[Federal Register Volume 62, Number 189 (Tuesday, September 30, 1997)]
[Rules and Regulations]
[Pages 51001-51006]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-25920]
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DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Part 274a
[INS NO. 1818-96]
RIN 1115-AE94
Interim Designation of Acceptable Documents for Employment
Verification
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Interim rule with request for comments.
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SUMMARY: The Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 (IIRIRA) amended existing law by removing certain documents
from the list of acceptable documents for use in the employment
eligibility verification process. By law, those changes take effect no
later than September 30, 1997, and this rule implements those changes.
Although the Immigration and Naturalization Service (Service) is in the
process of developing proposed rules to revise and streamline the
employment verification process, together with revised forms and
guidance, those rules are not yet ready to be promulgated. Thus, in
promulgating this interim rule to implement the changes striking
certain documents from the statutory list, the Service is also
exercising available regulatory authority to restore many of the
existing documents, insofar as possible, by designating them to be
retained on the list of acceptable documents until further notice. This
notice is intended to retain the status quo as much as possible at this
time, pending the completion of action on the document reduction
program, which will be accomplished in a separate rulemaking action.
DATES: This interim rule is effective September 30, 1997.
Comment date: Written comments must be submitted on or before
December 1, 1997.
ADDRESSES: Please submit written comments, in triplicate, to the
Director, Policy Directives and Instructions Branch, Immigration and
Naturalization Service, 425 I Street, NW., Room 5307, Washington, DC
20536. To ensure proper handling, please reference INS No. 1818-96 on
your correspondence. Comments are available for public inspection at
the above address by calling (202) 514-3048 to arrange for an
appointment.
FOR FURTHER INFORMATION CONTACT:
Marion Metcalf, Special Assistant, HQIRT, 425 I Street NW., Washington,
DC, 20536; (202) 307-6596; or email at [email protected].
Please note that the email address is for further information only and
may not be used for the submission of comments.
SUPPLEMENTARY INFORMATION: The Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA), Pub. L. 104-208, enacted on
September 30, 1996, amended the employer sanctions provisions of
section 274A of the Immigration and Nationality Act (Act) to require a
reduction in the number of documents acceptable for completion of the
Employment Eligibility Verification form (Form I-9). These amendments
must be in effect no later than September 30, 1997. This interim rule
is necessary to implement the changes required by IIRIRA.
The Service is currently developing a document reduction initiative
which will result in a number of changes in this area, including
eliminating various documents from the existing lists, revising the
Form I-9, and developing new guidance for employers and employees
regarding the employment verification process. Those changes, when
finalized, will implement the changes enacted by IIRIRA as well as
respond to other concerns about the present process. However, that
initiative, which the Service intends to publish as a proposed rule in
a separate rulemaking action within the next 6 months, is not yet ready
for promulgation.
At this time, the Service must amend its rules to take account of
the statutory changes that take effect September 30, 1997. However,
although IIRIRA deleted certain documents from the statutory list of
acceptable documents, the Act also retained (in amended form) the
authority of the Attorney General to designate specific documents as
acceptable in addition to the statutory list. Accordingly, in amending
existing regulations to take account of these statutory changes, the
Service at the same time is also acting to restore the use of some of
those documents by exercising available authority (as amended by
IIRIRA) to continue to designate certain documents as acceptable for
employment verification until completion of the separate document
reduction initiative.
By this means, as discussed in more detail below, the Service is
acting to designate foreign passports with specified Service work
authorization stamps in two instances as ``List A'' documents--that is,
as documents evidencing both identity and work authorization. This rule
also expands the existing receipt rule to ensure that certain refugees
and lawful permanent residents will still be able to meet the
employment verification requirements even though they do not yet have a
required document. Finally, even though IIRIRA eliminates birth
certificates as a specific statutory ``List C'' document--this is, as a
document evidencing employment authorization--this rule reflects a
determination (as a matter of discretionary regulatory authority) to
designate birth certificates as an acceptable document for this
purpose. (This designation of birth certificates will continue only
until completion of the separate rulemaking proceeding. The Service
intends to propose elimination of the use of birth certificates, as
well as certain other existing documents, in that proposed rule.)
The result of the statutory changes and the new designations
embodied in this interim rule is that all of the existing ``List A''
documents will be retained, except for the following three kinds of
documents: a Certificate of U.S. Citizenship; a Certificate of
Naturalization; and a foreign passport not meeting the standards set
forth in this interim rule, as discussed below. As to those three
documents, there is no statutory authority to retain them on ``List
A.'' In addition, there will be no change at all at this time with
respect to either ``List B'' documents (evidencing identity) or ``List
C'' documents (evidencing employment authorization).
The purpose of this interim rule is to maintain the status quo as
much as possible during this transitional period so as to avoid
confusion and disruption in the employment verification process at this
time. Although some changes are required by law, the Service recognizes
that these changes are necessarily being implemented with little
advance public notice, and without any revisions to the existing Form
I-9 and the published Handbook for Employers (Form M-274). Accordingly,
as explained below, in order to minimize confusion and disruption, the
Service will exercise its discretion to forgo enforcement actions
against employers who continue to act in reliance upon and in
compliance with existing employment verification
[[Page 51002]]
forms, guidance, and procedures. This policy will remain in effect
until the new document reduction program, together with a revised Form
I-9 and guidance to employers, can be implemented in the separate
rulemaking proceeding.
The following discussion explains in more detail the background of
this regulatory action; the specific changes being made in this interim
rule; and the basis for the interim designations of certain documents
as implemented in this rule.
Background on Document Reduction
The Act, as amended, currently requires persons or entities to
verify the employment 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 and
referrers for a fee (as defined in section 274(a)(1)(B)(ii) of the Act
and 9 CFR 274a.2(a)) must examine and 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, 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 employment eligibility only (List C documents).
Scope of the Interim Rule
To implement IIRIRA, this interim rule amends the regulations to:
(1) Remove the certificate of United States citizenship and the
certification of naturalization as documents acceptable under List A;
(2) Retain the designation of a foreign passport with temporary
evidence of permanent resident status as a document acceptable under
List A, and limit the use of a foreign passport with a Form I-94 to
those nonimmigrants who are authorized to work for a specific employer;
and
(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.
This interim rule also exercises regulatory authority to continue
the designation of birth certificates as documents acceptable under
List C. Accordingly, no change to List C is necessary at this time.
Enforcement Postponed for Employers and Recruiters or Referrers for a
Fee With Respect to Changes Made to the List of Acceptable Documents in
This Interim Rule
To minimize confusion among the employment community and the
potential for discriminatory hiring practices, this rule makes at this
time only those changes to the current regulations needed to ensure
that the current regulations conform with the statutory amendments made
by IIRIRA. Consequently, this rule reduces the list of documents
acceptable for employment verification under List A, and retains birth
certificates (which are currently on List C) as acceptable for
employment verification purposes. This means that List C remains in
effect without change.
This rule does not include a revised Form I-9. Employers and
recruiters and referrers for a fee are to continue to use the current
version of the Form I-9 (edition 11/21/91) to complete the employment
verification process until the Form I-9 is revised. As a result, the
Service has determined in its prosecutorial discretion not to seek a
civil money penalty, until further notice, for any violations based
upon the changes made by this rule to the list of acceptable documents.
The Service intends to propose more comprehensive changes to the
employment verification process, a further reduction in the number of
acceptable documents, and a revision to the Form I-9 in a forthcoming
rulemaking. The public will be provided an opportunity to comment on
any proposed changes at that time. Thus, the Service will withhold
enforcement of civil money penalties for violations associated with
these changes and committed before the effective date of a final rule
containing the revised Form I-9, so that employers or recruiters or
referrers for a fee will not be penalized if they accept documents that
were previously acceptable but were removed from the list by this
interim rule.
Section 412(a) of IIRIRA--Amending the Documents Acceptable Under List
A and List C
Section 412(a) of IIRIRA amends the Act with respect to List A and
List C documents. To implement this provision in a way that would cause
the least confusion to the public and to minimize the potential for
discriminatory hiring practices, this rule amends the regulations to
reduce the current number of List A documents but to designate certain
foreign passports in two instances. This rule does not reduce the
current number of List C documents. Instead, this rule retains the
documents currently listed as List C documents in the regulations as
acceptable List C documents under IIRIRA.
A. Documents Evidencing Both Identity and Employment Eligibility (List
A)
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. 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; a resident alien card; an alien
registration card; or other document designated by the Attorney
General. Each document designated by the Attorney General must meet
three conditions: The document must not only contain a photograph and
personal identifying information, and constitute evidence of employment
authorization, but it now must also contain ``security features to make
it resistant to tampering, counterfeiting, and fraudulent use.''
To implement section 412(a) of IIRIRA, this rule amends the current
regulations to limit the documents that evidence both identity and
employment authorization to:
(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 (EAD) issued by the
Service which contains a photograph (Form I-766), Form I-688, Form I-
688A, or Form I-688B); and,
(5) In the case of a nonimmigrant alien authorized to work for a
specific employer incident to status, 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, 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.
[[Page 51003]]
1. Service-Issued Employment Authorization Document
This rule retains the Employment Authorization Document (Forms I-
766, I-688, I-688A, and I-688B) as an acceptable List A document. These
forms 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.
2. Foreign Passports With an I-551 Stamp
This rule designates 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 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 by the
employer on the Form I-9. The newest versions of the Form I-551 also
bear an expiration date but the actual Form I-551 need to be reverified
when the card expires; only the stamp must be reverified when expired.
3. Foreign Passports With Form I-94
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 a
nonimmigrant classification that enables the alien to work with a
specific employer incident to his or her nonimmigrant status until the
expiration date specified on the form.
Aliens in classes identified in Sec. 274a.12(b) are authorized
employment with a specific employer incident to status. The Service
does not currently require aliens in these classes to obtain an
employment authorization document--i.e., a Form I-688B or Form I-766--
and does not plan to implement such a requirement at this time. The
documentation that a nonimmigrant alien is issued to demonstrate that
he or she is authorized to work incident to status with a specific
employer is the Form I-94 with an endorsement that specifies the
alien's nonimmigrant status. In addition to the regulations at
Sec. 274a.12(b), the current version of the Handbook for Employers (M-
274) enumerates for employers and recruiters or referrers for a fee the
applicable nonimmigrant classifications. These classifications include:
foreign government officials and their employees (A-1, A-2, A-3);
foreign government officials in transit (C-2, C-3); nonimmigrant treaty
traders or investors (E-1, E-2); nonimmigrant students engaged in on-
campus employment or curricular practical training (F-1);
representatives of international organizations and their employees (G-
1, G-2, G-3, G-4, G-5); temporary workers or trainees (H-1, H-2A, H-2B,
H-3); information media representatives (I); exchange visitors (J-1);
intra-company transferees (L-1); aliens having extraordinary ability in
the sciences, arts, education, business, or athletics and accompanying
aliens (O-1, O-2); athletes, artists or entertainers (P-1, P-2, P-3);
international cultural exchange visitors (Q); aliens having a religious
occupation (R); officers and personnel of the armed services of nations
of the North Atlantic Treaty Organization and representatives,
officials, and staff employees of NATO (NATO-1, NATO-2, NATO-3, NATO-4,
NATO-5, NATO-6); and citizens of Canada or Mexico pursuant to the
provisions of the North American Free Trade Agreement (TN).
The IIRIRA provides that the Attorney General ``may prohibit or
place conditions on ``specific document if the Attorney General finds
that the document ``does not reliably establish [employment]
authorization or identity or is being used fraudulently to an
unacceptable degree.'' The Service finds that documentation issued to
or used by nonimmigrants does not reliably establish employment
eligibility except for documentation indicating a nonimmigrant
classification that authorizes employment with a specific employer
incident to status. The interim rule, therefore, places the following
condition on the foreign passport with a Form I-94: that the foreign
passport with the Form I-94 is only acceptable where the individual is
authorized to work incident to status with a particular employer, and
the Form I-94 indicates an employer-specific nonimmigrant
classification. Such documentation 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 restriction does not permit employers to
require individuals to present a specific document. The restriction
does mean that a Form I-94 endorsed to permit employment incident to
status with a specific employer may not be accepted as evidence of
eligibility to work for other employers.
4. Conditions Qualifying Foreign Passports With the I-551 Stamp or Form
I-94 as a Proper Designation
The Service finds that, in the above 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 birth date and physical
characteristics of the bearer). Second, they are evidence of employment
authorization when they bear a temporary I-551 stamp or are presented
together with Form I-94 endorsed with a nonimmigrant classification
that authorizes employment with a specific employer incident to status.
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. Form I-94 is only acceptable with a foreign passport in
employer-specific situations in which the employer examining the Form
I-94 for employment verification purposes is the same employer who
petitioned for the alien to receive his or her nonimmigrant status or
is otherwise approved to accept the alien for employment. Note that
employers are required to reverify the individual's eligibility to work
when the stamped authorization expires.
B. Documents Evidencing Employment Authorization (List C)
Section 412(a) of IIRIRA amends section 274A(b)(l)(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 statutory list of
acceptable documents that may be used to establish employment
authorization for compliance with the employment verification
requirements.
The inclusion of the unrestricted social security account number
card on List C remains undisturbed by section 412(a) of IIRIRA. Thus,
this rule does not amend the current regulations with
[[Page 51004]]
respect to the social security account numbered card; it remains on the
list of acceptable documents as before.
Under section 274A(b)(1)(C)(ii), 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 Attorney General finds
that the remaining documents listed in the current regulations are
acceptable List C documents. These documents are:
(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) An original or certified copy of a birth certificate issued by
a State, county, municipal authority, or outlying possession of the
United States bearing an official seal;
(4) A Native American tribal document;
(5) A United States Citizen Identification Card, INS Form I-197;
(6) An identification card for use of a resident citizen in the
United States, INS Form I-179; and
(7) An unexpired employment authorization document issued by the
Service.
The finding to retain all the List C documents currently listed in
the regulations for this rule is necessary to minimize confusion and
the potential for discriminatory hiring practices that otherwise might
result if this rule removed documents from the current list without
first providing an opportunity for public comment or an education
period. This rule enables employers and recruiters or referrers for a
fee to continue to rely upon the List C documents that are stated on
the current version of the Form I-9.
The Service is aware of the congressional intent expressed by
section 412(a) of IIRIRA to remove the birth certificate from the
statutory list of acceptable documents. The designation of birth
certificates for purposes of this interim rule is an exercise of the
Attorney General's regulatory authority only during this transitional
period until the document reduction initiative is complete. The Service
will propose removal of the birth certificate as well as certain other
List C documents in a future proposed rule that will follow this
interim rule. The Service will consider public comments before
implementing such a change. The Service, therefore, retains the birth
certificate in this interim rule because its abrupt removal potentially
would cause much confusion to the public.
Receipts
As a result of this rule's amendments to the regulations governing
List A documents, this rule must concurrently amend the regulations
governing the use of receipts, Sec. 274a.2(b)(1)(vi). This amendment is
necessary to ensure that certain refugees and lawful permanent
residents will be equipped to meet the employment verification
requirements if they are unable to present a required document as a
result of the reduction to the list of acceptable List A documents
required by IIRIRA. In so doing, this amendment restructures the
current rule relating to receipts.
1. Current Regulations
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.
The individual must then present the required document or documents
within 90 days of the hire. This provision provides flexibility in
situations where, for example, an individual has lost a document.
2. Interim Rule
The interim rule provides that an employer or recruiter or referrer
for a fee must accept a receipt that appears to be genuine on its face
and appears to relate to the individual presenting it in lieu of the
required document, unless the individual indicates or the employer or
recruiter or referrer for a fee has actual or constructive knowledge
that the individual is not authorized to work. It reinforces that a
receipt for an application for initial work authorization or an
extension of expiring work authorization is not acceptable. It also
extends that receipt rule to reverification.
(1) Three instances in which receipts are acceptable.
(a) Application for a replacement document. The rule permits the
use of receipts in three instances. The first instance is when the
individual presents a receipt for the application for a replacement
document. An application for initial work authorization or an extension
of expiring work authorization, however, its not acceptable.
(b) Form I-94 indicating temporary evidence of permanent resident
status. The second instance is when the individual presents the arrival
portion of the Form I-94 that the Service has marked with a temporary
I-551 stamp and has affixed with the alien's picture. The Service may
issue this document if an alien is not in possession of his or her
passport and requires evidence of lawful permanent resident status.
Although this document provides temporary evidence of permanent
resident status, it does not contain sufficient security features.
Consequently, it does not meet the statutory requirements provided by
IIRIRA for inclusion on List A. This rule, therefore, extends the
receipt rule to include the Form I-94 with a temporary I-551 stamp and
the alien's picture. This document serves as a receipt for Form I-551
for 180 days.
(c) Form I-94 indicating refugee status. The third instance is when
the individual presents the departure portion of Form I-94 containing 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 the Social
Security Administration (SSA) to ensure prompt issuance of social
security cards which carry no employment restrictions to refugees. 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 a
Form 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 the Form 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
the SSA or the Service, the Service introduces a special receipt rule.
Under this rule, a Form I-94 with a refugee admission stamp constitutes
a receipt evidencing eligibility to work. It is not, however, a receipt
for a specific document. The refugee is permitted to present either an
unrestricted social security card or a Form 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 a Form I-766 EAD, he or she does not need to present another
document.
(2) Receipts are not acceptable where the individual is hired for
less than three business days.
To correspond to this interim rule's expansion in the use of
receipts, this rule amends 8 CFR 274a.2(b)(1)(iii) in which a reference
to receipts is made. This paragraph of the regulations
[[Page 51005]]
governs the employment verification requirements in the case of an
individual whose employment is less than three business days.
Currently, the regulations preclude an individual hired for less than
three business days from presenting a receipt for the application of a
replacement document in lieu of a required document. This rule extends
this prohibition to any type of receipt.
Good Cause Exception
This interim rule is effective on September 30, 1997, although the
Service invites post-promulgation comments and will address any such
comments in a final rule. For the following reasons, the Service finds
that good cause exists for adopting this rule without the prior notice
and comment period ordinarily required by 5 U.S.C. 553.
Pursuant to section 412(e)(1) of IIRIRA, the document reduction
provisions of section 412(a) of IIRIRA are effective on September 30,
1997, unless the Attorney General designates an earlier date. If the
Attorney General does not designate a date through this interim rule,
the provisions will go into effect without regulations, and a gap will
be left wherein certain individuals who are authorized to work will not
be in possession of an acceptable document under the Act as amended by
IIRIRA for employment verification purposes. In addition, the Form I-9
will not be revised at this time. The Service is concerned that mass
confusion among the employment community would result over which
documents currently listed in the regulations and on the Form I-9 would
remain acceptable to meet the employment verification requirements.
This confusion would heighten the potential for discriminatory hiring
practices.
To prevent the potential for confusion of the public and
discriminatory hiring practices, and to ensure that documents
acceptable for employment verification are designated to correspond to
all classes of individuals authorized to work in the United States, the
Service is issuing this rule. In order to respond to these concerns,
this rule designates additional documents as acceptable, beyond those
documents specifically enumerated in the Act as revised. In the absence
of this action by the Service, the changes made by IIRIRA would result
in an immediate further narrowing of the list of acceptable documents.
Because of the imminent effective date of the statutory changes made by
IIRIRA, this rule is being made effective as of September 30, 1997,
without prior comments from the public. For these reasons, the Service
finds that it would be unnecessary and contrary to the public interest
to delay the effective date of this rule.
Regulatory Flexibility Act
The Commissioner of the Immigration and Naturalization Service, in
accordance with 5 U.S.C. 605(b), has reviewed this interim rule and, by
approving it, certifies that this rule does not have a significant
economic impact on a substantial number of small entities. This rule is
a short-term measure and very limited in scope, only modifying a small
portion of the entire employment verification process. It also does not
introduce new forms. As a result, this rule would not require small
entities to significantly change established practices. In addition,
until further notice, the Service will not penalize persons or entities
that commit violations based upon the changes to the list of acceptable
documents made by this rule.
Executive Order 12866
This rule is considered by the Department of Justice, Immigration
and Naturalization service, to be a ``significant regulatory action''
under Executive Order 12866, section 3(f), Regulatory Planning and
Review. Accordingly, it has been submitted and approved by the Office
of Management and Budget.
Executive Order 12612
The regulation adopted herein will not have substantial direct
effects on the States, on the relationship between the National
Government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this rule
does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
Executive order 12988 Civil Justice Reform
This interim rule meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of E.O. 12988.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 804 of the
Small Business Regulatory Enforcement Act of 1996. This rule will not
result in an annual effect on the economy of $100 million or more; a
major increase in costs or prices; or significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.
Paperwork Reduction Act
This interim rule does not impose any new reporting or
recordkeeping requirements. The information collection requirements
pertaining to the employment verification process have been approved
for use by the Office of Management and Budget under the Paperwork
Reduction Act of 1995 (Pub. L. 104-13). The OMB control number for this
collection is contained in 8 CFR 299.5, Display of control numbers.
List of Subjects in 8 CFR Part 274a
Administrative practice and procedure, aliens, employment,
penalties, reporting and recordkeeping requirements.
Accordingly, part 274a of chapter I of title 8 of the Code of
Federal Regulations is amended as follows:
PART 274a--CONTROL OF EMPLOYMENT OF ALIENS
1. The authority citation for part 274a continues to read as
follows:
Authority: 8 U.S.C 1101, 1103, 1324a; 8 CFR part 2.
2. Section 274a.2 is amended by:
a. Revising paragraph (b)(1)(iii);
b. Revising paragraph (b)(1)(v)(A); and by
c. Revising paragraph (b)(11)(vi), to read as follows:
Sec. 274a.2 Verification of employment eligibility.
* * * * *
(b) * * *
(1) * * *
(iii) An employer who hires an individual for employment for a
duration of less than three business days must comply with paragraphs
(b)(1)(ii)(A) and (b)(1)(ii)(B) of this section at the time of the
hire. An employer may not accept a receipt, as described in paragraph
(b)(1)(vi) of this section, in lieu of the required
[[Page 51006]]
document if the employment is for less than three business days.
* * * * *
(v) * * *
(A) The following documents, so long as they appear to relate to
the individual presenting the document, are acceptable to evidence both
identity and employment eligibility:
(1) United States passport (unexpired or expired);
(2) Alien Registration Receipt Card or Permanent Resident Card,
Form I-551;
(3) An unexpired foreign passport that contains a temporary I-551
stamp;
(4) An unexpired Employment Authorization Document issued by the
Immigration And Naturalization Service which contains a photograph,
Form I-766; Form I-688, Form I-688A, or Form I-688B;
(5) In the case of a nonimmigrant alien authorized to work for a
specific employer incident to status, an unexpired 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, 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.
* * * * *
(vi) Special rules for receipts. Except as provided in paragraph
(b)(1)(iii) of this section, unless the individual indicates or the
employer or recruiter or referrer for a fee has actual or constructive
knowledge that the individual is not authorized to work, an employer or
recruiter or referrer for a fee must accept a receipt for the
application for a replacement document or a document described in
paragraphs (b)(1)(vi)(B)((1) and (b)(1)(vi)(C)((1) of this section in
lieu of the required document in order to comply with any requirement
to examine documentation imposed by this section, in the following
circumstances:
(A) Application for a replacement document. The individual:
(1) Is unable to provide the required document within the time
specified in this section because the document was lost, stolen, or
damaged;
(2) Presents a receipt for the application for the replacement
document within the time specified in this section; and
(3) Presents the replacement document within 90 days of the hire
or, in the case of reverification, the date employment authorization
expires; or
(B) Form I-94 indicating temporary evidence of permanent resident
status. The individual indicates in section 1 of the Form I-9 that he
or she is a lawful permanent resident and the individual:
(1) Presents the arrival portion of Form I-94 containing an
unexpired ``Temporary I-551'' stamp and photograph of the individual,
which is designated for purposes of this section as a receipt for Form
I-551; and
(2) Presents the Form I-551 within 180 days of the hire or, in the
case of reverification, the date employment authorization expires; or
(C) Form I-94 indicating refugee status. The individual indicates
in section 1 of the Form I-9 that he or she is an alien authorized to
work and the individual:
(1) Presents the departure portion of Form I-94 containing an
unexpired refugee admission stamp, which is designated for purposes of
this section as a receipt for either the Form I-766 or a social
security account number card that contains no employment restrictions;
and
(2) Presents, within 90 days of the hire or, in the case of
reverification, the date employment authorization expires, either an
unexpired Form I-766; or a social security account number card that
contains no employment restrictions together with a document described
under paragraph (b)(1)(v)(B) of this section.
* * * * *
Dated: September 25, 1997.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 97-25920 Filed 9-29-97; 8:45 am]
BILLING CODE 4410-10-M