Interim Designation of Acceptable Documents for Employment Verification [62 FR 51001] [FR 58-97]

DOCUMENT NUMBER: FR 58-97

FEDERAL REGISTER CITE: 62 FR 51001

DATE OF PUBLICATION: September 30, 1997

BILLING CODE: 4410-10

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.

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, t ogether 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, p ending 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 metcalfm@justice.usdoj.gov. Please note that the email address is for further information only and may not be used for the submission of comments.

SUPPLEMENTARY INFORMATION: 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 pub lish 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 a cting 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 t hough 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 c ertain 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 t o 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 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).