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 m eans 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 Li st 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.

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 em ployment 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 § 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 § 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 empl oyment 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 empl oyer 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 employe rs 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 spec ific 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 o therwise 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 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 propose d 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.