Interim Designation of Acceptable Receipts for Employment Eligibility Verification

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 274a

[INS No. 1947-98]

RIN 1115-AE94

Interim Designation of Acceptable Receipts for Employment

Eligibility Verification

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Interim rule with request for comments.

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SUMMARY: This interim rule amends the regulations of the Immigration

and Naturalization Service (Service) relating to acceptable receipts

for completion of the Employment Eligibility Verification form (Form I-

9). A ``receipt'' is a document that an employee may present to his or

her employer in lieu of a document listed on the Form I-9. The

regulations currently provide for three types of receipts: a receipt

for the application for a replacement document; the arrival portion of

an Arrival-Departure Record, Form I-94, marked with a temporary I-551

stamp and affixed with the individual's picture; and the departure

portion of a Form I-94 containing a refugee admission stamp.

Presentation of one of these types of receipts satisfies the Form I-9

documentation requirements, but only for a temporary period. At the end

of this period, the employee must present the document listed on the

Form I-9 that corresponds to the receipt.

This interim rule makes two revisions to the provisions governing

receipts. First, this rule revises the validity period of the second

type of receipt, the Form I-94 marked with a temporary I-551 stamp and

affixed with the bearer's photograph. Second, this rule adds the

Employment Authorization Card, Form I-688B, to the list of documents

that an individual can present before the receipt validity period

expires for the third type of receipt, the Form I-94 marked with a

refugee admission stamp. These changes are being made to facilitate

compliance with the regulations pending completion of the Service's

comprehensive document reduction effort.

DATES: Effective date: This interim rule is effective February 9, 1999.

Comment date: Written comments must be submitted on or before April

12, 1999.

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

Director, Policy Directives and Instructions Branch, Immigration and

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

20536. To ensure proper handling, please reference INS No. 1947-98 on

your correspondence. Comments are available for public inspection at

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

appointment.

FOR FURTHER INFORMATION CONTACT: Marguerite Przybylski, Associate

General Counsel, Office of the General Counsel, Immigration and

Naturalization Service, 425 I Street NW., Room 6100, Washington, DC,

20536; (202) 514-2895.

SUPPLEMENTARY INFORMATION:

What are the requirements of the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996 (IIRIRA) as it relates to

documentation of employment?

Section 412 of IIRIRA, Pub. L. 104-208, enacted on September 30,

1996, amended the employment eligibility verification provisions of

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

reduction in the number of documents acceptable for completion of the

Form I-9. The Act 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).

Which Documents were Removed on September 30, 1997?

On September 30, 1997, an interim rule was published in the Federal

Register at 62 FR 51001 implementing the IIRIRA amendments to the list

of documents. The September 30, 1997, interim rule removed four

documents from List A as follows:

(1) Certificate of United States Citizenship, Form N-560 or N-561;

(2) Certificate of Naturalization, Form N-550 or N-570;

(3) Reentry Permit, Form I-327; and

(4) Refugee Travel document, Form I-571.

The interim rule also modified the List A document relating to

nonimmigrants eligible to work incident to their nonimmigrant status,

and revised the ``receipt rule.''

What Changes are Being Made by This Interim Rule?

Under the current regulations at 8 CFR 274a.2(b)(1)(vi), the

special rule for receipts requires an employer, or recruiter or

referrer for a fee, to accept a receipt in lieu of a List A, List B, or

List C document in certain circumstances for completion of the Form I-

9. The current regulations authorize the use of receipts in three

instances:

(1) When the individual presents a receipt for the application for

a replacement document;

(2) When the individual presents the arrival portion of Form I-94

which the Service has: (a) marked with a temporary I-551 stamp

indicating lawful permanent residence and (b) affixed with the alien's

picture; and

(3) When the individual presents the departure portion of Form I-94

that the Service has marked with a refugee admission stamp.

This interim rule amends the receipt rule as its applies to Forms

I-94 that are marked with either a temporary I-551 stamp or a refugee

admission stamp. These amendments are necessary to account for

procedural delays that have become apparent since publication of the

September 30, 1997, interim rule.

A. Forms I-94 Marked With a Temporary I-551 Stamp

Current regulations at 8 CFR 274a.2(b)(1)(vi)(B) provide that if an

individual presents to his or her employer the arrival portion of Form

I-94 that the Service has marked with a temporary I-551 stamp and has

affixed the alien's picture in lieu of a Permanent Resident Card, Form

I-551, the individual must present the actual Form I-551 within 180

days from the date of hire or, in the case of

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reverification, the date employment authorization expires even if the

temporary I-551 stamp on the Form I-94 contains a later expiration

date. At the time of the September 30, 1997, interim rule, when this

provision was added to the regulations, the Service determined that the

180-day validity period would be a sufficient amount of time for an

individual to obtain the actual Form I-551. Since the September 30,

1997, interim rule, the Service has determined that in some cases, it

may take longer than 180 days to obtain the actual Form I-551. In

addition, the Service determined that employers may be confused when

the expiration date written on the Form I-94 itself and the regulatory

validity period of the receipt are not the same. It is likely that

employers will rely upon the expiration date of the stamp on Form I-94,

rather than count 180 days from the date the employee presents the

receipt, since the date of the stamp is more obvious. To eliminate this

confusion, this interim rule amends the regulations to provide that the

receipt validity period for the Form I-94 marked with a temporary I-552

stamp and affixed with a picture is to be the same as the expiration

date of the temporary I-551 stamp written on Form I-94. The Service

issues some Forms I-94 marked with temporary I-552 stamps with a

validity period that is less than 1 year. Some are issued with a

validity period that is more than 1 year. However, most are issued with

a 1-year validity period. Given the Service's current card production

capabilities, 1 year is a sufficient amount of time for the individual

to obtain the actual Form I-551.

Some Forms I-94 marked with temporary I-551 stamps and affixed with

the alien's picture do not have expiration dates. For such Forms I-94,

the interim rule amends the validity period from the current 180 days

from the date of hire or, in the case of reverification, the date

employment authorization expires, to 1 year from the date of issuance

of the Form I-94. This amendment comports with the 1-year validity

period generally assigned to Forms I-94 marked with stamps and affixed

with pictures that do contain expiration dates.

B. Forms I-94 Marked With a Refugee Admission Stamp

Current regulations at 8 CFR 274a.2(b)(1)(vi)(C) provide that an

individual who presents to his or her employer the departure portion of

Form I-94 containing a refugee admission stamp as a receipt to complete

the Form I-9, must present either Form I-766 (Employment Authorization

Document (EAD)) or an unrestricted social security account number card

and a List B document within 90 days of the date of hire or, in the

case of reverification, the date employment authorization expires. The

Form I-766 was introduced as a new employment authorization document in

a final rule published in the Federal Register at 61 FR 46534 on

September 4, 1996. The Form I-766 will eventually replace Forms I-688,

I-688A, and I-688B as evidence of employment authorization. However,

Forms I-688B continue to be issued by the Service at this time. Because

some refugees will be in possession of Forms I-688B rather than Forms

I-766, this interim rule amends the current regulations to add Form I-

688B to the list of documents acceptable for presentation upon

expiration of the 90-day receipt period. Form I-688A is only issued to

legalization applicants and does not apply to refugees. Form I-688 is

the Temporary Resident Card and also does not apply to refugees.

What is the status of the Service's plan to make comprehensive

revisions to the employment verification process?

On February 2, 1998, a proposed rule was published in the Federal

Register at 63 FR 5287 proposing comprehensive changes to the

employment verification process, including a reduction in the list of

acceptable documents. The comment period closed on April 3, 1998. The

Service received many thoughtful and detailed comments from the public.

The Service is currently reviewing the comments and will issue a final

rule with a revised Form I-9 once this review process is completed.

Until that time, Service regulations as amended by this interim rule

will remain in effect. As with the September 30, 1997, interim rule,

the Service will withhold enforcement of civil money penalties for

violations associated with the changes made by the interim rule

committed before the effective date of a final rule containing the

revised Form I-9.

Good Cause Exception

The Service's implementation of this rule as an interim rule, with

provisions for post-promulgation public comment, is based on the ``good

cause'' exceptions found at 5 U.S.C. 553(b)(3)(B) and (d)(3). The

reason and necessity for this determination is as follows:

The interim rule adding Form I-94 to the receipt rule was issued on

September 30, 1997, in order to implement the document reduction

provisions of section 412(a) of IIRIRA. This rule relieves restrictions

by extending the validity period of one type of receipt in order to

provide adequate time for the issuance of the original document

represented by the receipt. The rule also assists refugees by adding

the Employment Authorization Card (Form I-688B) to the list of

documents acceptable for presentation upon the expiration of the 90-day

receipt period for the Form I-94 marked with a refugee admission stamp.

Further, the rule makes clarifying and other changes to facilitate

compliance with the regulations pending completion of the Service's

comprehensive document reduction effort.

Regulatory Flexibility Act

The Commissioner of the Immigration and Naturalization Service, in

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

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

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

a short-term measure, which is limited in scope and only modifies a

small portion of the entire employment verification process. It does

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

entities to significantly change established practices.

Executive Order 12866

This rule is considered by the Department of Justice, Immigration

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

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

Review. Accordingly, it has been submitted to the Office of Management

and Budget for review.

Executive Order 12612

The regulation adopted herein will not have substantial direct

effects on the States, on the relationship between the National

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

responsibilities among the various levels of government. Therefore, in

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

does not have sufficient federalism implications to warrant the

preparation of a Federalism Assessment.

Executive Order 12988 Civil Justice Reform

This interim rule meets the applicable standards set forth in

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

Unfunded Mandates Reform Act of 1995

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

tribal governments in the aggregate, or by the

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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

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

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

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

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

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

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

based companies in domestic and export markets.

List of Subjects in 8 CFR Part 274a

Administrative practice and procedures, Aliens, Employment,

Penalties, Reporting and recordkeeping requirements.

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

Federal Regulations is amended as follows:

PART 274a--CONTROL OF EMPLOYMENT OF ALIENS

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

follows:

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

2. Section 274a.2 is amended by revising paragraphs (b)(1)(vi)(B)

and (b)(1)(vi)(C) to read as follows:

Sec. 274a.2 Verification of employment eligibility.

* * * * *

(b) * * *

(1) * * *

(vi) * * *

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

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

or she is a lawful permanent resident and the individual:

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

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

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

I-551; and

(2) Presents the Form I-551 by the expiration date of the

``Temporary Form I-551'' stamp or, if the stamp has no expiration date,

within 1 year from the issuance date of the arrival portion of Form I-

94; or

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

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

work and the individual:

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

unexpired refugee admission stamp, which is designated for purposes of

this section as a receipt for the Form I-766, Form I-688B, or a social

security account number card that contains no employment restrictions;

and

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

reverification, the date employment authorization expires, either an

unexpired Form I-766 or Form I-688B, or a social security account

number card that contains no employment restrictions, and a document

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

* * * * *

Dated: November 25, 1998.

Doris Meissner,

Commissioner, Immigration and Naturalization Service.

[FR Doc. 99-3021 Filed 2-8-99; 8:45 am]

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