[Federal Register Volume 62, Number 178 (Monday, September 15, 1997)]
[Notices]
[Pages 48309-48316]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-24422]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
[INS No. 1872-97]
Pilot Programs for Employment Eligibility Confirmation
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: This notice prescribes guidelines under which employers may
elect to participate in one or more of three pilot programs for
employment eligibility confirmation to be conducted by the Immigration
and Naturalization Service (Service) with the involvement of the Social
Security Administration (SSA). This notice also requests comments from
employers and other interested parties on the pilots. The Commissioner
of the Service invites employers in states where the three pilot
programs for employment eligibility confirmation will be conducted to
contact the Service to elect to participate in one or more of them. The
pilot programs build on the experience of the Service and SSA over the
last 5 years in developing and operating employment verification pilot
programs with the goal of enabling participating employers to verify
their newly hired employees' work eligibility quickly, easily, and
accurately.
DATES: There is no deadline for submission of election forms to
participate in an employment verification pilot program(s), but
interested employers should send their completed election forms to the
Service as soon as possible to maximize their opportunity to
participate.
ADDRESSES: Please submit your election forms, requests for information
and any comments you may have on the pilot programs to the Immigration
and Naturalization Service, 425 I Street, NW., ULLICO Building, 4th
Floor, Washington, DC 20536, Attention: SAVE Program Branch--Election
Forms and/or Comments.
FOR FURTHER INFORMATION CONTACT:
John E. Nahan, Immigration and Naturalization Service, SAVE Program,
425 I Street, NW., ULLICO Building, 4th Floor, Washington, DC 20536,
telephone (202) 514-2317.
SUPPLEMENTARY INFORMATION:
I. Statutory Authority
Title IV, Subtitle A of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. 104-208, 110
Stat. 3009, enacted on September 30, 1996, provides that all United
States employers, subject to eligibility for participation,
geographical limitations, and limitations of available Service and SSA
resources, may elect to participate in one or more of three employment
verification pilot programs to be conducted by the Service. The three
pilot programs are: (1) the Basic Pilot; (2) the Citizen Attestation
Pilot; and (3) the Machine-Readable Document Pilot.
II. Purpose
The purpose of these pilot programs is to implement IIRIRA's
mandate to test three methods of providing an effective,
nondiscriminatory work eligibility verification procedure focusing on
electronic verification. Through an automated confirmation system,
employers will match information provided by employees on the Form I-9,
Employment Eligibility Verification, against existing information
contained in SSA's or the Service's databases to confirm that an
individual is eligible to work.
III. General Description of the Pilot Programs for Employment
Eligibility Confirmation
The IIRIRA requires the Service to conduct three distinct pilot
programs, each of which can last no longer than 4 years, unless
otherwise directed by Congress. The programs include: (1) the Basic
Pilot; (2) the Citizen Attestation Pilot; and (3) the Machine-Readable
Document Pilot. Participation in the pilots will be voluntary on the
part of employers, except with regard to the executive and legislative
branches of the Federal Government and certain employers found to be in
violation of sections 274A(e)(4) or 274B(g) of the Immigration and
Nationality Act (Act), 8 U.S.C. 1101 et seq., in states where the
pilots are being conducted. Although the decision for an employer to
participate is voluntary, verification may not be selective; all
employees subject to verification under the terms of a pilot program
must be verified by an employer participating in that pilot.
A. Mandatory Elections
1. Federal Government Participation
Certain Federal Government entities are required by Section 402(e)
of IIRIRA to elect to participate in at least one of the three pilot
programs. The Secretary of each department of the executive branch is
required to make an election of one or more of the pilot programs, but
may limit the election to hiring in those states or geographic areas
covered by the pilot(s) selected, and to specified divisions within the
department, as long
[[Page 48310]]
as all hiring by such divisions and in such locations is covered. In
the legislative branch, each Member of Congress, each officer of
Congress, and the head of each agency of the legislative branch that
conducts hiring in a state in which a pilot program will operate must
participate in at lest one pilot programs. Governmental entities
required to participate in a pilot program must return the election
form to the Service. The Service's acceptance of elections by employers
required to make elections is subject to the constraints of available
resources and the pilot eligibility requirements.
2. Violators of the Act
Orders finding employers liable under sections 274A(e)(4) or
274B(g) of the Act for knowingly employing unauthorized aliens, or
under section 274B(g) of the Act for unfair immigration-related
employment practices, may require the subject of the order to
participate in a pilot program with respect to hiring, recruitment, or
referral of individuals in a state covered by such a program. This
provision will be the subject of forthcoming regulations or other
necessary implementing action by the authorities responsible for
issuing such orders. Persons or entities subject to such orders should
not return the election form to the Service, unless they desire to
participate voluntarily in a pilot program.
Persons or entities required to participate in a pilot program who
fail to comply with the requirements of the pilot program, with respect
to an individual, are subject to civil penalties under section 274A of
the Act.
B. Confirmation System Requirements
Section 404(d) of IIRIRA requires that the confirmation system to
be established to service employers participating in the three pilot
programs be designed and operated to:
(1) maximize reliability and ease of use, consistent with
protecting the privacy and security of the underlying information;
(2) respond to all appropriate inquiries and to register times when
such inquiries are not received;
(3) include appropriate safeguards to prevent unauthorized
disclosure of personal information; and
(4) have reasonable safeguards against the system's resulting in
lawful discriminatory practices based on national origin or citizenship
status, including the selective or unauthorized use of the system to
verify eligibility, the use of the system prior to an offer of
employment, and the exclusion of certain individuals from consideration
for employment as a result of a perceived likelihood that additional
verification will be necessary, beyond what is required for most job
applicants.
All the pilots will have a number of features and safeguards in
common to meet these requirements. The confirmation system will contain
safeguards designed to protect the integrity of personal information
contained in SSA and Service databases, including passwords, access
codes, and user identification numbers. The information provided
through the confirmation system will be limited only to that necessary
to satisfy the employer's need to verify work eligibility. Necessary
manuals and training material will be provided to employers. The
Service will designate one or more individuals in each Service district
office covering an area in which a pilot program is being implemented
to assist the public, as well as provide information and assistance
from the Service's SAVE Program in Washington, DC.
C. Memorandum of Understanding (MOU)
No employment eligibility confirmation information will be
exchanged between the employer and the Service or SSA under a pilot
program unless and until the employer has entered into an MOU with the
Service and SSA (if applicable), stating in detail the terms and
conditions applicable to that pilot. The MOUs for each pilot will
contain appropriate undertakings on the part of the employer regarding
its responsibilities under the pilot including, but not limited to, the
following:
(1) the employer agrees that it will not initiate any verification
procedure until after the employee has been hired and the Form I-9 has
been completed;
(2) the employer agrees that it will verify all new employees
subject to verification under the terms of the pilot;
(3) the employer agrees to display prominently appropriate notices
to inform employees and prospective employees about its participation
in the pilot and to provide anti-discrimination information; and
(4) the employer agrees not to take any adverse action against an
employee based upon his or her employment eligibility status while SSA
or the Service is processing a verification request, unless the
employer obtains knowledge that the employee is unauthorized;
(5) the employer agrees to provide access to its employment records
to the Service and SSA, and its agents or designees for the purpose of
pilot evaluation; and
(6) the employer agrees that the information provided to it through
the confirmation system will be used to supplement and confirm the Form
I-9 verification of identity and work authorization of newly hired
employees, and not for any other purpose.
Violation of these conditions will be grounds for immediate
termination of the employer's participation in the pilot, and for
appropriate legal action. In particular, information received by the
Service or SSA in the course of the pilot indicating that the employer
has engaged in unlawful immigration-related employment practices will
be referred to the Special Counsel for Immigration-Related Unfair
Employment Practices within the Civil Rights Division of the Department
of Justice.
Except as otherwise specifically designated by IIRIRA, all legal
obligations pertaining to employment verification and to the obtaining
and use of SSA or other Federal Government information, including anti-
discrimination protections, will continue to apply to pilot program
participants. Section 403(d) of IIRIRA states that no person or entity
participating in a pilot program shall be civilly or criminally liable
under any law for any action taken in good faith reliance on
information provided through the confirmation system.
Under section 402(b) of IIRIRA, an employer participating in any of
the three pilot programs obtains the benefit of a rebuttable
presumption that it has not violated section 274A(1)(A) of the Act--
which provides civil penalties for knowingly employing an unauthorized
alien--with respect to the hiring of any individual if it obtains
confirmation of the identity and employment eligibility of the
individual in compliance with the terms and conditions of the pilot
program.
D. Unfair Immigration-Related Employment Practices
An employer participating in any of the pilots agrees not to
discriminate unlawfully against any individual in hiring, firing, or
recruitment practices because of his or her national origin or, in the
case of a protected individual, as defined in section 274B(a)(3) of the
Act, because of his or her citizenship status. Such illegal practices
can include discharging or refusing to hire eligible employees because
of their foreign appearance or language. An employer also violates the
anti-discrimination provision if it requests more or different
documents than are required under
[[Page 48311]]
section 274B of the Act, or refuses to honor documents that on their
face reasonably appear to be genuine, if done with the purpose or with
the intent of discriminating against an individual because of his or
her citizenship or national origin. Violation of the unfair
immigration-related practices provisions of the Act could subject an
employer to civil penalties pursuant to section 274B of the Act.
E. Evaluation of Pilot Programs
Section 405 of IIRIRA requires that the Service report to Congress
on the Basic Pilot, the Citizen Attestation Pilot, and the Machine-
Readable Pilot programs and make recommendations on whether they should
be continued or modified. To assist in evaluating the pilots and
developing these reports, the Service or auditors contracted by the
Service may contact participating employers to review work records
created during the pilot(s), and to solicit their views and the views
of their employees concerning these pilot programs.
F. Equipment Requirements
The Service and SSA will provide the verification services
contemplated by the employment verification pilot programs at no cost
to employers, but employers will be responsible for providing the
equipment needed to make inquiries. Equipment needed for participation
in the Basic Pilot and the Machine-Readable Document Pilot includes a
personal computer with a modem, and a touch-tone telephone (and modem,
if the same device) on a phone line which results in only one phone
number being recognized as the originating phone number, regardless of
whether it is controlled through a switch, private branch exchange, or
direct outward dialing--this line should be an analog voice grade line.
Equipment required for the Citizen Attestation Pilot is a personal
computer and a modem. For the Machine-Readable Document Pilot, a
machine to read the machine-readable documents will be necessary in
addition to the Basic Pilot equipment. No decision has been made yet as
to exactly what machine will be used for the Machine-Readable Document
Pilot, or as to whether employers will be responsible for providing it.
The requirements for the Machine-Readable Document Pilot will be
defined in a separate Memorandum of Understanding (MOU) between the
Service, SSA, and the participating employer.
IV. Basic Pilot
The Basic Pilot requires participating employers to verify
employment authorization for all new employees, regardless of
citizenship. The IIRIA mandates that the Basic Pilot be offered to
employers in at least five of the seven states with the highest
estimated population of aliens who are not lawfully present in the
United States. The Service has estimated the population of aliens who
are not lawfully present in the United States to be highest in the
states of California, Texas, New York, Florida, and Illinois, and is
soliciting elections to participate from employers in those five
states.
A. Changes to Form I-9 Procedures for the Basic Pilot
Unlike Service employment verification pilots to date, the Basic
Pilot involves changes to Form I-9 employment verification procedures.
Except as specifically provided, however, all employment eligibility
verification requirements generally applicable to employers apply
equally to pilot participants. The only specific change to document
examination procedures for employers participating in the Basic Pilot
will be that ``List B'' identity documents without a photograph will
not be acceptable, for the following reasons:
(1) Documents referred to in section 274A(b)(1)(B)(ii) of the Act
must be designated by the Service as suitable for the purpose of
identification in a pilot program. The documents referred to by this
statutory citation include all Form I-9 ``List A'' documents acceptable
for both identity and employment eligibility under 8 CFR
274a.2(b)(1)(A), except for the U.S. Passport (expired or unexpired).
The Service hereby designates all Form I-9 ``List A'' documents,
identified by current Service regulations, as suitable for the purpose
of identification in a pilot program. The U.S. Passport (expired or
unexpired) is also suitable for the purpose of identification in a
pilot program as a statutory Form I-9 ``List A'' document, without the
need for specific designation by the Service. As a result of this
designation of suitable documents, employment verification procedures
involving ``List A'' documents, showing both identity and employment
eligibility, will remain unchanged for participants in the Basic Pilot,
and for participants in the Citizen Attestation and Machine-Readable
Document pilots, to the extent that those pilots adopt Basic Pilot
procedures;
(2) The IIRIRA requires that a document referred to in section
274A(b)(1)(D) of the Act contain a photograph of the individual. This
statutory citation refers to Form I-9 ``List B'' documents that
establish identity only under 8 CFR 274a.2(b)(1)(B). ``List B''
documents do not necessarily include photographs. However, only ``List
B'' documents with photographs may be accepted for purposes of identity
verification by employers participating in the Basic Pilot, or in the
Citizens Attestation or Machine-Readable Document pilots, to the extent
that those two pilots adopt Basic Pilot procedures. The Service does
not anticipate issuing a new version of the Form I-9 specifically for
employment verification pilot participants;
(3) The IIRIRA states that the employer has complied with the
employment eligibility verification requirements of section 274A(b)(1)
of the Act with respect to examination of a document if the document
reasonably appears on its face to be genuine and to pertain to the
individual whose identity and work eligibility is being confirmed. This
provision does not alter, for pilot program purposes, the standards for
document examination applicable to all U.S. employers under sections
274A(b)(1) and 274B(a)(6) of the Act; and
(4) The IIRIRA provides that if the Service finds that a pilot
program would reliably determine, with respect to an individual,
whether the person with the identify claimed by the individual is
authorized to work in the United States, and whether the individual is
claiming the identity of another person, it may waive the requirement
that a Form I-9 ``List C'' employment eligibility document also be
presented if the employee presents a List B identity document rather
than a ``List A'' identity and employment eligibility document. The
pilot programs are designed to make reliable determinations of work
eligibility, and the Service will consider as they proceed whether
waiving the ``List C'' requirement is appropriate. Any such
determination prior to implementation of the pilot programs, however,
would be premature.
B. Basic Pilot Verification Procedures
The Basic Pilot involves separate verification checks (if
necessary) of the SSA and Service databases, using automated systems to
verify Social Security account numbers (SSNs) and alien registration
numbers. The verification procedures will be initiated after the
employee has been hired and the Form I-9 completed. Employers must
verify all newly hired employees
[[Page 48312]]
without exception, and must make verification inquiries within 3 days
of the hiring (unless the automated system to be queried is temporarily
unavailable, in which case the time period is extended to accommodate
employers attempting, in good faith, to make inquiries during the
period of unavailability).
In all cases, the verification inquiry will go first to SSA. If
necessary, the SSA response will instruct employers to use the
Service's automated verification procedures. The automated verification
procedures are designed to verify the employee's work eligibility
within 3 work days of the initial call to SSA. If the automated
procedures do not result in verification, a ``tentative
nonconfirmation'' will result. In that case, the employer will inquire
of the employee whether he or she wishes to contest the tentative
nonconfirmation. If so, the employee will be referred to secondary
verification, which will require him or her to contact or visit an SSA
or Service office, as appropriate, within 8 Federal Government work
days of being notified by the employer of the tentative
nonconfirmation.
A tentative nonconfirmation received from either SSA or the Service
does not mean that the employee is not authorized to work, and
employers may not interpret it as such. There are many reasons why a
work-authorized individual may be the subject of a tentative
nonconfirmation, including mistakes on the Form I-9 by either the
employer or the employee, inaccurate data entry by the employer, legal
change of the employee's name, or erroneous, incomplete, or outdated
Government records. Although it does not mean that the employee is not
work-authorized, a tentative nonconfirmation means that a work-
authorized employee must, without fail, take advantage of his or her
secondary verification opportunity to correct the situation if he or
she wishes to continue employment.
SSA Verification--the Automated System
After completing the Form I-9, the employer will access the SSA
database using a touch-tone telephone to input the employee's name,
SSN, and date of birth, as recorded on the Form I-9. If the data input
by the employer matches the SSA database and shows the employee to be
work-authorized, the employer will receive a confirmation of employment
eligibility. If the information does not match SSA records, or if the
employment eligibility of the employee is not confirmed, the employer
will receive further instructions. In some cases, the employer will be
instructed to initiate the Service verification procedures. In other
cases, the SSA response shall constitute a tentative nonconfirmation.
The employer will record appropriate transaction codes received from
SSA on a verification transaction record form. Social Security personal
earnings account information will not be accessible to the employer
through the SSA verification process.
a. SSA Secondary Verification
If the employer receives a tentative nonconfirmation of an employee
from SSA, the employer must notify the employee and determine whether
or not the employee will contest the tentative nonconfirmation. If the
employee does not contest the tentative nonconfirmation, it will be
considered a final nonconfirmation. If the employee contests the
tentative nonconfirmation, he or she must visit an SSA field office
within 8 Federal Government work days to resolve any discrepancy in SSA
records, including updating the database if appropriate. The SSA and
the Service have 10 Federal Government work days within which to
respond to contested tentative nonconfirmation cases. During this
period, the employer may not terminate or take adverse against the
employee based upon his or her employment eligibility status. At the
expiration of the 8-day period, the employer will make another
telephone inquiry of the SSA database, which will result in
confirmation, a second and final nonconfirmation, or additional
verification instructions.
2. Service Verification--the Automated System
The Service's automated verification will take place only as may be
directed by the SSA verification response. Participating employers
access the Service database using personal computers with a modem. To
conduct an initial query of the Service database, the employer keys in
certain information from the employee's Form I-9. The Service database
will respond within seconds either by confirming work authorization, or
by requiring more information relating to Form I-9 employment
eligibility documentation in order to permit the Service to conduct
further searches of its records. The result of the further searches
will be available through the automated system within 3 Federal
Government work days. If the Service is unable to confirm work
authorization based upon the automated process, a tentative
nonconfirmation results.
a. Service Secondary Verification
An employee who is the subject of a tentative nonconfirmation after
completion of an automated Service verification check is provided a
secondary verification opportunity to verify his or her employment
status. In these cases, the employer must notify the employee of the
tentative nonconfirmation and determine whether or not he or she will
contest the tentative nonconfirmation. If the employee does not contest
the tentative nonconfirmation, it will be considered a final
nonconfirmation. If the employee contests the tentative
nonconfirmation, he or she must contact the Service within 8 Federal
Government work days for resolution of his or her case. The employer
will instruct the employee to call a Service toll-free telephone number
or visit a local Service office within that time period. The SSA and
the Service have 10 Federal Government work days within which to
respond to contested tentative nonconfirmation cases. During this
period, the employer may not terminate or take adverse action against
the employee based upon his or her employment eligibility status,
unless the Service determines, within that time, that the employee is
not work-authorized.
Within or at the conclusion of the 10-day period for secondary
verification, an employer will receive one of the following messages
via the electronic confirmation system concerning the employee's work
eligibility: (1) if the employee contacts the Service and verifies his
or her employment eligibility, the employer will receive an
``employment-authorized'' confirmation; (2) if the employee contacts
the Service but the Service determines that the employee is not work-
authorized, the employer will receive an ``unauthorized'' response
(final nonconfirmation); (3) if the employee does not contact the
Service to resolve his or her case, the employer will receive a ``no
show'' response, which shall also constitute a final nonconfirmation
for purposes of the pilot; or (4) if in some cases the Service needs
more than 10 work days to resolve a case, the employer will receive a
``case in continuance'' response, and the employee should continue to
work until a definitive answer is received from the Service. If
necessary, based on the secondary verification contact, the Service
database will be updated. The employer will record appropriate
verification codes received from the Service, either by printing the
verification screen and attaching it to
[[Page 48313]]
the Form I-9, or recording the verification code on the Form I-9.
3. Consequences of Final Nonconfirmation
An employer receiving a final nonconfirmation from SSA or the
Service with regard to an employee may terminate the employee, and
shall not be civilly or criminally liable under any law for the
termination, as long as the action was taken in good faith reliance on
information provided through the confirmation system. If the employer
does not terminate an employee after final nonconfirmation, the
employer must notify the Service. If the employer fails to notify the
Service of continued employment after receiving final nonconfirmation,
the failure is deemed a violation of section 274A(a)(1)(B) of the Act
for failure to comply with proper hiring procedures, and the employer
may be assessed a civil monetary penalty of between $500 and $1,000. An
employer continuing to employ an individual after receiving a final
nonconfirmation also could be subject to legal penalties under section
274A(a)(1) of the Act. Section 403(a)(4)(C)(iii) of IIRIRA establishes
a rebuttable presumption that an employer who continues to employ an
individual after receiving final nonconfirmation has knowingly employed
an unauthorized alien.
V. The Citizen Attestation Pilot
The Citizen Attestation Pilot provides different verification
procedures depending on whether or not the employee attests on the Form
I-9 that he or she is a U.S. citizen or national. Except as specified
in section 403(b) of IIRIRA, the Citizen Attestation Pilot is the same
as the Basic Pilot. The Citizen Attestation Pilot is required to
operate in at least five states, or, if fewer, all of the states in
which each driver's license and identification card contains a
photograph of the individual, and which have been determined by the
Attorney General to have sufficient application and issuance procedures
to make their driver's licenses and identification cards resistant to
counterfeiting, tampering, and fraudulent use.
Section 656(b) of IIRIRA directed the Department of Transportation
(DOT) to promulgate regulations regarding issuance procedures for
state-issued driver's licenses and identification cards, and the
acceptable secure format for such licenses and cards. As the Citizen
Attestation Pilot progresses, and once the DOT regulations are
promulgated, the Service will make further determinations based on
those regulations whether actual or prospective Citizen Attestation
Pilot states meet DOT requirements. At present, the Service has not
made any determination that any state's procedures are inadequate for
participation in the pilot. In order to implement IIRIRA's directive to
begin the Citizen Attestation Pilot, and to give as many employers as
possible the opportunity to express interest in participating in a
pilot, the Service is soliciting elections for the Citizen Attestation
Pilot from employers in all states. Based on further determinations as
to licensing procedures in states with sufficient employer interest,
the Service will decide which states will be the initial sites for the
Citizen Attestation Pilot.
A. Changes to Form I-9 Procedures for the Citizen Attestation Pilot
As in the Basic Pilot, the Service designates all Form I-9 ``List
A'' documents identified by current Service regulations at 8 CFR
274a(2)(b)(1)(A) as suitable for purposes of identification of
employees (regardless of citizenship) for the Citizen Attestation
Pilot. Also, only ``List B'' identity documents with photographs may be
accepted from any employee by employers participating in the Citizen
Attestation Pilot. In all other respects, the Form I-9 procedures for
employees who do not attest on the Form I-9 that they are U.S. citizens
or nationals are the same as those applicable to all U.S. employers
under section 274A of the Act.
The Form I-9 procedures applicable to employers participating in
the Citizen Attestation Pilot in the case of employees attesting to
U.S. citizenship or nationality in section 1 of the Form I-9 are,
however, quite different. The only ``List A'' document that an employer
may accept from such an employee is a U.S. passport (expired or
unexpired). If the U.S. citizen or national employee presents a ``List
B'' identity document, it must contain a photograph. United States
citizen or national employees are not required to present a social
security card or other ``List C'' document evidencing employment
authorization in addition to a ``List B'' identity document with
photograph.
1. Waiver of Document Presentation Requirement
For a subset of employers within the Citizen Attestation Pilot
(fewer than 1,000 employers to be selected at the discretion of the
Service), employees who attest to U.S. citizenship or nationality on
the Form I-9 do not have to produce any documentation at all. In those
cases, only section 1 of the Form I-9 will be completed. Normal
retention and inspection requirements will continue to apply to such
Forms I-9, as they do to all Forms I-9 completed by participants in any
pilot program.
B. Citizen Attestation Pilot Automated Verification Procedures
In the case of employees attesting to U.S. citizenship or
nationality on the Form I-9 as described above, no further verification
will take place. For alien employees, the process will be identical to
the ``Service Verification'' procedures described for the Basic Pilot.
The Citizen Attestation Pilot will not use SSA verification procedures.
VI. The Machine-Readable Document Pilot
The Machine-Readable Document Pilot is identical to the Basic Pilot
in all respects, and the above discussion of the Basic Pilot applies to
it in full, except for the geographic scope of the pilot and for one
additional feature. If an employee subject to employment eligibility
verification presents a driver's license or identification card
containing a machine-readable SSN issued by the state in which the
pilot program is being conducted, the employer will make an inquiry to
SSA through the confirmation system by using the machine-readable
feature. Integrating the machine-readable feature with the SSA database
presents particular technical challenges. As a result, employers
electing to participate in the Machine-Readable Document Pilot, and
selected for participation in it, may be offered the otherwise
identical Basic Pilot before the machine-readable feature is available,
with later phase-in of that feature.
The Machine-Readable Document Pilot is required to operate in at
least five states or, if fewer, all of the states that include a
machine-readable SSN on their driver's licenses and identification
cards. The Service has determined for the purposes of the Machine-
Readable Document Pilot that the state of Iowa includes machine-
readable SSNs on some or all of its driver's licenses and
identification cards. Employers in that state may elect to participate
in this pilot.
VII. Eligibility for Participation in the Pilot Programs
A. General Criteria
Subject to the specific limitations for each pilot, and to the
constraints of available resources, any person or entity that conducts
any hiring, or any recruiting or referral for a fee subject to
[[Page 48314]]
section 274A(a)(1)(B)(ii) of the Act, in a state in which a pilot
program will operate, may elect to participate in the pilot. In other
words, any employer or other entity subject to the employment
eligibility verification requirements of section 274(a)(1) of the Act
is eligible. ``State'' includes the District of Columbia, Puerto Rico,
Guam, and the Virgin Islands of the United States in addition to the 50
states. All participants must be willing to sign and comply with the
MOU for their respective pilot, which will contain more specific terms
and conditions of the pilot. The participation of any employer in any
pilot may be terminated by the Service because the employer has
substantially failed to comply with its obligations under the pilot
program.
Employers electing to participate in a pilot program may request
that their election apply to all their hiring in each of the states in
which the pilot will take place, or that it be limited to its hiring in
one or more applicable states, or to one or more places of hiring
within a state. The Service will endeavor to honor employers'
preferences to the extent available resources and pilot availability
permits. Multi-site employers may elect more than one pilot if they
hire employees in at least one location within the geographic area
covered by each pilot elected. However, each hiring location may only
participate in one pilot, any preference may be given to employers not
otherwise able to participate in a pilot over those who wish to
participate in more than one pilot.
Section 402 of IIRIRA permits the Service to provide for employers'
elections to extend to states to which the pilot programs are not
operating, but in which the employer hires. The Service will determine
when it is feasible to provide for such extensions outside pilot states
based on employer demand and available resources.
1. Basic Pilot Eligibility
Employers in California, Texas, New York, Florida, and Illinois may
elect to participate in the Basic Pilot. The Service has estimated that
these states have the highest population of aliens who are not lawfully
present in the United States. At present, the SSA verification system
can service no more than approximately 2,000 employers. As a result,
initial demand for the Basic Pilot may substantially exceed
availability.
2. Citizen Attestation Pilot Eligibility
Employers in all states (including the District of Columbia, Puerto
Rico, Guam, and the Virgin Islands of the United States) may elect to
participate in the Citizen Attestation Pilot, but the Service reserves
the right to limit the pilot to certain states based on the level of
employer interest and on further determinations as to state licensing
procedures. The Service may restrict the number of employers that may
participate in the Citizen Attestation Pilot in order to produce a
representative sample of employers and to reduce the potential impact
of fraud, as well as limitations based on available resources that may
apply to any or all of the pilots. The number of employers
participating in the Citizen Attestation Pilot for whom document
presentation requirements are waived under section 403(b)(4) of IIRIRA
may be further restricted in order to provide a representative sample
of employers, and in no event will exceed 1,000 employers.
3. Machine-Readable Document Pilot Eligibility
Employers in Iowa may elect to participate in the Machine-Readable
Document Pilot. The Service has determined that Iowa issues driver's
licenses and similar identification documents containing a machine-
readable SSN. As the Machine-Readable Document Pilot uses the same SSA
system limited at present to no more than approximately 2,000 employers
as the Basic Pilot, initial availability of this pilot will also be
very limited.
VIII. Project Restrictions
The Service may limit participation in any or all of the three
pilots by rejecting employers' elections, or by limiting their
applicability to certain states or places of hiring based on its
determination that there are insufficient resources available to
provide appropriate services under the pilot program to the employer.
The lifespan of each pilot program is limited to 4 years, beginning on
the first day the pilot is in effect.
IX. Request for Comments
Section 402(d) of IIRIRA mandates consultation with representatives
of employers (and recruiters and referrers) in the development and
implementation of the pilot programs. The details of these pilot
programs are still being developed, and are subject to refinement and
modification in the course of implementation. The Service encourages
all interested parties, including but not limited to representatives of
employers (and recruiters and referrers), to participate in this
process by providing written comments to the Service in response to
this notice regarding any aspect of the IIRIRA-mandated employment
eligibility confirmation pilot programs. Comments should be mailed to
the Immigration and Naturalization Service, 425 I Street, NW., ULLICO--
4th Floor, Washington, DC 20536, Attention: SAVE Program, Pilot
Comments.
X. OMB Reporting Burden
The information collection requirement (Form I-876) has been
approved by the Office of Management and Budget provisions of the
Paperwork Reduction Act. The OMB control number for this information
collection is 1115-0217.
Dated: September 9, 1997.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
Note: The Form I-876 is provided as an attachment to this notice
can be reproduced.
BILLING CODE 4410-10-M
[[Page 48315]]
[GRAPHIC] [TIFF OMITTED] TN15SE97.050
[[Page 48316]]
[GRAPHIC] [TIFF OMITTED] TN15SE97.051
[FR Doc. 97-24422 Filed 9-12-97; 8:45 am]
BILLING CODE 4410-10-C