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, § 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 amendmen t 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 author ization 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 st atutory 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 Servic e, 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 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 ve rification 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 cha nges 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 significa ntly 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.