[Federal Register Volume 62, Number 178 (Monday, September 15, 1997)]
[Notices]
[Pages 48309-48316]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-24422]


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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.

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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

[[Page 48310]]

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 immigration-related 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 anti-
discrimination 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

[[Page 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 Machine-Readable 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 Machine-Readable 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

[[Page 48312]]

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 work-authorized.
    Within or at the conclusion of the 10-day period for secondary 
verification, an employer will receive one of the following messages 
via the electronic confirmation system concerning the employee's work 
eligibility: (1) if the employee contacts the Service and verifies his 
or her employment eligibility, the employer will receive an 
``employment-authorized'' confirmation; (2) if the employee contacts 
the Service but the Service determines that the employee is not work-
authorized, the employer will receive an ``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

[[Page 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 machine-readable feature with the SSA database 
presents particular technical challenges. As a result, employers 
electing to participate in the Machine-Readable Document Pilot, and 
selected for participation in it, may be offered the otherwise 
identical Basic Pilot before the machine-readable feature is available, 
with later phase-in of that feature.
    The Machine-Readable Document Pilot is required to operate in at 
least five states or, if fewer, all of the states that include a 
machine-readable SSN on their driver's licenses and identification 
cards. The Service has determined for the purposes of the Machine-
Readable Document Pilot that the state of Iowa includes machine-
readable SSNs on some or all of its driver's licenses and 
identification cards. Employers in that state may elect to participate 
in this pilot.

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

[[Page 48314]]

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 machine-
readable SSN. As the Machine-Readable Document Pilot uses the same SSA 
system limited at present to no more than approximately 2,000 employers 
as the Basic Pilot, initial availability of this pilot will also be 
very limited.

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.

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