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[Federal Register: December 17, 2008 (Volume 73, Number 243)]
[Rules and Regulations]
[Page 76505-76517]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17de08-1]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
week.
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[[Page 76505]]
DEPARTMENT OF HOMELAND SECURITY
8 CFR Part 274a
[CIS No. 2441-08; Docket No. USCIS-2008-0001]
RIN 1615-AB69
Documents Acceptable for Employment Eligibility Verification
AGENCY: U.S. Citizenship and Immigration Services, DHS.
ACTION: Interim rule with request for comments.
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SUMMARY: The Department of Homeland Security (DHS) is amending its
regulations governing the types of acceptable identity and employment
authorization documents and receipts that employees may present to
their employers for completion of the Form I-9, Employment Eligibility
Verification. Under this interim rule, employers will no longer be able
to accept expired documents to verify employment authorization on the
Form I-9. This rule also adds a new document to the list of acceptable
documents that evidence both identity and employment authorization and
makes several technical corrections and updates. The purpose of this
rule is to improve the integrity of the employment verification process
so that individuals who are unauthorized to work are prevented from
obtaining employment in the United States. A copy of the amended Form
I-9 reflecting these and other form-related changes is being published
as an attachment to this rule.\1\
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\1\ Note: Form I-9 is published for informational purposes only
and will not be codified in Title 8 of the Code of Federal
Regulations.
DATES: Effective Date. This rule is effective February 2, 2009.
Comment Date: Written comments must be submitted on or before
February 2, 2009.
ADDRESSES: You may submit comments, identified by DHS Docket No. USCIS-
2008-0001, by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Mail: Chief, Regulatory Management Division, U.S.
Citizenship and Immigration Services, Department of Homeland Security,
111 Massachusetts Avenue, NW., Suite 3008, Washington, DC 20529-2210.
To ensure proper handling, please reference DHS Docket No. USCIS-2008-
0001 on your correspondence. This mailing address may be used for
paper, disk, or CD-ROM submissions.
Hand Delivery/Courier: Regulatory Management Division,
U.S. Citizenship and Immigration Services, Department of Homeland
Security, 111 Massachusetts Avenue, NW., Suite 3008, Washington, DC
20529-2210. Contact Telephone Number (202) 272-8377.
FOR FURTHER INFORMATION CONTACT: Stephen McHale, Verification Division,
U.S. Citizenship and Immigration Services, Department of Homeland
Security, 470 L'Enfant Plaza East, SW., Suite 8001, Washington, DC
20529-2610, telephone (888) 464-4218 or e-mail at Everify@dhs.gov.
SUPPLEMENTARY INFORMATION: The supplementary section is organized as
follows:
Table of Contents
I. Public Participation
II. Background and Purpose
III. Changes to the List of Acceptable Documents and Receipts
A. Requiring Unexpired, Valid Documents
B. Adding Documentation for Citizens of the Federated States of
Micronesia and the Republic of the Marshall Islands
C. Revising References to Temporary I-551s
D. Eliminating Forms I-688, I-688A, and I-688B
E. Adding References to Form I-94A
F. Revising Reference to Social Security Account Number Card
IV. Technical Changes
A. Correcting References to Employment Eligibility
B. Replacing References to the Former INS
C. Correcting References to Certificates of Birth Abroad in List
C
V. Form Changes
VI. Regulatory Requirements
A. Administrative Procedure Act
B. Regulatory Flexibility Act
C. Unfunded Mandates Reform Act of 1995
D. Small Business Regulatory Enforcement Fairness Act of 1996
E. Executive Order 12866
F. Executive Order 13132
G. Paperwork Reduction Act
I. Public Participation
Interested persons are invited to participate in this rulemaking by
submitting written data, views, or arguments on all aspects of this
interim rule. Comments that will provide the most assistance to the
Department of Homeland Security (DHS), U.S. Citizenship and Immigration
Services (USCIS) in developing these procedures will reference a
specific portion of the interim rule, explain the reason for any
recommended change, and include data, information, or authority
supporting that change.
Instructions: All submissions received must include the agency name
and DHS Docket No. USCIS-2008-0001 for this rulemaking. All comments
received will be posted without change to http://www.regulations.gov,
including any personal information provided.
Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov. Submitted comments
may also be inspected at the Regulatory Management Division, U.S.
Citizenship and Immigration Services, Department of Homeland Security,
111 Massachusetts Avenue, NW., Suite 3008, Washington, DC 20529-2210.
II. Background and Purpose
All employers and agricultural recruiters and referrers for a fee
\2\ (hereinafter collectively referred to as ``employer(s)'') are
required to verify the identity and employment authorization of each
individual they hire for employment in the United States, regardless of
the individual's citizenship. See Immigration and Nationality Act (INA)
section 274A(a)(1)(B), 8 U.S.C. 1324a(a)(1)(B). As part of the
verification process, employers must complete the Form I-9,
``Employment Eligibility Verification,'' retain the form for a
statutorily-
[[Page 76506]]
established period of time, and make the form available for inspection
by certain government officials. See INA sec. 274A(b), 8 U.S.C.
1324a(b); 8 CFR 274a.2. On the Form I-9, a newly-hired employee must
attest to being a U.S. citizen or national, a lawful permanent resident
(LPR), or an alien authorized to work in the United States. The
employee then must present to his or her employer a document or
combination of documents designated by statute and regulation as
acceptable for establishing identity and employment authorization. The
employer must examine the documents, record the document information on
Form I-9, and attest that the documents reasonably appear both to be
genuine and to relate to the individual presenting the documents.
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\2\ Title 8 CFR 274a.2(a)(1) provides that ``[f]or purposes of
complying with section 274A(b) of the Act and this section, all
references to recruiters and referrers for a fee are limited to a
person or entity who is either an agricultural associations,
agricultural employers, or farm labor contractors (as defined in
section 3 of the Migrant and Seasonal Agricultural Worker Protection
Act, Pub. L. 97-470).'' * * * See 8 CFR 274a.2(a)(1).
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The Form I-9 has three categories of documents that may be
accepted, alone or in combination, by employers for employment
authorization verification:
(1) List A--documents that establish both identity and employment
authorization \3\ (e.g., U.S. passport; Form I-551, ``Permanent
Resident Card;'' and Form I-766, ``Employment Authorization
Document'');
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\3\ Current regulations use the term ``employment eligibility''
rather than ``employment authorization.'' To be consistent with the
statute, this rulemaking uses the term ``employment authorization.''
See INA sec. 274A(b)(1)(B) and (C), 8 U.S.C. 1324a(b)(1)(B) and (C).
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(2) List B--documents that establish only identity (e.g., State-
issued driver's license or identification card); and
(3) List C--documents that establish only employment authorization
(e.g., State-issued birth certificate and social security account
number card).
See INA sec. 274A(b)(1)(B), (C) and (D), 8 U.S.C. 1324a(b)(1)(B),
(C) and (D); 8 CFR 274a.2(b)(1)(v)(A), (B) and (C). An individual must
present to his or her employer either one document from List A or one
document each from List B and List C. The employer may not specify a
document or combination of documents that the employee must present.
INA sec. 274B(a)(6), 8 U.S.C. 1324b(a)(6); 8 CFR 274a.1(l)(2).
If the employee cannot present an acceptable document from one of
the three lists, he or she may present an acceptable substitute
document, referred to as a ``receipt.'' 8 CFR 274a.2(b)(1)(vi)
(commonly referred to as ``the receipt rule''). The receipt satisfies
the document presentation requirement for a short period of time, at
the end of which the employee must present the actual document or other
document(s) specified in the regulations as acceptable to present. An
employer may accept a receipt, however, only under specific
circumstances prescribed under 8 CFR 274.a.2(b)(1)(vi). For example, if
a document acceptable under Lists A, B, or C is stolen or lost, the new
hire may provide a receipt for the application for the replacement
document, in lieu of the actual document, as long as he or she provides
the replacement document within 90 days of hire. If the individual
employee is an alien whose employment authorization or employment
authorization documentation expires, the employer must reverify the
employee's continued employment authorization by the expiration date by
reviewing any acceptable list A or list C document.\4\ 8 CFR
274a.2(b)(1)(vii).
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\4\ Note that an expiration date on Form I-551 does not trigger
the reverification requirement. See ``Handbook for Employers,
Instructions for Completing the Form I-9'' (M-274) (Rev. 11/01/07),
http://www.uscis.gov, ``Handbook for Employers'') page 26.
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The former Immigration and Naturalization Service (INS) issued the
first Form I-9 and list of acceptable documents in 1987. 52 FR 16216-01
(May 1, 1987) (regulatory list of acceptable documents); 52 FR 21454-01
(Jun. 5, 1987) (Notice introducing Form I-9); see also 53 FR 8611-01
(Mar. 16, 1988). After reports that the large number of acceptable Form
I-9 documents led to employer confusion and that a reduction in the
number of documents could lead to less employment discrimination, INS
published rules in 1993 and 1995 proposing reductions in the number of
acceptable documents. See 60 FR 32472-01 (Jun. 22, 1995); 58 FR 61846-
01 (Nov. 23, 1993). Thereafter, in response to legislative action
reducing the statutory list of acceptable documents,\5\ INS published
an interim rule in 1997 and a proposed rule in 1998. 62 FR 51001 (Sept.
30, 1997) (interim rule), modified by 64 FR 6187 (Feb. 9, 1999); 63 FR
5287 (Feb. 2, 1998) (proposed rule). On November 7, 2007, USCIS issued
a press release notifying the public that the Form I-9 had been revised
to reflect changes to documents implemented under the 1997 interim
rule. See ``USCIS Revises Employment Eligibility Verification Form''
(Nov. 7, 2007) at http://www.uscis.gov/files/pressrelease/
FormI9Update110707.pdf. This press release was followed by a notice
published in the Federal Register describing the changes made to the
Form I-9 and stating when DHS will begin enforcing the changes. 72 FR
65974-01 (Nov. 26, 2007). Neither the former INS nor USCIS published a
final rule following the 1998 proposed rule. Instead, this rulemaking
action supersedes the 1998 NPRM, although comments received during that
rulemaking action informed the development of this rulemaking action.
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\5\ Illegal Immigration Reform and Immigrant Responsibility Act
(IIRIRA), section 412, Pub. L. No. 104-208, 110 Stat. 3009-666
(1996).
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DHS recognizes that the Form I-9 process plays an integral role in
ensuring a legal workforce in the United States and is committed to
minimizing vulnerabilities in the Form I-9 process. As is evident from
past legislative action and rulemaking efforts, an overly expansive
Form I-9 document list that includes expired documents compromises the
effectiveness and security of the Form I-9 process. After reevaluating
the statutory requirements (INA sec. 274A(b)(1), 8 U.S.C. 1324a(b)(1))
and reviewing the regulatory list of documents currently acceptable for
the Form I-9, DHS has identified several aspects of the list that are
in need of change in order to strengthen the effectiveness of the Form
I-9 process. In so doing, this interim rule introduces a requirement
that all documents must be unexpired for the Form I-9. DHS invites
post-promulgation comments from the public on this interim rule for
consideration in a subsequent final rule.
III. Changes to the List of Acceptable Documents and Receipts
A. Requiring Unexpired, Valid Documents
Under current regulations, the U.S. passport and all List B
documents are acceptable for the Form I-9 even if they are expired. See
8 CFR 274a.2(b)(1)(v)(A)(1) and (B). Using its authority to place
conditions on acceptable documents for the Form I-9 (see INA sec.
274A(b)(1)(E), 8 U.S.C. 1324a(b)(1)(E)), DHS is providing in this rule
that expired documents are no longer acceptable for the Form I-9. See
revised 8 CFR 274a.2(b)(1)(v). DHS has determined that this action is
necessary to ensure that acceptable documents reliably establish
identity and employment authorization and that documents that are used
fraudulently to an unacceptable degree are not included on the list of
acceptable documents. Expired documents are prone to fraudulent use in
the Form I-9 process by aliens seeking unauthorized employment. Being
of little use to their owners, expired documents fall prey to
counterfeiters who, for a small sum, can substitute unauthorized
aliens' photographs and other identifying information. Unauthorized
aliens then use these documents to obtain employment. Establishing a
requirement that all documents must be unexpired
[[Page 76507]]
closes this loophole and sets a bright-line standard for U.S.
employers. Moreover, such a requirement honors the limits placed by
document issuance authorities on their documents. Finally, by requiring
unexpired documents, there is a greater likelihood that such documents
will contain up-to-date security features that will make them less
vulnerable to counterfeiting and fraud.
In its 1998 proposed rule, the former INS proposed precluding
expired documents from use for the Form I-9. 63 FR at 5302. Out of the
73 comments received in response to the proposed rule, 15 comments
addressed this proposal. Five commenters favored the change. Ten
commenters indicated a clear preference against the change, focusing
primarily on identity documents with some specifying that their
objection applied to List B documents only. Those who favored the
change stated that expired documents do not provide a reliable
representation of the holder's identity, such as when the expired
document includes an outdated photograph.
DHS considered the comments from the 1998 proposed rule for this
interim rule and has noted them in this discussion to acknowledge that
some members of the public may face challenges in accessing unexpired
documents for Form I-9 purposes. As stated above, DHS believes that
precluding the use of expired documents for the Form I-9 is essential
for improving the security of the employment verification process. The
U.S. Department of State (DOS), DHS, and many States have taken and are
continuing to take significant steps to improve the security features
of their documents. See Emergency Supplemental Appropriations Act for
Defense, the Global War on Terror, and Tsunami Relief, 2005; REAL ID
Act of 2005, div. B, Public Law No. 109-13, 119 Stat. 231, 302 (2005)
(codified at 49 U.S.C. 30301 note); Enhanced Border Security and Visa
Entry Reform Act of 2002, section 303(b), Public Law 107-173, 116 Stat.
543, 553 (2002). In keeping with these efforts, DHS has determined that
it is appropriate to amend the regulations governing the Form I-9
process to require that all documents must be unexpired to be
acceptable for the Form I-9.
To modify the current regulations, this rule removes the terms
``unexpired'' and ``expired'' from those documents currently listed in
the regulations with these limitations (e.g., ``unexpired foreign
passport that contains a temporary I-551 stamp'' and ``unexpired
Employment Authorization Document''). Rather than modify each
acceptable document with the term ``unexpired,'' this rule imposes a
general requirement that all documents must be unexpired to be
acceptable for the Form I-9. See revised 8 CFR 274a.2(b)(1)(v). A
document containing no expiration date, such as the Social Security
account number card, will be deemed unexpired.
DHS invites comments on whether this rule's prohibition on the use
of expired documents for the Form I-9 should be modified to permit
employers to accept List B identity documents that have expired within
the last 90 days (or other limited time period) of the date they are
presented to the employer for the Form I-9.
B. Adding Documentation for Citizens of the Federated States of
Micronesia and the Republic of the Marshall Islands
In 2003, the Compacts of Free Association between the United States
and the Federated States of Micronesia (FSM) and Republic of the
Marshall Islands (RMI) were amended. See Compact of Free Association
Amendments Act of 2003, Public Law 108-188 (2003). Under both the
preexisting Compacts and the Compacts as amended, most citizens of the
RMI and the FSM are eligible for admission to the United States as
nonimmigrants, including the privilege of residing and working in the
United States. The amendments to the Compacts included provisions that
eliminated the need for citizens of the FSM and the RMI to obtain an
Employment Authorization Document (Form I-766), although they may still
apply for one if they wish. As provided by the Compact Amendments, FSM
and RMI citizens admitted under the Compacts may present valid FSM or
RMI passports with evidence of their admission under the Compacts to
satisfy Form I-9 requirements.\6\ To conform the Form I-9 regulations
with the requirements of the Compacts, USCIS is including a List A
provision specifically tailored to these FSM and RMI citizens. See new
8 CFR 274a.2(b)(1)(v)(A)(6).
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\6\ There is also a Compact of Free Association with the
Republic of Palau (Compact of Free Association Approval Act, Pub. L.
No. 99-658 (Nov. 14, 1986)) providing similar employment and
residency privileges for citizens of Palau, but the Compact has not
been amended to include a similar Form I-9 documentation provision.
Therefore, the amendment to the regulations does not include Palau.
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C. Revising References to Temporary I-551s
List A refers to temporary I-551 stamps in unexpired foreign
passports as acceptable documents. See 8 CFR 274a.2(b)(1)(v)(A)(3). DHS
issues temporary I-551 stamps to LPRs on either unexpired foreign
passports or Forms I-94, ``Arrival-Departure Record,'' to serve as
temporary documentation of LPR status while they wait for the actual
Form I-551. Although the regulations refer to temporary I-551
``stamps,'' DOS has been affixing machine-readable immigrant visas
(MRIVs) that contain a pre-printed temporary I-551 notation in the
foreign passports of aliens immigrating to the United States for
several years. The pre-printed temporary I-551 notation is triggered
after the bearer is admitted to the United States as an LPR. To update
the regulations to reflect this alternate temporary I-551 document,
this rule modifies the reference in List A to temporary I-551 stamps on
unexpired foreign passports to include pre-printed temporary I-551
notation on MRIVs. 8 CFR 274a.2(b)(1)(v)(A)(3). Because the pre-printed
notation is not included on Forms I-94, this rule does not make any
changes to regulatory references to temporary I-551 stamps on Forms I-
94. See 8 CFR 274a.2(b)(1)(vi)(B).
D. Eliminating Forms I-688, I-688A, and I-688B
DHS notes that Form I-688, ``Temporary Resident Card,'' and Forms
I-688A and I-688B, ``Employment Authorization Cards,'' are no longer
issued and has determined that any such documents that were previously
issued have expired. Therefore, this rule removes these documents from
List A and any references to the documents in the receipt provision at
8 CFR 274a.2(B)(1)(vi)(C). USCIS now issues Forms I-766 to those who
formerly received Forms I-688, I-688A, or I-688B. The Form I-766
remains on List A. 8 CFR 274a.2(b)(1)(v)(A)(4).
E. Adding References to Form I-94A
This rule updates the list of acceptable documents and receipts by
including ``Form I-94A'' next to each reference to the Form I-94,
``Arrival-Departure Record.'' See revised 8 CFR 274a.2(b)(1)(v)(A)(5)
and (b)(1)(vi)(B) and (C). The Form I-94A is nearly identical to the
Form I-94 except that all fields are computer-generated rather than
being annotated by hand.
F. Revising Reference to Social Security Account Number Card (``Social
Security Card'')
This interim rule replaces the current reference to the List C
document, ``Social Security number card,'' with the statutory term
``Social Security account number card.'' Revised 8 CFR
274a.2(b)(1)(v)(C)(1). This document is
[[Page 76508]]
commonly referred to as the Social Security card. The rule also revises
the restriction on the acceptability of Social Security account number
cards. The statute provides that a Social Security account number card,
``other than such a card which specifies on the face that the issuance
of the card does not authorize employment in the United States'' is an
acceptable List C document. See INA sec. 274A(b)(1)(C)(i), 8 U.S.C.
1324a(b)(1)(C)(i). The current regulations provide that unacceptable
cards are those that include the following legend: ``not valid for
employment purposes.'' 8 CFR 274a.2(b)(1)(v)(C)(1). Over the years
since Social Security account number cards have included employment
restrictions, the legend printed on the face of the cards has changed.
Therefore, the restriction stated in the current regulations is
inadequate. This rule revises the restriction to track the statutory
language.
IV. Technical Changes
A. Correcting References to Employment Eligibility
This interim rule replaces the term ``employment eligibility'' with
``employment authorization'' in each place that ``employment
eligibility'' appears in the verification provisions of the regulations
relevant to the substantive changes made by this rule, 8 CFR 274a.2(a)
and (b)(1). This change is necessary to conform the regulations to the
statute, which uses the term ``employment authorization'' and not
``employment eligibility.'' See INA sec. 274A(b)(1)(B) and (C), 8
U.S.C. 1324a(b)(1)(B) and (C).
In addition, DHS revised the section heading to 8 CFR 274a.2 to
more accurately reflect the contents of this section. Currently, the
section heading reads, ``Verification of employment eligibility.'' This
rule revises the section heading to read, ``Verification of identity
and employment authorization.''
B. Replacing References to the Former INS
This rule deletes references to the former INS or replaces such
references with ``DHS'' wherever ``INS'' appears in the provisions
affected by this rule. See revised 8 CFR 274a.2(b)(1)(v)(A)(4) and
(b)(1)(v)(C)(6), (7), and (8). After a transfer of functions to DHS,
the INS was abolished in March 2003. See 6 U.S.C. 291; Homeland
Security Act of 2002, Public Law No. 107-296, 116 Stat. 2135 (Nov. 25,
2002).
C. Correcting References to Certificates of Birth Abroad in List C
Current regulations incorrectly identify the List C documents,
Forms FS-545 and DS-1350 issued by the Department of State, as
``Certification of Birth Abroad.'' 8 CFR 274a.2(b)(1)(v)(C)(2) and (3).
This rule corrects this error. The Form FS-545 is correctly entitled,
``Certification of Birth,'' and Form DS-1350 is correctly entitled,
``Certification of Report of Birth.''
V. Form Changes
In implementing the regulatory changes being made by this rule, DHS
also is revising the Form I-9 itself. Changes to the Form I-9, in
addition to revisions to the list of acceptable documents, include:
In Section 1, making ``citizen of the United States'' and
``noncitizen national of the United States, as defined in 8 U.S.C.
1408'' two separate categories in the employee attestation part of the
form. Currently, the first box in that section states: ``A citizen or
national of the United States.'' Separating those two groups will
eliminate one difficulty that currently exists when prosecuting those
who make false claims to U.S. citizenship. Noncitizen nationals of the
United States are persons born in American Samoa as provided in section
308 of the INA, 8 U.S.C. 1408; certain former citizens of the former
Trust Territory of the Pacific Islands who relinquished their U.S.
citizenship acquired under section 301 of Public Law 94-241
(establishing the Commonwealth of the Northern Mariana Islands) by
executing a declaration before an appropriate court that they intended
to be noncitizen nationals rather than U.S. citizens; and certain
children of noncitizen nationals born abroad, as provided by section
308 of the INA, 8 U.S.C. 1408. A definition of noncitizen national is
added to the instructions to the Form I-9.
In Section 1, replacing ``An alien authorized to work
until --/--/-- (Alien or Admission ----------------'' with
``An alien authorized to work (A or Admission ------
------ ) until (expiration date, if applicable--month/day/year) --/--/
--''.
In the form instructions, including a paragraph that
clarifies when employers need to reverify certain employees to read as
follows:
``Note that some employees may leave the expiration date blank if
they are aliens whose work authorization does not expire (e.g.,
asylees, refugees, certain citizens of the Federated States of
Micronesia or the Republic of the Marshall Islands). For such
employees, reverification does not apply unless they choose to present
in Section 2 evidence of employment authorization that contains an
expiration date (e.g., Employment Authorization Document (Form I-
766)).''
Form I-9 will be included as an attachment to this rule. It will also
be made available in Spanish and posted on the USCIS Web site (http://
www.uscis.gov) at a later date.
VI. Regulatory Requirements
A. Administrative Procedure Act
The Administrative Procedure Act (APA) provides that an agency may
dispense with notice and comment rulemaking procedures when an agency,
for ``good cause,'' finds that those procedures are ``impracticable,
unnecessary, or contrary to the public interest.'' See 5 U.S.C.
553(b)(B). DHS finds advance notice and comment for this rule to be
impracticable, unnecessary, and contrary to the public interest.
In its 1998 proposed rule, the former INS proposed precluding
expired documents from use for the Form I-9. 63 FR at 5302. The INS
received 15 comments on the proposal to remove expired documents as
discussed above. Therefore, although the INS did not finalize that
NPRM, USCIS has considered those public comments in the development of
this interim rule and DHS has concluded that further public comment on
this issue would be unnecessary under the APA.
DHS understands that this rule is a change in its longstanding
practice of accepting expired documents. However, advances in
technology since the original issuance of these regulations and Form I-
9, especially in recent years, increase the need for DHS to make sure
that documents accepted for identity and work authorization purposes
have sufficient security features and continue to ensure the integrity
of the employment verification process.\7\ Employment documentation
requirements must be strengthened as soon as possible in order for DHS
enforcement capabilities to stay ahead of document counterfeiters;
requiring that documents be unexpired is one way to help ensure this.
Continued delay created by the notice and comment requirements would
result in additional damage to these important interests.
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\7\ DHS Fact Sheet: Combating Fraudulent Documents. August 1,
2006. Available at http://www.dhs.gov/xnews/releases/pr_
1158347347660.shtm.
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Accordingly, DHS finds that good cause exists under 5 U.S.C. 553(b)
to
[[Page 76509]]
issue this rule as an interim rule. DHS nevertheless invites written
comments on this interim rule and will consider those comments in the
development of a final rule in this action.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA), 5 U.S.C. 605(b), as amended
by the Small Business Regulatory Enforcement and Fairness Act of 1996
(SBREFA), requires an agency to prepare and make available to the
public a regulatory flexibility analysis that describes the effect of
the rule on small entities (i.e., small businesses, small
organizations, and small governmental jurisdictions). However, when an
agency invokes the good cause exception under the Administrative
Procedure Act (APA) to make changes effective through an interim final
rule, the RFA does not require the agency to prepare a regulatory
flexibility analysis. This rule makes changes for which notice and
comment are not necessary and, accordingly, USCIS has not prepared a
regulatory flexibility analysis.
C. Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995 requires each
Federal agency to prepare a written assessment of the effects of any
Federal mandate in a proposed or final agency rule that may result in
the expenditure by State, local, and tribal governments, in the
aggregate, or by the private sector, of $100 million or more (adjusted
annually for inflation) in any one year. As outlined in the Executive
Order 12866 section of this rule below, this rule may result in the
expenditure in the aggregate by the private sector of more than $100
million in the first year following its publication. However, there are
no recurring costs and it will not significantly or uniquely affect
small governments or other small entities. Further, no action on the
part of any state, tribe, or other governmental entity is required by
this rule's changes. Therefore, no actions were deemed necessary under
the provisions of the Unfunded Mandates Reform Act of 1995.
D. 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. 5 U.S.C. 804.
E. Executive Order 12866
This rule is considered by DHS to be an ``economically significant
regulatory action'' under Executive Order 12866, section 3(f),
Regulatory Planning and Review. Accordingly, this interim rule has been
reviewed by the Office of Management and Budget.
Employees are already completing, and employers are already
retaining, Forms I-9. Employers are also conducting re-verifications
when employment authorization expires. Likewise, U.S. Immigration and
Customs Enforcement (ICE) agents already conduct Form I-9 enforcement
actions. Therefore, this interim rule is not expected to impose
significant new or recurring costs on employers, new employees, or the
government.
Costs for employers. After publication of this rule, there will be
some costs associated with becoming familiar with the new requirements,
switching to the new forms, and retraining personnel who are familiar
with the existing requirements. All employers and agricultural
recruiters and referrers for a fee are required to verify the identity
and employment authorization of each individual they hire for
employment in the United States, regardless of the individual's
citizenship. The number of employees hired each year varies greatly
among firms as does the number of employees that each firm has devoted
to the hiring process. Based on an analysis of data from the U.S.
Department of Agriculture, National Agricultural Census \8\, and, U.S.
Department of Labor, Bureau of Labor Statistics, Business Employment
Dynamics,\9\ DHS has determined that there are approximately 554,000
farms, around 90,000 local government jurisdictions, and approximately
4.9 million firms in the private sector of the U.S. economy that could
possibly hire an employee in the year after this rule takes effect.
While many farms and companies hire no employees in a given year
requiring submission of no Forms I-9, DHS assumed that the largest
possible universe of employers would be affected by the rule in its
first year in effect, or all entities. That means there are a total of
about 5.54 million farms, businesses, and governmental entities in the
U.S. that must obtain a Form I-9 from their new hires. DHS also assumed
that each of the affected firms will incur a small cost to learn about
the new form and regulations. The Office of Management and Budget (OMB)
approved information collection reporting burden for Form I-9 is an
average of 12 minutes per response for learning about the form,
completing the form, and assembling and filing the form. Because this
training facet would add a few minutes to that time burden to read this
rule and compare the new and old Form I-9 lists, DHS estimates that
each employer will each need approximately 30 minutes to research the
changes made by this rule and learn what an acceptable Form I-9
supporting document is after this rule takes effect. According the U.S.
Department of Labor, Bureau of Labor Statistics quarterly report,
``Employer Costs for Employee Compensation,'' employer compensation
costs for all civilian occupations averages $28.11 per hour worked.
Therefore, based on 30 minutes per employer for 5.54 million employers,
this rule will cost all employers nationwide a total of $77,864,700 to
familiarize themselves with the new requirements, switch to the new
forms, and retrain personnel. This is, however, a one-time and not a
repeating or annual cost. Once the transition to this interim rule and
new Form I-9 is complete, DHS anticipates that the costs incurred by
employers will be lower than under the existing rule because the
modified lists of acceptable forms is expected to reduce confusion. DHS
believes that the reduced number of documents that may be presented for
verification, simplified design of the Form I-9, and more comprehensive
instructions provided with the form, will make the verification process
for employers easier than it is now.
---------------------------------------------------------------------------
\8\ Economic Class of Farms by Market Value of Agricultural
Products Sold and Government Payments: 2002 http://
www.nass.usda.gov/census/census02/volume1/us/st99_1_003_003.pdf.
\9\ New Quarterly Data from BLS on Business Employment Dynamics
by Size of Firm, 2005 http://www.bls.gov/news.release/pdf/cewfs.pdf.
---------------------------------------------------------------------------
Costs for employees. By reducing the number of documents that are
acceptable, this rule will require a newly hired employee to expend
some time, effort, and expense in order to obtain an acceptable,
unexpired document. For example, a new hire who was able to use an
expired passport or U.S. military identification card before this rule
rendered those documents unacceptable will now need to obtain a
current, unexpired document. Those individuals who could have used an
expired document will incur a cost to obtain an alternative document,
such as a State-issued driver's license or identification card, which
can be presented with their social security card or birth certificate,
or a passport card or passport. In order to provide an example that
will illustrate this potential impact, DHS has examined what that cost
may be. DHS obtained a list of the amounts charged for State-issued
driver's licenses or identification cards in every state in the U.S.
and the District of Columbia from the American
[[Page 76510]]
Association of Motor Vehicle Administrators (AAMVA). The average cost
to obtain a state-issued photo identification card was found to be
$14.40. The U.S. Department of State charges $100 for a passport for
someone age 16 and over, and a passport card costs $20. Thus, it
assumed for this example, logically, that those individuals who could
have used an expired document before this rule will choose the lower-
cost option and obtain a state identification card.
According to the U.S. Department of Transportation, Federal Highway
Administration, of the 233 million people in the United States who are
in the driving age population (age 16 and over), 209 million, or 87
percent, have a State-issued driver's license.\10\ Also, as of 2006,
almost 33 million State-issued identification cards were in effect.
Therefore, there are approximately 242 million driver's licenses and
identification cards held by persons age 16 and over, while the U.S.
population of people who are of driving age is 233 million. The
issuance of 9 million more State-issued driver's licenses and State-
issued identification cards than the driving age population suggests
that a very small portion of the working-age population would have
neither a State-issued driver's license nor a State-issued
identification card. Therefore, it is likely that very few people will
be required to obtain a license in order to comply with the new
requirements of this rule. On the other hand, a sample of 2000
registered voters in three states performed for a study being conducted
by American University (AU) found that roughly 1.2 percent of the
people surveyed did not have acceptable photo identification cards for
voting purposes.\11\ Assuming that the result from those three states
would hold true nationwide, that percentage, while small, is not
trivial due to the annual volume of new hires who must present Form I-
9. If only 1.2 percent of the estimated 58 million annual new hires in
the United States must obtain a new document, 696,000 people are
affected.\12\ As stated above, states charge an average of $14.40 for
an identification card. In addition, DHS estimates that expenses for
each affected person would also include spending about 4 hours of their
personal time to obtain the card and that the worker gives up this
amount of time engaging in a leisure activity. According to guidelines
used by the U.S. Department of Transportation on the values of travel
time, the opportunity cost of leisure time forgone for travel is
calculated as 50 percent of wages. Using the employer compensation
costs per hour for all civilian occupations of $28.11, the value of
leisure per hour is about $14.06. Thus, a person could be required to
expend up to $14.40 in cash and $56.20 in opportunity costs, or total
costs of $70.60, to obtain a State-issued identification card because
of the changes made by this rule. Using the 1.2 percent figure from the
AU study, this example results in an aggregate nationwide employee
expense for obtaining an acceptable document of $49,137,600.
---------------------------------------------------------------------------
\10\ United States Department of Transportation, Federal Highway
Administration, Highway Statistics 2006, Licensed drivers--Ratio of
licensed drivers to population. Available at http://
www.fhwa.dot.gov/policy/ohim/hs06/driver_licensing.htm.
\11\ Robert Pastor, et al., Voter IDs Are Not the Problem: A
Survey of Three States, (Center for Democracy and Election
Management, American University, Washington, DC , Jan. 9, 2008).
http://www.american.edu/ia/cdem/pdfs/VoterIDFinalReport1-9-08.pdf.
\12\ U.S. Department of Labor, U.S. Bureau of Labor Statistics,
Job Openings and Labor Turnover Survey Available at http://
data.bls.gov/PDQ/outside.jsp?survey=jt.
---------------------------------------------------------------------------
The cost associated with the information collection burden of the
Form I-9 and its instructions is discussed below in the Paperwork
Reduction Act section of this rule.
F. Executive Order 13132
This rule would have no 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, this rule does not have sufficient
federalism implications to warrant the preparation of a federalism
summary impact statement.
G. Paperwork Reduction Act
This interim rule requires a revision to the Form I-9 (OMB Control
Number 1615-0047).
Since this is an interim rule, this information collection has been
submitted and approved by OMB for 180 days under the emergency review
and clearance procedures covered under the PRA. During the first 60
days, USCIS is requesting comments on this information collection until
February 17, 2009. When submitting comments on this information
collection, your comments should address one or more of the following
four points:
(1) Evaluate whether the collection of information is necessary for
the proper performance of the agency, including whether the information
will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of
the collection of information, including the validity of the
methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of the collection of the information on
those who are to respond, including through the use of any and all
appropriate automated, electronic, mechanical, or other technological
collection techniques or other forms of information technology, e.g.,
permitting electronic submission of responses.
Overview of This Information Collection
(1) Type of Information Collection: Revision of a currently
approved information collection.
(2) Title of the Form/Collection: Employment Eligibility
Verification.
(3) Agency form number, if any, and the applicable component of the
Department of Homeland Security sponsoring the collection: Form I-9.
U.S. Citizenship and Immigration Services.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Individuals or households. This form
was developed to facilitate compliance with section 274A of the
Immigration and Nationality Act, which prohibits the knowing employment
of unauthorized aliens. The information collected is used by employers
or by recruiters for enforcement of provisions of immigration laws that
are designed to control the employment of unauthorized aliens.
(5) An estimate of the total number of respondents and the amount
of time estimated for an average respondent to respond: This figure was
derived by multiplying the number of respondents (78,000,000) x
frequency of response (1) x hour per response (9 minutes or 0.15
hours). The annual recordkeeping burden is added to the total annual
reporting burden that is based on 20,000,000 record keepers at (3
minutes or .05 hours) per filing.
(6) An estimate of the total public burden (in hours) associated
with the collection: 12,700,000 annual burden hours.
All comments and suggestions or questions regarding additional
information should be directed to the Department of Homeland Security,
U.S. Citizenship and Immigration Services, Chief, Regulatory Management
Division, 111 Massachusetts Avenue, NW., Suite 3008, Washington, DC
20529.
[[Page 76511]]
List of Subjects in 8 CFR Part 274a
Administrative practice and procedure, Aliens, Employment,
Penalties, Reporting and recordkeeping requirements.
0
Accordingly, part 274a of chapter I of title 8 of the Code of Federal
Regulations is amended as follows:
PART 274a--CONTROL OF EMPLOYMENT OF ALIENS
0
1. The authority citation for part 274a continues to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1324a; 8 CFR part 2.
0
2. Section 274a.2 is amended by:
0
a. Revising the section heading;
0
b. Revising the term ``eligibility'' to read ``authorization'' in the
first sentence of paragraphs (a)(3), (b)(1)(i)(B), and (b)(1)(ii)(A);
0
c. Revising paragraph (b)(1)(v) introductory text;
0
d. Revising paragraph (b)(1)(v)(A);
0
e. Revising paragraphs (b)(1)(v)(C)(1), (2), (3), (6), (7), and (8);
and by
0
f. Revising paragraphs (b)(1)(vi)(B) and (C).
The revisions read as follows:
Sec. 274a.2 Verification of identity and employment authorization.
* * * * *
(b) * * *
(1) * * *
(v) The individual may present either an original document which
establishes both employment authorization and identity, or an original
document which establishes employment authorization and a separate
original document which establishes identity. Only unexpired documents
are acceptable. The identification number and expiration date (if any)
of all documents must be noted in the appropriate space provided on the
Form I-9.
(A) The following documents, so long as they appear to relate to
the individual presenting the document, are acceptable to evidence both
identity and employment authorization:
(1) A United States passport;
(2) An Alien Registration Receipt Card or Permanent Resident Card
(Form I-551);
(3) A foreign passport that contains a temporary I-551 stamp, or
temporary I-551 printed notation on a machine-readable immigrant visa;
(4) An Employment Authorization Document which contains a
photograph (Form I-766);
(5) In the case of a nonimmigrant alien authorized to work for a
specific employer incident to status, a foreign passport with a Form I-
94 or Form I-94A bearing the same name as the passport and containing
an endorsement of the alien's nonimmigrant status, as 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;
(6) A passport from the Federated States of Micronesia (FSM) or the
Republic of the Marshall Islands (RMI) with Form I-94 or Form I-94A
indicating nonimmigrant admission under the Compact of Free Association
Between the United States and the FSM or RMI.
* * * * *
(C) * * *
(1) A Social Security account number card other than one that
specifies on the face that the issuance of the card does not authorize
employment in the United States;
(2) Certification of Birth issued by the Department of State, Form
FS-545;
(3) Certification of Report of Birth issued by the Department of
State, Form DS-1350;
* * * * *
(6) United States Citizen Identification Card, Form I-197;
(7) Identification card for use of resident citizen in the United
States, Form I-179;
(8) An employment authorization document issued by the Department
of Homeland Security.
(vi) * * *
(B) Form I-94 or I-94A indicating temporary evidence of permanent
resident status. The individual indicates in section 1 of the Form I-9
that he or she is a lawful permanent resident and the individual:
(1) Presents the arrival portion of Form I-94 or Form I-94A with an
unexpired foreign passport containing an unexpired ``Temporary I-551''
stamp and a photograph of the individual, which is designated for
purposes of this section as a receipt for Form I-551; and
(2) Presents the Form I-551 by the expiration date of the
``Temporary I-551'' stamp or, if the stamp or statement has no
expiration date, within one year from the issuance date of the arrival
portion of the Form I-94 or Form I-94A; or
(C) Form I-94 or I-94A indicating refugee status. The individual
indicates in section 1 of the Form I-9 that he or she is an alien
authorized to work and the individual:
(1) Presents the departure portion of Form I-94 or I-94A containing
an unexpired refugee admission stamp, which is designated for purposes
of this section as a receipt for the Form I-766, or a social security
account number card that contains no employment restrictions; and
(2) Presents, within 90 days of the hire or, in the case of
reverification, the date employment authorization expires, either an
unexpired Form I-766, or a social security account number card that
contains no employment restrictions and a document described under
paragraph (b)(1)(v)(B) of this section.
* * * * *
Paul A. Schneider,
Deputy Secretary.
Note: The Form I-9 included as an attachment to this document
should not be codified in Title 8 of the Code of Federal
Regulations.
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[FR Doc. E8-29874 Filed 12-16-08; 8:45 am]
BILLING CODE 9111-97-C
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