INS Proposed Rule on the Reduction of Acceptable Documents for Form I-9
January 30, 1998
INS Seeks Public Comment on Proposed Rule to Simplify Employment Verification Process for Employer
WASHINGTON, D.C. -- The Immigration and Naturalization Service today announced the publication of a proposed rule in the Federal Register on Monday, February 2, which would reduce from 25to 13 the number of documents that employers may accept when verifying the employment eligibility of new hires. The proposed changes would affect all employers nationwide and all newly hired employees.
"The proposed rule reflects a comprehensive effort to simplify the Form I-9 verification process by reducing the number of documents acceptable for employment verification,"; said INS Commissioner Dorris Meissner. "Since these improvements will have an impact on all of our nation's employers and the people they hire, we welcome their feedback on our proposal. We will assess all public comments before we finalize and implement an improved I-9 process."
The proliferation of counterfeit documents has undermined the effectiveness of the Form I-9 employment verification process required by the 1986 Immigration Reform and Control Act. For the past several years, INS has been combating document fraud by developing new counterfeit-resistant documents which utilize the latest technological advances.
The rule proposes a reduction in the number of acceptable documents for the Form I-9 employment verification process to simplify the process for employers and to eliminate certain documents that are easily counterfeited. The rule also implements the document reduction provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.
This proposed rule begins the regulatory process by providing a 60-day public comment period. It does not immediately change the Employment Eligibility Verification Form I-9, or the list of 25 acceptable documents specified by regulation. Therefore, employers should continue to verify employment eligibility by completing the current version of the Form I-9 (dated November21, 1991) and accepting the documents permitted by regulation.[On September 30, 1997, an interim rule was published in the Federal Register that removed four "List" documents from the list of 29 documents specified on the reverse side of the Form I-9 --reducing the number of acceptable documents from 29 to 25. The four documents were: Certificate of United States Citizenship (Form N-560 or N-561); Certificate of Naturalization(Form N-550 or N-570); Re-entry Permit (Form I-327); Refugee Travel Document (Form I-571). Also, two earlier regulation changes had been made to the list of 29 documents specified on the reverse side of the Form I-9. In 1996,the old version Alien Registration Receipt Card Form I-151 was no longer valid, and the new version Employment Authorization Document Form I-766 became an acceptable document.]
INS is accepting comments on the proposed rule by electronic mail, for the first time, to facilitate the public comment process. Instructions are included in the proposed rule, which can be found on INS' web site at www.immigration.gov beginning on February 2.
After the public comment period, INS will consider the comments, make changes accordingly, and publish a final rule, revised Form I-9, and revised Handbook for Employers (pub. M-274). The entire process to finalize regulations typically takes six months. INS will undertake a comprehensive public education effort to notify employers about the revised verification rules and inform them of how to obtain and complete the new Form I-9.
Below is the proposed list of 13 acceptable documents. Under the proposed rule employees continue to be required to present either one List A document, or one List B and one List C document for the Form I-9 verification process.
Proposed List A (Documents that establish both identity and employment eligibility.)
- United States Passport
- Permanent Resident Card or Alien Registration Receipt Card (I-551)
- Temporary Resident Card (I-688)
- Employment Authorization Document (I-766,I-688B, or I-688A)
- Foreign Passport with temporary I-551stamp
- For aliens authorized to work only for a specific employer, Foreign Passport with Form I-94 authorizing employment with this employer
List A documents already eliminated by the interim rule on September 30, 1997:
- Certificate of United States Citizenship, Form N-560 or N-561
- Certificate of Naturalization, Form N-550or N-570
- Re-entry Permit, Form I-327
- Refugee Travel Document, Form I-571
Proposed List B (Documents that establish identity only)
Current List B documents proposed to be eliminated:
Proposed List C (Documents that establish employment eligibility only)
- Social Security account number card without employment restrictions
- Native American tribal document
- Form I-94 authorizing employment with this employer (for aliens authorized to work only for a specific employer)
Current List C Documents proposed to be eliminated:
- Certification of Birth Abroad issued by the Department of State, Form FS-545 or Form DS-1350
- Birth certificate issued by a State, county, municipal authority or outlying possession of the United States bearing an official seal
- United States Citizen Identification Card, INS Form I-197
- Identification card for use of a resident citizen in the United States, INS Form I-179
- Employment authorization documents issued by INS other than those listed under List A
-- INS --
[Federal Register: February 2, 1998 (Volume 63, Number 21)][Proposed Rules]
[Page 5287-5314]
From the Federal Register Online via GPO Access
[wais.access.gpo.gov]
[DOCID:fr02fe98-25]
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DEPARTMENT OF JUSTICEImmigration 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
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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: I9INFO@usdoj.gov. 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 metcalfm@justice.usdoj.gov. 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
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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.
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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.
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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
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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
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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:
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(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.
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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
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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
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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.immigration.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
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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
(SEE PDF VERSION FOR TABLE)
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
(SEE PDF VERSION FOR TABLE)