[Federal Register Volume 76, Number 73 (Friday, April 15, 2011)]
[Rules and Regulations]
[Pages 21225-21232]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-9152]



========================================================================
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.

========================================================================


Federal Register / Vol. 76, No. 73 / Friday, April 15, 2011 / Rules 
and Regulations

[[Page 21225]]



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 (USCIS), DHS.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This rule finalizes without change a 2008 interim final rule 
amending Department of Homeland Security (DHS) regulations governing 
the types of acceptable identity and employment authorization documents 
(EADs) and receipts that employees may present to employers for 
completion of Form I-9, Employment Eligibility Verification.

DATES: This final rule is effective May 16, 2011.

FOR FURTHER INFORMATION CONTACT: Letitia Coffin, Verification Division, 
U.S. Citizenship and Immigration Services, Department of Homeland 
Security, 131 M Street, NE., Suite 200, Washington, DC 20002, telephone 
(888) 464-4218 or e-mail at <a href="/cdn-cgi/l/email-protection#cf8ab9aabda6a9b68faba7bce1a8a0b9"><span class="__cf_email__" data-cfemail="91d4e7f4e3f8f7e8d1f5f9e2bff6fee7">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: The supplementary section is organized as 
follows:

Table of Contents

I. Background
    A. Interim Rule
    B. Final Rule
II. Public Comments on the Interim Rule
    A. Summary of Comments
    B. Requiring Unexpired Documents
    C. Comprehensive Review of the Form I-9 Process
    D. The 1998 Notice of Proposed Rulemaking
    E. Mistake in Interim Rule
    F. Delay in Effective Date of Interim Rule
    G. Comments to the Form I-9
    H. Suggested Revisions to the Lists of Acceptable Documents
    I. Standardizing State and Federal Document Requirements
    J. Requests for Outreach and Guidance
    K. Comprehensive Immigration Reform
III. Regulatory Requirements
IV. Paperwork Reduction Act (PRA)

I. Background

    All employers, agricultural recruiters and referrers for a fee \1\ 
(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 Form I-9, ``Employment 
Eligibility Verification,'' retain the form for a statutorily 
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 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 document, record the document information on Form I-9, and 
attest that the document reasonably appears both to be genuine and to 
relate to the individual presenting it.
---------------------------------------------------------------------------

    \1\ Title 8 CFR 274a.2(a)(1) provides that ``[f]or purposes of 
complying with section 274A(b) of the [INA] and this section, all 
references to recruiters and referrers for a fee are limited to a 
person or entity who is either an agricultural association, 
agricultural employer, or farm labor contractor (as defined in 
section 3 of the Migrant and Seasonal Agricultural Worker Protection 
Act, Pub. L. 97-470).''
---------------------------------------------------------------------------

    The Form I-9 has three categories of documents that employers may 
accept, alone or in combination, for employment authorization 
verification:
    (1) List A--documents that establish both identity and employment 
authorization (e.g., U.S. passport; Form I-551, ``Permanent Resident 
Card;'' or Form I-766, ``Employment Authorization Document'');
    (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 or an unrestricted Social 
Security Account Number card).

See INA section 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. 
See INA section 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.'' See 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 
documents specified in the regulations as acceptable to present. An 
employer may accept a receipt, however, only under specific 
circumstances prescribed under 8 CFR 274a.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.\2\ See 8 CFR 
274a.2(b)(1)(vii).
---------------------------------------------------------------------------

    \2\ Note that an expiration date on Form I-551 does not trigger 
the reverification requirement. See ``Handbook for Employers, 
Instructions for Completing Form I-9'' (M-274) (Rev. 01/05/11), 
http://www.uscis.gov, (``Handbook for Employers''), pages 9 and 39.

---------------------------------------------------------------------------

[[Page 21226]]

A. Interim Rule

    On December 17, 2008, DHS published an interim rule amending DHS 
regulations governing the Form I-9 process. See 73 FR 76505. The 
interim rule became effective on April 3, 2009.\3\ DHS improved the 
integrity of the Form I-9 process by:
---------------------------------------------------------------------------

    \3\ On February 3, 2009, DHS delayed the effective date of the 
December 17, 2008, interim rule to April 3, 2009 to provide DHS with 
an opportunity for further consideration of the interim rule. The 
February 3, 2009 document also extended the public comment period 
until March 4, 2009. See 74 FR 5899.
---------------------------------------------------------------------------

    <bullet> Prohibiting employers from accepting expired documents. 
Expired documents may not demonstrate the correct status of the bearer; 
are prone to tampering and fraudulent use; and may create confusion 
among employers. This change is intended to ensure that the documents 
accepted by employers as evidence of an employee's identity and 
employment authorization are valid and reliable;
    <bullet> Removing Form I-688, ``Temporary Resident Card,'' and 
Forms I-688A and I-688B, ``Employment Authorization Cards,'' from the 
Lists of Acceptable Documents because USCIS no longer issues these 
documents and any such documents in possession of an employee would now 
have expired;
    <bullet> Adding to the List of Acceptable Documents on List A of 
Form I-9: (1) The new U.S. passport card and (2) the temporary Form I-
551, ``Permanent Resident Card,'' with a printed notation on a machine-
readable immigrant visa;
    <bullet> Adding documentation for certain citizens of the Federated 
States of Micronesia (FSM) and the Republic of the Marshall Islands 
(RMI) to List A to more accurately reflect their status under the 
Compacts of Free Association.
    In addition to the amendments made by the 2008 interim rule, USCIS 
issued an amended Form I-9 which clarified changes, such as providing a 
separate box for noncitizen nationals to clearly delineate U.S. 
citizens from noncitizen nationals, and making minor format changes 
that make the form easier to use.
    On January 16, 2009, DHS published a correction to the interim rule 
to remove extraneous language from two paragraphs of the regulation 
that describe a type of receipt that can be presented by lawful 
permanent residents to their employers in lieu of the Form I-551, 
``Permanent Resident Card,'' for completion of Form I-9. See 74 FR 
2838.
    On February 3, 2009, DHS extended the comment period for the 
interim rule to March 4, 2009. See 74 FR 5899.\4\ During the entire 
comment period, DHS received 75 comments. These comments came from a 
broad spectrum of individuals and organizations, including refugee and 
immigrant services advocacy organizations and public policy and 
advocacy groups. Many commenters addressed multiple issues and provided 
variations on the same substantive issues.
---------------------------------------------------------------------------

    \4\ See supra footnote 3.
---------------------------------------------------------------------------

    In preparing this final rule, DHS considered the comments that were 
received during the comment period and were within the scope of this 
rulemaking as well as the other materials contained in the docket. The 
final rule does not address comments seeking changes in United States 
statutes, changes in regulations or petitions unrelated to or not 
addressed by the interim rule, changes in procedures of other 
components within DHS or other agencies, or the resolution of any other 
issues not within the scope of the rulemaking or the authority of DHS.
    All comments may be reviewed at the Federal Docket Management 
System (FDMS) at http://www.regulations.gov, docket number USCIS-2008-
0001.

B. Final Rule

    The final rule adopts, without change, all of the regulatory 
amendments set forth in the interim rule. The rationale for the interim 
rule and the reasoning provided in the preamble to the interim rule 
remain valid with respect to these regulatory amendments, and DHS 
adopts such reasoning in support of the promulgation of this final 
rule.

II. Public Comments on the Interim Rule

A. Summary of Comments

    Many commenters supported the improvements to the Form I-9 process 
made in the interim rule, such as: Prohibiting employers from accepting 
expired documents; removing certain documents no longer issued by 
USCIS; adding two new documents to List A; adding documentation for 
certain citizens of the FSM and RMI to List A; and making clarifying 
changes to Form I-9, such as providing a separate box for noncitizen 
nationals. Most commenters discussed the prohibition on employers from 
accepting expired documents and supported the change because they 
believe that this change would prevent unauthorized aliens from 
obtaining employment in the United States by using expired documents 
which are more susceptible to fraud and counterfeiting than unexpired 
documents.
    Although most commenters supported one or more changes to the Form 
I-9 process, several commenters opposed the prohibition on the use of 
expired documents because they believe that many employment-authorized 
individuals such as asylees, refugees, and conditional residents should 
not be required to present an unexpired document as evidence of 
employment authorization. The commenters were concerned that such 
employees will be unable to work if processing or issuance of a new 
document is delayed. Several commenters also opposed the prohibition on 
the use of expired documents because they believe that these changes 
will create additional burdens and costs for employers and employees. 
Some of the commenters who opposed the prohibition on the use of 
expired documents requested a delay in implementation of the interim 
rule. In response to public comments requesting an extension of the 
effective date, DHS delayed the effective date of the interim rule from 
February 2, 2009, to April 3, 2009. See 74 FR 5899.
    Many commenters pointed out the need for comprehensive immigration 
reform including a thorough review of the Form I-9 process. Some 
commenters suggested improvements to the Form I-9 process such as: 
Biometrics; providing the public a truly electronic Form I-9; and 
detailed changes to the form. Other commenters discussed document 
reduction or suggested changes to the acceptability of specific 
document types such as: School IDs; U.S. Passports; State-issued 
drivers' licenses including enhanced drivers' licenses; voter 
registration cards; Native American tribal documents; and the 
Certificates of Citizenship and Naturalization.
    Comments that were received are addressed below and are organized 
by subject area. Comments related to the economic burdens of this rule 
are addressed in the Executive Order 12866 and Regulatory Flexibility 
Act sections of part III of the Supplementary Information.

B. Requiring Unexpired Documents

    DHS received 23 comments addressing the interim rule's requirement 
that all documents presented for Form I-9 be unexpired. Fifteen 
commenters supported the requirement and eight commenters opposed it. 
Most of the commenters who supported the requirement wrote that 
allowing employers to accept expired documents would lead to the 
inadvertent acceptance of fraudulent documents and, therefore, the 
employment of unauthorized aliens. Some commenters who supported the

[[Page 21227]]

requirement wrote that this change eliminates confusion in the Form I-9 
process and that requiring unexpired documents provides benefits to law 
enforcement.
1. Continued Acceptance of Expired Documents
    Eight commenters opposed the requirement that documents must be 
unexpired for Form I-9 and stated that employers should be able to 
continue to accept expired documents as permitted before the interim 
rule went into effect. Five of these commenters proposed the continued 
acceptance of expired documents for varying periods between 30 days and 
five years after expiration of the document. Two of these commenters 
wrote that the cost of obtaining replacement documents was too high. 
One commenter wrote that refugees and asylees should be excused from 
this requirement because these individuals are authorized for 
employment incident to their status.
    DHS is retaining the requirement that documents be unexpired and is 
not adopting the commenters' suggestions to continue accepting expired 
documents. Concerns about document fraud were among the most important 
reasons for this rulemaking. Unexpired documents are more likely to 
contain up-to-date security features that make them less vulnerable to 
counterfeiting and fraud. Because expired documents may lack security 
features or may have outdated security features, these documents can 
more easily be counterfeited.
    DHS disagrees with the commenters who wrote that expired documents 
should be allowed within specified parameters (e.g., 30 days after 
expiration). Establishing a requirement that all documents be unexpired 
sets a clear standard that is easy for U.S. employers to apply. Such a 
requirement honors the time limits of validity placed on documents by 
their issuing authorities. In addition, precluding employers from 
accepting expired documents alleviates confusion when determining 
whether documents are valid for Form I-9 and helps to ensure that the 
documents relate to the person presenting them. Moreover, disallowing 
the acceptance of expired documents reduces document fraud and may 
prevent unauthorized aliens, criminals and even terrorists from evading 
detection.
2. Refugees and Asylees
    One commenter requested that DHS allow employers to accept 
Employment Authorization Documents (EADs) presented by refugees and 
asylees that have been expired no longer than 90 days. The commenter 
wrote that neither group requires an EAD because both are authorized to 
work incident to their lawful immigration status.
    DHS has not adopted the commenter's request in this final rule. DHS 
is aware of the many difficulties that refugees and asylees face in 
adapting to a new life in the United States and has carefully 
considered those difficulties as they relate to employment 
authorization. However, permitting the use of expired documents for 
Form I-9, even for the limited period of 90 days as suggested by the 
commenter, introduces vulnerabilities into the verification process 
that undermine the purpose of the process as a whole. The EAD is not 
the only acceptable document that refugees and asylees may present for 
Form I-9 purposes. They may satisfy Form I-9 requirements by presenting 
a combination of a List B and a List C document, such as a State-issued 
driver's license and an unrestricted Social Security Account Number 
card. Many refugees and asylees instead choose to present an EAD 
because of the simplicity of having a List A document that meets 
identity and employment authorization requirements. DHS acknowledges 
the desire for simplicity on the part of both groups; however, 
permitting the use of expired EADs for only refugees and asylees and 
for only a 90-day period after a particular document's expiration 
conflicts with DHS' desire to provide a consistent rule prohibiting the 
use of expired documents.
3. Alleged Delays in the Issuance of Documents by USCIS
    Five commenters wrote that expired documents should be acceptable 
because USCIS is unable to timely process applications for new 
documents demonstrating employment authorization.
    DHS is not adopting the commenters' recommendations. DHS processes 
applications for renewal of immigration-related documents in a timely 
manner for applicants who apply to renew their immigration documents 
with sufficient planning in advance of expiration dates. In the event 
of a processing delay or unforeseen emergency, or for applications 
filed too close to the documents' expiration dates, applicants may 
request expedited processing. The regulations at 8 CFR 274a.13(d) 
impose a 90-day processing time for DHS to adjudicate applications for 
Form I-765, ``Application for Employment Authorization Document,'' and 
to issue an EAD. DHS records indicate that the current average cycle 
time for Form I-765 processing was 1.9 months as of November 2008.\5\ 
Aliens whose applications for employment authorization have been 
pending for more than 90 days may call USCIS to request expedited 
processing of their applications. Lawful permanent residents (LPRs) 
seeking to replace a Form I-551, ``Permanent Resident Card,'' that has 
expired or has been lost, stolen, or mutilated can present other non-
USCIS documents to meet Form I-9 requirements, such as a State-issued 
driver's license and an unrestricted Social Security Account Number 
card, until a new card can be issued. In the alternative, LPRs may 
request a temporary Form I-551 stamp in their passports or on Form I-
94, ``Arrival-Departure Record,'' that is evidence of LPR status while 
their renewal or replacement application is pending. Consequently, DHS 
does not adopt the commenters' recommendations.
---------------------------------------------------------------------------

    \5\ See Memorandum by Michael Aytes, Former Acting Director, 
USCIS, Response to Recommendation 35, Recommendations on USCIS 
Processing Delays for Employment Authorization Documents, (Jan. 2, 
2009) (available at http://www.dhs.gov (Citizenship and Immigration 
Services Ombudsman page)).
---------------------------------------------------------------------------

    Two of the five commenters also wrote that if USCIS precludes the 
use of expired documents, then USCIS should adopt a rule that permits 
employers to accept, in lieu of an acceptable Form I-9 document, a 
receipt for the application of replacement of an expired document, for 
a 240-day period. These two commenters also stated that the current 90-
day period provides insufficient time to present proper documentation 
due to USCIS's processing delays.
    DHS is not adopting the suggestion by the commenter to expand the 
period of time that a receipt for the application for a replacement 
document may be used in lieu of a document listed as acceptable for 
Form I-9. The commenter is referring to the ``receipt rule'' which 
allows employers to accept a document specified in the regulations as a 
``receipt'' in lieu of a List A, B, or C document for a temporary 
period. Under the receipt rule, an employer may accept a receipt for 
the application for a replacement document for a 90-day period for Form 
I-9 if the List A, B, or C document that is being replaced has been 
lost, stolen, or damaged. See 8 CFR 274a.2(b)(1)(vi)(A). Because the 
receipt rule only applies if the List A, B, or C document has been 
lost, stolen, or damaged, and not when the document has expired, it is 
not relevant to DHS's preclusion of the use of expired documents.
    Another commenter wrote that refugees should be permitted a grace

[[Page 21228]]

period of 90 days from the requirement that they present an unexpired 
document because refugees are employment-authorized incident to their 
status and may not receive an initial EAD from USCIS in a timely 
manner. The commenter also wrote that refugees may not be aware that 
expired documents are no longer acceptable.
    DHS has not adopted the commenter's suggestions in this final rule. 
USCIS expedites applications for those refugees who choose to apply for 
an EAD. DHS records show that, in most instances, USCIS issues EADs to 
refugees within two weeks of their admission to the United States. In 
addition, current regulations already contain a ``90-day grace period'' 
for refugees. Until refugees receive their EADs, they may present Form 
I-94, ``Arrival-Departure Record,'' with an unexpired refugee admission 
stamp as temporary proof of employment authorization. See 8 CFR 
274a.2(b)(1)(vi)(C)(1). Refugees have 90 days from receipt of the 
admission stamp to present either an EAD or a combination of a List B 
and List C document. See 8 CFR 274a.2(b)(1)(vi)(C)(2).
4. Definition of an Unexpired Document
    One commenter requested that DHS provide a definition of the term 
``unexpired.'' In general, DHS considers a document to be unexpired 
when the expiration date on the face of the document, if any, has not 
passed. DHS is not, however, including a formal definition of 
``unexpired'' in this final rule. DHS has determined that, given the 
wide variety of documents acceptable for Form I-9 purposes, and the 
fact that the term has been present in the regulations for many years, 
it would not be appropriate or necessary to provide an all-encompassing 
definition of the term in this rulemaking. DHS will provide guidance to 
the public in response to specific questions concerning particular 
documents as appropriate.

C. Comprehensive Review of the Form I-9 Process

    Six commenters expressed concerns about the entire Form I-9 
employment verification process. Three of the six commenters requested 
that DHS conduct a comprehensive review of the entire Form I-9 process 
that carefully considers the Illegal Immigration Reform and Immigrant 
Responsibility Act of 1996 (IIRIRA).
    DHS has not adopted these comments as they are outside the scope of 
the interim rule. The interim rule did not make changes to the 
verification process as a whole. Instead, the rule made limited changes 
to the types of documents that are acceptable for employment 
verification, such as eliminating outdated List A documents and 
precluding the presentation of expired documents. See, e.g., 73 FR 
76506-07. DHS regularly reviews and analyzes its programs for 
improvement and greater effectiveness and may consider changes to the 
employment verification process in a future rulemaking.
    One of the commenters wrote that DHS has not removed enough 
documents from the Lists of Acceptable Documents on Form I-9 to fulfill 
its mandate under the authorizing statute. DHS assumes that the 
commenter is referring to the document reduction provision of IIRIRA. 
IIRIRA amended section 274A(b)(1) of the INA, 8 U.S.C. 1324a(b)(1), by 
removing several documents from List A (e.g., certificate of 
naturalization) and List C (e.g., birth certificate). However, IIRIRA 
retained the authority of the Attorney General (now the Secretary of 
Homeland Security) to designate additional documents within certain 
boundaries, including the requirement that the designated documents 
contain security features that make them resistant to tampering, 
counterfeiting, and fraudulent use. The former Immigration and 
Naturalization Service (INS) implemented the document reduction mandate 
of IIRIRA in its interim rulemaking at 62 FR 51001 (Sept. 30, 1997). 
DHS believes that the 1997 interim rulemaking met its statutory mandate 
to ensure that the documents remaining on List A and C contain certain 
minimum security features. Through this final rule, DHS is making 
additional changes to further secure the Form I-9 process.
    One commenter suggested that Form I-9 is not an effective tool to 
discourage unauthorized employment because an employer can easily 
discard a Form I-9 after three years under certain circumstances. The 
same commenter also noted that an employee's departure from the United 
States is not confirmed after his or her employment authorization has 
expired.
    DHS has not addressed Form I-9's effectiveness as a means of 
providing employment verification or reporting the departure of aliens 
previously authorized to work in this rulemaking. The Form I-9 
retention requirement is statutory, and, therefore, is not within DHS's 
authority to change. The statute requires that employers retain 
completed Forms I-9 for all employees for three years after the date an 
employee is hired, or one year after the date employment is terminated, 
whichever is later. See INA section 274(b)(3), 8 U.S.C. 1324a(b)(3); 8 
CFR 274a.2(b)(2)(i)(B). For more information on retention requirements, 
please refer to the Handbook.\6\
---------------------------------------------------------------------------

    \6\ Part Three, ``Photocopying and Retaining Form I-9'' 
``Handbook for Employers, Instructions for Completing Form I-9'' (M-
274) (Rev. 01/05/11), http://www.uscis.gov, pages 23-26.
---------------------------------------------------------------------------

    With respect to the commenter's suggestion that an employee's 
departure from the United States be noted on Form I-9, current rules 
only require reverification of employment authorization once the 
employment authorization noted on Form I-9 expires. See 8 CFR 
274a.2(b)(1)(vii). The interim rule did not modify the reverification 
provision. Note that an individual whose employment authorization has 
expired may not necessarily be required to depart the United States if 
he or she remains lawfully present in the United States (e.g., asylees) 
or has received a renewal of employment authorization.
    Another commenter requested that the 2008 interim rule be withdrawn 
because of DHS's failure to perform a comprehensive review of the Form 
I-9 process, noting that time and resources could be better spent on a 
comprehensive review.
    DHS is not withdrawing the 2008 interim rule for purposes of 
conducting a comprehensive review. The changes made in the interim rule 
will lead to significant administrative benefits by reducing employer 
confusion and increasing compliance. Moreover, to withdraw the rule and 
revert to the preceding Form I-9 also would result in considerable 
confusion among employers. DHS continually reviews and analyzes the 
employment eligibility verification process and considers changes to 
the process as appropriate. DHS may propose additional changes in the 
Form I-9 verification process in the future as needed.

D. The 1998 Notice of Proposed Rulemaking

    Two commenters discussed the 1998 notice of proposed rulemaking 
found at 63 FR 5287. One commenter wrote that prior to the 2008 interim 
rule, the former INS last requested public comments in 1998 and has not 
published responses to those comments. The commenter added that DHS has 
not promulgated a rule in the Federal Register on one issue mentioned 
in the preamble to the 1998 proposed rule: The good faith defense 
against technical Form I-9 paper violations. The commenter also wrote 
that the failure to promulgate rules has denied employers

[[Page 21229]]

a compliance standard and led to confusion.
    DHS agrees with the commenter that the INS did not publish 
responses to the public comments received with respect to the 1998 
proposed rule, and neither has DHS published responses to the comments. 
As stated in the Supplementary Information to the interim rule, 
however, the interim rule superseded the 1998 proposed rule, and the 
comments received as part of that rulemaking informed the development 
of the interim rule. DHS does not intend to publish responses to the 
public comments, given the time that has passed since the 1998 proposed 
rule. INS published a proposed rule in 1998 regarding the good faith 
defense against technical Form I-9 paper violations. See 63 FR 16909 
(Apr. 7, 1998). DHS disagrees that employers have been operating 
without a compliance standard. The Handbook for Employers provides 
guidance for employers on Form I-9 compliance.\7\
---------------------------------------------------------------------------

    \7\ Part Four, ``Unlawful Discrimination and Penalties for 
Prohibited Practices,'' ``Handbook for Employers, Instructions for 
Completing Form I-9'' (M-274) (Rev. 01/05/11), http://www.uscis.gov, 
page 30. See also Part Four, ``Unlawful Discrimination and Penalties 
for Prohibited Practices,'' ``Handbook for Employers, Instructions 
for Completing Form I-9'' (M-274) (Rev. 07/31/09) (no longer 
available online), p. 22. Part Four, ``Unlawful Discrimination and 
Penalties for Prohibited Practices,'' ``Handbook for Employers, 
Instructions for Completing Form I-9'' (M-274) (Rev. 04/03/09) (no 
longer available online), p. 19; Part Four, ``Unlawful 
Discrimination and Penalties for Prohibited Practices,'' ``Handbook 
for Employers, Instructions for Completing Form I-9'' (M-274) (Rev. 
11/1/2007) (no longer available online), p. 17; and Part 5, 
``Penalties for Prohibited Practices,'' ``Handbook for Employers, 
Instructions for Completing Form I-9'' (M-274) (11/1991) (no longer 
available online), p. 10.
---------------------------------------------------------------------------

E. Mistake in Interim Rule

    One commenter alerted DHS that the interim rule erroneously added 
the language ``with an unexpired passport'' to the regulation found at 
8 CFR 274a.2(b)(1)(vi)(B)(1). The commenter pointed out that the 
regulation in question describes a receipt for Form I-551, ``Permanent 
Resident Card,'' (the arrival portion of Form I-94 with an unexpired 
temporary Form I-551 stamp and photograph of the individual) and that 
the interim rule had placed language in the wrong section.
    DHS published a correction to 8 CFR 274a.2(b)(1)(vi)(B)(1) in the 
Federal Register on January 16, 2009 at 74 FR 2838 and deleted the 
erroneous language.

F. Delay in Effective Date of Interim Rule

    Ten commenters requested a delay in implementation of the interim 
rule. DHS did delay the initial effective date, extending the date from 
February 2, 2009, to April 3, 2009. DHS determined that there was no 
basis for any further delay in the effective date for this rule.

G. Comments to the Form I-9

    DHS received several comments regarding Form I-9 in response to the 
information collection published with the interim rule. These comments 
are addressed below.
1. Expiration Date of Form I-9
    Eight commenters discussed the expiration date indicated on Form I-
9. Six commenters were concerned that the revised Form I-9 (Rev. 02/02/
09) might expire on June 30, 2009, as indicated on the form. Four 
commenters suggested that because the current Form I-9 bears an 
expiration date of June 30, 2009, employers should be allowed to 
continue using the preceding Form I-9 until that time, with its 
allowance for accepting expired documents. Three commenters noted that 
the gap between the implementation date of the new form and the 
expiration of the old form is confusing. One commenter argued that DHS 
should allow the use of either Form I-9 until June 30, 2009.
    Employers may use either Form I-9 with the new revision date of 08/
07/09 or Form I-9 with the 02/02/09 revision date. On April 28, 2009, 
DHS published a 30-day notice in the Federal Register at 74 FR 19233, 
extending the expiration date of Form I-9 (Rev. 02/02/09) beyond June 
30, 2009. The expiration date is now August 31, 2012. Therefore, the 
commenters' concerns about whether to use Form I-9 (Rev. 02/02/09) are 
moot. DHS recognizes that the expiration date on Form I-9 may be 
confusing to some employers. The Office of Management and Budget (OMB) 
expiration date found on the front page of Form I-9 refers only to the 
control number assigned for the information collection requirements of 
the form, which must be updated and renewed periodically.
2. Adding Miscellaneous Instructions and Reorganizing Form I-9
    Seven commenters recommended specific changes to Form I-9. Two 
commenters recommended that all acceptable documents and receipts be 
included on Lists A, B, and C. Another commenter requested that Part 8 
of the Handbook be updated to include the current Lists of Acceptable 
Documents. One commenter requested that DHS provide guidance about List 
A, Item 5, the foreign passport with Form I-94 indicating:
    <bullet> Nonimmigrant status,
    <bullet> Work is authorized incident to status, and that
    <bullet> Work is restricted for a specific employer.
    While DHS appreciates the commenters' recommendations, DHS is not 
making further changes to Form I-9 beyond those made based on the 
interim rule. DHS may consider these recommendations when undertaking 
future revisions to Form I-9 and the Handbook.\8\ Note that the 
Handbook contains a listing of all documents, including receipts, that 
are acceptable for Form I-9. DHS has also included a section in the 
Handbook that provides images of common documents acceptable as 
permanent or temporary proof of employment authorization.\9\ The 
Handbook provides guidance on nonimmigrant aliens with temporary 
employment authorization who present List A, Item 5 documents.\10\ DHS 
released a revised Handbook on January 5, 2011.
---------------------------------------------------------------------------

    \8\ Id.
    \9\ Part Eight, ``Acceptable Documents for Verifying Employment 
Authorization and Identity,'' in the ``Handbook for Employers, 
Instructions for Completing Form I-9'' (M-274) (Rev. 01/05/11), 
http://www.uscis.gov, pages 51-63.
    \10\ Part Two, ``Completing Form I-9,'' ``Handbook for 
Employers, Instructions for Completing Form I-9'' (M-274) (Rev. 01/
05/11), http://www.uscis.gov, pages 3-19.
---------------------------------------------------------------------------

    One commenter requested that instructions to Form I-9 be written in 
plain language. DHS promotes and supports the use of plain language and 
regrets that the commenter found the instructions difficult to 
understand. DHS will continue carefully to examine future changes to 
Form I-9 for plain language.
    Another commenter recommended that the boxes to attest to U.S. 
citizenship and noncitizen national status should be separated on Form 
I-9. In the Form I-9 accompanying the interim rule, DHS added a 
separate check box for U.S. citizens and noncitizen nationals in the 
immigration/citizenship status attestation of Section 1 of Form I-9. 
DHS is retaining this change in Form I-9.
3. Public Access to New Forms I-9 Prior to Issuance
    Two commenters requested that any future version of Form I-9 be 
made available at http://www.uscis.gov further in advance to allow the 
public time to prepare for changes.
    DHS recognizes the need for employers and human resource 
professionals to have sufficient time to prepare for any changes to 
Form I-9. For this rulemaking, DHS made Form I-9 available to the 
public for informational

[[Page 21230]]

purposes on December 17, 2008. DHS will make every effort to make any 
future version of Form I-9 available on USCIS's Web site at the 
earliest possible time.
4. Discretion in Use of Incorrect Form I-9 Due to Employer Confusion 
Following Implementation of the Interim Rule
    One commenter requested that DHS exercise favorable discretion for 
employers who unintentionally used the wrong Form I-9 after the interim 
rule went into effect.
    Beginning April 3, 2009, employers were required to use the Form I-
9 (Rev. 02/02/09) containing the revisions based on the interim rule. A 
subsequent Form I-9 was made available on August 7, 2009 (Rev. 8/7/09). 
Employers may use either form. DHS may exercise favorable discretion if 
an employer unintentionally used the wrong Form I-9 due to confusion 
regarding which form to use between February 2009 and April 2009. 
Employers who used the wrong form during this time period are still 
expected to comply with all other Form I-9 regulations applicable to 
the preceding form.
5. Creating an Electronic Employment Eligibility Verification Process
    Three commenters requested that DHS make an electronic Form I-9 
available that could be used with human resources software. Another 
commenter requested specific technical improvements to create a solely 
electronic employment authorization verification process. Four 
commenters noted that the Form I-9 provided on the USCIS Web site was 
password-protected or had security settings that prohibited them from 
completing and saving the form electronically. These commenters also 
requested that DHS provide an electronic Form I-9 that can be 
completed, signed electronically and saved on their computer systems.
    DHS appreciates the commenters' recommendations regarding requested 
enhancements in electronic completion and storage of the electronic 
Form I-9. These comments are technical in nature and outside the scope 
of the changes that DHS is making to Form I-9 through this rulemaking. 
Changes to Form I-9 are limited to amending the Lists of Acceptable 
Documents and making minor clarifications to the data elements on the 
form.
    The revised Form I-9 that DHS posted on the USCIS Web site as of 
January 16, 2009, can be completed online but cannot be signed and 
stored electronically. As such, DHS must password-protect the form to 
prevent the public from making any changes to it. DHS recognizes the 
public's desire for an electronic Form I-9. DHS is continually 
evaluating possible improvements to the Form I-9 process so that it is 
more user-friendly.

H. Suggested Revisions to the Lists of Acceptable Documents

    DHS received several suggested changes to the lists of documents 
acceptable for Form I-9. Suggested changes to List A documents include 
one commenter's proposal for DHS to rename the Native American tribal 
document and add it to List A because it is already acceptable as both 
a List B and List C document. Two commenters requested that Form I-797, 
``Notice of Action,'' be made an acceptable document for permanent 
residents who possess an expired Form I-551 and whose conditions on 
status have been removed. One commenter requested that Form I-797 serve 
as an acceptable receipt for a List A document until the initial Form 
I-551 is received in the mail. Four commenters requested that 
Certificates of Naturalization or Citizenship be added to List A of 
Form I-9. One commenter wrote that it is discriminatory to allow U.S. 
citizens to use certified copies of birth certificates but not allow 
Certificates of Naturalization or Citizenship for those born outside of 
the United States. Two commenters requested that enhanced State-issued 
drivers' licenses be added to the list of documents that establish both 
identity and employment authorization (List A).
    Suggested changes to acceptable documents on List B of Form I-9 
included one commenter's suggestion that Native American tribal 
documents meet the same minimum requirements as State-issued driver's 
licenses if they are included on List B. Two commenters wrote that 
school ID cards should meet the same minimum requirements as State-
issued driver's licenses.
    With respect to changes to acceptable documents on List C of Form 
I-9, one commenter proposed that voter registration cards, currently 
under List B, be made acceptable documents on List C because such 
documents evidence that the bearer is 18 or older and a U.S. citizen. 
Concerning all documents acceptable for Form I-9, two commenters 
suggested the addition of biometrics to Form I-9 documents. One of the 
two commenters suggested that the addition of biometrics would prevent 
identity fraud.
    DHS appreciates these commenters' concerns and suggestions. 
However, these comments do not address the changes made in the interim 
rule to the Lists of Acceptable Documents for Form I-9 and, therefore, 
are outside the scope of this rulemaking. In considering any future 
changes to the Lists of Acceptable Documents, DHS may consider 
commenters' suggestions.

I. Standardizing State and Federal Document Requirements

    One commenter suggested that all State and Federal agencies should 
accept the documents on Lists A, B, and C of Form I-9 as proof of 
entitlement to a benefit.
    This suggestion is outside the scope of the interim rule, which is 
limited to documents used for the Form I-9 employment eligibility 
verification process. Moreover, DHS does not have the authority to 
mandate that State and Federal agencies accept Form I-9 documents as 
proof of entitlement to benefits.

J. Requests for Outreach and Guidance

    DHS received several requests for additional outreach to the public 
and additional guidance on the Form I-9 process. Two commenters 
requested that DHS perform greater outreach to inform the public about 
their responsibilities concerning Form I-9. One of the two commenters 
indicated that special efforts should be made to reach refugees and 
asylees.
    One commenter asked whether Forms I-9 that were completed a few 
days before the effective date of the revised Form I-9 still have to 
meet the requirements of the final rule.
    Two commenters wrote that there is insufficient guidance for the 
many categories of aliens with temporary employment authorization. One 
commenter wrote that many of these aliens are at risk of losing or 
being denied employment because they are unable to meet the 
requirements of the interim rule. The first commenter wrote that since 
the notice of proposed rulemaking at 63 FR 5287 was published in 1998, 
Congress and USCIS have created a number of new categories of 
employment authorization, for which it provided only sporadic or no 
guidance. The first commenter also wrote that the 1997 interim rule 
that precedes this interim rule (see 62 FR 51001) provides no guidance 
for these categories. Both commenters, however, requested DHS guidance 
for the special categories of temporary employment authorization with 
varying validity periods, such as those with automatic extensions.
    With respect to acceptable documents for Form I-9, one commenter 
requested that DHS provide examples of school ID cards acceptable as 
List B documents.

[[Page 21231]]

One commenter asked whether an employer can accept documents other than 
those the employee originally presented under the receipt rule and 
would like this clarification to be included in the Handbook.
    With respect to completion of Form I-9, one commenter wanted to 
know whether a notary public can act on behalf of an employer.
    Several commenters requested that DHS provide additional guidance 
for employers about reverification of an employee's continued 
employment authorization. Six commenters requested clarification on 
reverifying documents that have expired after the time of hire and 
after Form I-9 is completed. Four commenters asked if U.S. passports or 
State-issued drivers' licenses had to be reverified. One commenter 
requested that refugees and asylees not be required to be reverified 
once their EADs expire because both are authorized to work incident to 
status. One commenter wanted to know how to complete Form I-9 for 
employees who are rehired by the same employer and whose documents that 
were used to complete the original Form I-9 have expired. The commenter 
also questioned whether Section 3 of Form I-9 has sufficient room to 
reverify two documents. Two commenters asked if they were required to 
reverify expired passports from FSM or RMI that were not expired at the 
time Form I-9 was initially completed.
    DHS appreciates the commenters' requests for outreach and further 
guidance on the Form I-9 process. In addition to multiple written 
resources, including the Handbook, USCIS continually provides 
individualized outreach to employers. USCIS regularly provides Web-
based seminars on Form I-9 and E-Verify and conducts live presentations 
in several states. Employers may request these seminars and live 
presentations at the DHS Web site. USCIS also collaborates with U.S. 
Immigration and Customs Enforcement (ICE) to provide additional 
outreach to employers regarding employment authorization requirements. 
Employers with specific questions related to the Form I-9 process are 
encouraged to call the USCIS Verification Division at 1-888-464-4218.

K. Comprehensive Immigration Reform

    Nineteen commenters requested that DHS conduct a comprehensive 
reform of current immigration policies. Thirteen of the 19 commenters 
expressed opposition to the displacement of U.S citizens and/or 
employment-authorized persons in the workforce by undocumented workers. 
Two of the 19 commenters supported the legalization of undocumented 
workers. Three of the 19 commenters opposed continued legal immigration 
to the United States. Six of the 19 commenters specifically supported 
the use of E-Verify, and five commenters specifically opposed it.
    These comments are outside the scope of the interim rule which was 
limited to making discrete changes to the Lists of Acceptable Documents 
for Form I-9.

III. Regulatory Requirements

    The interim rule published by DHS on December 17, 2008, contains a 
complete regulatory analysis for the changes implemented under that 
rule. See 73 FR 76505, 76507-10.

A. Executive Order 12866

    This rule is a significant regulatory action under Executive Order 
12866, section 3(f)(1), Regulatory Planning and Review. Accordingly, 
the Office of Management and Budget (OMB) has reviewed this rule.
    DHS received three comments on the interim rule's estimated cost of 
renewing an expired document to comply with the rule. One commenter 
suggested that the costs may be too high for many individuals or may 
force an employee to get a new type of document. The commenter also 
wrote that the basis for the decision to remove expired documents is 
not supported by any study or statistic.
    DHS appreciates the concerns of the commenters regarding the added 
costs that some individuals may bear to obtain unexpired documents to 
meet the new Form I-9 requirement. However, DHS has determined that any 
such costs are outweighed by the benefits of retaining the requirement 
that all documents be unexpired. Continuing to permit use of expired 
documents for Form I-9 would undermine the reliability of the 
verification process. Expired documents are subject to fraud. DHS 
experience indicates that:
    <bullet> Older, invalid, expired documents are too easily converted 
to uses other than the purpose intended by their issuing authorities,
    <bullet> Requiring documents to be unexpired establishes a clear 
standard for U.S. employers,
    <bullet> Since an expired document is no longer useful for its 
original purpose as intended by the issuer, DHS should not impute 
validity to an expired document for purposes of Form I-9,
    <bullet> As stated in the interim rule, once the transition to the 
new Form I-9 is complete, DHS anticipates that the costs incurred by 
employers will decrease because the updated Lists of Acceptable 
Documents, 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.

DHS is not adopting the commenters' suggestions in this final rule.
    Another commenter objected to the use of leisure time to calculate 
the cost of the time spent obtaining unexpired documents, noting that 
the time spent retrieving documents could be spent working. DHS agrees 
that it is possible that some of the opportunity costs associated with 
obtaining replacements for expired documents could be based on the 
value of time spent working and not solely the value of leisure time as 
the interim rule estimated. In the example that the commenter refers 
to, the interim rule stated that if 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. See 73 FR 76510. The example 
said that costs for an identification card was $14.40, and that each 
affected person would spend about 4 hours of personal time to obtain a 
new card at a cost per hour of $14.06. Id. If the interim rule had used 
the Bureau of Labor Statistics employer compensation costs for all 
civilian occupations of $28.11 per hour worked, instead of the value of 
leisure, the example would have estimated that a person could expend up 
to $14.40 in cash and $112.44 in opportunity costs, or total costs of 
$126.84, to obtain a State-issued identification card. Thus, using, as 
suggested by the commenter, the value of time spent working instead of 
the value of leisure, along with the 1.2 percent figure from the 
American University study cited in the interim rule,\11\ the rule would 
have shown that the aggregate employee expense for obtaining an 
acceptable document could be as high as $88,280,640, instead of the 
$49,137,600 that was cited in the interim rule's example. It is likely 
that the time spent obtaining unexpired documents would be a mix of 
foregone leisure time and foregone work time and the actual cost would 
be within the range of the $49,137,000 cited in the interim rule and 
the $88,280,640 calculated above. DHS continues to believe these costs 
are outweighed by the benefits of retaining the requirement that all 
documents be unexpired.
---------------------------------------------------------------------------

    \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.

---------------------------------------------------------------------------

[[Page 21232]]

B. Regulatory Flexibility Act

    As discussed in the interim rule, DHS determined that this 
regulatory action is exempt from notice and comment rulemaking pursuant 
to 5 U.S.C. 553(b)(B). Therefore, the interim rule was exempt from the 
provisions of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq. 
Accordingly, USCIS has not prepared a regulatory flexibility analysis 
of this action.

IV. Paperwork Reduction Act (PRA)

    In the December 17, 2008, interim rule DHS requested and received 
OMB approval to use the revised Form I-9 when the interim rule became 
effective until June 30, 2009. The interim rule also allowed the public 
to submit comments on the revised Form I-9 for 60 days. The comments to 
the revised Form I-9 have been addressed in the supplementary portion 
of this final rule, and DHS determined it would not make additional 
changes to Form I-9 at this time. On April 28, 2009, DHS published a 
30-day notice in the Federal Register at 74 FR 19233 to extend the use 
of the revised Form I-9 past the June 30, 2009, expiration date. OMB 
approved the extension request on August 7, 2009. Form I-9 does not 
expire until August 31, 2012.

List of Subjects in 8 CFR Part 274a

    Administrative practice and procedure, Aliens, Employment, 
Penalties, Reporting and recordkeeping requirements.

    Accordingly, the interim rule amending 8 CFR part 274a, which was 
published in the Federal Register at 73 FR 76505 on December 17, 2008, 
including the corrections to the interim rule which were published in 
the Federal Register on January 16, 2009, at 74 FR 2838 and March 11, 
2009, at 74 FR 10455 are adopted as a final rule without change.

Janet Napolitano,
Secretary.
[FR Doc. 2011-9152 Filed 4-14-11; 8:45 am]
BILLING CODE 9111-97-P


</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>