Pilot Programs for Employment Eligibility Confirmation [62 FR 48309] [FR 53-97]

DOCUMENT NUMBER: FR 53-97

FEDERAL REGISTER CITE: 62 FR 48309

DATE OF PUBLICATION: September 15, 1997

BILLING CODE: 4410-10

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 bui ld 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 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 respo nsible 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 c onfirmation 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 provisi on if it requests more or different documents than are required under 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 origin ating 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 Do cument 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 Illi nois, 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 followin g 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 suita ble 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 parti cipants 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 Doc ument 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 eli gibility 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 without exception, and must make verification inquiries within 3 days of the hiring (unless the automated system to be queried is temporarily unav ailable, 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 te ntative 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.