[Federal Register Volume 62, Number 189 (Tuesday, September 30, 1997)]
[Rules and Regulations]
[Pages 51001-51006]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-25920]


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DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 274a

[INS NO. 1818-96]
RIN 1115-AE94


Interim Designation of Acceptable Documents for Employment 
Verification

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Interim rule with request for comments.

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SUMMARY: The Illegal Immigration Reform and Immigrant Responsibility 
Act of 1996 (IIRIRA) amended existing law by removing certain documents 
from the list of acceptable documents for use in the employment 
eligibility verification process. By law, those changes take effect no 
later than September 30, 1997, and this rule implements those changes. 
Although the Immigration and Naturalization Service (Service) is in the 
process of developing proposed rules to revise and streamline the 
employment verification process, together with revised forms and 
guidance, those rules are not yet ready to be promulgated. Thus, in 
promulgating this interim rule to implement the changes striking 
certain documents from the statutory list, the Service is also 
exercising available regulatory authority to restore many of the 
existing documents, insofar as possible, by designating them to be 
retained on the list of acceptable documents until further notice. This 
notice is intended to retain the status quo as much as possible at this 
time, pending the completion of action on the document reduction 
program, which will be accomplished in a separate rulemaking action.

DATES: This interim rule is effective September 30, 1997.
    Comment date: Written comments must be submitted on or before 
December 1, 1997.

ADDRESSES: Please submit written comments, in triplicate, to the 
Director, Policy Directives and Instructions Branch, Immigration and 
Naturalization Service, 425 I Street, NW., Room 5307, Washington, DC 
20536. To ensure proper handling, please reference INS No. 1818-96 on 
your correspondence. Comments are available for public inspection at 
the above address by calling (202) 514-3048 to arrange for an 
appointment.

FOR FURTHER INFORMATION CONTACT:
Marion Metcalf, Special Assistant, HQIRT, 425 I Street NW., Washington, 
DC, 20536; (202) 307-6596; or email at <a href="/cdn-cgi/l/email-protection#cba6aebfa8aaa7ada68ba1beb8bfa2a8aee5beb8afa4a1e5aca4bd"><span class="__cf_email__" data-cfemail="147971607775787279547e6167607d77713a6167707b7e3a737b62">[email protected]</span></a>. 
Please note that the email address is for further information only and 
may not be used for the submission of comments.

SUPPLEMENTARY INFORMATION: The Illegal Immigration Reform and Immigrant 
Responsibility Act of 1996 (IIRIRA), Pub. L. 104-208, enacted on 
September 30, 1996, amended the employer sanctions provisions of 
section 274A of the Immigration and Nationality Act (Act) to require a 
reduction in the number of documents acceptable for completion of the 
Employment Eligibility Verification form (Form I-9). These amendments 
must be in effect no later than September 30, 1997. This interim rule 
is necessary to implement the changes required by IIRIRA.
    The Service is currently developing a document reduction initiative 
which will result in a number of changes in this area, including 
eliminating various documents from the existing lists, revising the 
Form I-9, and developing new guidance for employers and employees 
regarding the employment verification process. Those changes, when 
finalized, will implement the changes enacted by IIRIRA as well as 
respond to other concerns about the present process. However, that 
initiative, which the Service intends to publish as a proposed rule in 
a separate rulemaking action within the next 6 months, is not yet ready 
for promulgation.
    At this time, the Service must amend its rules to take account of 
the statutory changes that take effect September 30, 1997. However, 
although IIRIRA deleted certain documents from the statutory list of 
acceptable documents, the Act also retained (in amended form) the 
authority of the Attorney General to designate specific documents as 
acceptable in addition to the statutory list. Accordingly, in amending 
existing regulations to take account of these statutory changes, the 
Service at the same time is also acting to restore the use of some of 
those documents by exercising available authority (as amended by 
IIRIRA) to continue to designate certain documents as acceptable for 
employment verification until completion of the separate document 
reduction initiative.
    By this means, as discussed in more detail below, the Service is 
acting to designate foreign passports with specified Service work 
authorization stamps in two instances as ``List A'' documents--that is, 
as documents evidencing both identity and work authorization. This rule 
also expands the existing receipt rule to ensure that certain refugees 
and lawful permanent residents will still be able to meet the 
employment verification requirements even though they do not yet have a 
required document. Finally, even though IIRIRA eliminates birth 
certificates as a specific statutory ``List C'' document--this is, as a 
document evidencing employment authorization--this rule reflects a 
determination (as a matter of discretionary regulatory authority) to 
designate birth certificates as an acceptable document for this 
purpose. (This designation of birth certificates will continue only 
until completion of the separate rulemaking proceeding. The Service 
intends to propose elimination of the use of birth certificates, as 
well as certain other existing documents, in that proposed rule.)
    The result of the statutory changes and the new designations 
embodied in this interim rule is that all of the existing ``List A'' 
documents will be retained, except for the following three kinds of 
documents: a Certificate of U.S. Citizenship; a Certificate of 
Naturalization; and a foreign passport not meeting the standards set 
forth in this interim rule, as discussed below. As to those three 
documents, there is no statutory authority to retain them on ``List 
A.'' In addition, there will be no change at all at this time with 
respect to either ``List B'' documents (evidencing identity) or ``List 
C'' documents (evidencing employment authorization).
    The purpose of this interim rule is to maintain the status quo as 
much as possible during this transitional period so as to avoid 
confusion and disruption in the employment verification process at this 
time. Although some changes are required by law, the Service recognizes 
that these changes are necessarily being implemented with little 
advance public notice, and without any revisions to the existing Form 
I-9 and the published Handbook for Employers (Form M-274). Accordingly, 
as explained below, in order to minimize confusion and disruption, the 
Service will exercise its discretion to forgo enforcement actions 
against employers who continue to act in reliance upon and in 
compliance with existing employment verification

[[Page 51002]]

forms, guidance, and procedures. This policy will remain in effect 
until the new document reduction program, together with a revised Form 
I-9 and guidance to employers, can be implemented in the separate 
rulemaking proceeding.
    The following discussion explains in more detail the background of 
this regulatory action; the specific changes being made in this interim 
rule; and the basis for the interim designations of certain documents 
as implemented in this rule.

Background on Document Reduction

    The Act, as amended, currently requires persons or entities to 
verify the employment eligibility and identity of all new hires. The 
Employment Eligibility Verification form (Form I-9) was designated for 
that purpose. Newly hired individuals must attest to the status that 
makes them eligible to work and present documents that establish their 
identity and eligibility to work. Employers and recruiters and 
referrers for a fee (as defined in section 274(a)(1)(B)(ii) of the Act 
and 9 CFR 274a.2(a)) must examine and documents and attest that they 
appear to be genuine and to relate to the individual. They may not 
specify a document or combination of documents that the individual must 
present. To do so may violate section 274B of the Act.
    The statutory framework, implemented by regulation at 8 CFR 274a.2, 
provides for three lists of documents: documents that establish both 
identity and employment eligibility (List A documents); documents that 
establish identity only (List B documents); and documents that 
establish employment eligibility only (List C documents).

Scope of the Interim Rule

    To implement IIRIRA, this interim rule amends the regulations to:
    (1) Remove the certificate of United States citizenship and the 
certification of naturalization as documents acceptable under List A;
    (2) Retain the designation of a foreign passport with temporary 
evidence of permanent resident status as a document acceptable under 
List A, and limit the use of a foreign passport with a Form I-94 to 
those nonimmigrants who are authorized to work for a specific employer; 
and
    (3) Clarify and expand the receipt rule under which work-eligible 
individuals who are unable to present a required document may present a 
receipt under certain circumstances.
    This interim rule also exercises regulatory authority to continue 
the designation of birth certificates as documents acceptable under 
List C. Accordingly, no change to List C is necessary at this time.

Enforcement Postponed for Employers and Recruiters or Referrers for a 
Fee With Respect to Changes Made to the List of Acceptable Documents in 
This Interim Rule

    To minimize confusion among the employment community and the 
potential for discriminatory hiring practices, this rule makes at this 
time only those changes to the current regulations needed to ensure 
that the current regulations conform with the statutory amendments made 
by IIRIRA. Consequently, this rule reduces the list of documents 
acceptable for employment verification under List A, and retains birth 
certificates (which are currently on List C) as acceptable for 
employment verification purposes. This means that List C remains in 
effect without change.
    This rule does not include a revised Form I-9. Employers and 
recruiters and referrers for a fee are to continue to use the current 
version of the Form I-9 (edition 11/21/91) to complete the employment 
verification process until the Form I-9 is revised. As a result, the 
Service has determined in its prosecutorial discretion not to seek a 
civil money penalty, until further notice, for any violations based 
upon the changes made by this rule to the list of acceptable documents.
    The Service intends to propose more comprehensive changes to the 
employment verification process, a further reduction in the number of 
acceptable documents, and a revision to the Form I-9 in a forthcoming 
rulemaking. The public will be provided an opportunity to comment on 
any proposed changes at that time. Thus, the Service will withhold 
enforcement of civil money penalties for violations associated with 
these changes and committed before the effective date of a final rule 
containing the revised Form I-9, so that employers or recruiters or 
referrers for a fee will not be penalized if they accept documents that 
were previously acceptable but were removed from the list by this 
interim rule.

Section 412(a) of IIRIRA--Amending the Documents Acceptable Under List 
A and List C

    Section 412(a) of IIRIRA amends the Act with respect to List A and 
List C documents. To implement this provision in a way that would cause 
the least confusion to the public and to minimize the potential for 
discriminatory hiring practices, this rule amends the regulations to 
reduce the current number of List A documents but to designate certain 
foreign passports in two instances. This rule does not reduce the 
current number of List C documents. Instead, this rule retains the 
documents currently listed as List C documents in the regulations as 
acceptable List C documents under IIRIRA.

A. Documents Evidencing Both Identity and Employment Eligibility (List 
A)

    Section 412(a) of IIRIRA amends section 274A(b)(1)(B) of the Act 
which governs the documents that individuals may present to establish 
both identity and employment eligibility. Section 412(a) of IIRIRA 
eliminates three documents from the statutory list: (1) Certificate of 
United States citizenship; (2) certificate of naturalization; and (3) 
an unexpired foreign passport with an endorsement that indicates 
eligibility for employment. The documents remaining on the list by 
statute are: a United States passport; a resident alien card; an alien 
registration card; or other document designated by the Attorney 
General. Each document designated by the Attorney General must meet 
three conditions: The document must not only contain a photograph and 
personal identifying information, and constitute evidence of employment 
authorization, but it now must also contain ``security features to make 
it resistant to tampering, counterfeiting, and fraudulent use.''
    To implement section 412(a) of IIRIRA, this rule amends the current 
regulations to limit the documents that evidence both identity and 
employment authorization to:
    (1) A United States passport;
    (2) An Alien Registration Receipt Card or Permanent Resident Card 
(Form I-551);
    (3) A foreign passport with a Temporary I-551 stamp;
    (4) An Employment Authorization Document (EAD) issued by the 
Service which contains a photograph (Form I-766), Form I-688, Form I-
688A, or Form I-688B); and,
    (5) In the case of a nonimmigrant alien authorized to work for a 
specific employer incident to status, a foreign passport with an 
Arrival-Departure Record (Form I-94) bearing the same name as the 
passport and containing an endorsement of the alien's nonimmigrant 
status, so long as the period of endorsement has not yet expired and 
the proposed employment is not in conflict with any restrictions or 
limitations identified on the Form I-94.

[[Page 51003]]

1. Service-Issued Employment Authorization Document
    This rule retains the Employment Authorization Document (Forms I-
766, I-688, I-688A, and I-688B) as an acceptable List A document. These 
forms meet the three statutory conditions that limit the Attorney 
General's authority to designate additional List A documents. First, 
these Service-issued forms all contain a photograph and additional 
identifying information of the bearer, including a fingerprint of the 
bearer and the bearer's date of birth. Second, the forms are evidence 
that the Service has granted employment authorization to the bearer. 
Third, the Service has designed each of the forms to contain security 
features that make them resistant to tampering, counterfeiting, and 
fraudulent use.
2. Foreign Passports With an I-551 Stamp
    This rule designates foreign passports as acceptable evidence of 
identity and employment authorization, but limited to two instances. 
The first relates to aliens lawfully admitted for permanent residence 
under section 101(a)(20) of the Act. Persons newly admitted for or 
adjusted to lawful permanent residence may receive evidence of that 
status through a stamp in their passports. The stamp serves as 
temporary evidence of permanent resident status until the individual 
receives Form I-551 from the Service. If the stamped endorsement 
includes an expiration date, the document must be reverified by the 
employer on the Form I-9. The newest versions of the Form I-551 also 
bear an expiration date but the actual Form I-551 need to be reverified 
when the card expires; only the stamp must be reverified when expired.
3. Foreign Passports With Form I-94
    The second instance in which a foreign passport is designated as a 
List A document is when it is presented with Form I-94 indicating a 
nonimmigrant classification that enables the alien to work with a 
specific employer incident to his or her nonimmigrant status until the 
expiration date specified on the form.
    Aliens in classes identified in Sec. 274a.12(b) are authorized 
employment with a specific employer incident to status. The Service 
does not currently require aliens in these classes to obtain an 
employment authorization document--i.e., a Form I-688B or Form I-766--
and does not plan to implement such a requirement at this time. The 
documentation that a nonimmigrant alien is issued to demonstrate that 
he or she is authorized to work incident to status with a specific 
employer is the Form I-94 with an endorsement that specifies the 
alien's nonimmigrant status. In addition to the regulations at 
Sec. 274a.12(b), the current version of the Handbook for Employers (M-
274) enumerates for employers and recruiters or referrers for a fee the 
applicable nonimmigrant classifications. These classifications include: 
foreign government officials and their employees (A-1, A-2, A-3); 
foreign government officials in transit (C-2, C-3); nonimmigrant treaty 
traders or investors (E-1, E-2); nonimmigrant students engaged in on-
campus employment or curricular practical training (F-1); 
representatives of international organizations and their employees (G-
1, G-2, G-3, G-4, G-5); temporary workers or trainees (H-1, H-2A, H-2B, 
H-3); information media representatives (I); exchange visitors (J-1); 
intra-company transferees (L-1); aliens having extraordinary ability in 
the sciences, arts, education, business, or athletics and accompanying 
aliens (O-1, O-2); athletes, artists or entertainers (P-1, P-2, P-3); 
international cultural exchange visitors (Q); aliens having a religious 
occupation (R); officers and personnel of the armed services of nations 
of the North Atlantic Treaty Organization and representatives, 
officials, and staff employees of NATO (NATO-1, NATO-2, NATO-3, NATO-4, 
NATO-5, NATO-6); and citizens of Canada or Mexico pursuant to the 
provisions of the North American Free Trade Agreement (TN).
    The IIRIRA provides that the Attorney General ``may prohibit or 
place conditions on ``specific document if the Attorney General finds 
that the document ``does not reliably establish [employment] 
authorization or identity or is being used fraudulently to an 
unacceptable degree.'' The Service finds that documentation issued to 
or used by nonimmigrants does not reliably establish employment 
eligibility except for documentation indicating a nonimmigrant 
classification that authorizes employment with a specific employer 
incident to status. The interim rule, therefore, places the following 
condition on the foreign passport with a Form I-94: that the foreign 
passport with the Form I-94 is only acceptable where the individual is 
authorized to work incident to status with a particular employer, and 
the Form I-94 indicates an employer-specific nonimmigrant 
classification. Such documentation may be used only for purposes of 
establishing eligibility to work for the approved employer. This 
restriction does not relieve employers of the requirement to abide by 
any terms or conditions specified on any documentation issued by the 
Service. Similarly, the restriction does not permit employers to 
require individuals to present a specific document. The restriction 
does mean that a Form I-94 endorsed to permit employment incident to 
status with a specific employer may not be accepted as evidence of 
eligibility to work for other employers.
4. Conditions Qualifying Foreign Passports With the I-551 Stamp or Form 
I-94 as a Proper Designation
    The Service finds that, in the above instances, foreign passports 
meet the three conditions that authorize the Attorney General to add 
documents to List A. First, foreign passports bear a photograph and 
identifying information (such as the birth date and physical 
characteristics of the bearer). Second, they are evidence of employment 
authorization when they bear a temporary I-551 stamp or are presented 
together with Form I-94 endorsed with a nonimmigrant classification 
that authorizes employment with a specific employer incident to status. 
Finally, foreign passports contain security features to make them 
resistant to tampering, counterfeiting, and fraudulent use. Temporary 
I-551 stamps are made with secure ink and meet internal Service 
standards. Form I-94 is only acceptable with a foreign passport in 
employer-specific situations in which the employer examining the Form 
I-94 for employment verification purposes is the same employer who 
petitioned for the alien to receive his or her nonimmigrant status or 
is otherwise approved to accept the alien for employment. Note that 
employers are required to reverify the individual's eligibility to work 
when the stamped authorization expires.

B. Documents Evidencing Employment Authorization (List C)

    Section 412(a) of IIRIRA amends section 274A(b)(l)(C) of the Act by 
removing the certificate of birth in the United States (or other 
certificate found acceptable by the Attorney General as establishing 
United States nationality at birth) from the statutory list of 
acceptable documents that may be used to establish employment 
authorization for compliance with the employment verification 
requirements.
    The inclusion of the unrestricted social security account number 
card on List C remains undisturbed by section 412(a) of IIRIRA. Thus, 
this rule does not amend the current regulations with

[[Page 51004]]

respect to the social security account numbered card; it remains on the 
list of acceptable documents as before.
    Under section 274A(b)(1)(C)(ii), as amended, it is within the 
Attorney General's authority to designate ``other documentation 
evidencing authorization of employment in the United States which the 
Attorney General finds, by regulation, to be acceptable for purposes of 
this section.'' Exercising that authority, the Attorney General finds 
that the remaining documents listed in the current regulations are 
acceptable List C documents. These documents are:
    (1) A Certification of Birth Abroad issued by the Department of 
State, Form FS-545;
    (2) A Certification of Birth Abroad issued by the Department of 
State, Form DS-1350;
    (3) An original or certified copy of a birth certificate issued by 
a State, county, municipal authority, or outlying possession of the 
United States bearing an official seal;
    (4) A Native American tribal document;
    (5) A United States Citizen Identification Card, INS Form I-197;
    (6) An identification card for use of a resident citizen in the 
United States, INS Form I-179; and
    (7) An unexpired employment authorization document issued by the 
Service.
    The finding to retain all the List C documents currently listed in 
the regulations for this rule is necessary to minimize confusion and 
the potential for discriminatory hiring practices that otherwise might 
result if this rule removed documents from the current list without 
first providing an opportunity for public comment or an education 
period. This rule enables employers and recruiters or referrers for a 
fee to continue to rely upon the List C documents that are stated on 
the current version of the Form I-9.
    The Service is aware of the congressional intent expressed by 
section 412(a) of IIRIRA to remove the birth certificate from the 
statutory list of acceptable documents. The designation of birth 
certificates for purposes of this interim rule is an exercise of the 
Attorney General's regulatory authority only during this transitional 
period until the document reduction initiative is complete. The Service 
will propose removal of the birth certificate as well as certain other 
List C documents in a future proposed rule that will follow this 
interim rule. The Service will consider public comments before 
implementing such a change. The Service, therefore, retains the birth 
certificate in this interim rule because its abrupt removal potentially 
would cause much confusion to the public.

Receipts

    As a result of this rule's amendments to the regulations governing 
List A documents, this rule must concurrently amend the regulations 
governing the use of receipts, Sec. 274a.2(b)(1)(vi). This amendment is 
necessary to ensure that certain refugees and lawful permanent 
residents will be equipped to meet the employment verification 
requirements if they are unable to present a required document as a 
result of the reduction to the list of acceptable List A documents 
required by IIRIRA. In so doing, this amendment restructures the 
current rule relating to receipts.
1. Current Regulations
    Current regulations permit individuals to present a receipt showing 
that they have applied for a replacement document if the individual is 
unable to provide a required document or documents at the time of hire. 
The individual must then present the required document or documents 
within 90 days of the hire. This provision provides flexibility in 
situations where, for example, an individual has lost a document.
2. Interim Rule
    The interim rule provides that an employer or recruiter or referrer 
for a fee must accept a receipt that appears to be genuine on its face 
and appears to relate to the individual presenting it in lieu of the 
required document, unless the individual indicates or the employer or 
recruiter or referrer for a fee has actual or constructive knowledge 
that the individual is not authorized to work. It reinforces that a 
receipt for an application for initial work authorization or an 
extension of expiring work authorization is not acceptable. It also 
extends that receipt rule to reverification.
    (1) Three instances in which receipts are acceptable.
    (a) Application for a replacement document. The rule permits the 
use of receipts in three instances. The first instance is when the 
individual presents a receipt for the application for a replacement 
document. An application for initial work authorization or an extension 
of expiring work authorization, however, its not acceptable.
    (b) Form I-94 indicating temporary evidence of permanent resident 
status. The second instance is when the individual presents the arrival 
portion of the Form I-94 that the Service has marked with a temporary 
I-551 stamp and has affixed with the alien's picture. The Service may 
issue this document if an alien is not in possession of his or her 
passport and requires evidence of lawful permanent resident status. 
Although this document provides temporary evidence of permanent 
resident status, it does not contain sufficient security features. 
Consequently, it does not meet the statutory requirements provided by 
IIRIRA for inclusion on List A. This rule, therefore, extends the 
receipt rule to include the Form I-94 with a temporary I-551 stamp and 
the alien's picture. This document serves as a receipt for Form I-551 
for 180 days.
    (c) Form I-94 indicating refugee status. The third instance is when 
the individual presents the departure portion of Form I-94 containing a 
refugee admission stamp. The Service recognizes the importance of newly 
admitted refugees being able to seek employment promptly upon arrival 
in the United States. The Service has been working with the Social 
Security Administration (SSA) to ensure prompt issuance of social 
security cards which carry no employment restrictions to refugees. In 
most instances, the Service believes that refugees will receive social 
security cards timely and will be able to present them to employers. 
The Service also intends to give refugees the option of obtaining a 
Form I-766 EAD, but recognizes that in most instances refugees will be 
able to obtain a social security card faster. Refugees may wish to 
obtain the Form I-766 EAD so that they will have a Service-issued 
document with a photograph. In order to ensure that refugees are still 
able to work if they encounter delays in obtaining cards from either 
the SSA or the Service, the Service introduces a special receipt rule. 
Under this rule, a Form I-94 with a refugee admission stamp constitutes 
a receipt evidencing eligibility to work. It is not, however, a receipt 
for a specific document. The refugee is permitted to present either an 
unrestricted social security card or a Form I-766 EAD at the end of the 
90-day receipt period. If the refugee presents a social security card, 
the refugee will also need to present a List B document. If the refugee 
presents a Form I-766 EAD, he or she does not need to present another 
document.
    (2) Receipts are not acceptable where the individual is hired for 
less than three business days.
    To correspond to this interim rule's expansion in the use of 
receipts, this rule amends 8 CFR 274a.2(b)(1)(iii) in which a reference 
to receipts is made. This paragraph of the regulations

[[Page 51005]]

governs the employment verification requirements in the case of an 
individual whose employment is less than three business days. 
Currently, the regulations preclude an individual hired for less than 
three business days from presenting a receipt for the application of a 
replacement document in lieu of a required document. This rule extends 
this prohibition to any type of receipt.

Good Cause Exception

    This interim rule is effective on September 30, 1997, although the 
Service invites post-promulgation comments and will address any such 
comments in a final rule. For the following reasons, the Service finds 
that good cause exists for adopting this rule without the prior notice 
and comment period ordinarily required by 5 U.S.C. 553.
    Pursuant to section 412(e)(1) of IIRIRA, the document reduction 
provisions of section 412(a) of IIRIRA are effective on September 30, 
1997, unless the Attorney General designates an earlier date. If the 
Attorney General does not designate a date through this interim rule, 
the provisions will go into effect without regulations, and a gap will 
be left wherein certain individuals who are authorized to work will not 
be in possession of an acceptable document under the Act as amended by 
IIRIRA for employment verification purposes. In addition, the Form I-9 
will not be revised at this time. The Service is concerned that mass 
confusion among the employment community would result over which 
documents currently listed in the regulations and on the Form I-9 would 
remain acceptable to meet the employment verification requirements. 
This confusion would heighten the potential for discriminatory hiring 
practices.
    To prevent the potential for confusion of the public and 
discriminatory hiring practices, and to ensure that documents 
acceptable for employment verification are designated to correspond to 
all classes of individuals authorized to work in the United States, the 
Service is issuing this rule. In order to respond to these concerns, 
this rule designates additional documents as acceptable, beyond those 
documents specifically enumerated in the Act as revised. In the absence 
of this action by the Service, the changes made by IIRIRA would result 
in an immediate further narrowing of the list of acceptable documents. 
Because of the imminent effective date of the statutory changes made by 
IIRIRA, this rule is being made effective as of September 30, 1997, 
without prior comments from the public. For these reasons, the Service 
finds that it would be unnecessary and contrary to the public interest 
to delay the effective date of this rule.

Regulatory Flexibility Act

    The Commissioner of the Immigration and Naturalization Service, in 
accordance with 5 U.S.C. 605(b), has reviewed this interim rule and, by 
approving it, certifies that this rule does not have a significant 
economic impact on a substantial number of small entities. This rule is 
a short-term measure and very limited in scope, only modifying a small 
portion of the entire employment verification process. It also does not 
introduce new forms. As a result, this rule would not require small 
entities to significantly change established practices. In addition, 
until further notice, the Service will not penalize persons or entities 
that commit violations based upon the changes to the list of acceptable 
documents made by this rule.

Executive Order 12866

    This rule is considered by the Department of Justice, Immigration 
and Naturalization service, to be a ``significant regulatory action'' 
under Executive Order 12866, section 3(f), Regulatory Planning and 
Review. Accordingly, it has been submitted and approved by the Office 
of Management and Budget.

Executive Order 12612

    The regulation adopted herein will not have substantial direct 
effects on the States, on the relationship between the National 
Government and the States, or on the distribution of power and 
responsibilities among the various levels of government. Therefore, in 
accordance with Executive Order 12612, it is determined that this rule 
does not have sufficient federalism implications to warrant the 
preparation of a Federalism Assessment.

Executive order 12988 Civil Justice Reform

    This interim rule meets the applicable standards set forth in 
sections 3(a) and 3(b)(2) of E.O. 12988.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 804 of the 
Small Business Regulatory Enforcement Act of 1996. This rule will not 
result in an annual effect on the economy of $100 million or more; a 
major increase in costs or prices; or significant adverse effects on 
competition, employment, investment, productivity, innovation, or on 
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.

Paperwork Reduction Act

    This interim rule does not impose any new reporting or 
recordkeeping requirements. The information collection requirements 
pertaining to the employment verification process have been approved 
for use by the Office of Management and Budget under the Paperwork 
Reduction Act of 1995 (Pub. L. 104-13). The OMB control number for this 
collection is contained in 8 CFR 299.5, Display of control numbers.

List of Subjects in 8 CFR Part 274a

    Administrative practice and procedure, aliens, employment, 
penalties, reporting and recordkeeping requirements.

    Accordingly, part 274a of chapter I of title 8 of the Code of 
Federal Regulations is amended as follows:

PART 274a--CONTROL OF EMPLOYMENT OF ALIENS

    1. The authority citation for part 274a continues to read as 
follows:

    Authority: 8 U.S.C 1101, 1103, 1324a; 8 CFR part 2.

    2. Section 274a.2 is amended by:
    a. Revising paragraph (b)(1)(iii);
    b. Revising paragraph (b)(1)(v)(A); and by
    c. Revising paragraph (b)(11)(vi), to read as follows:


Sec. 274a.2  Verification of employment eligibility.

* * * * *
    (b) * * *
    (1) * * *
    (iii) An employer who hires an individual for employment for a 
duration of less than three business days must comply with paragraphs 
(b)(1)(ii)(A) and (b)(1)(ii)(B) of this section at the time of the 
hire. An employer may not accept a receipt, as described in paragraph 
(b)(1)(vi) of this section, in lieu of the required

[[Page 51006]]

document if the employment is for less than three business days.
* * * * *
    (v) * * *
    (A) The following documents, so long as they appear to relate to 
the individual presenting the document, are acceptable to evidence both 
identity and employment eligibility:
    (1) United States passport (unexpired or expired);
    (2) Alien Registration Receipt Card or Permanent Resident Card, 
Form I-551;
    (3) An unexpired foreign passport that contains a temporary I-551 
stamp;
    (4) An unexpired Employment Authorization Document issued by the 
Immigration And Naturalization Service which contains a photograph, 
Form I-766; Form I-688, Form I-688A, or Form I-688B;
    (5) In the case of a nonimmigrant alien authorized to work for a 
specific employer incident to status, an unexpired foreign passport 
with an Arrival-Departure Record, Form I-94, bearing the same name as 
the passport and containing an endorsement of the alien's nonimmigrant 
status, so long as the period of endorsement has not yet expired and 
the proposed employment is not in conflict with any restrictions or 
limitations identified on the Form I-94.
* * * * *
    (vi) Special rules for receipts. Except as provided in paragraph 
(b)(1)(iii) of this section, unless the individual indicates or the 
employer or recruiter or referrer for a fee has actual or constructive 
knowledge that the individual is not authorized to work, an employer or 
recruiter or referrer for a fee must accept a receipt for the 
application for a replacement document or a document described in 
paragraphs (b)(1)(vi)(B)((1) and (b)(1)(vi)(C)((1) of this section in 
lieu of the required document in order to comply with any requirement 
to examine documentation imposed by this section, in the following 
circumstances:
    (A) Application for a replacement document. The individual:
    (1) Is unable to provide the required document within the time 
specified in this section because the document was lost, stolen, or 
damaged;
    (2) Presents a receipt for the application for the replacement 
document within the time specified in this section; and
    (3) Presents the replacement document within 90 days of the hire 
or, in the case of reverification, the date employment authorization 
expires; or
    (B) Form I-94 indicating temporary evidence of permanent resident 
status. The individual indicates in section 1 of the Form I-9 that he 
or she is a lawful permanent resident and the individual:
    (1) Presents the arrival portion of Form I-94 containing an 
unexpired ``Temporary I-551'' stamp and photograph of the individual, 
which is designated for purposes of this section as a receipt for Form 
I-551; and
    (2) Presents the Form I-551 within 180 days of the hire or, in the 
case of reverification, the date employment authorization expires; or
    (C) Form I-94 indicating refugee status. The individual indicates 
in section 1 of the Form I-9 that he or she is an alien authorized to 
work and the individual:
    (1) Presents the departure portion of Form I-94 containing an 
unexpired refugee admission stamp, which is designated for purposes of 
this section as a receipt for either the Form I-766 or a social 
security account number card that contains no employment restrictions; 
and
    (2) Presents, within 90 days of the hire or, in the case of 
reverification, the date employment authorization expires, either an 
unexpired Form I-766; or a social security account number card that 
contains no employment restrictions together with a document described 
under paragraph (b)(1)(v)(B) of this section.
* * * * *
    Dated: September 25, 1997.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 97-25920 Filed 9-29-97; 8:45 am]
BILLING CODE 4410-10-M


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