acceptable in

the employment verification process.

Section 274a.3(a)--Documents That Establish Both Identity and

Employment Authorization (List A)

How Does IIRRA Affect List A Documents?

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 (List A). 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,

resident alien card, alien registration card, or other document

designated by the Attorney General.

What Conditions Must a Document Meet To Be Added to List A?

IIRIRA restricts the Attorney General's authority to add documents

to List A. Each document designated by the Attorney General must meet

three conditions. The document must:

(1) Bear a photograph and personal identification information;

(2) Constitute evidence of employment authorization, and

(3) Contain ``security features to make it resistant to tampering,

counterfeiting, and fraudulent use.''

What Documents Will Be on List A Under the Proposed Rule?

The Service proposes to amend the current regulations to limit the

documents that establish both identity and employment authorization to

the following documents. Documents preceded by an asterisk are proposed

to be added by regulation. The other documents are listed in the law,

as amended by IIRIRA. Documents proposed for List A are:

(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 issued by the Service

which contains a photograph (Form I-766, For I-688, For I-688A, or Form

I-688B); and,

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

for a specific employer, 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 and the

name of the approved employer with whom employment is authorized, 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.

What is the Service's Basis for including INS-Issued Employment

Authorization Documents?

This proposed rule designates an employment authorization document,

Forms I-766, I-688, I-688A, and I-688B, as an acceptable List A

document. Forms I-766, I-688, I-688A, and I-688B 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.

What Is the Service's Basis for Including Foreign Passports?

The Service proposes in this rule to designate 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

[[Page 5293]]

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

In the newest versions of the Form I-551, the cards also bear an

expiration date but need not be reverified when the card expires. Only

the stamp must be reverified when expired. (See the discussion of the

receipt rule, below, for discussion of the temporary I-551 stamp when

it is placed on Form I-94 instead of a foreign passport.)

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

authorization to work for a specific employer. This will be an

acceptable document only for persons whose employment is incident to

status and authorized with a specific employer, and may be accepted

only by the employer for whom the individual is authorized to work.

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

employment incident to status with a specific employer. The Service

does not currently require aliens in these classes to obtain a List A

employment authorization document--i.e., an I-688B or I-766 EAD, and

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

proposed rule specifies the documentation the Service will issue to

nonimmigrant alien classes that will not be issued an I-766 EAD. This

documentation will be the Form I-94, with an endorsement that specifies

the employer with which work is authorized. The Service will modify its

procedures for endorsing the departure portion of nonimmigrants' Form

I-94, so that the name of the approved employer will appear on the

document. The employer's name will also be noted on the arrival portion

of the Form I-94 and entered into Service databases for verification

and record-keeping purposes.

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

place conditions on'' a specific document if the Attorney General finds

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

authorization of identity or is being used fraudulently to an

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

or used by nonimmigrants in these classes does not reliably establish

work eligibility except for employment with a specific employer. The

proposed rule, therefore, restricts the foreign passport with an I-94

bearing employer-specific work authorization, stipulating that it 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 restrictions do not

permit employers to require individuals to present a specific document.

The restrictions do mean that a Form I-94 endorsed to permit employment

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

to work for other employers.

The Service finds that, in those two 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 birthdate and physical

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

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

with a Form I-94 endorsed to authorize employment with a specific

employer. 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. An I-94 is acceptable with a foreign passport only

in employer-specific situations in which the employer examining the I-

94 for employment verification purposes is the same employer named on

the I-94. The Service also notes that, in both these instances, the

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

when the stamped authorization bears an expiration.

The proposed restrictions on Form I-94 pose special issues for two

categories of nonimmigrants, students (F-1) and exchange visitors (J-

1). Documentation for those categories will be addressed further in the

forthcoming proposed amendments to Part 274a, Subpart B.

If the Service Has a New Employment Authorization Document, Why Are the

Older Ones Still on This list?

The Service has been planning for several years to phase out use of

three documents: (1) Temporary Resident Card, Form I-688; (2)

Employment Authorization Card, Form I-688A; and (3) Employment

Authorization Document, Form I-688B. As noted, on September 4, 1996,

the Service published a final rule adding Form I-766 to List A and

began to issue the I-766 EAD in February 1997. Through forthcoming

proposed amendments to 8 CFR 274a, Subpart B, the Service will discuss

its plans to consolidate card production. This consolidation will allow

the Service to replace Forms I-688, I-688A, and I-688B with the I-766

EAD as the earlier documents expire. The Service anticipates phasing

out these documents through the normal card replacement process. No

document recall is planned. Based upon comments received in response to

the 1993 proposed rule and 1995 supplement, the Service is not

proposing a termination date for the validity of those documents at

this time. The documents remain on List A in this proposed rule. At the

appropriate time in the future, the Service will remove these documents

from List A through rulemaking and update the Form I-9.

What Documents Are Being Removed From List A and Why?

The proposed rule does not designate the certificate of United

States citizenship, certificate of naturalization, re-entry permit, and

refugee travel document as acceptable List A documents. These documents

were removed by the interim rule. The Service does not believe that

these documents meet the three conditions required for the Attorney

General to designate them as List A documents. Holders of these

documents can easily obtain other acceptable documents which are more

readily recognized by employers. Naturalized citizens are eligible for

the same documents as other United States citizens, such as a passport

and unrestricted social security card. Lawful permanent residents and

refugees are eligible for an unrestricted social security card and,

respectively, Form I-551 and Form I-688A or Form I-766.

What Happened to the Earliest Versions of the ``Green Card,'' Form I-

151?

The Service phased out Form I-151, Alien Registration Receipt Card,

as evidence of status as a lawful permanent resident effective March

20, 1996. Currently, Form I-551 is the only valid evidence of lawful

permanent resident status. Employers are not required to reverify

employees who were hired prior to March 20, 1996, and who presented

Form I-151. However, employers and recruiters or referrers for a fee

should not have accepted Form I-151 from employees hired after that

date.

Section 274a.3(b)--Documents That Establish Identity Only (List B)

Does IIRIRA Affect List B Documents?

The IIRIRA made no statutory changes to List B documents.

Section 274A(b)(1)(D) of the Act specifies the following documents

as acceptable documents for establishing identity:

[[Page 5294]]

(1) A driver's license or similar identification document issued by

a state that contains a photograph or other identifying information, or

(2) For individuals under the age of 16 or in a state that does not

issue an appropriate identification document, documentation of personal

identity found by the Attorney General to be reliable.

Despite this limited list, current regulations permit a wide range

of acceptable documents. List B currently is the longest of the three

lists, and many of the documents either are unfamiliar to many

employers or vary widely in appearance and the features they contain.

In this proposed rule, the Service is retaining documents previously

added to List B by regulation only in instances where there is an

identifiable class for which elimination of the document could leave

the class without an acceptable document to establish identity.

What Documents Will Be on List B Under the Proposed Rule?

The Service proposes to amend the regulations by reducing the list

to the following documents:

(1) A state-issued driver's license or identification card;

(2) A Native American tribal document; and

(3) In the case of a Canadian nonimmigrant authorized to work

incident to status with a specific employer, a Canadian driver's

license or provincial identification card.

What Documents Are Begin Retained on List B by Regulation and Why?

The Service identified two documents previously added to List B by

regulation for which there is an identifiable class that could be left

without an acceptable document to establish identity if the document

were removed from the list. The documents are: (1) A Native American

tribal document and (2) a Canadian driver's license or provincial

identification card.

Why Are Native American Tribal Documents Included on List B?

The proposed rule retains Native American tribal documents on both

List B and List C (documents evidencing work authorization only). The

removal of Native American tribal documents from the list of acceptable

documents would pose a particular problem for Canadian-born American

Indians who continue to reside in Canada, but who enter the United

States temporarily for employment purposes under the terms of section

289 of the Act. These individuals are not required to present a

passport for admission to the United States and would not necessarily

have other identification documents acceptable for employment

verification requirements.

Over the years, the Service has received many inquiries concerning

why these documents appear on both List B and List C instead of List A.

Until the enactment of IIRIRA, the Attorney General lacked the

authority to designate List A documents beyond those specifically

listed in the Act. Section 412(a) of IIRIRA extends this authority to

the Attorney General. However, as noted, documents added to List A must

meet three conditions, including that the document must contain

security features. The number of authorities issuing tribal documents

is too numerous, and the documentation too varied, for the Service to

make a finding that tribal documents, as a class, meet all three

conditions. Therefore, the Service is continuing the existing practice

of including those documents on both List B and List C.

Why are Canadian Driver's Licenses and Identification Documents

Included on List B?

The proposed rule includes on List B a driver's license or

identification card issued by a Canadian Government authority. This

rule proposes to make such documents acceptable only in the case of a

Canadian nonimmigrant authorized to work incident to status with a

specific employer. Through reciprocal international agreements and

under Service regulations at 8 CFR 212.1(a), a visa generally is not

required of Canadian nationals and aliens having a common nationality

with nationals of Canada, and a passport is required of these aliens

only when traveling from outside the Western Hemisphere. However, the

Service controls and documents the arrival of Canadian nationals and

aliens having a common nationality with nationals of Canada who

establish admissibility in a nonimmigrant classification which entitles

them to work with a specific employer (for example, as a professional

under the North American Free Trade Agreement [TN], or as an

intracompany transferee [L-1], or as a temporary worker [H-2B].) The

Service issues the Form I-94 to these aliens as a record of lawful

admission and as evidence of authorization to work in the United States

with a specific employer. The Service also issues the Form I-94 to

nationals of all other countries to document and control admission of

nonimmigrants. The Form I-94 is generally placed in the passport of the

nonimmigrant alien.

Because aliens of Canadian nationality are not required to present

a passport for admission to the United States except when traveling

from outside the Western Hemisphere, the Service is retaining on List B

identity documents issued by Canadian authorities. However, to avoid

confusion about the eligibility of Canadian nationals to engage in

employment in the United States, the Service is adding language to make

it clear that Canadian identification documents may be used only in the

limited instance of a Canadian national admitted as a nonimmigrant who

is authorized to work incident to nonimmigrant status with a specific

employer. In other situations, authorized Canadian nationals would have

other acceptable documentation. For instance, Canadian nationals who

are lawful permanent residents would have been issued a Form I-551.

Over the years, the Service has received many inquiries concerning

why Mexican driver's licenses are not included on List B. No reciprocal

agreements exist between the United States and Mexico which would

permit the use of Mexican driver's licenses or identification cards as

List B documents.

What Documents Are Being Removed From List B and Why?

The Service proposes to remove the following documents from List B:

(1) An identification card issued by Federal or local authorities;

(2) A school identification card with a photograph;

(3) A voter's registration card;

(4) A United States military card or draft record;

(5) A military dependent's identification card;

(6) A United States Coast Guard Merchant Mariner Card; and

(7) For individuals under age 18 who are unable to produce an

identity document, a school record or report card, clinic doctor or

hospital record, and daycare or nursery school record.

When the Service published the 1993 proposed rule and 1995

supplement, several comments expressed concern about the elimination of

specific documents and the special list for minors. Current

regulations, however, were developed when not all states issued a non-

driver's identification card. At present, all states do so. Therefore,

this justification for an expanded list no longer exists. The Service

believes that the proposed list will greatly reduce confusion for

employers while enabling all work-eligible individuals to establish

their identity for verification purposes.

[[Page 5295]]

Will It Still Be Possible for Someone Else To Attest to the Identity of

a Minor or Person With a Disability if They Cannot Present an

Acceptable Identity Document?

Yes. Current regulations permit employers, and recruiters or

referrers for a fee, to accept an attestation concerning the identity

of minors under the age of 18 and persons with disabilities who are

unable to produce one of the acceptable identity documents. The Service

is proposing no substantive changes to these provisions. Because the

provision for persons with disabilities was developed prior to passage

of the Americans with Disabilities Act (ADA), however, the proposed

rule replaces terminology that pre-dates the ADA with the terms and

definition used in the ADA.

Section 274a.3(c)--Documents That Establish Employment Authorization

Only (List C)

How Does IIRIRA Affect List C Documents?

Section 412(a) of IIRIRA amends section 274A(b)(1)(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 list of acceptable

documents that may be used to establish employment authorization for

compliance with the employment verification requirements. Acceptable

List C documents are: a social security account number card (other than

one which specifies on its face that the issuance of the card does not

authorize employment in the United States) or other documentation found

acceptable by the Attorney General that evidences employment

authorization.

What Documents Will Be on List C Under the Proposed Rule?

The Service proposes to limit acceptable List C documents to the

following:

(1) A social security account number care (other than such a card

which specifies on the face that the issuance of the card does not

authorize employment in the United States);

(2) A Native American tribal document; and

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

a specific employer, an Arrival-Departure Record, Form I-94, containing

an endorsement of the alien's nonimmigrant status and the name of the

approved employer with whom employment is authorized, 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.

Why Is the Service Changing the Language Describing an Acceptable

Social Security Card?

Current regulations designate the ``social security number card

other than one which has printed on its face `not valid for employment

purposes' '' as an acceptable List C document. In accordance with

section 412(a) of IIRIRA this proposed rule retains the social security

account number card on List C. The proposed rule, however, amends the

language in the regulations so that it mirrors the statutory language.

The proposed rule changes the term, ``social security number card,'' to

``social security account number card,'' as is stated in the Act and

IIRIRA. In addition, the proposed rule replaces the phrase, ``other

than one which has printed on its face `not valid for employment

purposes,''' with the statutory language, ``(other than such a card

which specifies on the face that the issuance of the card does not

authorize employment in the United States).''

The Social Security Administration (SSA) issues cards with the

legend stated in the regulations, ``not valid for employment

purposes,'' to individuals from other countries who are lawfully

admitted to the United States without work authorization, but who need

a number because of a Federal, state, or local law requiring a social

security number to get a benefit or service. In 1992, SSA began issuing

cards that bear the legend ``valid for work only with INS

authorization'' to people who are admitted to the United States on a

temporary basis with authorization to work. This proposed rule amends

the language in the regulations to mirror the language in the Act and

IIRIRA and to clarify that cards bearing either restrictive legend are

not acceptable List C documents.

What Documents Are Being Added to List C by Regulation and Why?

Under section 274A(b)(1)(C)(ii) of the Act, 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 Service finds that the Native American tribal document and Form I-

94 with endorsement of employment authorization are acceptable List C

documents. As noted in the discussion of Native American tribal

documents under List B, elimination of the documents from List C could

leave certain Native Americans without an acceptable document to

establish their eligibility to work. As noted in the discussion of Form

I-94 under List A, Form I-94 will be the document issued to

nonimmigrant aliens who are authorized to work only for a specific

employer. Only the employer for whom the work is authorized will be

permitted to accept the document.

What Documents Are Being Removed From List C and Why?

The Service proposes to eliminate the following documents as

acceptable for establishing employment authorization:

(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) A birth certificate issued by a State, county, municipal

authority or outlaying possession of the United States bearing an

official seal;

(4) A United States citizen Identification Card, INS Form I-197;

(5) An Identification card for use of a resident citizen in the

United States, INS Form I-179; and

(6) An unexpired employment authorization document issued by the

Service.

The IIRIRA provides for additions to List C by regulation of

``other documentation found acceptable by the Attorney General that

evidences employment authorization.'' The Service recognizes that

elimination of the birth certificate, in particular, may generate

public comment.

The Service notes, however, that Congress specifically eliminated

this document from the list, based on its concern that, ``Birth

certificates, even if issued by lawful authority, may be fraudulent in

that they do not belong to the person who has requested that one be

issued. This problem is exacerbated by the large number of

authorities--numbering in the thousands--that issued birth

certificates.'' (See H.R. Rep. No. 104-469, at 404-05 (1996).)

In addition to believing that eliminating the birth certificate is

consistent with Congressional intent, the Service has additional

reasons for taking this action. Service officers have expressed concern

by the lack of uniform controls among the states over the issuance of

replacement birth certificates.

Officers are encountering situations in which unauthorized aliens

have used fraudulently obtained birth certificates

[[Page 5296]]

to falsely claim United States citizenship and gain employment.

The other documents proposed for removal also pose burdens to

employers because it can be difficult for employers to assess whether

they appear genuine on their face. The certifications of birth abroad,

issued by the State Department, are not commonly recognized documents

with which the general public is familiar. The Service no longer issues

the citizen identification cards which were on the list. Legitimate

holders of the documents being removed are all eligible for an

unrestricted social security card, which allows them to establish their

eligibility to work in the United States. The Service believes that

employers will find a shorter list of documents easier to work with.

In this proposed rule, the existing general category of documents

characterized as ``employment authorization documents issued by the

Service'' is no longer designated as an acceptable List C document.

This general category was included in the current regulations while the

Service was taking steps to standardize the employment authorization

documents that it issues. The Service has taken several steps to issue

uniform documentation. The Service introduced the I-688B EAD in 1989.

The I-766 EAD, introduced in February of 1997, represents further

improvement because the centralized process is more secure and

efficient. These documents are List A documents which establish both

identity and eligibility to work. Moreover, with his proposed rule, the

Service announces additional steps, such as the endorsement of Form I-

94 when it is issued to a nonimmigrant who is authorized to work for a

specific employer. The Service believes that a general category for

Service-issued employment authorization documents is no longer

necessary.

Section 274a.3(d)--Receipts

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.

This provision provides flexibility in situations where, for example,

an individual has lost a document. The Service has received numerous

questions about the applicability of this provision to various

situations. The proposed rule attempt to clarify the circumstances in

which a receipt may be accepted.

The interim rule amended the receipt rule to designate three

instances in which receipts are acceptable and extended the receipt

rule to reverification. The proposed rule restructures the receipt rule

and moves this provision to the section of the regulations containing

the lists of acceptable documents.

Employers have asked whether they must accept a receipt if an

employee presents one. In the new structure, receipts are discussed in

the same section as Lists A, B, and C to emphazie that the same

standards that apply to List A, B, and C documents also apply to

receipts. Further, the rule indicates that an employee has the choice

of which documents to present. Just as with List A, B, and C documents,

if the receipt appears to be genuine and to relate to the individual

presenting it, the employer cannot ask for more or different documents

and must accept the receipt. Otherwise, the employer may be engaging in

an unfair immigration-related employment practice in violation of

section 274B of the Act. The receipt presented, however, is only

acceptable if it is one that is listed in the regulations.

Like the interim rule, the proposed rule also extends the receipt

rule to reverification and identifies circumstances where a receipt is

not acceptable.

In What Circumstances are Receipts Acceptable?

The proposed rule permits the use of receipts in three instances:

(1) a receipt for an application for a replacement document,

(2) A temporary I-551 stamp on a Form I-94, and

(3) A refugee admission stamp on a Form I-94.

Receipt for Application for a Replacement Document

The first instance in which a receipt is acceptable is when the

individual presents a receipt for the application for a replacement

document. An application for an initial or extension List A or C

document, however, is not acceptable, except for nonimmigrants as

provided under 8 CFR 274a.12(b)(20). The latter provision permits

continued employment for a temporary period of certain nonimmigrants

authorized to work for a specific employer incident to status, in

situations where a timely application has been filed with the Service

and has not been timely adjudicated.

Temporary Evidence of Permanent Resident Status on Form I-94

The second instance is the use of Form I-94 as temporary evidence

of permanent resident status. If an alien is not in possession of his

or her passport, and requires evidence of lawful permanent resident

status, the Service may issue the alien the arrival portion of a Form

I-94 with a temporary I-551 stamp and the alien's picture affixed.

Although this document provides temporary evidence of permanent

resident status, it does not contain security features and, therefore,

does not meet the statutory requirements for inclusion on List A. The

Services, therefore, proposes to designate Form I-94 with a temporary

I-551 stamp as a receipt for Form I-551 for 180 days.

Special Rule for Refugees

The third instance is when the departure portion of Form I-94

contains 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 SSA to ensure prompt issuance to refugees of social

security cards which carry no employment restrictions. 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 an 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 an 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 SSA or the

Service, the Service proposes a special receipt rule. Under this rule,

a Form I-94 with a refugee admission stamp will be a receipt evidencing

eligibility to work valid for 90 days from the date of hire. It will

not be a receipt for a specific document. The refugees will be

permitted to present either an unrestricted social security card or an

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 an I-766 EAD, he or she does

not need to present another document.

Are There Circumstances Where a Receipt is not Acceptable?

The proposed rule notes two exceptions in which the special rules

for receipts do not apply. These are if:

(1) The individual indicates or the employer, or recruiter or

referrer for a fee, has actual or constructive

[[Page 5297]]

knowledge that the individual is not authorized to work; or

(2) The employment is for a duration of less than 3 business days.

The Services considered changing the term ``receipt'' in light of

the expanded definition contained in this proposed rule. The Service's

impression, however, is that employers are familiar with this term as

it is used in the verification context. The Service seeks comment on

whether other terminology would be clearer or the current term is

preferred.

Section 274a.4 How long are Employers and Recruiters or Referrers

Required to Retain the Form I-9 and What Must be Retained With it?

The proposed rule breaks what was formerly Sec. 274a.2 into two

sections, pertaining to retention (Sec. 274a.4) and inspection

(Sec. 274a.6). The retention section addresses general requirements for

employers and recruiters or referrers for a fee, reverification,

copying of documentation, and limitations on the use of the Form I-9.

Most of these provisions remain unchanged in content with the current

rule. One change is to specify that a form used for reverification must

be attached to the initial Form I-9 relating to the individual.

Another change relates to photocopies of documents. Employers and

recruiters or referrers for a fee may, but are not required to, copy a

document presented by an individual solely for the purpose of complying

with the verification requirements. Current regulations state both that

employers and recruiters or referrers for a fee should retain the

copies with the Form I-9 and that the retention requirements do not

apply to copies. The proposed rule removes this apparent inconsistency

by providing that employers and recruiters or referrers for a fee who

elect to photocopy documentation must attach the photocopies to the I-9

and I-9A form and present them with the forms upon inspection. This

change is necessary to clarify the retention requirements for

photocopies of documentation in response to investigation issues that

have confronted the Service and the Office of Special Counsel for

Immigration-Related Unfair Employment Practices (OSC).

Section 274a.5 Under What Circumstances may Employers and Recruiters

or Referrers Rely on a Form I-9 That an Individual Previously

Completed?

This section addresses requirements in the cases of continuing

employment (formerly Sec. 274a.2(b)(1)(viii)), hiring an individual who

was previously employed (formerly Sec. 274a.2(c)), and recruiting or

referring for a fee an individual who was previously recruited or

referred (formerly Sec. 274a.2(d)). The only substantive change the

Service proposes is to eliminate language that could be construed as

requiring recruiters and referrers to reverify all referred individuals

whose work authorization expires. The proposed rule requires

reverification only in the instance of an individual who was previously

recruited or referred.

Section 274a.6 What Happens When the Government Asks to Inspect Forms

I-9?

This section addresses the 3-day notice of inspection, the

obligation to make records available, standards for microfilm and

microfiche, and the consequences of failure to comply with an

inspection. Most of these paragraphs were previously contained in

Sec. 274a.2(b)(2).

What Changes are Made in the Proposed Rule?

Section 416 of IIRIRA clarifies the Service's subpoena authority by

stating that, ``immigration officers designated by the Commissioner may

compel by subpoena the attendance of witnesses and the production of

evidence at any designated place prior to the filing of a complaint * *

*.'' The current regulations at Sec. 274a.2(b)(2)(ii) include a

reference to the Service's subpoena authority, but they refer to the

production of documents rather than the production of evidence and do

not include a reference to the attendance of witnesses. This rule

proposes to amend the current regulations to include a reference to the

attendance of witnesses, replace the phrase, ``production of

documents,'' with the phrase, ``production of evidence,'' and include a

reference to the exercise of the subpoena authority prior to the filing

of a complaint with the Office of the Chief Administrative Hearing

Officer based upon a request for a hearing made by the employer, or

recruiter or referrer for a fee, following service of the Notice of

Intent to Fine. The proposed rule also simplifies the statement in the

regulations regarding the Service's subpoena authority so that it is

clear that the Service has the authority to compel by subpoena: Forms

I-9 that a person or entity refuses to produce upon inspection; Forms

I-9 that are the subject of an inspection whether or not the person or

entity refuses to produce them; the production of any evidence; and the

attendance of witnesses.

Will the Service Allow Electronic Storage of the Form I-9?

In the last several years, the Service has been in dialogue with

the public over changes in information technology and their possible

applicability to the Form I-9. One result of these discussions was the

interim rule, published October 7, 1996, permitting electronic

generation of a blank Form I-9. Following publication of this rule, the

Service began to make the Form I-9 available for downloading from its

world wide web site on the Internet (www.ins.usdoj.gov).

Employers have also expressed interest in electronic storage of the

Form I-9. The Service is currently preparing to conduct a demonstration

project to assess electronic storage of Forms I-9. In reviewing this

technology, the Service is aware that many employers now scan and/or

electronically store many of their personnel records.

The Form I-9, however, raises special issues because it requires

two signatures. Fraudulent preparation of the form is a common issue in

the Service's investigations. For example, during an investigation an

unauthorized alien may claim that the employer did not complete a Form

I-9 at the time of hire, while the employer presents a Form I-9 for the

employee and claims that the employee lied about his unauthorized

status. The determination of whose account is true is central to the

question of liability for penalties. Investigations of such cases may

require forensic analysis to determine the authenticity of the

signatures. Scanned signatures provide adequate detail for such

analysis only at a rate of resolution higher than those used for most

records scanning systems. The Service is continuing to monitor

developments in scanning and other technology. At present, however, the

Service is considering scanned records for purposes of I-9 retention

only in the context of the demonstration project.

Sec. 274a.7 What is the Prohibition on Hiring or Contracting With

Unauthorized Aliens and What Defense can be Claimed?

This section contains the following three provisions pertaining to

hiring or contracting and unauthorized aliens:

(1) Prohibition on the hiring and continuing employment of

unauthorized aliens, currently at 8 CFR 274a.3;

(2) Use of labor through contract, currently at 8 CFR 274a.5; and

(3) Good faith defense to charge of knowingly hiring an

unauthorized alien, currently at 8 CFR 274a.4.

The proposed rule amends the paragraph currently at 8 CFR 274a.3 by

[[Page 5298]]

adding a reference to the prohibition on the hiring of unauthorized

aliens provided by section 274A(a) (1) (A) of the Act. It also

clarifies that an employer's ``knowledge'' that an employee is

unauthorized can be either actual or constructive for the provision

prohibiting the hiring or continued employment of an unauthorized alien

to be violated. Cross-references to the verification sections are

amended to reflect the changes proposed by the rule. No other

substantive changes were made.

Section 274a.8 What are the Requirements of State Employment Agencies

that Choose to Verify the Identity and Employment Eligibility of

Individuals Referred for Employment by the Agency?

This section contains the state agency certification requirements

currently contained at 8 CFR 274.6. The Service proposes no changes to

the contents of this section, in part because the Service is not aware

of any state agencies currently issuing certifications under this

provision. Under the Act, an employer may rely upon a state agency

certification instead of completing Form I-9. The requirements in this

section were developed during the first years that the verification

requirements were in effect. In light of recent welfare reform efforts,

the Service is prepared to revisit the requirements if there is new

interest among state agencies in performing verifications for

employers. The Service invites comment from state agencies concerning

changes to the regulations that would facilitate their ability to

provide this service.

Section 274a.9 Can a Person or Entity Require an Individual to Provide

a Financial Guarantee or Indemnity Against Potential Liability Related

to the Hiring, Recruiting, or Referring of the Individual?

This section contains the prohibition against indemnity bonds

currently found at 8 CFR 274.8. No substantive changes have been made

to this section.

Section 274a.10 How are Investigations Initiated and Employers

Notified of Violations?

This section contains the paragraphs discussing the filing of

complaints, investigations, notification of violations, and the

procedures for requesting a hearing, which are currently found at 8 CFR

274a.9. No substantive changes have been made to this section.

Section 274a.11 What Penalties may be Imposed for Violations?

This section contains the penalty provisions currently found at 8

CFR 274a.10. It also contains the pre-enactment provision, which

exempts employers from penalties for individuals hired prior to

November 7, 1987, currently found at 8 CFR 274a.7. Minor language

changes have been made to the latter for purposes of clarity. The

substance in this section remains unchanged.

How can the Service Best Inform the Public of Changes to the

Requirements?

Over the years, the Service has attempted to inform the public of

new forms and requirements by mailing information. Mailings were

conducted in 1987 to introduce the Form I-9; in 1989 to introduce the

Form I-688B Employment Authorization Document (EAD); in 1991 to

introduce the revised Form I-9; and in 1997 to introduce the new Form

I-766 EAD.

Employers and trade associations have, from time to time,

questioned the effectiveness of such mailings. Three of the mailings

were conducted with the assistance of the Internal Revenue Service

(IRS). Some of the feedback the Service received following those

mailings suggested that many employers have IRS mail directed to

attorneys or accountants, which meant that the Form I-9 information did

not reach its intended audience. For the 1997 mailing, the Service used

a commercial data base and indicated on the front that the material

should go to the human resources department. In talking to employers

who have called INS for information related to the Form I-9, the

Service has identified few instances where the people responsible for

Forms I-9 received the mailing.

The Service recognizes the impact that the Form I-9 has on the

business community and wants to ensure that the public has ready access

to the information it needs. The Service is developing a fax-back

capability for employer information and is making increased use of its

internet site. All materials related to changes in the requirements

will be made available through these channels as they become available.

The Service will also work through trade and professional associations

and similar organizations to inform the public.

The Service seeks suggestions from the public concerning the most

cost-effective means to reach and inform those affected by this rule.

Similarly, suggestions concerning the preferred format for

instructional materials, such as the M-274 Handbook for Employers or

suggested alternatives, would be welcome.

Cross-reference table

The following cross-reference table is provided to assist the

public in understanding how the Service proposes to restructure 8 CFR

274a, Subpart A.

Cross-Reference--Proposed Restructuring of 8 CFR 274A--Subpart A

------------------------------------------------------------------------

Proposed Current

------------------------------------------------------------------------

274a.1 Definitions. Definition of 274a.1 and 274a.2(a)

recruiters and referrers moved to this

section.

274a.2 Why is employment verification

required and what does it involve?

(a) Why employment verification is 274a.2(a)

required.

(1) Designation of Form I-9 and 274a.2(a)

Form I-9A.

(2) Obtaining and duplicating Form 274a.2(a)

I-9 and Form I-9A.

(3) Limitation on use of Form I-9 274a.2(b)(4)

and attachments.

(4) Beginning date for verification 274a.2(a)

requirements.

(b) How to complete the Form I-9... 274a.2(b)

(1) Employee information and 274a.2(a)(b)(1)(i)(A)--responsi

documentation. bility to complete section 1

of Form I-9

(2) Document review and 274a.2(b)(1)(i)(B)--responsibil

verification. ity to present documentation

274a.2(b)(1)(ii)(A)--responsibi

lity to review documentation

274a.2(b)(1)(ii)(B)--responsibi

lity to complete section 2 of

Form I-9

(3) Recruiters or referrers........ 274a.2(b)(1)(iv)--recruiter/

referrer responsibility to

complete Form I-9

[[Page 5299]]

(c) Time for completing Form I-9 274a.2(b)

(new heading).

(1) Section 1 of the Form I-9...... 274a.2(b)(1)(i)(A)--timing to

complete section 1

(2) Section 2 of the Form I-9...... ...............................

(i) Hires for a duration of 3 or 274a.2(b)(1)(ii)--timing to

more business days. complete section 2

274a.2(b)(1)(iv)--timing for

recruiters/referrers

(ii) Hires for a duration of less 274a.2(b)(1)(iii)--timing if

than 3 business days. hire is for less than 3

business days

(3) Receipts (new)................. ...............................

(d) Reverification of employment 274a.2(b)(1)(vii)

eligibility when employment

authorization expires.

(1) Procedures..................... ...............................

(2) Continuing obligation (new).... ...............................

(3) Exception to reverification ...............................

requirement (new).

274a.3 What documents are acceptable

for employment verification?

(a) Documents that establish both 274a.2(b)(1)(v)(A)

identity and employment

authorization (List A).

(b) Documents that establish 274a.2(b)(1)(v)(B)

identity only (List B).

(1) Acceptable List B documents.... 274a.2(b)(1)(v)(B)

(2) Special rule for minors........ 274a.2(b)(1)(v)(B)(3)

(3) Special rule for individuals 274a.2(b)(1)(v)(B)(4)

with disabilities.

(c) Documents that establish 274a.2(b)(1)(v)(C)

employment authorization only

(List C).

(d) Receipts....................... 274a.2(b)(1)(vi)

(1) Acceptable receipts and their 274a.2(b)(1)(vi)

validity periods (includes new

content).

(2) Exceptions (includes new 274a.2(b)(1)(iii)--prohibition

content). on receipts if hire is for

less than 3 business days

274a.4 How long are employers and 274a.2(b)(2)--retention of Form

recruiters or referrers required to I-9

retain the Form I-9 and what must be

retained with it?.

(a) Retention of Form I-9.......... ...............................

(1) Employers...................... 274a.2(b)(2)(i)(A)

(2) Recruiters or referrers........ 274a.2(b)(2)(i)(B)

(b) Retention of attachments (new). ...............................

(i) Reverification forms (new)..... ...............................

(ii) Copies of documentation....... 274a.2(b)(3)

274a.5 Under what circumstances may ...............................

employers and recruiters or referrers

rely on a Form I-9 that an individual

previously completed?

(a) Continuing employment.......... 274a.2(b)(1)(viii)

(b) Employment verification 274a.2(c)

requirements in the case of an

individual who was previously

employed.

(c) Employment verification 274a.2(d)

requirements in the case of

recruiting or referring for a fee

an individual who was previously

recruited or referred.

274a.6 What happens when the 274a.2(b)(2)--Inspection

Government asks to inspect Forms I-9?.

(a) Notice of inspection........... 274a.2(b)(2)(ii)

(b) Obligation to make records 274a.2(b)(2)(ii)

available.

(1) In general..................... ...............................

(2) Standards for submitting 274a.2(b)(2)(iii)

microfilm or microfiche.

(3) Recruiters or referrers........ 274a.2(b)(2)(ii)

(c) Compliance with inspection..... 274a.2(b)(2)(ii)

(d) Use of subpoena authority...... 274a.2(b)(2)(ii)

274a.7 What is the prohibition on

hiring or contracting with

unauthorized aliens and what defense

can be claimed?

(a) Prohibition on the hiring and 274a.3

continuing employment of

unauthorized aliens.

(b) Use of labor through contract.. 274a.5

(c) Good faith defense to charge of 274a.4

knowingly hiring an unauthorized

alien.

274a.8 What are the requirements of 274a.6

state employment agencies that choose

to verify the identity and employment

eligibility of individuals referred

for employment by the agency?.

274a.9 Can a person or entity provide 274a.8

a financial guarantee or indemnity

against potential liability related to

the hiring, recruiting, or referring

of the individual?.

274a.10 How are investigations 274a.9

initiated and employers notified of

violations?.

274a.11 What penalties may be imposed

for violations?

(a) Criminal penalties............. b274a.10(a)

(b) Civil penalties................ 274a.10(b)

(c) Enjoining pattern or practice 274a.10(c)

violations.

[[Page 5300]]

(d) Pre-enactment provisions for 274a.7

employees hired prior to November

7, 1986.

------------------------------------------------------------------------

Regulatory Flexibility Act

The Service has examined the impact of this proposed rule in light

of Executive Order 12866 and the Regulatory Flexibility Act (RFA) (5

U.S.C. 603, et seq.) and has drafted the rule to minimize its economic

impact on small businesses while meeting its intended objectives. The

obligations of employment verification have been imposed by Congress

since 1987 and for the most part remain unchanged after amendment by

IIRIRA. This rule is intended to reduce the burden on small entities by

simplifying the procedures for verifying employees' eligibility to work

in the United States.

What Are the Reasons for This Regulatory Action?

This rule is necessary to implement certain provisions of IIRIRA,

specifically provisions which: (1) Eliminate certain documents

currently used in the employment eligibility verification process; (2)

include any branch of the Federal Government in the definition of

``entity'' for employer sanctions purposes; and (3) clarify the

Service's authority to compel by subpoena the appearance of witnesses

and production of evidence when investigating possible violations of

section 274A of the Act. In conjunction with revising the regulations

to implement IIRIRA, the Service initiated a comprehensive review of

the rule to minimize its impact on small businesses. Through that

review, required by the RFA, the Service identified additional changes

which are intended to simplify and clarify the requirements.

What Are the Objectives and Legal Basis for the Rule?

The legal basis for the rule is section 274A of the Act. The major

objectives of the rule, with respect to its impact on small businesses,

include:

(1) Clarifying the timing permitted for completion of the Form I-9.

These changes respond to frequent questions from employers concerning

their authority to perform verification before an employee actually

starts to work, and whether employees must be given 3 days to present

documentation in all circumstances;

(2) Specify reverification requirements. These changes respond to

concerns expressed by employers and to their expressed preference that

both the employee and the employer should be required to complete an

attestation as part of reverification;

(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. These changes respond to frequent

questions from employers. In addition to revising the receipt rule

itself, the Service has moved the discussion of receipts to the section

that identifies acceptable documents. The changes are intended to

retain the flexibility of the receipt rule, which helps to ensure that

work-eligible employees are not prevented from working because their

documents have been lost or stolen, while making the rule easier for

employers to understand;

(4) Shorten the list of documents acceptable for verification. This

is one of the most significant changes for small businesses. A shorter

list will mean that employers have to be familiar with fewer documents.

The Service has made a particular effort to limit the circumstances in

which employers will need to examine a Service-issued ``paper''

document (e.g., a Form I-94 with a stamped endorsement), because those

documents have been the subject of employer confusion; and

(5) Require the attachment to and retention with the Form I-9 of

copied documentation, if employers elect to photocopy the documents

presented. This is an area that is unclear in the current regulations.

In addition, the proposed rule proposes to restructure the

regulation to make it easier to use and cite. This should reduce the

need for small entities to rely on outside assistance to understand the

basic requirements of the law.

How Many and What Kind of Small Entities Will Be Affected by the

Proposed Rule?

The essential requirements in the proposed rule, which have been in

place for 10 years, apply to all entities which hire individuals to

perform services or labor in return for remuneration. The requirements

also apply to recruiters or referrers for a fee which are an

agricultural association, agricultural employer, or farm labor

contractor (as defined in section 3 of the Migrant and Seasonal

Agricultural Worker Protection Act, 29 U.S.C. 1802). Data obtained from

the Bureau of Labor Statistics show the following number of employers

in 1994, rounded to the nearest hundred (See Employment and Wages,

1994, Bureau of Labor Statistics):

Estimated Number of Businesses by Size, 1994

------------------------------------------------------------------------

Number of

Size of business (number of employees) employers

------------------------------------------------------------------------

< 5........................................................ 3,614,800

5 to 9..................................................... 1,200,800

10 to 49................................................... 1,248,100

50 to 499.................................................. 293,700

500 or more................................................ 14,700

------------

Total................................................ 6,372,100

------------------------------------------------------------------------

Although other data sources may provide different estimates of the

actual number of small businesses, the distribution shown above

indicates that the majority of businesses affected by these

requirements are small businesses.

What Are the Projected Reporting, Recordkeeping, and Other Compliance

Requirements of the Proposed Rule?

The proposed rule continues the existing requirement, imposed by

Congress since 1987, for employers to complete the Form I-9 for all new

hires and to retain the form for 3 years or 1 year after the employment

terminates, whichever is longer. Under the proposed rule, if the

employer elects to make photocopies of documentation presented, the

employer must attach the photocopies to and retain them with the Form

I-9. The requirement to attach and retain the photocopies is new,

clarifying an area that is ambiguous under the existing regulation. If

the employee's work authorization expires, the employer must reverify

the employee's eligibility to work on Form I-9 or Form I-9A and attach

the reverification form to and retain it with the Form I-9.

Reverification is not a new requirement, but the proposed rule seeks to

clarify what is required.

Because employers are already completing and retaining Forms I-9

and conducting reverifications when employees' authorization expires,

the rule is not expected to impose significant new costs on small

entities.

[[Page 5301]]

There will be some cost, however, associated with becoming familiar

with the new requirements, obtaining new forms, and retraining

employees who are familiar with the existing requirements.

Once the transition to the new forms and requirements is complete,

the Service anticipates that the costs of compliance for most

businesses will be lower than under the existing rule and Form I-9.

Based on informal discussions with a limited number of employers, the

Service believes that the smaller number of documents, simplified

design of the Form I-9, and more comprehensive instruction sheet

provided with the form, all make the verification process faster and

easier than it is now.

Additional information on the estimated paperwork burden for the

Form I-9 is provided under the discussion of the Paperwork Reduction

Act.

Are There Any Federal Rules That May Duplicate, Overlap, or Conflict

With the Rule?

The Service is not aware of overlap, duplication, or conflict with

other Federal rules. The requirement for employers to verify the

identity and eligibility to work is unique to section 274A of the Act

and its implementing regulations.

The Service has heard complaints on occasion from employers to the

effect that section 274A of the Act and its implementing regulations at

subpart A conflict with section 274B of the Act and its implementing

regulations at 28 CFR part 44, by on the one hand requiring employers

to verify their employees' identity and work eligibility by examining

documents, while on the other hand subjecting them to penalties for

inquiring into the validity of those documents, particularly in light

of the proliferation of false documentation. The Service firmly

supports section 274B of the Act and its enforcement, and does not view

it as conflicting with section 274A. The Service's proposed rule

includes changes intended to clarify how employers may comply with 274A

while avoiding practices prohibited by 274B. The Service invites the

public to suggest other ways that the regulations could minimize any

perceived inconsistency between these two provisions of law.

Are There Any Significant Alternatives That Would Accomplish the

Objectives of the Rule and Minimize its Economic Impact?

In enacting the Immigration Reform and Control Act of 1986,

Congress considered exempting employers with three or fewer employees

from the requirements of the law. Congress did not do so, however,

because of evidence that a significant number of unauthorized aliens

are employed by small businesses. The Service believes that having a

uniform set of requirements for all businesses, regardless of size, is

consistent with congressional intent. What the Service has attempted to

do is to take into account the needs of a wide variety of businesses in

formulating the proposed 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 reviewed 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 proposed 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 1 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

The impact of this rule on small businesses is discussed under the

Regulatory Flexibility Act. This preliminary analysis is the basis for

the Service's finding that this 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 of 1995

This proposed rule contains a revision to an information collection

(Form I-9, Employment Eligibility Verification/Form I-9A, Employment

Eligibility Reverification) which is subject to review by OMB under the

Paperwork Reductions Act of 1995 (Pub. L. 104-13). Therefore, the

agency solicits public comments on the revised information collection

requirements for 30 days in order to: (1) Evaluate whether the proposed

collection of information is necessary for the proper performance of

the functions of the agency, including whether the information will

have practical utility; (2) evaluate the accuracy of the agency's

estimate of the burden of the proposed collection of information,

including the validity of the methodology and assumptions used; (3)

enhance the quality, utility, and clarity of the information to be

collected; and (4) minimize the burden of the collection of information

on those who are to respond, including through the use of appropriate

automated, electronic, mechanical, or other technological collection

techniques or other forms of information technology, e.g., permitting

electronic submission of responses.

The Service estimates a total annual reporting burden of 13,153,500

hours. This figure is based on the number of I-9 and I-9A respondents

(78,890,000) x 9 minutes per response (.15) for the reporting

requirements; of the 78,890,000 respondents, 20,000,000 are involved in

record-keeping activities associated with the I-9 and I-9A process. The

computation of the annual burden estimate for record-keeping activities

is based on 20,000,000 x 4 minutes per response (0.66) equating to

1,320,000.

As required by section 3507(d) of the Paperwork Reduction Act of

1995, the Service has submitted a copy of this proposed rule to OMB for

its review of the revised information collection requirements. Other

organizations and individuals interested in submitting comments

regarding this burden estimate or any aspect of these information

collection requirements, including suggestions for reducing the burden,

should direct them to: Office of Information and Regulatory Affairs

[[Page 5302]]

(OMB), 725 17th Street, NW, Washington, DC 20503, Attn: DOJ/INS Desk

Officer, Room 10235. The comments or suggestions should be submitted

within 30 days of publication of this rulemaking.

List of Subjects

8 CFR Part 274a

Administrative practice and procedure, Aliens, Employment,

Penalties, Reporting and recordkeeping requirements.

8 CFR Part 299

Immigration, Reporting and recordkeeping requirements.

Accordingly, chapter I of title 8 of the Code of Federal

Regulations is proposed to be 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.1 is amended by revising paragraphs (b) and (e),

and by adding a new paragraph (m), to read as follows:

Sec. 274a.1 Definitions.

* * * * *

(b) The term entity means any legal entity including, but not

limited to, a corporation, partnership, joint venture, governmental

body, agency, proprietorship, or association. For purposes of this

part, the term entity includes an entity in any branch of the Federal

Government;

* * * * *

(e) The term recruit for a fee means the act of soliciting a

person, directly or indirectly, with the intent of obtaining employment

for that person, for remuneration whether on a retainer or contingency

basis; however, this term does not include union hiring halls that

recruit union members, or non-union individuals who pay membership

dues;

* * * * *

(m) The term recruiter or referrer for a fee means a person or

entity who is either an agricultural association, agricultural

employer, or farm labor contractor (as defined in section 3 of the

Migrant and Seasonal Agricultural Worker Protection Act, 29 U.S.C.

1802).

3. Section 274a.2 is revised to read as follows:

Sec. 274a.2 Why is employment verification required and what does it

involve?

(a) Why employment verification is required. It is unlawful for a

person or entity to hire or to recruit or refer for a fee an individual

for employment in the United States without complying with section 274A

of the Act and Secs. 274a.2 through 274a.5. The Act requires the person

or entity to verify on a designated form that the individual is not an

unauthorized alien.

(1) Designation of Form I-9 and Form I-9A. The Employment

Eligibility Verification form, Form I-9, has been designated by the

Service as the form to be used in complying with the employment

verification requirements. The Employment Eligibility Reverification

form, Form I-9A, is an optional supplement to the Form I-9 which may be

used instead of Form I-9 when a person or entity must reverify an

individual's eligibility to work under paragraph (d) of this section.

(2) Obtaining and duplicating Form I-9 and Form I-9A. Forms I-9 and

I-9A may be obtained in limited quantities from the Service forms

centers or district offices, downloaded from the Service World Wide Web

site, or ordered from the Superintendent of Documents, Washington, DC

20402. Employers, or recruiters or referrers for a fee, may

electronically generate blank Forms I-9 or I-9A, provided that: the

resulting form is legible; there is no change to the name, content, or

sequence of the data elements and instructions; no additional data

elements or language are inserted; and the paper used meets the

standards for retention and production for inspection specified under

Secs. 274a.4 through 274a.6. When copying or printing Form I-9, Form I-

9A, or the instruction sheet, the text may be reproduced by making

either double-sided or single-sided copies.

(3) Limitation on use of Form I-9 and attachments. Any information

contained in the Form I-9, and on any attachments, described in

Sec. 274a.4(b), may be used only for enforcement of the Act and 18

U.S.C. 1001, 1028, 1546, or 1621.

(4) Beginning date for verification requirements. Employers need to

complete a Form I-9 only for individuals hired after November 6, 1986,

who continue to be employed after May 31, 1987. Recruiters or referrers

for a fee need to complete a Form I-9 only for individuals recruited or

referred and hired after May 31, 1987.

(b) How to complete the Form I-9--(1) Employee information and

documentation. A person or entity that hires, or recruits or refers for

a fee, an individual for employment must ensure that the individual

properly:

(i) Completes section 1 on the Form I-9. If an individual is unable

to complete the Form I-9 or needs it translated, someone may assist him

or her. The preparer or translator must provide the assistance

necessary for the individual to understand the Form I-9 and complete

section 1 and have the individual initial and sign or mark the Form in

the appropriate places. The preparer or translator must them complete

the ``Preparer/Translator'' portion of the Form I-9; and

(ii) Presents to the employer, or recruiter or referrer for a fee,

documentation, described in this paragraph, that establishes the

individual's identity and eligibility to work. An individual has the

choice of which document(s) to present. Acceptable documentation is:

(A) An original unexpired document that establishes both identity

and employment authorization (List A document described in

Sec. 274a.3(a)); or

(B) An original unexpired document that establishes identity (List

B document described in Sec. 274a.3(b)) and a separate original

unexpired document which establishes employment authorization (List c

document described in Sec. 274a.3(C)); or

(C) If an individual is unable to present a document listed in

Secs. 274a.3(a), (b), or (c) and is hired for a duration of 3 or more

business days, an acceptable receipt (listed in Sec. 274a.3(d)) instead

of the required document. A receipt is valid for a temporary period,

specified under Sec. 274a.3(d). The individual must present the

required document at the end of such period.

(2) Document review and verification. An employer, or recruiter or

referrer for a fee, must:

(i) Physically examine the documentation presented by the

individual establishing identity and employment eligibility as set

forth in Sec. 274a.3 and ensure that the document(s) presented appear

to be genuine and to relate to the individual. Employers and recruiters

or referrers for a fee may not specify which document or documents an

individual is to present. To do so may violate section 274B of the Act;

and

(ii) Complete section 2 of the Form I-9.

(3) Recruiters or referrers. Recruiters or referrers for a fee may

designate agents to complete the employment verification procedures on

their behalf, including but not limited to notaries, national

associations, or employers. If a recruiter or referrer designates an

employer to complete the employment verification procedures, the

employer need only provide the recruiter or

[[Page 5303]]

referrer with a photocopy of the Form I-9 and any attachments.

(c) Time for completing Form I-9 --(1) Section 1 of the Form I-9.

An employer, or recruiter or referrer for a fee, must ensure that the

individual properly completes section 1 of the Form I-9 at the time of

hire.

(2) Section 2 of the Form I-9 --(i) Hires for a duration of 3 or

more business days. An employer, or recruiter or referrer for a fee,

must examine the documentation presented by the individual and complete

section 2 of the Form I-9 within 3 business day of the hire. An

employer, or recruiter or referrer for a fee, may require an individual

to present documentation listed Sec. 274a.3 at the time of hire or

before the time of hire, so long as the commitment to hire the

individual has been made and provided that this requirement is applied

uniformly to all individuals.

(ii) Hires for a duration of less than 3 business days. An

employer, or recruiter or referrer for a fee, must examine the

documentation presented by the individual and complete section 2 of the

Form I-9 at the time of the hire.

(3) Receipts. If an individual presents a receipt, as provided in

Sec. 274.3(d), for purposes for verification or reverification, the

employer must update the Form I-9 (or Form I-9A, if applicable) within

the time limits specified in that section.

(d) Reverification of employment eligibility when employment

authorization expires--(1) Procedures. Except as provided in paragraph

(d)(3) of this section, if section 1 or 2 of the Form I-9 indicates

that the individual's employment authorization expires, the employer

must reverify the individual's employment authorization. The employer

must, not later than the date that work authorization expires, ensure

proper completion of sections 1 and 2 of new Form I-9 or a Form I-9A

by:

(i) Ensuring that the individual properly completes section 1 and

attests that he or she is authorized to work indefinitely or until a

specified date and signs and dates the attestation;

(ii) Examining and unexpired, original document presented by the

individual establishing employment eligibility as set forth in

Sec. 274a.3(a), (c), or (d), and ensuring that it appears to be genuine

and to relate to the individual. An employer should not reverify List B

documents;

(iii) Completing section 2; and

(iv) Attaching the new Form I-9 or Form I-9A to the previously-

completed Form I-9.

(2) Continuing obligation. Except as provided in paragraph (d)(3)

of this section, for as long as the Form I-9 or Form I-9A used for

reverification indicates that the individual is not a United States

citizen or national, or a lawful permanent resident, and that the

individual's employment authorization expires, the employer must

reverify the individual's employment authorization as provided in

paragraph (d)(1) of this section, no later than the date that

employment authorization expires.

(3) Exception to reverification requirement. An employer shall not

reverify the employment authorization of an individual who attests in

section 1 of the Form I-9 or Form I-9A that he or she is a citizen or

national of the United States. An employer shall not reverify the

employment authorization of an individual who attests in section 1 of

the Form I-9 or Form I-9A that he or she is a lawful permanent

resident, unless the individual presents a foreign passport that

contains a temporary I-551 stamp, provided in Sec. 274a.3(a)(3).

4. Section 274a.3 is revised to read as follows:

Sec. 274a.3 What documents are acceptable for employment verification?

(a) Documents that establish both identity and employment

authorization (List A).

(1) A United States passport;

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

Form I-551'

(3) A foreign passport that contains a temporary I-551 stamp;

(4) An employment authorization document issued by the Service

which contains a photograph, Form I-766, Form I-688 (Temporary Resident

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

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

a specific employer, 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 and the name of the

approved employer with whom employment is authorized, 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.

(b) Documents that establish identify only (List B).

(1) Acceptable List B documents.

(i) A driver's license or identification card issued by a state (as

defined in section 101(a)(36) of the Act) or an outlying possession of

the United States (as defined by section 101(a)(29) of the Act),

provided that the document contains a photograph or the following

identifying information: name, date of birth, sex, height, color of

eyes, and address;

(ii) A Native American tribal document; or

(iii) In the case of a Canadian nonimmigrant alien or alien with

common nationality with Canada who is authorized to work only for a

specific employer, a driver's license issued by a Canadian Government

authority or a Canadian federal or provincial identification card.

(2) Special rule for minors. Minors under the age of 18 who are

unable to produce one of the identity documents listed in paragraph

(b)(1) of this section are exempt from producing one of the specified

identity documents if:

(i) The minor's parent or legal guardian completes section 1 of the

Form I-9 and in the space for the minor's signature, the parent or

legal guardian writes the words, ``minor under age 18'';

(ii) The minor's parent or legal guardian completes on the Form I-9

the ``Preparer/Translator certification''; and

(iii) The employer or the recruiter or referrer for a fee writes in

section 2 under List B in the space after the words ``Document

Identification #'' the words, ``minor under age 18''.

(3) Special rule for individuals with diasbilities--(i) Procedures.

Individuals with disabilities, who are unable to produce one of the

identity documents listed in paragraph (b)(1) of this section, and who

are being placed into employment by a nonprofit organization or

association, or as part of a rehabilitation program, are exempt from

producing one of the specified identify documents if:

(A) The individual's parent or legal guardian, or a representative

from the nonprofit organization, association, or rehabilitation program

placing the individual into a position of employment completes section

1 of the Form I-9 and in the space for the individual's signature,

writes the words, ``special placement'';

(B) The individual's parent or legal guardian, or the program

representative, completes on the Form I-9 the ``Preparer/Translator

certification''; and

(C) The employer or the recruiter or referrer for a fee writes in

section 2 under List B in the space after the words ``Document

Identification #'' the words, ``special placement''.

(ii) Applicability. For purposes of this section the term

disability means, with respect to an individual:

(A) A physical or mental impairment that substantially limits one

or more of the major life activities of such individual;

(B) A record of such impairment; or

[[Page 5304]]

(C) Being regarded as having such an impairment.

(c) Documents that establish employment authorization only (List

C).

(1) A social security account number card (other than such a card

which specifies on the face that the issuance of the card does not

authorize employment in the United States);

(2) A Native American tribal document; or

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

a specific employer, an Arrival-Departure Record, Form I-94, containing

an endorsement of the alien's nonimmigrant status and the name of the

approved employer with whom employment is authorized, 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.

(d) Receipts--(1) Acceptable receipts and their validity periods.

(i) A receipt for an application to replace a document described in

paragraph (a), (b), or (c) of this section because the document was

lost, stolen, or damaged. Documentation acknowledging receipt of an

application for an initial grant or extension of a document described

in paragraph (a) or (c) of this section is not a receipt for this

purpose, except for a receipt for the application of a timely filed

application for an extension of nonimmigrant stay as provided in

Sec. 274a.12(b)(2). The individual must present the replacement

document within 90 days of the hire or, in the case of reverification

under Sec. 274a.2(d) or Sec. 274a.5(b), within 90 days of the date

employment authorization expires or the date of rehire.

(ii) The arrival portion of Form I-94 marked with an unexpired

Temporary I-551 stamp and affixed with a photograph of the individual.

The individual must present the Form I-551 within 180 days of the hire

or, in the case of reverification under Sec. 274a.2(d) or

Sec. 274a.5(b), within 180 days of the date employment authorization

expires or the date of rehire.

(iii) The departure portion of Form I-94 marked with an unexpired

refugee admission stamp. The individual must present either an

unexpired Employment Authorization Document (Form I-766 or Form I-688B)

or a social security account number card that does not contain

employment restrictions and an identity document described in paragraph

(b) of this section within 90 days of the hire or, in the case of

reverification under Sec. 274a.2(d) or Sec. 274a.5(b), within 90 days

of the date employment authorization expires or the date of rehire.

(2) Exceptions. A receipt described in paragraph (d)(1) of this

section is not an acceptable document if:

(i) 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; or

(ii) The employment is for a duration of less than 3 business days.

5. Section 274a.4 is revised to read as follows:

Sec. 274a.4 How long are employers and recruiters or referrers

required to retain the Form I-9 and what must be retained with it?

(a) Retention of Form I-9--(1) Employers. An employer must retain

the Form I-9 for 3 years after the date of hire or 1 year after the

date the individual's employment is terminated, whichever is later.

(2) Recruiters or referrers. A recruiter or referrer for a fee must

retain the Form I-9 for 3 years after the date of hire.

(b) Retention of attachments--(1) Reverfication forms. The

employer, or recruiter or referrer for a fee, must attach Forms I-9 or

I-9A used for reverification, as described in Sec. 274a.2(d), to the

initial Form I-9 relating to the individual and retain them with the

initial Form I-9.

(2) Copies of documentation--(i) Option to photocopy. An employer,

or recruiter or referrer for a fee, may, but is not required to, copy a

document presented by an individual solely for the purpose of complying

with the verification requirements described in Sec. 274a.2. If such a

copy is made, it must be attached to and retained with the Form I-9 (or

Form I-9A if applicable).

(ii) Obligation to complete Form I-9. The copying and retention of

any such document does not relieve the employer, or recruiter or

referrer for a fee, from the requirement to fully complete section 2 of

the Form I-9 or Form I-9A.

(iii) Discrimination prohibited. An employer, or recruiter or

referrer for a fee, should not copy the documents only of individuals

or certain classes of individuals based on national origin or

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

6. Section 274a.5 is revised to read as follows:

Sec. 274a.5 Under what circumstances may employers and recruiters or

referrers rely on a Form I-9 that an individual previously completed?

(a) Continuing employment. An employer will not be deemed to have

hired for employment an individual who is continuing in his or her

employment and has a reasonable expectation of employment at all times.

Therefore, no verification is necessary for such individuals.

(1) An individual is continuing in his or her employment in one of

the following situations:

(i) An individual takes approved paid or unpaid leave on account of

study, illness or disability of a family member, illness or pregnancy,

maternity or paternity leave, vacation, union business, or other

temporary leave approved by the employer;

(ii) An individual is promoted, demoted, or gets a pay raise;

(iii) An individual is temporarily laid off for lack of work;

(iv) An individual is on strike or in a labor dispute;

(v) An individual is reinstated after disciplinary suspension for

wrongful termination, found unjustified by any court, arbitrator, or

administrative body, or otherwise resolved through reinstatement or

settlement;

(vi) An individual transfers from one distinct unit of an employer

to another distinct unit of the same employer; the employer may

transfer the individual's Form I-9 (and attachments if applicable) to

the receiving unit;

(viii) An individual continues his or her employment with a

related, successor, or reorganized employer, provided that the employer

obtains and maintains from the previous employer records and Forms I-9,

and attachments, where applicable. For this purpose, a related,

successor, or reorganized employer includes:

(A) The same employer at another location;

(B) An employer who continues to employ some or all of a previous

employer's workforce in cases involving a corporate reorganization,

merger, or sale of stock or assets;

(C) An employer who continues to employ any employee of another

employer's workforce where both employers belong to the same multi-

employer association and the employee continues to work in the same

bargaining unit under the same collective bargaining agreement. For

purposes of this section, any agent designated to complete and maintain

the Form I-9 and attachments must record the employee's date of hire

and/or termination each time the employee is hired and/or terminated by

an employer of the multi-employer association; or

(D) An individual is engaged in seasonal employment.

(2) The employer who is claiming that an individual is continuing

in his or her employment must also establish that the individual is

expected to resume employment at all times and that the

[[Page 5305]]

individual's expectation is reasonable. Whether an individual's

expectation is reasonable will be determined on a case-by-case basis

taking into consideration several factors. Factors which would indicate

that an individual has a reasonable expectation of employment include,

but are not limited to, the following:

(i) The individual in question was employed by the employer on a

regular and substantial basis. A determination of a regular and

substantial basis is established by a comparison of other workers who

are similarly employed by the employer;

(ii) The individual in question complied with the employer's

established and published policy regarding his or her absence;

(iii) The employer's past history of recalling absent employees for

employment indicates a likelihood that the individual in question will

resume employment with the employer within a reasonable time in the

future;

(iv) The former position held by the individual in question has not

been taken permanently by another worker;

(v) The individual in question has not sought or obtained benefits

during his or her absence from employment with the employer that are

inconsistent with an expectation of resuming employment with the

employer within a reasonable time in the future. Such benefits include,

but are not limited to, severance and retirement benefits;

(vi) The financial condition of the employer indicates the ability

of the employer to permit the individual in question to resume

employment within a reasonable time in the future; or

(vii) The oral and/or written communication between the employer,

the employer's supervisory employees and the individual in question

indicates that it is reasonably likely that the individual in question

will resume employment with the employer within a reasonable time in

the future.

(b) Employment verification requirements in the case of an

individual who was previously employed--(1) Hired within 3 years from

the date of the previously completed Form I-9. An employer that hires

an individual previously employed by the employer within 3 years of the

date of the initial execution of a previously completed Form I-9

relating to the individual which meets the requirements set forth in

Secs. 274a.2 through 274a.4 may (instead of completing a new Form I-9)

inspect the previously completed Form I-9 and all attachments

(described in Sec. 274a.4(b)).

(i) If the Form I-9 and attachments relate to the individual, and

the individual continues to be authorized for employment, the

previously completed Form I-9 is sufficient for purposes of section

274A(b) of the Act.

(ii) If the previously completed Form I-9 indicates that the

individual is no longer authorized for employment, the employer must

reverify in accordance with Sec. 274a.2(d); otherwise, the individual

may no longer be employed.

(iii) The employer must retain the previously completed Form I-9

and attachments for a period of 3 years commencing from the date of the

initial execution of the Form I-9 or 1 year after the individual's

employment is terminated, whichever is later.

(2) Hired more than 3 years after the date of the previously

executed Form I-9. An employer that hires an individual previously

employed by the employer more than 3 years after the date of the

initial execution of a previously completed Form I-9 relating to the

individual must complete a new Form I-9 in compliance with the

requirements of Secs. 274a.2 through 274a.4.

(c) Employment verification requirements in the case of recruiting

or referring for a fee an individual who was previously recruited or

referred--(1) Recruited or referred within 3 years from the date of the

previously completed Form I-9. A recruiter or referrer for a fee that

recruits or refers an individual previously recruited or referred by

the recruiter or referrer for a fee within 3 years of the date of the

initial execution of the Form I-9 relating to the individual which

meets the requirements set forth in Secs. 274a.2 through 274a.4 may

(instead of completing a new Form I-9 inspect the previously completed

Form I-9 and all attachments (described in Sec. 274a.4(b)).

(i) If the Form I-9 and attachments relate to the individual, and

the individual continues to be authorized for employment, the

previously completed Form I-9 is sufficient for purposes of section

274a(b) of the Act.

(ii) If the previously completed Form I-9 indicates that the

individual's employment authorization has expired, the recruiter or

referrer for a fee must reverify in accordance with Sec. 274a.2(d);

otherwise the individual may no longer be recruited or referred.

(iii) The recruiter or referrer for a fee must retain the

previously completed Form I-9 and attachments for a period of 3 years

from the date of the rehire.

(iv) The reverification requirements in Sec. 274a.2(d) do not apply

to recruiters or referrers for a fee except as provided in paragraph

(c)(1)(ii) of this section.

(2) Recruited or referred more than 3 years after the date of the

previously executed Form I-9. A recruiter or referrer for a fee that

recruits or refers an individual previously recruited or referred by

the recruiter or referrer for a fee more than 3 years after the date of

the initial execution of a previously completed Form I-9 relating to

the individual must complete a new Form I-9 in compliance with the

requirements of Secs. 274a.2 through 274a.4.

7. Section 274a.6 is revised to read as follows:

Sec. 274a.6 What happens when the Government asks to inspect Forms I-

9?

(a) Notice of inspection. Officers of the Service, the Office of

Special Counsel for Immigration-Related Unfair Employment Practices, or

the Department of Labor may inspect the Forms I-9, and all attachments

described in Sec. 274a.4(b), after providing at least 3 days' notice to

any person or entity required to retain Forms I-9.

(b) Obligation to make records available--(1) In general. At the

time of inspection, the Forms I-9 and all attachments must be made

available in their original form or on microfilm or microfiche at the

location where the request for production was made. If the Forms I-9

and attachments are kept at another location, the person or entity must

inform the officer of the Service, the Special Counsel for Immigration-

Related Unfair Employment Practices, or the Department of Labor of the

location where the forms are kept and make arrangements for the

inspection. Inspections may be performed at a Service office.

(2) Standards for submitting microfilm or microfiche. The following

standards shall apply to Forms I-9 and attachments presented on

microfilm or microfiche submitted to an officer of the Service, the

Special Counsel for Immigration-Related Unfair Employment Practices, or

the Department of Labor: Microfilm when displayed on a microfilm reader

(viewer) or reproduced on paper must exhibit a high degree of

legibility and readability. For this purpose, legibility is defined as

the quality of a letter or numeral which enables the observer to

positively and quickly identify it to the exclusion of all other

letters or numerals. Readability is defined as the quality of a group

of letters or numerals being recognizable as words or whole numbers. A

detailed index of all microfilmed data shall be maintained and arranged

in such a manner as to permit the immediate location of any particular

record. It is the responsibility of the employer, or recruiter or

referrer for a fee:

[[Page 5306]]

(i) To provide for the processing, storage, and maintenance of all

microfilm, and

(ii) To be able to make the contents thereof available as required

by law. The person or entity presenting the microfilm will make

available a reader-printer at the examination site for the ready

reading, location, and reproduction of any record or records being

maintained on microfilm. Reader-printers made available to an officer

of the Service, the Special Counsel for Immigration-Related Unfair

Employment Practices, or the Department of Labor shall provide safety

features and be in clean condition, properly maintained, and in good

working order. The reader-printers must have the capacity to display

and print a complete page of information. A person or entity who is

determined to have failed to comply with the criteria established by

this regulation for the presentation of microfilm or microfiche to the

Service, the Special Counsel for Immigration-Related Unfair Employment

Practices, or the Department of Labor, and, at the time of the

inspection, does not present a properly completed Form I-9 with

attachments for the employee, is in violation of section 274A(a)(1)(B)

of the Act and Secs. 274a.2 through 274a.6.

(3) Recruiters or referrers. A recruiter or referrer for a fee who

has designated an employer to complete the employment verification

procedures may present a photocopy of the Form I-9 and attachments

instead of presenting the Form I-9 and attachments in its original form

or on microfiche, as set forth in Sec. 274a.2(b)(3).

(c) Compliance with inspection. Any refusal or delay in

presentation of the Form I-9 and attachments for inspection is a

violation of the retention requirements as set forth in section

274A(b)(3) of the Act.

(d) Use of subpoena authority. No subpoena or warrant shall be

required for an inspection under this section, but the use of such

enforcement tools is not precluded. Any Service officer listed in

Sec. 287.4 of this chapter may compel production of the Forms I-9 and

attachments by issuing a subpoena if the person or entity has not

complied with a request to present the Forms I-9 and attachments. Prior

to the filing of a complaint under 28 CFR part 68, any Service officer

listed in Sec. 287.4 of this chapter may compel by subpoena the

attendance of witnesses and production of any evidence, including but

not limited to Forms I-9 and attachments. Nothing in this section is

intended to limit the Service's subpoena power under sections 235(d)(4)

or 274A(e) (2)(C) of the Act.

8. Section 274a.7 is revised to read as follows:

Sec. 274a.7 What is the prohibition on hiring or contracting with

unauthorized aliens and what defense can be claimed?

(a) Prohibition on the hiring and continuing employment of

unauthorized aliens. A person or entity who hires, or recruits or

refers for a fee, an individual after November 6, 1986, and who has

actual or constructive knowledge that the individual is unauthorized to

work, is in violation of section 274A(a) (1)(A) of the Act. A person or

entity who continues to employ an individual hired after November 6,

1986, and who has actual or constructive knowledge that the individual

is or has become unauthorized, is in violation of section 274A(a)(2) of

the Act.

(b) Use of labor through contract. Any person or entity who uses a

contract, subcontract, or exchange entered into, renegotiated, or

extended after November 6, 1986, to obtain the labor or services of an

alien in the United States who has actual or constructive knowledge

that the alien is an unauthorized alien with respect to performing such

labor or services, shall be considered to have hired the alien for

employment in the United States in violation of section 274A(a)(1)(A)

of the Act.

(c) Good faith defense to charge of knowingly hiring an

unauthorized alien. A person or entity who shows good faith compliance

with the employment verification requirements of Sec. Sec. 274a.2

through 274a.6 shall have established a rebuttable affirmative defense

that the person or entity has not violated section 274A(a)(1)(A) of the

Act with respect to such hiring, recruiting, or referral.

9. Section 274a.8 is revised to read as follows:

Sec. 274a.8 What are the requirements of state employment agencies

that choose to verify the identify and employment eligibility of

individuals referred for employment by the agency?

(a) General. Under sections 274A(a)(5) and 274A(b) of the Act, a

state employment agency as defined in Sec. 274a.1 may, but is not

required to, verify identity and employment eligibility of individual

referred for employment by the agency. However, should a state

employment agency choose to do so, it must:

(1) Complete the verification process in accordance with the

requirements of Secs. 274a.2 through 274a.6 provided that the

individual may not present receipts, as set forth in Sec. 274a.3(d), in

lieu of documents in order to complete the verification process; and

(2) Complete the verification process prior to referral for all

individuals for whom a certification is required to be issued under

paragraph (c) of this section.

(b) Compliance with the provisions of section 274A of the Act. A

state employment agency which chooses to verify employment eligibility

of individuals according to Secs. 274a.2 through 274a.6 shall comply

with all provisions of section 274A of the Act and the regulations

issued thereunder.

(c) State employment agency certification.--(1) A state employment

agency which chooses to verify employment eligibility according to

paragraph (a) of this section shall issue to an employer who hires an

individual referred for employment by the agency, a certification as

set forth in paragraph (d) of this section. The certification shall be

transmitted by the state employment agency directly to the employer,

personally by an agency official, or by mail, so that it will be

received by the employer within 21 business days of the date that the

referred individual is hired. In no case shall the certification be

transmitted to the employer from the state employment agency by the

individual referred. During this period:

(i) The job order or other appropriate referral form issued by the

state employment agency to the employer, on behalf of the individual

who is referred and hired, shall serve as evidence, with respect to

that individual, of the employer's compliance with the provisions of

section 274A(a)(1)(B) of the Act and the regulations issued thereunder.

(ii) In the case of a telephonically authorized job referral by the

state employment agency to the employer, an appropriate annotation by

the employer shall be made and shall serve as evidence of the job

order. The employer should retain the document containing the

annotation where the employer retains Forms I-9.

(2) Job orders or other referrals, including telephonic

authorizations, which are used as evidence of compliance under

paragraph (c)(1)(i) of this section shall contain:

(i) The name of the referred individual;

(ii) The date of the referral;

(iii) The job order number or other applicable identifying number

relating to the referral;

(iv) The name and title of the referring state employment agency

official; and

(v) The telephone number and address of the state employment

agency.

[[Page 5307]]

(3) A state employment agency shall not be required to verify

employment eligibility or to issue a certification to an employer to

whom the agency referred an individual if the individual is hired for a

period of employment not to exceed 3 days in duration. Should a state

agency choose to verify employment eligibility and to issue a

certification to an employer relating to an individual who is hired for

a period of employment not to exceed 3 days in duration, it must verify

employment eligibility and issue certifications relating to all such

individuals. Should a state employment agency choose not to verify

employment eligibility or issue certifications to employers who hire,

for a period not to exceed 3 days in duration, agency-referred

individuals, the agency shall notify employers that, as a matter of

policy, it does not perform verifications for individuals hired for

that length of time, and that the employers must complete the identify

and employment eligibility requirements under Secs. 274a.2 through

274a.6. Such notification may be incorporated into the job order or

other referral form utilized by the state employment agency as

appropriate.

(4) An employer to whom a state employment agency issues a

certification relating to an individual referred by the agency and

hired by the employer, shall be deemed to have complied with the

verification requirements of Secs. 274a.2 through 274a.6 provided that

the employer:

(i) Reviews the identifying information contained in the

certification to ensure that it pertains to the individual hired;

(ii) Observes the signing of the certification by the individual at

the time of its receipt by the employer as provided for in paragraph

(d)(13) of this section;

(iii) Complies with the provisions of Sec. 274a.2(d) by either:

(A) Updating the state employment agency certification in lieu of

Form I-9, upon expiration of the employment authorization date, if any,

which was noted on the certification issued by the state employment

agency under paragraph (d)(11) of this section; or

(B) By no longer employing an individual upon expiration of his or

her employment authorization date noted on the certification;

(iv) Retains the certification in the same manner prescribed for

Form I-9 and attachments in Sec. 274a.4, to wit, 3 years after the date

of the hire or 1 year after the date the individual's employment is

terminated, whichever is later; and

(v) Makes it available for inspection to officers of the Service or

the Department of Labor, according to the provisions of section

274A(b)(3) of the Act, and Sec. 274a.6.

(5) Failure by an employer to comply with the provisions of

paragraph (c)(4)(iii) of this section shall constitute a violation of

section 274(a)(2) of the Act and shall subject the employer to the

penalties contained in section 274A(e)(4) of the Act, and Sec. 274a.11.

(d) Standards for state employment agency certifications. All

certifications issued by a state employment agency under paragraph (c)

of this section shall conform to the following standards. They must:

(1) Be issued on official agency letterhead;

(2) Be signed by an appropriately designated official of the

agency;

(3) Bear a date of issuance;

(4) Contain the employer's name and address;

(5) State the name and date of birth of the individual referred;

(6) Identify the position or type of employment for which the

individual is referred;

(7) Bear a job order number relating to the position or type of

employment for which the individual is referred;

(8) Identify the document or documents presented by the individual

to the state employment agency for the purposes of identity and

employment eligibility verification;

(9) State the identifying number of numbers of the document or

documents described in paragraph (d)(8) of this section;

(10) Certify that the agency has complied with the requirements of

section 274A(b) of the Act concerning verification of the identify and

employment eligibility of the individual referred, and has determined

that, to the best of the agency's knowledge, the individual is

authorized to work in the United States;

(11) Clearly state any restrictions, conditions, expiration dates,

or other limitations which relate to the individual's employment

eligibility in the United States, or contain an affirmative statement

that the employment authorization of the referred individual is not

restricted;

(12) State that the employer is not required to verify the

individual's identity or employment eligibility, but must retain the

certification in lieu of Form I-9;

(13) Contain a space or a line for the signature of the referred

individual, requiring the individual under penalty of perjury to sign

his or her name before the employer at the time of receipt of the

certification by the employer; and

(14) State that counterfeiting, falsification, unauthorized

issuance, or alteration of the certification constitutes a violation of

Federal law under 18 U.S.C. 1546.

(e) Retention of Form I-9 by state employment agencies. A Form I-9

utilized by a state employment agency in verifying the identity and

employment eligibility of an individual under Secs. 274a.2 through

274a.6 must be retained by a state employment agency for a period of 3

years from the date that the individual was last referred by the agency

and hired by an employer. A state employment agency may retain a Form

I-9 either in its original form, or on microfilm or microfiche.

(f) Retention of state employment agency certifications. A

certification issued by a state employment agency under this section

shall be retained:

(1) By a state employment agency, for a period of 3 years from the

date that the individual was last referred by the agency and hired by

an employer, and in a manner to be determined by the agency which will

enable the prompt retrieval of the information contained on the

original certification for comparison with the relating Form I-9;

(2) By the employer, in the original form, and in the same manner

and location as the employer has designated for retention of Forms I-9,

and for the period of time provided in paragraph (c)(4)(iv) of this

section.

(g) State employment agency verification requirements in the case

of an individual who was previously referred and certified. When a

state employment agency refers an individual for whom the verification

requirements have been previously complied with and a Form I-9

completed, the agency shall inspect the previously completed Form I-9:

(1) If, upon inspection of the Form, the agency determines that the

Form I-9 pertains to the individual and that the individual remains

authorized to be employed in the United States, no additional

verification need be conducted and no new Form I-9 need be completed

prior to issuance of a new certification provided that the individual

is referred by the agency within 3 years of the execution of the

initial Form I-9.

(2) If, upon inspection of the Form, the agency determines that the

Form I-9 pertains to the individual but that the individual does not

appear to be authorized to be employed in the United States based on

restrictions, expiration dates, or other conditions annotated on the

Form I-9, the agency shall not issue

[[Page 5308]]

a certification unless the agency follows the updating procedures under

Sec. 274a.2(d) of this part; otherwise the individual may no longer be

referred for employment by the state employment agency.

(3) For the purposes of retention of the Form I-9 by a state

employment agency under paragraph (e) of this section, for an

individual previously referred and certified, the state employment

agency shall retain the Form for a period of 3 years from the date that

the individual is last referred and hired.

(h) Employer verification requirements in the case of an individual

who was previously referred and certified. When an employer rehires an

individual for whom the verification and certification requirements

have been previously complied with by a state employment agency, the

employer shall inspect the previously issued certification.

(1) If, upon inspection of the certification, the employer

determines that the certification pertains to the individual and that

the individual remains authorized to be employed in the United States,

no additional verification need be conducted and no new Form I-9 or

certification need be completed provided that the individual is rehired

by the employer within 3 years of the issuance of the initial

certification, and that the employer follows the same procedures for

the certification which pertain to Form I-9, as specified in

Sec. 274a.5(b)(1)(i).

(2) If, upon inspection of the certification, the employer

determines that the certification pertains to the individual but that

the certification reflects restrictions, expiration dates, or other

conditions which indicate that the individual no longer appears

authorized to be employed in the United States, the employer shall

verify that the individual remains authorized to be employed and shall

follow the updating procedures for the certification which pertain to

Form I-9, as specified in Sec. 274a.5(b)(1)(ii).

(3) For the purposes of retention of the certification by an

employer under this paragraph for an individual previously referred and

certified by a state employment agency and rehired by the employer, the

employer shall retain the certification for a period of 3 years after

the date that the individual is last hired, or 1 year after the date

the individual's employment is terminated, whichever is later.

10. Section 274a.9 is revised to read as follows:

Sec. 274a.9 Can a person or entity require an individual to provide a

financial guarantee or indemnity against potential liability related to

the hiring, recruiting, or referring of the individual?

(a) General. It is unlawful for a person or other entity, in hiring

or recruiting or referring for a fee for employment of an individual,

to require the individual to post a bond or security, to pay or agree

to pay an amount, or otherwise to provide a financial guarantee or

indemnity, against any potential liability arising under this part

relating to such hiring, recruiting, or referring of the individual.

However, this prohibition does not apply to performance clauses which

are stipulated by agreement between contracting parties.

(b) Penalty. Any person or other entity who requires any individual

to post a bond or security as stated in this section shall, after

notice and opportunity for an administrative hearing in accordance with

section 274A(e)(3)(B) of the Act, be subject to a civil fine of $1,000

for each violation and to an administrative order requiring the return

to the individual of any amounts received in violation of this section

or, if the individual cannot be located, to the general fund of the

Treasury.

11. Section 274a.10 is revised to read as follows:

Sec. 274a.10 How are investigations initiated and employers notified

of violations?

(a) Procedures for the filing of complaints. Any person or entity

having knowledge of a violation or potential violation of section 274A

of the Act may submit a signed, written complaint in person or by mail

to the Service office having jurisdiction over the business or

residence of the potential violator. The signed, written complaint must

contain sufficient information to identify both the complainant and the

potential violator, including their names and addresses. The complaint

should also contain detailed factual allegations relating to the

potential violation including the date, time, and place of the alleged

violation and the specific act or conduct alleged to constitute a

violation of the Act. Written complaints may be delivered either by

mail to the appropriate Service office or by personally appearing

before any immigration officer at a Service office.

(b) Investigation. The Service may conduct investigations for

violations on its own initiative and without having received a written

complaint. When the Service receives a complaint from a third party, it

shall investigate only those complaints that have a reasonable

probability of validity. If it is determined after investigation that

the person or entity has violated section 274A of the Act, the Service

may issue and serve a Notice of Intent to Fine or a Warning Notice upon

the alleged violator. Service officers shall have reasonable access to

examine any relevant evidence of any person or entity being

investigated.

(c) Warning notice. The Service and/or the Department of Labor may

in their discretion issue a Warning Notice to a person or entity

alleged to have violated section 274A of the Act. This Warning Notice

will contain a statement of the basis for the violations and the

statutory provisions alleged to have been violated.

(d) Notice of Intent to Fine. The proceeding to assess

administrative penalties under section 274A of the Act is commenced

when the Service issues a Notice of Intent to Fine on Form I-763.

Service of this Notice shall be accomplished according to 8 CFR Part

103. The person or entity identified in the Notice of Intent to Fine

shall be known as the respondent. The Notice of Intent to Fine may be

issued by an officer defined in Sec. 239.1(a) of this chapter with

concurrence of a Service attorney.

(1) Contents of the Notice of Intent to Fine. (i) The Notice of

Intent to Fine will contain the basis for the charge(s) against the

respondent, the statutory provisions alleged to have been violated, and

the penalty that will be imposed.

(ii) The Notice of Intent to Fine will provide the following

advisals to the respondent:

(A) That the person or entity has the right to representation by

counsel of his or her own choice at no expense to the Government;

(B) That any statement given may be used against the person or

entity;

(C) That the person or entity has the right to request a hearing

before an administrative law judge under 5 U.S.C. 554-557, and that

such request must be made within 30 days from the service of the Notice

of Intent to Fine;

(D) That the Service will issue a final order in 45 days if a

written request for a hearing is not timely received and that there

will be no appeal of the final order.

(e) Request for hearing before an administrative law judge. If a

respondent contests the issuance of a Notice of Intent to Fine, the

respondent must file with the Service, within 30 days of the service of

the Notice of Intent to Fine, a written request for a hearing before an

administrative law judge. Any written request for a hearing submitted

in a foreign language must be

[[Page 5309]]

accompanied by an English language translation. A request for a hearing

is not deemed to be filed until received by the Service office

designated in the Notice of Intent to Fine. In computing the 30-day

period prescribed by this section, the day of service of the Notice of

Intent to Fine shall not be included. If the Notice of Intent to Fine

was served by ordinary mail, 5 days shall be added to the prescribed

30-day period. In the request for a hearing, the respondent may, but is

not required to, respond to each allegation listed in the Notice of

Intent to Fine.

(f) Failure to file a request for hearing. If the respondent does

not file a request for a hearing in writing within 30 days of the day

of service of the Notice of Intent to Fine (35 days if served by

ordinary mail), the Service shall issue a final order from which there

is no appeal.

12. Section 274a.11 is added to read:

Sec. 274a.11 What penalties may be imposed for violations?

(a) Criminal penalties. Any person or entity which engages in a

pattern or practice of violations of section 274A(a)(1)(A) or (a)(2) of

the Act shall be fined not more than $3,000 for each unauthorized

alien, imprisoned for not more than 6 months for the entire pattern or

practice, or both, notwithstanding the provisions of any other Federal

law relating to fine levels.

(b) Civil penalties. A person or entity may face civil penalties

for a violation of section 274A of the Act. Civil penalties may be

imposed by the Service or an administrative law judge for violations

under section 274A of the Act. In determining the level of the

penalties that will be imposed, a finding of more than one violation in

the course of a single proceeding or determination will be counted as a

single offense. However, a single offense will include penalties for

each unauthorized alien who is determined to have been knowingly hired

or recruited or referred for a fee.

(1) A respondent found by the Service or an administrative law

judge to have knowingly hired, or to have knowingly recruited or

referred for a fee, an unauthorized alien for employment in the United

States or to have knowingly continued to employ an unauthorized alien

in the United States, shall be subject to the following order:

(i) To cease and desist from such behavior;

(ii) To pay a civil fine according to the following schedule:

(A) First offense--not less than $250 and not more than $2,000 for

each unauthorized alien, or

(B) Second offense--not less than $2,000 and not more than $5,000

for each unauthorized alien; or

(C) More than two offenses--not less than $3,000 and not more than

$10,000 for each unauthorized alien; and

(iii) To comply with the requirements of Sec. 274a.2(b), and to

take such other remedial action as appropriate.

(2) A respondent determined by the Service (if a respondent fails

to request a hearing) or by an administrative law judge to have failed

to comply with the employment verification requirements as set forth in

Secs. 274a.2 through 274a.6, shall be subject to a civil penalty in an

amount of not less than $100 and not more than $1,000 for each

individual with respect to whom such violation occurred. In determining

the amount of the penalty, consideration shall be given to:

(i) The size of the business of the employer being charged;

(ii) The good faith of the employer;

(iii) The seriousness of the violation;

(iv) Whether or not the individual was an unauthorized alien; and

(v) The history of previous violations of the employer.

(3) Where an order is issued with respect to a respondent composed

of distinct, physically separate subdivisions which do their own

hiring, or their own recruiting or referring for a fee for employment

(without reference to the practices of, and under the control of, or

common control with another subdivision) the subdivision shall be

considered a separate person or entity.

(c) Enjoining pattern or practice violations. If the Attorney

General has reasonable cause to believe that a person or entity is

engaged in a pattern or practice of employment, recruitment, or

referral in violation of section 274A(a)(1) (A) or (B) of the Act, the

Attorney General may bring civil action in the appropriate United

States District Court requesting relief, including a permanent or

temporary injunction, restraining order, or other order against the

person or entity, as the Attorney General deems necessary.

(d) Pre-enactment provisions for employees hired prior to November

7, 1986. The penalty provisions set forth in section 274A (e) and (f)

of the Act for violations of sections 274A(a)(1)(B) and 274A(a)(2) of

the Act shall not apply to employees who were hired prior to November

7, 1986, and who are continuing in their employment and have a

reasonable expectation of employment and have a reasonable expectation

of employment at all times (as set forth in Sec. 274a.5(a)), except

those individuals described in Secs. 274a.5(a)(vii) and (a)(1)(vii)

and (a)(1)(viii)). For purposes of this section, an employee who are

hired prior to November 7, 1986, shall lose his or hers pre-enactment

status if the employee:

(1) Quits;.

(2) Is terminated by the employer; the term termination shall

include, but is not limited to, situations in which an employee is

subject to seasonal employment.

(3) Is excluded or deported from the United States or departs the

United States under a grant of voluntary departure; or

(4) Is no longer continuing his or her employment (or does not have

a reasonable expectation of employment at all times) as set forth in

Sec. 274a.5(a).

PART 299--IMMIGRATION FORMS

13. Section 299.1 is amended by adding to the listing of forms, in

proper numerical sequence, the entry for Form ``I-9A'' to read as

follows:

Sec. 299.1 Prescribed forms.

* * * * *

------------------------------------------------------------------------

Form No. Edition date Title

------------------------------------------------------------------------

* * * *

*

I-9A.......................... xxxxx............ Employment

Eligibility

Reverification.

* * * *

*

------------------------------------------------------------------------

14. Section 299.5 is amended by adding to the listing of forms, in

proper numerical sequence, the entry for form ``I-9A'' to read as

follows:

Sec. 299.5 Display of control numbers.

* * * * *

[[Page 5310]]

------------------------------------------------------------------------

Currently

INS form No. INS form title assigned OMB

control No.

------------------------------------------------------------------------

* * * *

*

I-9A.......................... Employment Eligibility 1115-

Reverification.

* * * *

*

------------------------------------------------------------------------

Dated: January 22, 1998.

Doris Meissner,

Commissioner, Immigration and Naturalization Service.

Note: The Form I-9 and Form I-9A will not appear in the Code of

Federal Regulations.

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[FR Doc. 98-2124 Filed 1-30-98; 8:45 am]

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