Cite as "AILA InfoNet Doc. No. 98040350 (posted Apr. 3, 1998)"
April 3, 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 1890-97, 63 Fed. Reg.
5287 (February 2, 1998)
Dear Mr. Sloan:
Following are the comments of the American Immigration Lawyers Association to the proposed regulation at 8 CFR Parts 274a and 299, regarding the reduction of the number of acceptable documents and other changes to the employer verification requirements.
AILA is a voluntary bar association of approximately 5,000 attorneys and
law professors who practice and teach 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
employers 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 on both interested groups of participants.
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, that they have resulted indiscrimination 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.
Moreover, the Service, which is charged with the implementation of employer verification from the employer’s point of view, and the Office of Special Counsel for Unfair Employment-Related Practices, which is charged with monitoring acts of discrimination in the employment verification process, do not work together to clarify just what is and is not acceptable in the
hiring process. Employers are less concerned about the actual documents than about what they
can ask regarding work eligibility, for example.
While these proposed regulations are clearer than the current interim regulations, much
ambiguity remains. This will mean continued uncertainty for employers and for the 65 million
Americans and others who charge jobs every year in this country.
In addition, the proposed regulation demonstrates a recurring problem for INS in the
wake of IIRAIRA. In attempting to meet the challenge of drastic changes in basic immigration
concepts, the Service is actually creating more work for itself and others. Nowhere is this more
evident than in time-limited employment authorization for certain groups, such as refugees and
permanent residents without their green cards. In both cases, the proposed regulation requires
proof of receiving the final document because of the time-limited nature of the initial document
and not because of the time-limited nature of the authorization. While in some cases presenting
a new document will be a formality, in others it will be a real hardship (especially given continuing delays in the ability of the Service to issue such documents). The end result: at best, INS
has to issue more proof of work authorization than exists by operation of law and, at worst, because it cannot do so in a timely fashion, authorized individuals lose jobs.
AILA recognizes, however, that the proposed regulation takes several important steps to
try to achieve more clarity or uniformity in verification, and commends the Service for making
this attempt. In particular, we wish to recognize the Service's efforts at compliance with the
Regulatory Flexibility Act and will address some of these efforts in the body of our comments.
II. THE NEW STRUCTURE OF THE REGULATIONS MAKES FOR MORE CLARITY
FOR EMPLOYERS BUT COULD BE CONSTRUED INCORRECTLY
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. The simplification of such things as citations makes it easier for our members to assist their employer clients in covering all issues in verification and prohibitions on discrimination. In addition, the simpler formatting will hopefully lead to greater understanding
and less unintentional discrimination of protected individuals.
However, we note that the question and answer format, while simpler, might lead to misunderstanding on the part of employers who will not comprehend that these regulations carry the
effort of law and must be followed. We suggest that such a format would be more appropriate
for the accompanying Employer Handbook and that the headings would be more appropriate as
affirmative statements. The information contained in the regulations would not change, but the
message to employers that these regulations must be followed would be clearer.
III. PROPOSED REGULATIONS – SECTIONS NOTED FOR COMMENT
A. Section 274a.2
AILA notes with approval that this section generally provides some very practical advice
to employers who are unfamiliar with the process. We wish to observe, however, that in Section
274a.2(d), employers should clearly be given the choice of using a new form I-9A or to simply
reverify on a new I-9 form. This would eliminate confusion for employers who will be unfamiliar with a “separate” form and deter a continuing belief as to the different (and even “lesser” )
employment authorization of those with time-limited employment authorization. While it is
mentioned in the regulation and on the form, it appears unclear that either method for reverifica-
tion is acceptable, and some employers will continue to be mystified or believe the form I-9A is
a “better” document.
In fact, we question whether a separate reverification form is necessary. Eliminating confusion would indicate fewer forms rather than more. Having a separate form could lead to disparate treatment and, more importantly, discrimination. The reverification section of the I-9 could
be formatted to make clearer for employers the instructions for reverification.
We also note that reverification is a very difficult process and is little understood by em-
ployers. It is also a process out of the control of the employees who must obtain valid renewals
of work authorization from a system which changes frequently with no notice to the applicant
and with ever increasing delays. Employees who in good faith attempts to obtain employment
authorization well in advance of when it is needed may encounter difficulties with the INS database or with delays at Service Centers. Institution of a grace period during which a renewal of
an INS-issued employment authorization could be sought without adverse impact on the employer and employee would correct this serious problem.
1. Employers should be authorized to continue a pre-existing employment pending
extension of a previously issued work authorization.
Delays in obtaining renewals of employment authorization result in undue hardship on
both employers and employees. Delays are plentiful in the INS system. For example, obtaining
extensions of EADs currently takes approximately 75 days at the Nebraska Service Center, and
90 days at the Texas Service Center. (AILA Monthly Mailing, Vol. 17, No. 4, April 1998, at
335.) Any employee who does not plan well in advance to obtain a renewal of his work authorization is therefore at a significant disadvantage, as is the employer who seeks to reverify and
must remove the employee from the payroll when he cannot. For those who have a pre-existing
working relationship, this makes no legal or policy sense. AILA accordingly suggests that in
such situations, the Service adopt the policy that a receipt for a renewal document will suffice for
a limited period, much the same as a replacement document. In the alternative, the Service
should adopt a “no enforcement” policy with respect to continuing to employ an unauthorized
alien and paperwork violations where the employee has provided the employer with a timely
filed application for the extension of his employment authorization.
2. It is unclear what obligation an employer has where the document has lapsed but
the employee has underlying work authorization.
The regulation does not clarify for employers their own obligation where the document
has lapsed, and the employee has not produced a reverification document. If the employer does
nothing, he is subject to continuing to employ and paperwork violations. If he removes the em-
ployee from the payroll or terminates the employment, he could be subject to a discrimination
violation. This is exactly what happened in a recent court case, where the employer who fired
the employee for lack of employment authorization was held to have discriminated unfairly.
And this was even when the underlying authorization was unknowingly extended (because the
employee’s underlying asylum application had been approved but the notification had not yet
gone through). If an employer can be held to that standard, it will be impossible for employers to
determine when they should terminate and when they should not.
Employers need certainty. They need to be able to determine when employment eligibility is time-limited, and to clearly know when that limitation is in need of evidence of renewal
and when it is not. They also need to know that their duties as employers do not clash with the
employee’s rights not to be discriminated against. The reverification section as it is currently
configured does not accomplish that goal.
B. Section 274a.3 – Documents Acceptable for Employment Verification
1. The proposed rule goes too far in eliminating expired documents.
Section 274a.3 does not permit the use of expired documents. Refusing to allow expired
photo identification documents, such as an expired passport, will unfairly prejudice employers
and employees because of the expense and delay involved in obtaining new documents. Documents that establish identity (for list B) or, in some cases, identity and employment authorization
(such as a US passport on List A) are not invalidated merely because the time authorization of
the document has lapsed. Such documents still identify the person as being who they are, which
is all that is necessary for these purposes.
The supplementary information explains that the purpose in not accepting expired documents is to be able to take advantage of advancing technology in fraud-resistant documents.
While employers are concerned with ensuring that they can rely on any document presented to
them as genuine, they also do not wish to do so at the expense of delay and lost personnel who
cannot produce unexpired identity documents. The Service’s goal can still be met by limiting the
time that an expired document can still be presented (e.g., expired less than three years before
they are presented).
2. The Service should not eliminate the naturalization and citizenship certificates from
the list of acceptable documents.
The elimination of the naturalization and citizenship certificates will cause hardships to
certain groups of workers. Yet there is nothing in the legislative history of IIRAIRA to indicate
that there is sufficient concern about fraudulent certificates being used in great numbers by undocumented workers. In fact, thee documents were returned to the list by the interim rule. The
workers who possess these certificates may not possess other documents, such as a US passport,
or even a driver’s license or other document to establish identity. Absent clear evidence of fraud,
the documents can and should be returned to List A.
3. The Service should consider returning school identity documents to List B.
There is great concern that, in the attempt to streamline the list of acceptable documents,
the Service may have gone too far. For example, the elimination of school identification documents is of concern to both employers and their potential employment pool. Employers seeking
to hire those in their mid to late teens wish to do so without the delay of parental involvement.
The Service’s alternative places a burden not only on the employers, who must delay hiring until
parental attestations can be made, but also on the employees and their parents, who must come
forward to do so.
In addition, this attestation fails to take into account those parents of U.S. citizens or
permanent resident children who may themselves be undocumented, and thus fearful of coming
forward, even to a private employer, to make attestations on what is obviously an INS document.
Finally, there is no evidence in the legislative history of IIRAIRA (or in the supplementary information) of counterfeiting activity in school identification documents. In the absence of such
evidence, there seems to be no reason for removing these documents from the list of acceptable
identity documents, especially given the small percentage of the population that uses them.
4. The Service should consider adding returning US birth certificates to List C.
In debating what became IIRAIRA , Congress spent a great deal of time attempting to
address the concerns of fraud in the use of US birth certificates. It is clear that in striking the
birth certificates from the list of usable documents, Congress desired to take steps to eliminate
one more tool for undocumented workers and those who exploit them by trading in work
However, in eliminating this as a work authorization document, U.S. citizens without
passports will either have to obtain a passport or retrieve their Social Security card (or, more
likely, obtain a new one). As passports are expensive (as noted in the supplementary information), particularly if being used solely for this very limited purpose, many more Americans will
opt for obtaining a (free) Social Security card. We assume that the SSA has not been consulted
as to the expected burden on its resources, but they could be considerable during the next few
years. This does not take into account the burden that will be placed on employers as these new
rules are discovered by employees.
Accordingly, we suggest that the Service use the discretionary power granted to the Attorney General to return birth certificates as a valid List C document. Limitations on the types of
birth certificates that would be acceptable (such as those within the last five years, for example,
or those with the security features noted in the legislative history) would cure Congressional
concerns about the counterfeiting and use by the undocumented, while allowing U.S. citizens
some choice and spreading the document production burden among fifty states rather than one or
two federal agencies.
5. INS should consider returning item 7 to List C.
In the proposed rule, the Service eliminates Item 7, which enabled the employee to use as
evidence of work authorization any “unexpired employment authorization document issued by
the INS (other than those listed under List A).” Why was this removed? It served a valid purpose, allowing those with some form of an older employment authorization to present it, even
though not specifically referenced. As this is a small class of people at most, fraud cannot be as
high a concern as for other documents. Accordingly, we suggest it be returned.
C. Section 274a.3(d)--Receipts
AILA has significant concerns regarding the limitations imposed upon employers who
present receipts for extension of a time-limited employment authorization. Particularly in cases
where extension is a paperwork matter, and where the underlying authorization already exists,
this makes no administrative or legal sense. If the Service will permit continued employment for
a receipt for a replacement document, it should also permit continued employment for a renewal.
1. Some documents that are considered to be “receipts” should not need to be fol-
lowed up with additional documentation
Certain documents or evidence of employment authorization are temporary in nature.
However, the underlying employment authorization is permanent. These include temporary I-
551 stamps and refugee admission stamps. Both are noted in the proposed rule as being “receipts” requiring followup documentation. In neither case is the underlying authorization invalidated with the passing of that expiration date. There is no reason to treat either document as a
“temporary document” because they are evidence of lawful status which does not “expire.”
There is no reason to require a worker with these types of employment authorization to show any
In addition, employers and employees are both disadvantaged by the INS requirement to
produce continuing evidence of employment authorization clearly beyond their control. For example, the proposed rule at 274a.3(d)(1)(ii) requires proof of the actual form I-551 within 180
days. However, the INS is currently experiencing significant processing delays in returning
these cards to new permanent residents. See, e.g., “Many Green Cards Delayed by Bugs in New
Machine,” New York Times, March 25, 1998. This deteriorating situation does not look as if it
will be rectified for some time, only adding to the frustration of employers and employees in
trying to comply with verification requirements which are unnecessary.
The proposed rule also requires that if an employee shows an I-551 stamp as proof of
employment eligibility, he is required to provide the permanent I-551, and not any other evidence of employment authorization. This will frustrate many employees who can obtain other
evidence of employment authorization (such as a driver’s license and a social security card) before he can obtain the green card. It also skirts dangerously close to the appearance of discrimination—we require employers to be scrupulous about not discriminating by asking for specific
documents, yet in the guise of a “receipt” we ask employers to require a specific document. This
will be confusing to many employers, to say the least. It is again an example of the Service advocating a position that will mystify rather than clarify.
We accordingly recommend that INS either grant a far longer time for producing the
document in question under this section or broaden the types of documents that can be used.
D. Section 274a.4--Retention of Documents
AILA wishes to commend the Service in finally enunciating a clear policy on retaining documents, including photocopies. Employers require such clarity to determine their liabilities in this
regard and to have sufficient notice of the standards to which they will be held.
E. Section 274a. 5--Continuing Employment
Again, this regulation provides employers with clarification of the situations under which
an employer has an obligation to rely on a previous I-9 or when he must complete a new form.
However, it seems unreasonable to place the burden in all cases on the employer to demonstrate
that the individual is expected to resume employment at all times and that the expectation is rea-
sonable (section 274a.5(a)(2)). The employer may not have information known to the employee
that could aid in the proof (such as changes in circumstances of the employee) and this information should be considered.
F. Section 274a.6—Inspection of Forms I-9
We respect that the Service wishes to adhere to long-standing policy with regard to the
“three-day rule”—that is, that documents for inspection must be made available with only three
days’ notice to the employer. However, we point out that in this growing climate of large and
decetralized operations for the keeping of human resource records, three days may not be sufficient notice to collect and transport all required documents. We suggest that, in practice and
wherever possible, more time be given to employers to comply.
In addition, the proposed regulation does not state the standard for the issuance of a subpoena in the course of an investigation in Section 274a.6(d). The lack of guidance means that
the public is not on notice with respect to when and under what circumstances they can anticipate
a subpoena for the production of Forms I-9 or related documents. More importantly, there is no
notice as to when the use of such an enforcement tool is inappropriate. A significant number of
motions to quash may be the unintended result of this lack of guidance.
G. Section 274a.7--Prohibition and Good Faith Defense
We note that in the supplementary information the Service acknowledges that additional
regulations will be published concerning the implementation of the good faith defense. Initial
Service guidance was disseminated to the field in March 1997, and continues to be the prevailing
guidance to employers and the Service. We look forward to commenting on this regulation when
it is published.
H. Section 274a.10—Investigations
The regulation is silent on the wire tap authority being used by Service investigators.
This authority was instituted by IIRAIRA as was the other changes initiating this regulation.
Again, the public deserves notice of the standards and situations for which such enforcement
tools are to be used against it.
As a general matter, we note with concern the growing use of these enforcement tools
and in particular the exploitation of employees, particularly undocumented workers, who are
being used as accomplices. Under the promise of some form of protection, aliens are being encouraged to “turn” against employers and obtain evidence that can be used in investigations. It
becomes the obvious interest of the alien to obtain the information at whatever cost. In the absence of identifiable standards, this is a particularly egregious practice.
I. Section 274a.11—Penalties
The regulation is also silent on the negotiability of a notice of intent to fine (NOIF) and
the potential for a settlement agreement. Yet both are common practices, particularly for paperwork violations. Employers who are attempting to defend against an investigation need to have
adequate information on the idea of settlement and the options to avoid protracted adversarial
proceedings if they wish to do so.
IV. THE FORMS REQUIRE FINE-TUNING
AILA has specific suggestions on the draft forms, as follows.
A. Draft I-9.
Going from one to two pages will pose a tremendous paperwork burden on
employers. Likewise, requiring presentation of a two-page instructions
form is overly burdensome.
Neither the employer nor the employee is fairly warned about the penalties
for providing false information on the I-9. In particular, the alien employee should be warned of the potential consequences of a material misrepresentation, and what that would consist of.
Who fills in the Date of Hire (top of I-9, above Section 1), and Date of
Reverification (each section of the I-9A)?
Why provide inconsistent information on the Form and in the regulations
with respect to the timing of completion of the I-9? If the employer can
have a newly hired employee fill out the form prior to the start date of employment, why not say that in the instructions portion of Section 1?
In the case of a receipt for a replacement EAD or for an original EAD in
the case of a newly admitted refugee, where would the receipt be docu-
mented? List A? List C? Why is there no reference to receipts on the
face of the I-9?
Clarify whether the I-551 stamp is good for 180 days after the start date of
employment, or until the expiration date shown.
Why are there two Document # lines under List A? Why is one spelled
out and one abbreviated?
B. Draft I-9A
Is this form necessary? Why not just require the employer to complete a new I-9
if work authorization expires?
The document verification space on Form I-9A is too cramped. Also, employers need an explanation for why there are two updating sections on
Form I-9A. (Employers will believe that they will be required to complete
the section two times even though the underlying eligibility may be permanent.)
V. THE STATUS OF THE SEPTEMBER INTERIM RULE
AILA wishes to point out that the law has changed the status of the Service’s interim rule. According to the supplementary information, the interim rule was to “main-
tain the status quo to the extent possible under the IIRAIRA document provision.” (63
Fed. Reg. at 5289). That effective date was moved to April 1, 1998 by Pub.L. 105-54.
Id. However, it is now after April 1. Employers are confused as to whether the interim
rule is still in effect. Please publish adequate notice for employers on how they should
treat documents removed by law but still in the interim rule.
VI. 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 as their
only guidance as to their requirements of the law than are these regulations. We hope
that the Service will work closely with the affected public to inform them of the new law
and to educate them on its effects. We also hope that the Service will work AILA and
with other associations with a direct interest in the content of the Handbook to ensure it
reflects everything it needs to inform and educate the public.
AILA appreciates this opportunity to comment on the proposed rule, and remain
available to discuss our thoughts with the Service at any time.
THE AMERICAN IMMIGRATION LAWYERS ASSOCIATION
Jeanne A. Butterfield, Executive Director
Elissa M. McGovern, Associate Director for Liaison
Roxana C. Bacon, Chair, INS Enforcement Liaison Committee