Federal Register / Vol. 62, No. 178 / Monday, September 15, 1997 / Notices 48309

as set forth in § 401(b) and § 411(b) of the Act, as

amended by the Balanced Budget Act of 1997, Pub.

L. No. 105–33 (1997).

statutory exceptions is a provision

authorizing the Attorney General to

establish additional exceptions for

certain types of programs, services, and

assistance. The programs, services, and

assistance that the Attorney General

may specify are limited to those which

(1) deliver in-kind services at the

community level, including through

public or private nonprofit agencies; (2)

do not condition the provision of

assistance, the amount of assistance

provided, or the cost of assistance

provided on the individual recipient’s

income or resources; and (3) are

necessary for the protection of life or

safety. (Sections 401(b)(1)(D) and

411(b)(4).

The Department intends to publish an

Order finalizing the implementation of

that authority. Before it does so, the

Department is publishing this Notice to

solicit the input of federal, state, and

local agencies operating programs or

providing services or assistance that

may be covered by the final Order.

Responses to this solicitation will assist

the Department in reaching a final

determination regarding the types of

programs, services, or assistance that

should be covered by that Order. After

reviewing any comments and consulting

with other agencies, the Attorney

General then will issue a final

specification of programs, services, and

assistance for which all persons remain

eligible, regardless of immigration

status.

If you believe that any program or

programs you administer have been or

may be affected by the Attorney General

Order, the Department would appreciate

receiving your comments. In your

comments, please give the citations of

any applicable federal, state, or local

statutes or regulations that govern the

creation, operation, or scope of your

affected programs. Please also give a

brief description of the structure of the

program(s), your agency’s view of

whether the program, service, or

assistance falls within the purview of

the Attorney General Order, and any

arguments to support that

interpretation.

Dated: September 9, 1997.

Janet Reno,

Attorney General.

[FR Doc. 97–24272 Filed 9–12–97; 8:45 am]

BILLING CODE 4410–BB–M

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

[INS No. 1872–97]

Pilot Programs for Employment

Eligibility Confirmation

AGENCY: Immigration and Naturalization

Service, Justice.

ACTION: Notice.

SUMMARY: This notice prescribes

guidelines under which employers may

elect to participate in one or more of

three pilot programs for employment

eligibility confirmation to be conducted

by the Immigration and Naturalization

Service (Service) with the involvement

of the Social Security Administration

(SSA). This notice also requests

comments from employers and other

interested parties on the pilots. The

Commissioner of the Service invites

employers in states where the three

pilot programs for employment

eligibility confirmation will be

conducted to contact the Service to elect

to participate in one or more of them.

The pilot programs build on the

experience of the Service and SSA over

the last 5 years in developing and

operating employment verification pilot

programs with the goal of enabling

participating employers to verify their

newly hired employees’ work eligibility

quickly, easily, and accurately.

DATES: There is no deadline for

submission of election forms to

participate in an employment

verification pilot program(s), but

interested employers should send their

completed election forms to the Service

as soon as possible to maximize their

opportunity to participate.

ADDRESSES: Please submit your election

forms, requests for information and any

comments you may have on the pilot

programs to the Immigration and

Naturalization Service, 425 I Street,

NW., ULLICO Building, 4th Floor,

Washington, DC 20536, Attention:

SAVE Program Branch—Election Forms

and/or Comments.

FOR FURTHER INFORMATION CONTACT:

John E. Nahan, Immigration and

Naturalization Service, SAVE Program,

425 I Street, NW., ULLICO Building, 4th

Floor, Washington, DC 20536, telephone

(202) 514–2317.

SUPPLEMENTARY INFORMATION:

I. Statutory Authority

Title IV, Subtitle A of the Illegal

Immigration Reform and Immigrant

Responsibility Act of 1996 (IIRIRA),

Pub. L. 104–208, 110 Stat. 3009, enacted

on September 30, 1996, provides that all

United States employers, subject to

eligibility for participation, geographical

limitations, and limitations of available

Service and SSA resources, may elect to

participate in one or more of three

employment verification pilot programs

to be conducted by the Service. The

three pilot programs are: (1) the Basic

Pilot; (2) the Citizen Attestation Pilot;

and (3) the Machine-Readable

Document Pilot.

II. Purpose

The purpose of these pilot programs

is to implement IIRIRA’s mandate to test

three methods of providing an effective,

nondiscriminatory work eligibility

verification procedure focusing on

electronic verification. Through an

automated confirmation system,

employers will match information

provided by employees on the Form I–

9, Employment Eligibility Verification,

against existing information contained

in SSA’s or the Service’s databases to

confirm that an individual is eligible to

work.

III. General Description of the Pilot

Programs for Employment Eligibility

Confirmation

The IIRIRA requires the Service to

conduct three distinct pilot programs,

each of which can last no longer than 4

years, unless otherwise directed by

Congress. The programs include: (1) the

Basic Pilot; (2) the Citizen Attestation

Pilot; and (3) the Machine-Readable

Document Pilot. Participation in the

pilots will be voluntary on the part of

employers, except with regard to the

executive and legislative branches of the

Federal Government and certain

employers found to be in violation of

sections 274A(e)(4) or 274B(g) of the

Immigration and Nationality Act (Act),

8 U.S.C. 1101 et seq., in states where the

pilots are being conducted. Although

the decision for an employer to

participate is voluntary, verification

may not be selective; all employees

subject to verification under the terms of

a pilot program must be verified by an

employer participating in that pilot.

A. Mandatory Elections

1. Federal Government Participation

Certain Federal Government entities

are required by Section 402(e) of IIRIRA

to elect to participate in at least one of

the three pilot programs. The Secretary

of each department of the executive

branch is required to make an election

of one or more of the pilot programs, but

may limit the election to hiring in those

states or geographic areas covered by the

pilot(s) selected, and to specified

divisions within the department, as long
48310 Federal Register / Vol. 62, No. 178 / Monday, September 15, 1997 / Notices

as all hiring by such divisions and in

such locations is covered. In the

legislative branch, each Member of

Congress, each officer of Congress, and

the head of each agency of the

legislative branch that conducts hiring

in a state in which a pilot program will

operate must participate in at lest one

pilot programs. Governmental entities

required to participate in a pilot

program must return the election form

to the Service. The Service’s acceptance

of elections by employers required to

make elections is subject to the

constraints of available resources and

the pilot eligibility requirements.

2. Violators of the Act

Orders finding employers liable under

sections 274A(e)(4) or 274B(g) of the Act

for knowingly employing unauthorized

aliens, or under section 274B(g) of the

Act for unfair immigration-related

employment practices, may require the

subject of the order to participate in a

pilot program with respect to hiring,

recruitment, or referral of individuals in

a state covered by such a program. This

provision will be the subject of

forthcoming regulations or other

necessary implementing action by the

authorities responsible for issuing such

orders. Persons or entities subject to

such orders should not return the

election form to the Service, unless they

desire to participate voluntarily in a

pilot program.

Persons or entities required to

participate in a pilot program who fail

to comply with the requirements of the

pilot program, with respect to an

individual, are subject to civil penalties

under section 274A of the Act.

B. Confirmation System Requirements

Section 404(d) of IIRIRA requires that

the confirmation system to be

established to service employers

participating in the three pilot programs

be designed and operated to:

(1) maximize reliability and ease of

use, consistent with protecting the

privacy and security of the underlying

information;

(2) respond to all appropriate

inquiries and to register times when

such inquiries are not received;

(3) include appropriate safeguards to

prevent unauthorized disclosure of

personal information; and

(4) have reasonable safeguards against

the system’s resulting in lawful

discriminatory practices based on

national origin or citizenship status,

including the selective or unauthorized

use of the system to verify eligibility,

the use of the system prior to an offer

of employment, and the exclusion of

certain individuals from consideration

for employment as a result of a

perceived likelihood that additional

verification will be necessary, beyond

what is required for most job applicants.

All the pilots will have a number of

features and safeguards in common to

meet these requirements. The

confirmation system will contain

safeguards designed to protect the

integrity of personal information

contained in SSA and Service databases,

including passwords, access codes, and

user identification numbers. The

information provided through the

confirmation system will be limited

only to that necessary to satisfy the

employer’s need to verify work

eligibility. Necessary manuals and

training material will be provided to

employers. The Service will designate

one or more individuals in each Service

district office covering an area in which

a pilot program is being implemented to

assist the public, as well as provide

information and assistance from the

Service’s SAVE Program in Washington,

DC.

C. Memorandum of Understanding

(MOU)

No employment eligibility

confirmation information will be

exchanged between the employer and

the Service or SSA under a pilot

program unless and until the employer

has entered into an MOU with the

Service and SSA (if applicable), stating

in detail the terms and conditions

applicable to that pilot. The MOUs for

each pilot will contain appropriate

undertakings on the part of the

employer regarding its responsibilities

under the pilot including, but not

limited to, the following:

(1) the employer agrees that it will not

initiate any verification procedure until

after the employee has been hired and

the Form I–9 has been completed;

(2) the employer agrees that it will

verify all new employees subject to

verification under the terms of the pilot;

(3) the employer agrees to display

prominently appropriate notices to

inform employees and prospective

employees about its participation in the

pilot and to provide anti-discrimination

information; and

(4) the employer agrees not to take

any adverse action against an employee

based upon his or her employment

eligibility status while SSA or the

Service is processing a verification

request, unless the employer obtains

knowledge that the employee is

unauthorized;

(5) the employer agrees to provide

access to its employment records to the

Service and SSA, and its agents or

designees for the purpose of pilot

evaluation; and

(6) the employer agrees that the

information provided to it through the

confirmation system will be used to

supplement and confirm the Form I–9

verification of identity and work

authorization of newly hired employees,

and not for any other purpose.

Violation of these conditions will be

grounds for immediate termination of

the employer’s participation in the pilot,

and for appropriate legal action. In

particular, information received by the

Service or SSA in the course of the pilot

indicating that the employer has

engaged in unlawful immigrationrelated employment practices will be

referred to the Special Counsel for

Immigration-Related Unfair

Employment Practices within the Civil

Rights Division of the Department of

Justice.

Except as otherwise specifically

designated by IIRIRA, all legal

obligations pertaining to employment

verification and to the obtaining and use

of SSA or other Federal Government

information, including antidiscrimination protections, will

continue to apply to pilot program

participants. Section 403(d) of IIRIRA

states that no person or entity

participating in a pilot program shall be

civilly or criminally liable under any

law for any action taken in good faith

reliance on information provided

through the confirmation system.

Under section 402(b) of IIRIRA, an

employer participating in any of the

three pilot programs obtains the benefit

of a rebuttable presumption that it has

not violated section 274A(1)(A) of the

Act—which provides civil penalties for

knowingly employing an unauthorized

alien—with respect to the hiring of any

individual if it obtains confirmation of

the identity and employment eligibility

of the individual in compliance with the

terms and conditions of the pilot

program.

D. Unfair Immigration-Related

Employment Practices

An employer participating in any of

the pilots agrees not to discriminate

unlawfully against any individual in

hiring, firing, or recruitment practices

because of his or her national origin or,

in the case of a protected individual, as

defined in section 274B(a)(3) of the Act,

because of his or her citizenship status.

Such illegal practices can include

discharging or refusing to hire eligible

employees because of their foreign

appearance or language. An employer

also violates the anti-discrimination

provision if it requests more or different

documents than are required under
Federal Register / Vol. 62, No. 178 / Monday, September 15, 1997 / Notices 48311

section 274B of the Act, or refuses to

honor documents that on their face

reasonably appear to be genuine, if done

with the purpose or with the intent of

discriminating against an individual

because of his or her citizenship or

national origin. Violation of the unfair

immigration-related practices provisions

of the Act could subject an employer to

civil penalties pursuant to section 274B

of the Act.

E. Evaluation of Pilot Programs

Section 405 of IIRIRA requires that

the Service report to Congress on the

Basic Pilot, the Citizen Attestation Pilot,

and the Machine-Readable Pilot

programs and make recommendations

on whether they should be continued or

modified. To assist in evaluating the

pilots and developing these reports, the

Service or auditors contracted by the

Service may contact participating

employers to review work records

created during the pilot(s), and to solicit

their views and the views of their

employees concerning these pilot

programs.

F. Equipment Requirements

The Service and SSA will provide the

verification services contemplated by

the employment verification pilot

programs at no cost to employers, but

employers will be responsible for

providing the equipment needed to

make inquiries. Equipment needed for

participation in the Basic Pilot and the

Machine-Readable Document Pilot

includes a personal computer with a

modem, and a touch-tone telephone

(and modem, if the same device) on a

phone line which results in only one

phone number being recognized as the

originating phone number, regardless of

whether it is controlled through a

switch, private branch exchange, or

direct outward dialing—this line should

be an analog voice grade line.

Equipment required for the Citizen

Attestation Pilot is a personal computer

and a modem. For the MachineReadable Document Pilot, a machine to

read the machine-readable documents

will be necessary in addition to the

Basic Pilot equipment. No decision has

been made yet as to exactly what

machine will be used for the MachineReadable Document Pilot, or as to

whether employers will be responsible

for providing it. The requirements for

the Machine-Readable Document Pilot

will be defined in a separate

Memorandum of Understanding (MOU)

between the Service, SSA, and the

participating employer.

IV. Basic Pilot

The Basic Pilot requires participating

employers to verify employment

authorization for all new employees,

regardless of citizenship. The IIRIA

mandates that the Basic Pilot be offered

to employers in at least five of the seven

states with the highest estimated

population of aliens who are not

lawfully present in the United States.

The Service has estimated the

population of aliens who are not

lawfully present in the United States to

be highest in the states of California,

Texas, New York, Florida, and Illinois,

and is soliciting elections to participate

from employers in those five states.

A. Changes to Form I–9 Procedures for

the Basic Pilot

Unlike Service employment

verification pilots to date, the Basic

Pilot involves changes to Form I–9

employment verification procedures.

Except as specifically provided,

however, all employment eligibility

verification requirements generally

applicable to employers apply equally

to pilot participants. The only specific

change to document examination

procedures for employers participating

in the Basic Pilot will be that ‘‘List B’’

identity documents without a

photograph will not be acceptable, for

the following reasons:

(1) Documents referred to in section

274A(b)(1)(B)(ii) of the Act must be

designated by the Service as suitable for

the purpose of identification in a pilot

program. The documents referred to by

this statutory citation include all Form

I–9 ‘‘List A’’ documents acceptable for

both identity and employment

eligibility under 8 CFR 274a.2(b)(1)(A),

except for the U.S. Passport (expired or

unexpired). The Service hereby

designates all Form I–9 ‘‘List A’’

documents, identified by current

Service regulations, as suitable for the

purpose of identification in a pilot

program. The U.S. Passport (expired or

unexpired) is also suitable for the

purpose of identification in a pilot

program as a statutory Form I–9 ‘‘List

A’’ document, without the need for

specific designation by the Service. As

a result of this designation of suitable

documents, employment verification

procedures involving ‘‘List A’’

documents, showing both identity and

employment eligibility, will remain

unchanged for participants in the Basic

Pilot, and for participants in the Citizen

Attestation and Machine-Readable

Document pilots, to the extent that those

pilots adopt Basic Pilot procedures;

(2) The IIRIRA requires that a

document referred to in section

274A(b)(1)(D) of the Act contain a

photograph of the individual. This

statutory citation refers to Form I–9

‘‘List B’’ documents that establish

identity only under 8 CFR

274a.2(b)(1)(B). ‘‘List B’’ documents do

not necessarily include photographs.

However, only ‘‘List B’’ documents with

photographs may be accepted for

purposes of identity verification by

employers participating in the Basic

Pilot, or in the Citizens Attestation or

Machine-Readable Document pilots, to

the extent that those two pilots adopt

Basic Pilot procedures. The Service does

not anticipate issuing a new version of

the Form I–9 specifically for

employment verification pilot

participants;

(3) The IIRIRA states that the

employer has complied with the

employment eligibility verification

requirements of section 274A(b)(1) of

the Act with respect to examination of

a document if the document reasonably

appears on its face to be genuine and to

pertain to the individual whose identity

and work eligibility is being confirmed.

This provision does not alter, for pilot

program purposes, the standards for

document examination applicable to all

U.S. employers under sections

274A(b)(1) and 274B(a)(6) of the Act;

and

(4) The IIRIRA provides that if the

Service finds that a pilot program would

reliably determine, with respect to an

individual, whether the person with the

identify claimed by the individual is

authorized to work in the United States,

and whether the individual is claiming

the identity of another person, it may

waive the requirement that a Form I–9

‘‘List C’’ employment eligibility

document also be presented if the

employee presents a List B identity

document rather than a ‘‘List A’’

identity and employment eligibility

document. The pilot programs are

designed to make reliable

determinations of work eligibility, and

the Service will consider as they

proceed whether waiving the ‘‘List C’’

requirement is appropriate. Any such

determination prior to implementation

of the pilot programs, however, would

be premature.

B. Basic Pilot Verification Procedures

The Basic Pilot involves separate

verification checks (if necessary) of the

SSA and Service databases, using

automated systems to verify Social

Security account numbers (SSNs) and

alien registration numbers. The

verification procedures will be initiated

after the employee has been hired and

the Form I–9 completed. Employers

must verify all newly hired employees
48312 Federal Register / Vol. 62, No. 178 / Monday, September 15, 1997 / Notices

without exception, and must make

verification inquiries within 3 days of

the hiring (unless the automated system

to be queried is temporarily unavailable,

in which case the time period is

extended to accommodate employers

attempting, in good faith, to make

inquiries during the period of

unavailability).

In all cases, the verification inquiry

will go first to SSA. If necessary, the

SSA response will instruct employers to

use the Service’s automated verification

procedures. The automated verification

procedures are designed to verify the

employee’s work eligibility within 3

work days of the initial call to SSA. If

the automated procedures do not result

in verification, a ‘‘tentative

nonconfirmation’’ will result. In that

case, the employer will inquire of the

employee whether he or she wishes to

contest the tentative nonconfirmation. If

so, the employee will be referred to

secondary verification, which will

require him or her to contact or visit an

SSA or Service office, as appropriate,

within 8 Federal Government work days

of being notified by the employer of the

tentative nonconfirmation.

A tentative nonconfirmation received

from either SSA or the Service does not

mean that the employee is not

authorized to work, and employers may

not interpret it as such. There are many

reasons why a work-authorized

individual may be the subject of a

tentative nonconfirmation, including

mistakes on the Form I–9 by either the

employer or the employee, inaccurate

data entry by the employer, legal change

of the employee’s name, or erroneous,

incomplete, or outdated Government

records. Although it does not mean that

the employee is not work-authorized, a

tentative nonconfirmation means that a

work-authorized employee must,

without fail, take advantage of his or her

secondary verification opportunity to

correct the situation if he or she wishes

to continue employment.

SSA Verification—the Automated

System

After completing the Form I–9, the

employer will access the SSA database

using a touch-tone telephone to input

the employee’s name, SSN, and date of

birth, as recorded on the Form I–9. If the

data input by the employer matches the

SSA database and shows the employee

to be work-authorized, the employer

will receive a confirmation of

employment eligibility. If the

information does not match SSA

records, or if the employment eligibility

of the employee is not confirmed, the

employer will receive further

instructions. In some cases, the

employer will be instructed to initiate

the Service verification procedures. In

other cases, the SSA response shall

constitute a tentative nonconfirmation.

The employer will record appropriate

transaction codes received from SSA on

a verification transaction record form.

Social Security personal earnings

account information will not be

accessible to the employer through the

SSA verification process.

a. SSA Secondary Verification

If the employer receives a tentative

nonconfirmation of an employee from

SSA, the employer must notify the

employee and determine whether or not

the employee will contest the tentative

nonconfirmation. If the employee does

not contest the tentative

nonconfirmation, it will be considered a

final nonconfirmation. If the employee

contests the tentative nonconfirmation,

he or she must visit an SSA field office

within 8 Federal Government work days

to resolve any discrepancy in SSA

records, including updating the

database if appropriate. The SSA and

the Service have 10 Federal Government

work days within which to respond to

contested tentative nonconfirmation

cases. During this period, the employer

may not terminate or take adverse

against the employee based upon his or

her employment eligibility status. At the

expiration of the 8-day period, the

employer will make another telephone

inquiry of the SSA database, which will

result in confirmation, a second and

final nonconfirmation, or additional

verification instructions.

2. Service Verification—the Automated

System

The Service’s automated verification

will take place only as may be directed

by the SSA verification response.

Participating employers access the

Service database using personal

computers with a modem. To conduct

an initial query of the Service database,

the employer keys in certain

information from the employee’s Form

I–9. The Service database will respond

within seconds either by confirming

work authorization, or by requiring

more information relating to Form I–9

employment eligibility documentation

in order to permit the Service to

conduct further searches of its records.

The result of the further searches will be

available through the automated system

within 3 Federal Government work

days. If the Service is unable to confirm

work authorization based upon the

automated process, a tentative

nonconfirmation results.

a. Service Secondary Verification

An employee who is the subject of a

tentative nonconfirmation after

completion of an automated Service

verification check is provided a

secondary verification opportunity to

verify his or her employment status. In

these cases, the employer must notify

the employee of the tentative

nonconfirmation and determine

whether or not he or she will contest the

tentative nonconfirmation. If the

employee does not contest the tentative

nonconfirmation, it will be considered a

final nonconfirmation. If the employee

contests the tentative nonconfirmation,

he or she must contact the Service

within 8 Federal Government work days

for resolution of his or her case. The

employer will instruct the employee to

call a Service toll-free telephone number

or visit a local Service office within that

time period. The SSA and the Service

have 10 Federal Government work days

within which to respond to contested

tentative nonconfirmation cases. During

this period, the employer may not

terminate or take adverse action against

the employee based upon his or her

employment eligibility status, unless the

Service determines, within that time,

that the employee is not workauthorized.

Within or at the conclusion of the 10-

day period for secondary verification, an

employer will receive one of the

following messages via the electronic

confirmation system concerning the

employee’s work eligibility: (1) if the

employee contacts the Service and

verifies his or her employment

eligibility, the employer will receive an

‘‘employment-authorized’’ confirmation;

(2) if the employee contacts the Service

but the Service determines that the

employee is not work-authorized, the

employer will receive an

‘‘unauthorized’’ response (final

nonconfirmation); (3) if the employee

does not contact the Service to resolve

his or her case, the employer will

receive a ‘‘no show’’ response, which

shall also constitute a final

nonconfirmation for purposes of the

pilot; or (4) if in some cases the Service

needs more than 10 work days to

resolve a case, the employer will receive

a ‘‘case in continuance’’ response, and

the employee should continue to work

until a definitive answer is received

from the Service. If necessary, based on

the secondary verification contact, the

Service database will be updated. The

employer will record appropriate

verification codes received from the

Service, either by printing the

verification screen and attaching it to
Federal Register / Vol. 62, No. 178 / Monday, September 15, 1997 / Notices 48313

the Form I–9, or recording the

verification code on the Form I–9.

3. Consequences of Final

Nonconfirmation

An employer receiving a final

nonconfirmation from SSA or the

Service with regard to an employee may

terminate the employee, and shall not

be civilly or criminally liable under any

law for the termination, as long as the

action was taken in good faith reliance

on information provided through the

confirmation system. If the employer

does not terminate an employee after

final nonconfirmation, the employer

must notify the Service. If the employer

fails to notify the Service of continued

employment after receiving final

nonconfirmation, the failure is deemed

a violation of section 274A(a)(1)(B) of

the Act for failure to comply with

proper hiring procedures, and the

employer may be assessed a civil

monetary penalty of between $500 and

$1,000. An employer continuing to

employ an individual after receiving a

final nonconfirmation also could be

subject to legal penalties under section

274A(a)(1) of the Act. Section

403(a)(4)(C)(iii) of IIRIRA establishes a

rebuttable presumption that an

employer who continues to employ an

individual after receiving final

nonconfirmation has knowingly

employed an unauthorized alien.

V. The Citizen Attestation Pilot

The Citizen Attestation Pilot provides

different verification procedures

depending on whether or not the

employee attests on the Form I–9 that he

or she is a U.S. citizen or national.

Except as specified in section 403(b) of

IIRIRA, the Citizen Attestation Pilot is

the same as the Basic Pilot. The Citizen

Attestation Pilot is required to operate

in at least five states, or, if fewer, all of

the states in which each driver’s license

and identification card contains a

photograph of the individual, and

which have been determined by the

Attorney General to have sufficient

application and issuance procedures to

make their driver’s licenses and

identification cards resistant to

counterfeiting, tampering, and

fraudulent use.

Section 656(b) of IIRIRA directed the

Department of Transportation (DOT) to

promulgate regulations regarding

issuance procedures for state-issued

driver’s licenses and identification

cards, and the acceptable secure format

for such licenses and cards. As the

Citizen Attestation Pilot progresses, and

once the DOT regulations are

promulgated, the Service will make

further determinations based on those

regulations whether actual or

prospective Citizen Attestation Pilot

states meet DOT requirements. At

present, the Service has not made any

determination that any state’s

procedures are inadequate for

participation in the pilot. In order to

implement IIRIRA’s directive to begin

the Citizen Attestation Pilot, and to give

as many employers as possible the

opportunity to express interest in

participating in a pilot, the Service is

soliciting elections for the Citizen

Attestation Pilot from employers in all

states. Based on further determinations

as to licensing procedures in states with

sufficient employer interest, the Service

will decide which states will be the

initial sites for the Citizen Attestation

Pilot.

A. Changes to Form I–9 Procedures for

the Citizen Attestation Pilot

As in the Basic Pilot, the Service

designates all Form I–9 ‘‘List A’’

documents identified by current Service

regulations at 8 CFR 274a(2)(b)(1)(A) as

suitable for purposes of identification of

employees (regardless of citizenship) for

the Citizen Attestation Pilot. Also, only

‘‘List B’’ identity documents with

photographs may be accepted from any

employee by employers participating in

the Citizen Attestation Pilot. In all other

respects, the Form I–9 procedures for

employees who do not attest on the

Form I–9 that they are U.S. citizens or

nationals are the same as those

applicable to all U.S. employers under

section 274A of the Act.

The Form I–9 procedures applicable

to employers participating in the Citizen

Attestation Pilot in the case of

employees attesting to U.S. citizenship

or nationality in section 1 of the Form

I–9 are, however, quite different. The

only ‘‘List A’’ document that an

employer may accept from such an

employee is a U.S. passport (expired or

unexpired). If the U.S. citizen or

national employee presents a ‘‘List B’’

identity document, it must contain a

photograph. United States citizen or

national employees are not required to

present a social security card or other

‘‘List C’’ document evidencing

employment authorization in addition

to a ‘‘List B’’ identity document with

photograph.

1. Waiver of Document Presentation

Requirement

For a subset of employers within the

Citizen Attestation Pilot (fewer than

1,000 employers to be selected at the

discretion of the Service), employees

who attest to U.S. citizenship or

nationality on the Form I–9 do not have

to produce any documentation at all. In

those cases, only section 1 of the Form

I–9 will be completed. Normal retention

and inspection requirements will

continue to apply to such Forms I–9, as

they do to all Forms I–9 completed by

participants in any pilot program.

B. Citizen Attestation Pilot Automated

Verification Procedures

In the case of employees attesting to

U.S. citizenship or nationality on the

Form I–9 as described above, no further

verification will take place. For alien

employees, the process will be identical

to the ‘‘Service Verification’’ procedures

described for the Basic Pilot. The

Citizen Attestation Pilot will not use

SSA verification procedures.

VI. The Machine-Readable Document

Pilot

The Machine-Readable Document

Pilot is identical to the Basic Pilot in all

respects, and the above discussion of

the Basic Pilot applies to it in full,

except for the geographic scope of the

pilot and for one additional feature. If

an employee subject to employment

eligibility verification presents a driver’s

license or identification card containing

a machine-readable SSN issued by the

state in which the pilot program is being

conducted, the employer will make an

inquiry to SSA through the confirmation

system by using the machine-readable

feature. Integrating the machinereadable feature with the SSA database

presents particular technical challenges.

As a result, employers electing to

participate in the Machine-Readable

Document Pilot, and selected for

participation in it, may be offered the

otherwise identical Basic Pilot before

the machine-readable feature is

available, with later phase-in of that

feature.

The Machine-Readable Document

Pilot is required to operate in at least

five states or, if fewer, all of the states

that include a machine-readable SSN on

their driver’s licenses and identification

cards. The Service has determined for

the purposes of the Machine-Readable

Document Pilot that the state of Iowa

includes machine-readable SSNs on

some or all of its driver’s licenses and

identification cards. Employers in that

state may elect to participate in this

pilot.

VII. Eligibility for Participation in the

Pilot Programs

A. General Criteria

Subject to the specific limitations for

each pilot, and to the constraints of

available resources, any person or entity

that conducts any hiring, or any

recruiting or referral for a fee subject to
48314 Federal Register / Vol. 62, No. 178 / Monday, September 15, 1997 / Notices

section 274A(a)(1)(B)(ii) of the Act, in a

state in which a pilot program will

operate, may elect to participate in the

pilot. In other words, any employer or

other entity subject to the employment

eligibility verification requirements of

section 274(a)(1) of the Act is eligible.

‘‘State’’ includes the District of

Columbia, Puerto Rico, Guam, and the

Virgin Islands of the United States in

addition to the 50 states. All

participants must be willing to sign and

comply with the MOU for their

respective pilot, which will contain

more specific terms and conditions of

the pilot. The participation of any

employer in any pilot may be

terminated by the Service because the

employer has substantially failed to

comply with its obligations under the

pilot program.

Employers electing to participate in a

pilot program may request that their

election apply to all their hiring in each

of the states in which the pilot will take

place, or that it be limited to its hiring

in one or more applicable states, or to

one or more places of hiring within a

state. The Service will endeavor to

honor employers’ preferences to the

extent available resources and pilot

availability permits. Multi-site

employers may elect more than one

pilot if they hire employees in at least

one location within the geographic area

covered by each pilot elected. However,

each hiring location may only

participate in one pilot, any preference

may be given to employers not

otherwise able to participate in a pilot

over those who wish to participate in

more than one pilot.

Section 402 of IIRIRA permits the

Service to provide for employers’

elections to extend to states to which

the pilot programs are not operating, but

in which the employer hires. The

Service will determine when it is

feasible to provide for such extensions

outside pilot states based on employer

demand and available resources.

1. Basic Pilot Eligibility

Employers in California, Texas, New

York, Florida, and Illinois may elect to

participate in the Basic Pilot. The

Service has estimated that these states

have the highest population of aliens

who are not lawfully present in the

United States. At present, the SSA

verification system can service no more

than approximately 2,000 employers. As

a result, initial demand for the Basic

Pilot may substantially exceed

availability.

2. Citizen Attestation Pilot Eligibility

Employers in all states (including the

District of Columbia, Puerto Rico,

Guam, and the Virgin Islands of the

United States) may elect to participate

in the Citizen Attestation Pilot, but the

Service reserves the right to limit the

pilot to certain states based on the level

of employer interest and on further

determinations as to state licensing

procedures. The Service may restrict the

number of employers that may

participate in the Citizen Attestation

Pilot in order to produce a

representative sample of employers and

to reduce the potential impact of fraud,

as well as limitations based on available

resources that may apply to any or all

of the pilots. The number of employers

participating in the Citizen Attestation

Pilot for whom document presentation

requirements are waived under section

403(b)(4) of IIRIRA may be further

restricted in order to provide a

representative sample of employers, and

in no event will exceed 1,000

employers.

3. Machine-Readable Document Pilot

Eligibility

Employers in Iowa may elect to

participate in the Machine-Readable

Document Pilot. The Service has

determined that Iowa issues driver’s

licenses and similar identification

documents containing a machinereadable SSN. As the Machine-Readable

Document Pilot uses the same SSA

system limited at present to no more

than approximately 2,000 employers as

the Basic Pilot, initial availability of this

pilot will also be very limited.

VIII. Project Restrictions

The Service may limit participation in

any or all of the three pilots by rejecting

employers’ elections, or by limiting

their applicability to certain states or

places of hiring based on its

determination that there are insufficient

resources available to provide

appropriate services under the pilot

program to the employer. The lifespan

of each pilot program is limited to 4

years, beginning on the first day the

pilot is in effect.

IX. Request for Comments

Section 402(d) of IIRIRA mandates

consultation with representatives of

employers (and recruiters and referrers)

in the development and implementation

of the pilot programs. The details of

these pilot programs are still being

developed, and are subject to refinement

and modification in the course of

implementation. The Service

encourages all interested parties,

including but not limited to

representatives of employers (and

recruiters and referrers), to participate

in this process by providing written

comments to the Service in response to

this notice regarding any aspect of the

IIRIRA-mandated employment

eligibility confirmation pilot programs.

Comments should be mailed to the

Immigration and Naturalization Service,

425 I Street, NW., ULLICO—4th Floor,

Washington, DC 20536, Attention:

SAVE Program, Pilot Comments.

X. OMB Reporting Burden

The information collection

requirement (Form I–876) has been

approved by the Office of Management

and Budget provisions of the Paperwork

Reduction Act. The OMB control

number for this information collection

is 1115–0217.

Dated: September 9, 1997.

Doris Meissner,

Commissioner, Immigration and

Naturalization Service.

Note: The Form I–876 is provided as an

attachment to this notice can be reproduced.

BILLING CODE 4410–10–M
Federal Register / Vol. 62, No. 178 / Monday, September 15, 1997 / Notices 48315
48316 Federal Register / Vol. 62, No. 178 / Monday, September 15, 1997 / Notices

[FR Doc. 97–24422 Filed 9–12–97; 8:45 am]

BILLING CODE 4410–10–C