Cite as "AILA InfoNet Doc. No. 98060840 (posted Jun. 8, 1998)"
June 8, 1998
Mr. Richard Sloan
Director, Policy Directives and Instructions Branch
US IMMIGRATION & NATURALIZATION SERVICE
425 I Street, NW
Washington, DC 20536
RE: Proposed Rule Regarding Reduction in Documents and Other Employment
Verification Changes, INS 1819-96, 63 Fed. Reg. 16909 (April 7, 1998)
Dear Mr. Sloan:
Following are the comments of the American Immigration Lawyers Association to the
proposed regulation at 8 CFR Parts 274a, regarding the limitation of liability for certain technical
and procedural violations for employers who have made a good-faith attempt to comply with
AILA is a voluntary bar association of approximately 5,000 attorneys and law professors
who practice and lecture in the field of immigration and nationality law. AILA’s objectives include the advancement of the law pertaining to immigration and naturalization, to promote reforms and to facilitate justice in the field.
AILA members represent a wide spectrum of employers and individuals in all aspects of
immigration benefits and enforcement. Our attorney members represent those at both ends of the
employment eligibility verification process – the employers who must comply with what is in
many respects a confusing law, and employees who must submit to the process to secure their
livelihood. Accordingly, we not only have a direct and immediate interest in the proposed rule,
but are uniquely qualified to address its impact.
Before we address any substantive issues in the proposed regulation, we must repeat our
concerns regarding the system of employment verification and employer sanctions. AILA believes that the employment verification and sanctions provisions do not achieve their intended purpose, have resulted in discrimination toward
protected persons and have proven unworkable as well as ineffective at deterring undocumented
workers. The changes imposed by IIRAIRA to the sanctions provisions do nothing to allay these
concerns; in fact, the reduction in the types of available verification documents and the institution of the good faith defense only serve to increase the likelihood of discrimination by employers.
We do, however, recognize the duty of the Service to promulgate clear and effective
regulations to implement the verification provisions of the Immigration and Nationality Act
(INA). The most recent changes to this substantive area took place in 1996 with the passage of
the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA). That legislation
finally recognized the fact that most employers find themselves between the desire to comply
and the complexities inherent in verification, from the confusing number of documents to the
fine line between verification duty and discrimination. The two important steps taken in that
legislation to alleviate some of the burden for employers were the reduction in the number of
documents that can be provided for verification purposes, and the establishment of a good-faith
defense for technical and procedural violations. These two together should have been sufficient
to protect the employers who make genuine good-faith efforts to comply with all verification requirements but fall short of total compliance.
The Service’s proposed regulation, however, is too ambiguous to be helpful to many employers in using the good-faith defense in those situations where Congress intended it to be
used—namely, when an employer has done its best to comply but, because of an inability to totally understand and implement the requirements of verification procedures, has missed something. Obviously, these failures should not be significant ones (as in, is the employee authorized
to be employed or not?), but can be the technical mistakes that – especially given the complexities of the verification process and the documents that are involved – all too often happen. But
the Service’s proposed regulation, although clear in most areas, has some ambiguities that should
be clarified and explained more completely to be understood by businesses, institutions, and others who will be charged with those errors.
II. THE PROPOSED REGULATION IS IN PARTS UNCLEAR AND IS CAPABLE OF BEING MISCONSTRUED
AILA recognizes in particular the effort made by the Service to make the regulation more
understandable by employers, particularly small employers who are disproportionately impacted
by verification burdens. However, some aspects of the regulation are vague and confusing to the
reader, and will be more confusing in practice as employers hope to utilize the good-faith defense. Specific examples follow.
A. There needs to be a clean and clear line of applicability of the effective date for the
Section 411 of IIRAIRA provides the good-faith defense to technical or procedural errors
occurring on or after September 30, 1998. The Service interprets that as including failures that
exist on or after that date, even if the act, or failure to act, that caused the failure to exist occurred
prior to September 30, 1996. While we believe that this is correct interpretation of the statute, it
is nevertheless confusing to employers who will be unable to understand exactly what is covered
by the defense.
The distinction between ongoing failures (which can be corrected) and those failures that
are denoted as “timeliness failures” further confuses the issue. The Service notes that Section
411 does not apply if the requirement to complete the form should have been met before September 30, 1996. However, all technical and procedural failures in the verification process are
based on acts or, more appropriately, the lack of action. For any I-9 completed prior to September 30, all acts should have taken place by that date. The Service’s explanation of the distinction
does not make a convincing case, even though the underlying assumption is a valid one—that
some actions, if not undertaken prior to that date, cannot be made right by later action.
We suggest that some additional thought be given on accompanying explanations to employers, either in new regulations or in the accompanying handbook for employers. This particularly applies to the distinction between a continuing failure (which can be “fixed” under Section 411 of the INA) and a timeliness failure (which cannot).
B. The INS should include failures involved in inspections that occurred prior to September 30, 1996 but where the final determinations were made after that date.
The INS inspections process is a long and ongoing process; often the process from initial inspection through to a final determination can be measured in years. Employers who were in the pro-
cess before September 30, 1996, and indeed had an initial inspection before that date, will have
some ongoing violations that would qualify under the Service’s definition of a violation that
would fall within the defense of Section 411. In the same way that the Service is giving retroactive application of the defense to continuing failures that initially occurred prior to September
30, 1996, but were not found by the Service before that date, it should make the defense available where the violation was found but no final action was taken. There is no indication that
Congress intended a distinction between the two situations.
C. It is unclear when an employer can correct its errors.
We feel that the proposed regulation does not explain with sufficient clarity the circumstances under which an employer may correct its own I-9s with regard to technical violations.
Must it only occur after an INS inspector has pointed out the error? The statute certainly does
not limit the ability to this situation. In fact, the idea of Service intervention occurs only in one
of the two exceptions to the defense. Section 247a.2(e) of the regulation itself, however, appears to require Service intervention in order for the employer to correct the forms and note the
correction for the record. This may confuse employers and may cause many to second-guess
their own activities or, even more significantly, to ignore mistakes that can easily be corrected
during a self-audit but could not be corrected at a later date (because of impossibility of perform-
ance due to the departure of the employee, etc.)
III. THE PROPOSED REGULATION PLACES TOO MUCH GUILT ON EMPLOYERS BEFORE THEY CAN BE EXONERATED BY THE GOOD FAITH DEFENSE
Section 274a.2 of the proposed rule appears to rely on the concept that employers typically willfully violate verification requirements. Only when it that violation is minor, procedural, or technical will they be exonerated. Not only is this contrary to the good-faith defense of
the statute, it imbues the regulation and those who must implement it with a misplaced sense of
the reality of employers’ attempts to conform to the law. In particular, those exceptions to the
exception with which we are concerned are:
A. Section 274a.2(e)(i) relies on an overbroad “totality of the circumstances” demonstration.
Instead of providing a set of circumstances under which a good faith attempt to comply
could be found, the Service has focused on describing the situations where it is not to be found,
putting employers in the light of being guilty until falling outside those situations described. The
totality of the circumstances approach, which looks to (among other factors) the number of unauthorized aliens in the workforce together with repeated failures in I-9 completion, is overbroad
and is capable of being misused by inspectors. Although the Service has made great strides to
combat the number of fraudulent documents available for employment verification, a huge number of fraudulent documents continue to be usable for verification purposes. Employers are not
document experts, and even their best efforts do not detect these unauthorized employees. As a
result, many employers have a substantial number of unauthorized alien employees and incomplete I-9s for those employees, yet have acted in good faith at all times. This would be sufficient
to take the employer out of the good-faith exception, despite evidence that the employer acted in
good faith at all times. Accordingly, we suggest that this standard be changed to reflect more
concerning the ability of employers to present their side of the issue.
B. Employers should be able to “rely” on the good faith defense.
Section 274a.2(e)(ii) states that good faith will not be found to exist when the failure was
committed in knowing reliance on Section 274A(b)(6) of the Act (the good faith defense).
Again, this provision is subject to significant misinterpretation by inspectors. Employers want to
comply with their regulatory obligations in general. Because of the confusing nature of employment verification, in particular the thin line between actions required to verify a person’s
employment eligibility and actions constituting discrimination, employers will frequently make
mistakes. The statutory intent of this provision is to give these employers the ability to defend
themselves against this confusion. But simply because the provision exists and the employer is
aware of its existence, it could be held to have “relied” on the provision in making what would
otherwise be a legitimate technical error. There is a distinct difference between an employer
who acts in reckless disregard believing it is permissible because there is a “protection” out there
for him, and an employer who can be found to have truly tried to fill out the forms correctly and
failed, and who nonetheless believes he has made a good-faith effort and is therefore also “relying” on the defense. The regulation needs to reflect that distinction, perhaps by eliminating Section 274a.2(e)(ii) and relying on the “intent to avoid” standard of Section 274a.2(e)(i).
C. The good faith defense should be available even where unlawful employment is
The regulation is not completely clear on whether an employer will be able to avail itself
of the defense if any substantive violations (ie, unlawful employment) are found in addition to
the paperwork deficiencies. This is not only contrary to Congressional intent, but is nonsensical.
Employers, particularly large employers with transient work forces, will be severely disadvantaged if this is the case. Such employers may well have unknowingly hired unauthorized aliens,
because the chance of false documentation undetectable by the employer is high. We do not believe that the INS means to preclude such employers from the ability to use the good faith defense in those cases where it is appropriate.
D. The technical violations should include use of an extension receipt of previously issued work authorization to continue previous employment.
Delays in obtaining renewals of employment authorization result in undue hardship to
both employers and employees. Delays are plentiful in the INS system. Any employee who
does not plan well in advance to obtain a renewal of his work authorization is therefore at a sig-
nificant disadvantage, as is the employer who seeks to reverify and must remove the employee
from the payroll if it cannot. For those who have a pre-existing working relationship, the inability of an employer to rely on a receipt for an extension of that employment authorization
makes little legal or policy sense. AILA accordingly suggests that in such situations, the Service
adopt the policy that an employer who accepts a receipt for a renewal document will have committed a “technical” violation that can be corrected at a later date.
IV. IMPLEMENTING THE NEW RULE
Nowhere in the proposed rule is an acknowledgement of the Herculean task facing the Service – the education of employers on the new requirements, including the total
reworking of the Employer’s Handbook that is more widely used by employers than these
regulations as their guidance on the requirements of the law. We hope that the Service
will work closely with the affected public to inform them of all aspects of the new law
and to educate them on its effects. We also hope that the Service will work with AILA
and with other associations with a direct interest in the content of the Handbook to ensure
it includes everything that is needed to inform and educate the public.
For the reasons stated above, AILA asks that the regulation be amended to clarify
the points raised, namely:
- Employers should be able to clearly apply the effective date in utilizing the defense;
- The defense should be available for one that includes continuing violations for which
final action has not been taken by the effective date of the regulation;
- Employers should be able to correct mistakes at any time up to and including
at the time of the action of the INS or other government entity in pointing out
- The “totality of the circumstances” examination should be narrowed to reflect
more specific situations;
- Employers should be able to rely on the good faith defense but not act in
reckless disregard because of it;
- The good faith defense should be available even where unlawful employment
is charged; and
- Technical violations should include using receipts for extensions of previously
valid employment authorization in previous work relationships.
AILA appreciates this opportunity to comment on the proposed rule. We remain
available to elaborate on the material contained in this comment or on any further considerations the Service wishes to raise with the Service at any time.
THE AMERICAN IMMIGRATION LAWYERS ASSOCIATION
Jeanne A. Butterfield, Executive Director
Elissa M. McGovern, Associate Director for Liaison