\ fr \ Federal Register Publications (CIS, ICE, CBP) \ Federal Register Publications (Legacy INS) - 1997 \ FEDERAL REGISTER NOTICES - 1997 \ Pilot Programs for Employment Eligibility Confirmation [62 FR 48309] [FR 53-97] \ SSA Verification--the Automated System
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SSA Verification--the Automated System
After completing the Form I-9, the employer will access the SSA database using a touch-tone telephone to input the employee's name, SSN, and date of birth, as recorded on the Form I-9. If the data input by the employer matches the SSA database and shows the employee to be work-authorized, the employer will receive a confirmation of employment eligibility. If the information does not match SSA records, or if the employment eligibility of the employee is not confirmed, the employer will receive further instru
ctions. In some cases, the employer will be instructed to initiate the Service verification procedures. In other cases, the SSA response shall constitute a tentative nonconfirmation. The employer will record appropriate transaction codes received from SSA on a verification transaction record form. Social Security personal earnings account information will not be accessible to the employer through the SSA verification process.
a. SSA Secondary Verification
If the employer receives a tentative nonconfirmation of an employee from SSA, the employer must notify the employee and determine whether or not the employee will contest the tentative nonconfirmation. If the employee does not contest the tentative nonconfirmation, it will be considered a final nonconfirmation. If the employee contests the tentative nonconfirmation, he or she must visit an SSA field office within 8 Federal Government work days to resolve any discrepancy in SSA records, including updating th
e database if appropriate. The SSA and the Service have 10 Federal Government work days within which to respond to contested tentative nonconfirmation cases. During this period, the employer may not terminate or take adverse against the employee based upon his or her employment eligibility status. At the expiration of the 8-day period, the employer will make another telephone inquiry of the SSA database, which will result in confirmation, a second and final nonconfirmation, or additional verification instru
2. Service Verification--the Automated System
The Service's automated verification will take place only as may be directed by the SSA verification response. Participating employers access the Service database using personal computers with a modem. To conduct an initial query of the Service database, the employer keys in certain information from the employee's Form I-9. The Service database will respond within seconds either by confirming work authorization, or by requiring more information relating to Form I-9 employment eligibility documentation in or
der to permit the Service to conduct further searches of its records. The result of the further searches will be available through the automated system within 3 Federal Government work days. If the Service is unable to confirm work authorization based upon the automated process, a tentative nonconfirmation results.
a. Service Secondary Verification
An employee who is the subject of a tentative nonconfirmation after completion of an automated Service verification check is provided a secondary verification opportunity to verify his or her employment status. In these cases, the employer must notify the employee of the tentative nonconfirmation and determine whether or not he or she will contest the tentative nonconfirmation. If the employee does not contest the tentative nonconfirmation, it will be considered a final nonconfirmation. If the employee cont
ests the tentative nonconfirmation, he or she must contact the Service within 8 Federal Government work days for resolution of his or her case. The employer will instruct the employee to call a Service toll-free telephone number or visit a local Service office within that time period. The SSA and the Service have 10 Federal Government work days within which to respond to contested tentative nonconfirmation cases. During this period, the employer may not terminate or take adverse action against the employee
based upon his or her employment eligibility status, unless the Service determines, within that time, that the employee is not work-authorized.
Within or at the conclusion of the 10-day period for secondary verification, an employer will receive one of the following messages via the electronic confirmation system concerning the employee's work eligibility: (1) if the employee contacts the Service and verifies his or her employment eligibility, the employer will receive an "employment-authorized" confirmation; (2) if the employee contacts the Service but the Service determines that the employee is not work-authorized, the employer will receive an "u
nauthorized" response (final nonconfirmation); (3) if the employee does not contact the Service to resolve his or her case, the employer will receive a "no show" response, which shall also constitute a final nonconfirmation for purposes of the pilot; or (4) if in some cases the Service needs more than 10 work days to resolve a case, the employer will receive a "case in continuance" response, and the employee should continue to work until a definitive answer is received from the Service. If necessary, based
on the secondary verification contact, the Service database will be updated. The employer will record appropriate verification codes received from the Service, either by printing the verification screen and attaching it to the Form I-9, or recording the verification code on the Form I-9.
3. Consequences of Final Nonconfirmation
An employer receiving a final nonconfirmation from SSA or the Service with regard to an employee may terminate the employee, and shall not be civilly or criminally liable under any law for the termination, as long as the action was taken in good faith reliance on information provided through the confirmation system. If the employer does not terminate an employee after final nonconfirmation, the employer must notify the Service. If the employer fails to notify the Service of continued employment after receiv
ing final nonconfirmation, the failure is deemed a violation of section 274A(a)(1)(B) of the Act for failure to comply with proper hiring procedures, and the employer may be assessed a civil monetary penalty of between $ 500 and $ 1,000. An employer continuing to employ an individual after receiving a final nonconfirmation also could be subject to legal penalties under section 274A(a)(1) of the Act. Section 403(a)(4)(C)(iii) of IIRIRA establishes a rebuttable presumption that an employer who continues to e
mploy an individual after receiving final nonconfirmation has knowingly employed an unauthorized alien.
The Citizen Attestation Pilot
The Citizen Attestation Pilot provides different verification procedures depending on whether or not the employee attests on the Form I-9 that he or she is a U.S. citizen or national. Except as specified in section 403(b) of IIRIRA, the Citizen Attestation Pilot is the same as the Basic Pilot. The Citizen Attestation Pilot is required to operate in at least five states, or, if fewer, all of the states in which each driver's license and identification card contains a photograph of the individual, and which h
ave been determined by the Attorney General to have sufficient application and issuance procedures to make their driver's licenses and identification cards resistant to counterfeiting, tampering, and fraudulent use.
Section 656(b) of IIRIRA directed the Department of Transportation (DOT) to promulgate regulations regarding issuance procedures for state-issued driver's licenses and identification cards, and the acceptable secure format for such licenses and cards. As the Citizen Attestation Pilot progresses, and once the DOT regulations are promulgated, the Service will make further determinations based on those regulations whether actual or prospective Citizen Attestation Pilot states meet DOT requirements. At present,
the Service has not made any determination that any state's procedures are inadequate for participation in the pilot. In order to implement IIRIRA's directive to begin the Citizen Attestation Pilot, and to give as many employers as possible the opportunity to express interest in participating in a pilot, the Service is soliciting elections for the Citizen Attestation Pilot from employers in all states. Based on further determinations as to licensing procedures in states with sufficient employer interest, t
he Service will decide which states will be the initial sites for the Citizen Attestation Pilot.
A. Changes to Form I-9 Procedures for the Citizen Attestation Pilot
As in the Basic Pilot, the Service designates all Form I-9 "List A" documents identified by current Service regulations at 8 CFR 274a(2)(b)(1)(A) as suitable for purposes of identification of employees (regardless of citizenship) for the Citizen Attestation Pilot. Also, only "List B" identity documents with photographs may be accepted from any employee by employers participating in the Citizen Attestation Pilot. In all other respects, the Form I-9 procedures for employees who do not attest on the Form I-9 t
hat they are U.S. citizens or nationals are the same as those applicable to all U.S. employers under section 274A of the Act.
The Form I-9 procedures applicable to employers participating in the Citizen Attestation Pilot in the case of employees attesting to U.S. citizenship or nationality in section 1 of the Form I-9 are, however, quite different. The only "List A" document that an employer may accept from such an employee is a U.S. passport (expired or unexpired). If the U.S. citizen or national employee presents a "List B" identity document, it must contain a photograph. United States citizen or national employees are not requi
red to present a social security card or other "List C" document evidencing employment authorization in addition to a "List B" identity document with photograph.
1. Waiver of Document Presentation Requirement
For a subset of employers within the Citizen Attestation Pilot (fewer than 1,000 employers to be selected at the discretion of the Service), employees who attest to U.S. citizenship or nationality on the Form I-9 do not have to produce any documentation at all. In those cases, only section 1 of the Form I-9 will be completed. Normal retention and inspection requirements will continue to apply to such Forms I-9, as they do to all Forms I-9 completed by participants in any pilot program.
B. Citizen Attestation Pilot Automated Verification Procedures
In the case of employees attesting to U.S. citizenship or nationality on the Form I-9 as described above, no further verification will take place. For alien employees, the process will be identical to the "Service Verification" procedures described for the Basic Pilot. The Citizen Attestation Pilot will not use SSA
The Machine-Readable Document Pilot
The Machine-Readable Document Pilot is identical to the Basic Pilot in all respects, and the above discussion of the Basic Pilot applies to it in full, except for the geographic scope of the pilot and for one additional feature. If an employee subject to employment eligibility verification presents a driver's license or identification card containing a machine-readable SSN issued by the state in which the pilot program is being conducted, the employer will make an inquiry to SSA through the confirmation sys
tem by using the machine-readable feature. Integrating the machine-readable feature with the SSA database presents particular technical challenges. As a result, employers electing to participate in the Machine-Readable Document Pilot, and selected for participation in it, may be offered the otherwise identical Basic Pilot before the machine-readable feature is available, with later phase-in of that feature.
The Machine-Readable Document Pilot is required to operate in at least five states or, if fewer, all of the states that include a machine-readable SSN on their driver's licenses and identification cards. The Service has determined for the purposes of the Machine-Readable Document Pilot that the state of Iowa includes machine-readable SSNs on some or all of its driver's licenses and identification cards. Employers in that state may elect to participate in this pilot.
Eligibility for Participation in the Pilot Programs
A. General Criteria
Subject to the specific limitations for each pilot, and to the constraints of available resources, any person or entity that conducts any hiring, or any recruiting or referral for a fee subject to section 274A(a)(1)(B)(ii) of the Act, in a state in which a pilot program will operate, may elect to participate in the pilot. In other words, any employer or other entity subject to the employment eligibility verification requirements of section 274(a)(1) of the Act is eligible. "State" includes the District of C
olumbia, Puerto Rico, Guam, and the Virgin Islands of the United States in addition to the 50 states. All participants must be willing to sign and comply with the MOU for their respective pilot, which will contain more specific terms and conditions of the pilot. The participation of any employer in any pilot may be terminated by the Service because the employer has substantially failed to comply with its obligations under the pilot program.
Employers electing to participate in a pilot program may request that their election apply to all their hiring in each of the states in which the pilot will take place, or that it be limited to its hiring in one or more applicable states, or to one or more places of hiring within a state. The Service will endeavor to honor employers' preferences to the extent available resources and pilot availability permits. Multi-site employers may elect more than one pilot if they hire employees in at least one location
within the geographic area covered by each pilot elected. However, each hiring location may only participate in one pilot, any preference may be given to employers not otherwise able to participate in a pilot over those who wish to participate in more than one pilot.
Section 402 of IIRIRA permits the Service to provide for employers' elections to extend to states to which the pilot programs are not operating, but in which the employer hires. The Service will determine when it is feasible to provide for such extensions outside pilot states based on employer demand and available resources.
1. Basic Pilot Eligibility
Employers in California, Texas, New York, Florida, and Illinois may elect to participate in the Basic Pilot. The Service has estimated that these states have the highest population of aliens who are not lawfully present in the United States. At present, the SSA verification system can service no more than approximately 2,000 employers. As a result, initial demand for the Basic Pilot may substantially exceed availability.
2. Citizen Attestation Pilot Eligibility
Employers in all states (including the District of Columbia, Puerto Rico, Guam, and the Virgin Islands of the United States) may elect to participate in the Citizen Attestation Pilot, but the Service reserves the right to limit the pilot to certain states based on the level of employer interest and on further determinations as to state licensing procedures. The Service may restrict the number of employers that may participate in the Citizen Attestation Pilot in order to produce a representative sample of em
ployers and to reduce the potential impact of fraud, as well as limitations based on available resources that may apply to any or all of the pilots. The number of employers participating in the Citizen Attestation Pilot for whom document presentation requirements are waived under section 403(b)(4) of IIRIRA may be further restricted in order to provide a representative sample
of employers, and in no event will exceed 1,000 employers.
3. Machine-Readable Document Pilot Eligibility
Employers in Iowa may elect to participate in the Machine-Readable Document Pilot. The Service has determined that Iowa issues driver's licenses and similar identification documents containing a machine-readable SSN. As the Machine-Readable Document Pilot uses the same SSA system limited at present to no more than approximately 2,000 employers as the Basic Pilot, initial availability of this pilot will also be very limited.
The Service may limit participation in any or all of the three pilots by rejecting employers' elections, or by limiting their applicability to certain states or places of hiring based on its determination that there are insufficient resources available to provide appropriate services under the pilot program to the employer. The lifespan of each pilot program is limited to 4 years, beginning on the first day the pilot is in effect.
Request for Comments
Section 402(d) of IIRIRA mandates consultation with representatives of employers (and recruiters and referrers) in the development and implementation of the pilot programs. The details of these pilot programs are still being developed, and are subject to refinement and modification in the course of implementation. The Service encourages all interested parties, including but not limited to representatives of employers (and recruiters and referrers), to participate in this process by providing written comment
s to the Service in response to this notice regarding any aspect of the IIRIRA-mandated employment eligibility confirmation pilot programs. Comments should be mailed to the Immigration and Naturalization Service, 425 I Street, NW., ULLICO-4th Floor, Washington, DC 20536, Attention: SAVE Program, Pilot Comments.
OMB Reporting Burden
The information collection requirement (Form I-876) has been approved by the Office of Management and Budget provisions of the Paperwork Reduction Act. The OMB control number for this information collection is 1115-0217.
September 9, 1997
Commissioner,Immigration and Naturalization Service.
is provided as an attachment to this notice can be reproduced.
I-876 Election Form to Participate in Employment Eligibility Confirmation Pilot Programs
Click on Page #'s below to see Form I-876