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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

[Federal Register: December 17, 2008 (Volume 73, Number 243)]
[Rules and Regulations]               
[Page 76505-76517]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17de08-1]                         


========================================================================
Rules and Regulations
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains regulatory documents 
having general applicability and legal effect, most of which are keyed 
to and codified in the Code of Federal Regulations, which is published 
under 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by the Superintendent of Documents. 
Prices of new books are listed in the first FEDERAL REGISTER issue of each 
week.

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



[[Page 76505]]



DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 274a

[CIS No. 2441-08; Docket No. USCIS-2008-0001]
RIN 1615-AB69

 
Documents Acceptable for Employment Eligibility Verification

AGENCY: U.S. Citizenship and Immigration Services, DHS.

ACTION: Interim rule with request for comments.

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

SUMMARY: The Department of Homeland Security (DHS) is amending its 
regulations governing the types of acceptable identity and employment 
authorization documents and receipts that employees may present to 
their employers for completion of the Form I-9, Employment Eligibility 
Verification. Under this interim rule, employers will no longer be able 
to accept expired documents to verify employment authorization on the 
Form I-9. This rule also adds a new document to the list of acceptable 
documents that evidence both identity and employment authorization and 
makes several technical corrections and updates. The purpose of this 
rule is to improve the integrity of the employment verification process 
so that individuals who are unauthorized to work are prevented from 
obtaining employment in the United States. A copy of the amended Form 
I-9 reflecting these and other form-related changes is being published 
as an attachment to this rule.\1\
---------------------------------------------------------------------------

    \1\ Note: Form I-9 is published for informational purposes only 
and will not be codified in Title 8 of the Code of Federal 
Regulations.

DATES: Effective Date. This rule is effective February 2, 2009.
    Comment Date: Written comments must be submitted on or before 
February 2, 2009.

ADDRESSES: You may submit comments, identified by DHS Docket No. USCIS-
2008-0001, by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Chief, Regulatory Management Division, U.S. 
Citizenship and Immigration Services, Department of Homeland Security, 
111 Massachusetts Avenue, NW., Suite 3008, Washington, DC 20529-2210. 
To ensure proper handling, please reference DHS Docket No. USCIS-2008-
0001 on your correspondence. This mailing address may be used for 
paper, disk, or CD-ROM submissions.
     Hand Delivery/Courier: Regulatory Management Division, 
U.S. Citizenship and Immigration Services, Department of Homeland 
Security, 111 Massachusetts Avenue, NW., Suite 3008, Washington, DC 
20529-2210. Contact Telephone Number (202) 272-8377.

FOR FURTHER INFORMATION CONTACT: Stephen McHale, Verification Division, 
U.S. Citizenship and Immigration Services, Department of Homeland 
Security, 470 L'Enfant Plaza East, SW., Suite 8001, Washington, DC 
20529-2610, telephone (888) 464-4218 or e-mail at Everify@dhs.gov.

SUPPLEMENTARY INFORMATION: The supplementary section is organized as 
follows:

Table of Contents

I. Public Participation
II. Background and Purpose
III. Changes to the List of Acceptable Documents and Receipts
    A. Requiring Unexpired, Valid Documents
    B. Adding Documentation for Citizens of the Federated States of 
Micronesia and the Republic of the Marshall Islands
    C. Revising References to Temporary I-551s
    D. Eliminating Forms I-688, I-688A, and I-688B
    E. Adding References to Form I-94A
    F. Revising Reference to Social Security Account Number Card
IV. Technical Changes
    A. Correcting References to Employment Eligibility
    B. Replacing References to the Former INS
    C. Correcting References to Certificates of Birth Abroad in List 
C
V. Form Changes
VI. Regulatory Requirements
    A. Administrative Procedure Act
    B. Regulatory Flexibility Act
    C. Unfunded Mandates Reform Act of 1995
    D. Small Business Regulatory Enforcement Fairness Act of 1996
    E. Executive Order 12866
    F. Executive Order 13132
    G. Paperwork Reduction Act

I. Public Participation

    Interested persons are invited to participate in this rulemaking by 
submitting written data, views, or arguments on all aspects of this 
interim rule. Comments that will provide the most assistance to the 
Department of Homeland Security (DHS), U.S. Citizenship and Immigration 
Services (USCIS) in developing these procedures will reference a 
specific portion of the interim rule, explain the reason for any 
recommended change, and include data, information, or authority 
supporting that change.
    Instructions: All submissions received must include the agency name 
and DHS Docket No. USCIS-2008-0001 for this rulemaking. All comments 
received will be posted without change to http://www.regulations.gov, 
including any personal information provided.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov. Submitted comments 
may also be inspected at the Regulatory Management Division, U.S. 
Citizenship and Immigration Services, Department of Homeland Security, 
111 Massachusetts Avenue, NW., Suite 3008, Washington, DC 20529-2210.

II. Background and Purpose

    All employers and agricultural recruiters and referrers for a fee 
\2\ (hereinafter collectively referred to as ``employer(s)'') are 
required to verify the identity and employment authorization of each 
individual they hire for employment in the United States, regardless of 
the individual's citizenship. See Immigration and Nationality Act (INA) 
section 274A(a)(1)(B), 8 U.S.C. 1324a(a)(1)(B). As part of the 
verification process, employers must complete the Form I-9, 
``Employment Eligibility Verification,'' retain the form for a 
statutorily-

[[Page 76506]]

established period of time, and make the form available for inspection 
by certain government officials. See INA sec. 274A(b), 8 U.S.C. 
1324a(b); 8 CFR 274a.2. On the Form I-9, a newly-hired employee must 
attest to being a U.S. citizen or national, a lawful permanent resident 
(LPR), or an alien authorized to work in the United States. The 
employee then must present to his or her employer a document or 
combination of documents designated by statute and regulation as 
acceptable for establishing identity and employment authorization. The 
employer must examine the documents, record the document information on 
Form I-9, and attest that the documents reasonably appear both to be 
genuine and to relate to the individual presenting the documents.
---------------------------------------------------------------------------

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

    The Form I-9 has three categories of documents that may be 
accepted, alone or in combination, by employers for employment 
authorization verification:
    (1) List A--documents that establish both identity and employment 
authorization \3\ (e.g., U.S. passport; Form I-551, ``Permanent 
Resident Card;'' and Form I-766, ``Employment Authorization 
Document'');
---------------------------------------------------------------------------

    \3\ Current regulations use the term ``employment eligibility'' 
rather than ``employment authorization.'' To be consistent with the 
statute, this rulemaking uses the term ``employment authorization.'' 
See INA sec. 274A(b)(1)(B) and (C), 8 U.S.C. 1324a(b)(1)(B) and (C).
---------------------------------------------------------------------------

    (2) List B--documents that establish only identity (e.g., State-
issued driver's license or identification card); and
    (3) List C--documents that establish only employment authorization 
(e.g., State-issued birth certificate and social security account 
number card).
    See INA sec. 274A(b)(1)(B), (C) and (D), 8 U.S.C. 1324a(b)(1)(B), 
(C) and (D); 8 CFR 274a.2(b)(1)(v)(A), (B) and (C). An individual must 
present to his or her employer either one document from List A or one 
document each from List B and List C. The employer may not specify a 
document or combination of documents that the employee must present. 
INA sec. 274B(a)(6), 8 U.S.C. 1324b(a)(6); 8 CFR 274a.1(l)(2).
    If the employee cannot present an acceptable document from one of 
the three lists, he or she may present an acceptable substitute 
document, referred to as a ``receipt.'' 8 CFR 274a.2(b)(1)(vi) 
(commonly referred to as ``the receipt rule''). The receipt satisfies 
the document presentation requirement for a short period of time, at 
the end of which the employee must present the actual document or other 
document(s) specified in the regulations as acceptable to present. An 
employer may accept a receipt, however, only under specific 
circumstances prescribed under 8 CFR 274.a.2(b)(1)(vi). For example, if 
a document acceptable under Lists A, B, or C is stolen or lost, the new 
hire may provide a receipt for the application for the replacement 
document, in lieu of the actual document, as long as he or she provides 
the replacement document within 90 days of hire. If the individual 
employee is an alien whose employment authorization or employment 
authorization documentation expires, the employer must reverify the 
employee's continued employment authorization by the expiration date by 
reviewing any acceptable list A or list C document.\4\ 8 CFR 
274a.2(b)(1)(vii).
---------------------------------------------------------------------------

    \4\ Note that an expiration date on Form I-551 does not trigger 
the reverification requirement. See ``Handbook for Employers, 
Instructions for Completing the Form I-9'' (M-274) (Rev. 11/01/07), 
http://www.uscis.gov, ``Handbook for Employers'') page 26.
---------------------------------------------------------------------------

    The former Immigration and Naturalization Service (INS) issued the 
first Form I-9 and list of acceptable documents in 1987. 52 FR 16216-01 
(May 1, 1987) (regulatory list of acceptable documents); 52 FR 21454-01 
(Jun. 5, 1987) (Notice introducing Form I-9); see also 53 FR 8611-01 
(Mar. 16, 1988). After reports that the large number of acceptable Form 
I-9 documents led to employer confusion and that a reduction in the 
number of documents could lead to less employment discrimination, INS 
published rules in 1993 and 1995 proposing reductions in the number of 
acceptable documents. See 60 FR 32472-01 (Jun. 22, 1995); 58 FR 61846-
01 (Nov. 23, 1993). Thereafter, in response to legislative action 
reducing the statutory list of acceptable documents,\5\ INS published 
an interim rule in 1997 and a proposed rule in 1998. 62 FR 51001 (Sept. 
30, 1997) (interim rule), modified by 64 FR 6187 (Feb. 9, 1999); 63 FR 
5287 (Feb. 2, 1998) (proposed rule). On November 7, 2007, USCIS issued 
a press release notifying the public that the Form I-9 had been revised 
to reflect changes to documents implemented under the 1997 interim 
rule. See ``USCIS Revises Employment Eligibility Verification Form'' 
(Nov. 7, 2007) at http://www.uscis.gov/files/pressrelease/
FormI9Update110707.pdf. This press release was followed by a notice 
published in the Federal Register describing the changes made to the 
Form I-9 and stating when DHS will begin enforcing the changes. 72 FR 
65974-01 (Nov. 26, 2007). Neither the former INS nor USCIS published a 
final rule following the 1998 proposed rule. Instead, this rulemaking 
action supersedes the 1998 NPRM, although comments received during that 
rulemaking action informed the development of this rulemaking action.
---------------------------------------------------------------------------

    \5\ Illegal Immigration Reform and Immigrant Responsibility Act 
(IIRIRA), section 412, Pub. L. No. 104-208, 110 Stat. 3009-666 
(1996).
---------------------------------------------------------------------------

    DHS recognizes that the Form I-9 process plays an integral role in 
ensuring a legal workforce in the United States and is committed to 
minimizing vulnerabilities in the Form I-9 process. As is evident from 
past legislative action and rulemaking efforts, an overly expansive 
Form I-9 document list that includes expired documents compromises the 
effectiveness and security of the Form I-9 process. After reevaluating 
the statutory requirements (INA sec. 274A(b)(1), 8 U.S.C. 1324a(b)(1)) 
and reviewing the regulatory list of documents currently acceptable for 
the Form I-9, DHS has identified several aspects of the list that are 
in need of change in order to strengthen the effectiveness of the Form 
I-9 process. In so doing, this interim rule introduces a requirement 
that all documents must be unexpired for the Form I-9. DHS invites 
post-promulgation comments from the public on this interim rule for 
consideration in a subsequent final rule.

III. Changes to the List of Acceptable Documents and Receipts

A. Requiring Unexpired, Valid Documents

    Under current regulations, the U.S. passport and all List B 
documents are acceptable for the Form I-9 even if they are expired. See 
8 CFR 274a.2(b)(1)(v)(A)(1) and (B). Using its authority to place 
conditions on acceptable documents for the Form I-9 (see INA sec. 
274A(b)(1)(E), 8 U.S.C. 1324a(b)(1)(E)), DHS is providing in this rule 
that expired documents are no longer acceptable for the Form I-9. See 
revised 8 CFR 274a.2(b)(1)(v). DHS has determined that this action is 
necessary to ensure that acceptable documents reliably establish 
identity and employment authorization and that documents that are used 
fraudulently to an unacceptable degree are not included on the list of 
acceptable documents. Expired documents are prone to fraudulent use in 
the Form I-9 process by aliens seeking unauthorized employment. Being 
of little use to their owners, expired documents fall prey to 
counterfeiters who, for a small sum, can substitute unauthorized 
aliens' photographs and other identifying information. Unauthorized 
aliens then use these documents to obtain employment. Establishing a 
requirement that all documents must be unexpired

[[Page 76507]]

closes this loophole and sets a bright-line standard for U.S. 
employers. Moreover, such a requirement honors the limits placed by 
document issuance authorities on their documents. Finally, by requiring 
unexpired documents, there is a greater likelihood that such documents 
will contain up-to-date security features that will make them less 
vulnerable to counterfeiting and fraud.
    In its 1998 proposed rule, the former INS proposed precluding 
expired documents from use for the Form I-9. 63 FR at 5302. Out of the 
73 comments received in response to the proposed rule, 15 comments 
addressed this proposal. Five commenters favored the change. Ten 
commenters indicated a clear preference against the change, focusing 
primarily on identity documents with some specifying that their 
objection applied to List B documents only. Those who favored the 
change stated that expired documents do not provide a reliable 
representation of the holder's identity, such as when the expired 
document includes an outdated photograph.
    DHS considered the comments from the 1998 proposed rule for this 
interim rule and has noted them in this discussion to acknowledge that 
some members of the public may face challenges in accessing unexpired 
documents for Form I-9 purposes. As stated above, DHS believes that 
precluding the use of expired documents for the Form I-9 is essential 
for improving the security of the employment verification process. The 
U.S. Department of State (DOS), DHS, and many States have taken and are 
continuing to take significant steps to improve the security features 
of their documents. See Emergency Supplemental Appropriations Act for 
Defense, the Global War on Terror, and Tsunami Relief, 2005; REAL ID 
Act of 2005, div. B, Public Law No. 109-13, 119 Stat. 231, 302 (2005) 
(codified at 49 U.S.C. 30301 note); Enhanced Border Security and Visa 
Entry Reform Act of 2002, section 303(b), Public Law 107-173, 116 Stat. 
543, 553 (2002). In keeping with these efforts, DHS has determined that 
it is appropriate to amend the regulations governing the Form I-9 
process to require that all documents must be unexpired to be 
acceptable for the Form I-9.
    To modify the current regulations, this rule removes the terms 
``unexpired'' and ``expired'' from those documents currently listed in 
the regulations with these limitations (e.g., ``unexpired foreign 
passport that contains a temporary I-551 stamp'' and ``unexpired 
Employment Authorization Document''). Rather than modify each 
acceptable document with the term ``unexpired,'' this rule imposes a 
general requirement that all documents must be unexpired to be 
acceptable for the Form I-9. See revised 8 CFR 274a.2(b)(1)(v). A 
document containing no expiration date, such as the Social Security 
account number card, will be deemed unexpired.
    DHS invites comments on whether this rule's prohibition on the use 
of expired documents for the Form I-9 should be modified to permit 
employers to accept List B identity documents that have expired within 
the last 90 days (or other limited time period) of the date they are 
presented to the employer for the Form I-9.

B. Adding Documentation for Citizens of the Federated States of 
Micronesia and the Republic of the Marshall Islands

    In 2003, the Compacts of Free Association between the United States 
and the Federated States of Micronesia (FSM) and Republic of the 
Marshall Islands (RMI) were amended. See Compact of Free Association 
Amendments Act of 2003, Public Law 108-188 (2003). Under both the 
preexisting Compacts and the Compacts as amended, most citizens of the 
RMI and the FSM are eligible for admission to the United States as 
nonimmigrants, including the privilege of residing and working in the 
United States. The amendments to the Compacts included provisions that 
eliminated the need for citizens of the FSM and the RMI to obtain an 
Employment Authorization Document (Form I-766), although they may still 
apply for one if they wish. As provided by the Compact Amendments, FSM 
and RMI citizens admitted under the Compacts may present valid FSM or 
RMI passports with evidence of their admission under the Compacts to 
satisfy Form I-9 requirements.\6\ To conform the Form I-9 regulations 
with the requirements of the Compacts, USCIS is including a List A 
provision specifically tailored to these FSM and RMI citizens. See new 
8 CFR 274a.2(b)(1)(v)(A)(6).
---------------------------------------------------------------------------

    \6\ There is also a Compact of Free Association with the 
Republic of Palau (Compact of Free Association Approval Act, Pub. L. 
No. 99-658 (Nov. 14, 1986)) providing similar employment and 
residency privileges for citizens of Palau, but the Compact has not 
been amended to include a similar Form I-9 documentation provision. 
Therefore, the amendment to the regulations does not include Palau.
---------------------------------------------------------------------------

C. Revising References to Temporary I-551s

    List A refers to temporary I-551 stamps in unexpired foreign 
passports as acceptable documents. See 8 CFR 274a.2(b)(1)(v)(A)(3). DHS 
issues temporary I-551 stamps to LPRs on either unexpired foreign 
passports or Forms I-94, ``Arrival-Departure Record,'' to serve as 
temporary documentation of LPR status while they wait for the actual 
Form I-551. Although the regulations refer to temporary I-551 
``stamps,'' DOS has been affixing machine-readable immigrant visas 
(MRIVs) that contain a pre-printed temporary I-551 notation in the 
foreign passports of aliens immigrating to the United States for 
several years. The pre-printed temporary I-551 notation is triggered 
after the bearer is admitted to the United States as an LPR. To update 
the regulations to reflect this alternate temporary I-551 document, 
this rule modifies the reference in List A to temporary I-551 stamps on 
unexpired foreign passports to include pre-printed temporary I-551 
notation on MRIVs. 8 CFR 274a.2(b)(1)(v)(A)(3). Because the pre-printed 
notation is not included on Forms I-94, this rule does not make any 
changes to regulatory references to temporary I-551 stamps on Forms I-
94. See 8 CFR 274a.2(b)(1)(vi)(B).

D. Eliminating Forms I-688, I-688A, and I-688B

    DHS notes that Form I-688, ``Temporary Resident Card,'' and Forms 
I-688A and I-688B, ``Employment Authorization Cards,'' are no longer 
issued and has determined that any such documents that were previously 
issued have expired. Therefore, this rule removes these documents from 
List A and any references to the documents in the receipt provision at 
8 CFR 274a.2(B)(1)(vi)(C). USCIS now issues Forms I-766 to those who 
formerly received Forms I-688, I-688A, or I-688B. The Form I-766 
remains on List A. 8 CFR 274a.2(b)(1)(v)(A)(4).

E. Adding References to Form I-94A

    This rule updates the list of acceptable documents and receipts by 
including ``Form I-94A'' next to each reference to the Form I-94, 
``Arrival-Departure Record.'' See revised 8 CFR 274a.2(b)(1)(v)(A)(5) 
and (b)(1)(vi)(B) and (C). The Form I-94A is nearly identical to the 
Form I-94 except that all fields are computer-generated rather than 
being annotated by hand.

F. Revising Reference to Social Security Account Number Card (``Social 
Security Card'')

    This interim rule replaces the current reference to the List C 
document, ``Social Security number card,'' with the statutory term 
``Social Security account number card.'' Revised 8 CFR 
274a.2(b)(1)(v)(C)(1). This document is

[[Page 76508]]

commonly referred to as the Social Security card. The rule also revises 
the restriction on the acceptability of Social Security account number 
cards. The statute provides that a Social Security account number card, 
``other than such a card which specifies on the face that the issuance 
of the card does not authorize employment in the United States'' is an 
acceptable List C document. See INA sec. 274A(b)(1)(C)(i), 8 U.S.C. 
1324a(b)(1)(C)(i). The current regulations provide that unacceptable 
cards are those that include the following legend: ``not valid for 
employment purposes.'' 8 CFR 274a.2(b)(1)(v)(C)(1). Over the years 
since Social Security account number cards have included employment 
restrictions, the legend printed on the face of the cards has changed. 
Therefore, the restriction stated in the current regulations is 
inadequate. This rule revises the restriction to track the statutory 
language.

IV. Technical Changes

A. Correcting References to Employment Eligibility

    This interim rule replaces the term ``employment eligibility'' with 
``employment authorization'' in each place that ``employment 
eligibility'' appears in the verification provisions of the regulations 
relevant to the substantive changes made by this rule, 8 CFR 274a.2(a) 
and (b)(1). This change is necessary to conform the regulations to the 
statute, which uses the term ``employment authorization'' and not 
``employment eligibility.'' See INA sec. 274A(b)(1)(B) and (C), 8 
U.S.C. 1324a(b)(1)(B) and (C).
    In addition, DHS revised the section heading to 8 CFR 274a.2 to 
more accurately reflect the contents of this section. Currently, the 
section heading reads, ``Verification of employment eligibility.'' This 
rule revises the section heading to read, ``Verification of identity 
and employment authorization.''

B. Replacing References to the Former INS

    This rule deletes references to the former INS or replaces such 
references with ``DHS'' wherever ``INS'' appears in the provisions 
affected by this rule. See revised 8 CFR 274a.2(b)(1)(v)(A)(4) and 
(b)(1)(v)(C)(6), (7), and (8). After a transfer of functions to DHS, 
the INS was abolished in March 2003. See 6 U.S.C. 291; Homeland 
Security Act of 2002, Public Law No. 107-296, 116 Stat. 2135 (Nov. 25, 
2002).

C. Correcting References to Certificates of Birth Abroad in List C

    Current regulations incorrectly identify the List C documents, 
Forms FS-545 and DS-1350 issued by the Department of State, as 
``Certification of Birth Abroad.'' 8 CFR 274a.2(b)(1)(v)(C)(2) and (3). 
This rule corrects this error. The Form FS-545 is correctly entitled, 
``Certification of Birth,'' and Form DS-1350 is correctly entitled, 
``Certification of Report of Birth.''

V. Form Changes

    In implementing the regulatory changes being made by this rule, DHS 
also is revising the Form I-9 itself. Changes to the Form I-9, in 
addition to revisions to the list of acceptable documents, include:
     In Section 1, making ``citizen of the United States'' and 
``noncitizen national of the United States, as defined in 8 U.S.C. 
1408'' two separate categories in the employee attestation part of the 
form. Currently, the first box in that section states: ``A citizen or 
national of the United States.'' Separating those two groups will 
eliminate one difficulty that currently exists when prosecuting those 
who make false claims to U.S. citizenship. Noncitizen nationals of the 
United States are persons born in American Samoa as provided in section 
308 of the INA, 8 U.S.C. 1408; certain former citizens of the former 
Trust Territory of the Pacific Islands who relinquished their U.S. 
citizenship acquired under section 301 of Public Law 94-241 
(establishing the Commonwealth of the Northern Mariana Islands) by 
executing a declaration before an appropriate court that they intended 
to be noncitizen nationals rather than U.S. citizens; and certain 
children of noncitizen nationals born abroad, as provided by section 
308 of the INA, 8 U.S.C. 1408. A definition of noncitizen national is 
added to the instructions to the Form I-9.
     In Section 1, replacing ``An alien authorized to work 
until --/--/-- (Alien  or Admission ----------------'' with 
``An alien authorized to work (A or Admission ------
------ ) until (expiration date, if applicable--month/day/year) --/--/
--''.
     In the form instructions, including a paragraph that 
clarifies when employers need to reverify certain employees to read as 
follows:
    ``Note that some employees may leave the expiration date blank if 
they are aliens whose work authorization does not expire (e.g., 
asylees, refugees, certain citizens of the Federated States of 
Micronesia or the Republic of the Marshall Islands). For such 
employees, reverification does not apply unless they choose to present 
in Section 2 evidence of employment authorization that contains an 
expiration date (e.g., Employment Authorization Document (Form I-
766)).''

Form I-9 will be included as an attachment to this rule. It will also 
be made available in Spanish and posted on the USCIS Web site (http://
www.uscis.gov) at a later date.

VI. Regulatory Requirements

A. Administrative Procedure Act

    The Administrative Procedure Act (APA) provides that an agency may 
dispense with notice and comment rulemaking procedures when an agency, 
for ``good cause,'' finds that those procedures are ``impracticable, 
unnecessary, or contrary to the public interest.'' See 5 U.S.C. 
553(b)(B). DHS finds advance notice and comment for this rule to be 
impracticable, unnecessary, and contrary to the public interest.
    In its 1998 proposed rule, the former INS proposed precluding 
expired documents from use for the Form I-9. 63 FR at 5302. The INS 
received 15 comments on the proposal to remove expired documents as 
discussed above. Therefore, although the INS did not finalize that 
NPRM, USCIS has considered those public comments in the development of 
this interim rule and DHS has concluded that further public comment on 
this issue would be unnecessary under the APA.
    DHS understands that this rule is a change in its longstanding 
practice of accepting expired documents. However, advances in 
technology since the original issuance of these regulations and Form I-
9, especially in recent years, increase the need for DHS to make sure 
that documents accepted for identity and work authorization purposes 
have sufficient security features and continue to ensure the integrity 
of the employment verification process.\7\ Employment documentation 
requirements must be strengthened as soon as possible in order for DHS 
enforcement capabilities to stay ahead of document counterfeiters; 
requiring that documents be unexpired is one way to help ensure this. 
Continued delay created by the notice and comment requirements would 
result in additional damage to these important interests.
---------------------------------------------------------------------------

    \7\ DHS Fact Sheet: Combating Fraudulent Documents. August 1, 
2006. Available at http://www.dhs.gov/xnews/releases/pr_
1158347347660.shtm.
---------------------------------------------------------------------------

    Accordingly, DHS finds that good cause exists under 5 U.S.C. 553(b) 
to

[[Page 76509]]

issue this rule as an interim rule. DHS nevertheless invites written 
comments on this interim rule and will consider those comments in the 
development of a final rule in this action.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA), 5 U.S.C. 605(b), as amended 
by the Small Business Regulatory Enforcement and Fairness Act of 1996 
(SBREFA), requires an agency to prepare and make available to the 
public a regulatory flexibility analysis that describes the effect of 
the rule on small entities (i.e., small businesses, small 
organizations, and small governmental jurisdictions). However, when an 
agency invokes the good cause exception under the Administrative 
Procedure Act (APA) to make changes effective through an interim final 
rule, the RFA does not require the agency to prepare a regulatory 
flexibility analysis. This rule makes changes for which notice and 
comment are not necessary and, accordingly, USCIS has not prepared a 
regulatory flexibility analysis.

C. Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 requires each 
Federal agency to prepare a written assessment of the effects of any 
Federal mandate in a proposed or final agency rule that may result in 
the expenditure by State, local, and tribal governments, in the 
aggregate, or by the private sector, of $100 million or more (adjusted 
annually for inflation) in any one year. As outlined in the Executive 
Order 12866 section of this rule below, this rule may result in the 
expenditure in the aggregate by the private sector of more than $100 
million in the first year following its publication. However, there are 
no recurring costs and it will not significantly or uniquely affect 
small governments or other small entities. Further, no action on the 
part of any state, tribe, or other governmental entity is required by 
this rule's changes. Therefore, no actions were deemed necessary under 
the provisions of the Unfunded Mandates Reform Act of 1995.

D. Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 804 of the 
Small Business Regulatory Enforcement Act of 1996. 5 U.S.C. 804.

E. Executive Order 12866

    This rule is considered by DHS to be an ``economically significant 
regulatory action'' under Executive Order 12866, section 3(f), 
Regulatory Planning and Review. Accordingly, this interim rule has been 
reviewed by the Office of Management and Budget.
    Employees are already completing, and employers are already 
retaining, Forms I-9. Employers are also conducting re-verifications 
when employment authorization expires. Likewise, U.S. Immigration and 
Customs Enforcement (ICE) agents already conduct Form I-9 enforcement 
actions. Therefore, this interim rule is not expected to impose 
significant new or recurring costs on employers, new employees, or the 
government.
    Costs for employers. After publication of this rule, there will be 
some costs associated with becoming familiar with the new requirements, 
switching to the new forms, and retraining personnel who are familiar 
with the existing requirements. All employers and agricultural 
recruiters and referrers for a fee are required to verify the identity 
and employment authorization of each individual they hire for 
employment in the United States, regardless of the individual's 
citizenship. The number of employees hired each year varies greatly 
among firms as does the number of employees that each firm has devoted 
to the hiring process. Based on an analysis of data from the U.S. 
Department of Agriculture, National Agricultural Census \8\, and, U.S. 
Department of Labor, Bureau of Labor Statistics, Business Employment 
Dynamics,\9\ DHS has determined that there are approximately 554,000 
farms, around 90,000 local government jurisdictions, and approximately 
4.9 million firms in the private sector of the U.S. economy that could 
possibly hire an employee in the year after this rule takes effect. 
While many farms and companies hire no employees in a given year 
requiring submission of no Forms I-9, DHS assumed that the largest 
possible universe of employers would be affected by the rule in its 
first year in effect, or all entities. That means there are a total of 
about 5.54 million farms, businesses, and governmental entities in the 
U.S. that must obtain a Form I-9 from their new hires. DHS also assumed 
that each of the affected firms will incur a small cost to learn about 
the new form and regulations. The Office of Management and Budget (OMB) 
approved information collection reporting burden for Form I-9 is an 
average of 12 minutes per response for learning about the form, 
completing the form, and assembling and filing the form. Because this 
training facet would add a few minutes to that time burden to read this 
rule and compare the new and old Form I-9 lists, DHS estimates that 
each employer will each need approximately 30 minutes to research the 
changes made by this rule and learn what an acceptable Form I-9 
supporting document is after this rule takes effect. According the U.S. 
Department of Labor, Bureau of Labor Statistics quarterly report, 
``Employer Costs for Employee Compensation,'' employer compensation 
costs for all civilian occupations averages $28.11 per hour worked. 
Therefore, based on 30 minutes per employer for 5.54 million employers, 
this rule will cost all employers nationwide a total of $77,864,700 to 
familiarize themselves with the new requirements, switch to the new 
forms, and retrain personnel. This is, however, a one-time and not a 
repeating or annual cost. Once the transition to this interim rule and 
new Form I-9 is complete, DHS anticipates that the costs incurred by 
employers will be lower than under the existing rule because the 
modified lists of acceptable forms is expected to reduce confusion. DHS 
believes that the reduced number of documents that may be presented for 
verification, simplified design of the Form I-9, and more comprehensive 
instructions provided with the form, will make the verification process 
for employers easier than it is now.
---------------------------------------------------------------------------

    \8\ Economic Class of Farms by Market Value of Agricultural 
Products Sold and Government Payments: 2002 http://
www.nass.usda.gov/census/census02/volume1/us/st99_1_003_003.pdf.
    \9\ New Quarterly Data from BLS on Business Employment Dynamics 
by Size of Firm, 2005 http://www.bls.gov/news.release/pdf/cewfs.pdf.
---------------------------------------------------------------------------

    Costs for employees. By reducing the number of documents that are 
acceptable, this rule will require a newly hired employee to expend 
some time, effort, and expense in order to obtain an acceptable, 
unexpired document. For example, a new hire who was able to use an 
expired passport or U.S. military identification card before this rule 
rendered those documents unacceptable will now need to obtain a 
current, unexpired document. Those individuals who could have used an 
expired document will incur a cost to obtain an alternative document, 
such as a State-issued driver's license or identification card, which 
can be presented with their social security card or birth certificate, 
or a passport card or passport. In order to provide an example that 
will illustrate this potential impact, DHS has examined what that cost 
may be. DHS obtained a list of the amounts charged for State-issued 
driver's licenses or identification cards in every state in the U.S. 
and the District of Columbia from the American

[[Page 76510]]

Association of Motor Vehicle Administrators (AAMVA). The average cost 
to obtain a state-issued photo identification card was found to be 
$14.40. The U.S. Department of State charges $100 for a passport for 
someone age 16 and over, and a passport card costs $20. Thus, it 
assumed for this example, logically, that those individuals who could 
have used an expired document before this rule will choose the lower-
cost option and obtain a state identification card.
    According to the U.S. Department of Transportation, Federal Highway 
Administration, of the 233 million people in the United States who are 
in the driving age population (age 16 and over), 209 million, or 87 
percent, have a State-issued driver's license.\10\ Also, as of 2006, 
almost 33 million State-issued identification cards were in effect. 
Therefore, there are approximately 242 million driver's licenses and 
identification cards held by persons age 16 and over, while the U.S. 
population of people who are of driving age is 233 million. The 
issuance of 9 million more State-issued driver's licenses and State-
issued identification cards than the driving age population suggests 
that a very small portion of the working-age population would have 
neither a State-issued driver's license nor a State-issued 
identification card. Therefore, it is likely that very few people will 
be required to obtain a license in order to comply with the new 
requirements of this rule. On the other hand, a sample of 2000 
registered voters in three states performed for a study being conducted 
by American University (AU) found that roughly 1.2 percent of the 
people surveyed did not have acceptable photo identification cards for 
voting purposes.\11\ Assuming that the result from those three states 
would hold true nationwide, that percentage, while small, is not 
trivial due to the annual volume of new hires who must present Form I-
9. If only 1.2 percent of the estimated 58 million annual new hires in 
the United States must obtain a new document, 696,000 people are 
affected.\12\ As stated above, states charge an average of $14.40 for 
an identification card. In addition, DHS estimates that expenses for 
each affected person would also include spending about 4 hours of their 
personal time to obtain the card and that the worker gives up this 
amount of time engaging in a leisure activity. According to guidelines 
used by the U.S. Department of Transportation on the values of travel 
time, the opportunity cost of leisure time forgone for travel is 
calculated as 50 percent of wages. Using the employer compensation 
costs per hour for all civilian occupations of $28.11, the value of 
leisure per hour is about $14.06. Thus, a person could be required to 
expend up to $14.40 in cash and $56.20 in opportunity costs, or total 
costs of $70.60, to obtain a State-issued identification card because 
of the changes made by this rule. Using the 1.2 percent figure from the 
AU study, this example results in an aggregate nationwide employee 
expense for obtaining an acceptable document of $49,137,600.
---------------------------------------------------------------------------

    \10\ United States Department of Transportation, Federal Highway 
Administration, Highway Statistics 2006, Licensed drivers--Ratio of 
licensed drivers to population. Available at http://
www.fhwa.dot.gov/policy/ohim/hs06/driver_licensing.htm.
    \11\ Robert Pastor, et al., Voter IDs Are Not the Problem: A 
Survey of Three States, (Center for Democracy and Election 
Management, American University, Washington, DC , Jan. 9, 2008). 
http://www.american.edu/ia/cdem/pdfs/VoterIDFinalReport1-9-08.pdf.
    \12\ U.S. Department of Labor, U.S. Bureau of Labor Statistics, 
Job Openings and Labor Turnover Survey Available at http://
data.bls.gov/PDQ/outside.jsp?survey=jt.
---------------------------------------------------------------------------

    The cost associated with the information collection burden of the 
Form I-9 and its instructions is discussed below in the Paperwork 
Reduction Act section of this rule.

F. Executive Order 13132

    This rule would have no substantial direct effects on the States, 
on the relationship between the National Government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government. Therefore, this rule does not have sufficient 
federalism implications to warrant the preparation of a federalism 
summary impact statement.

G. Paperwork Reduction Act

    This interim rule requires a revision to the Form I-9 (OMB Control 
Number 1615-0047).
    Since this is an interim rule, this information collection has been 
submitted and approved by OMB for 180 days under the emergency review 
and clearance procedures covered under the PRA. During the first 60 
days, USCIS is requesting comments on this information collection until 
February 17, 2009. When submitting comments on this information 
collection, your comments should address one or more of the following 
four points:
    (1) Evaluate whether the collection of information is necessary for 
the proper performance of the agency, including whether the information 
will have practical utility;
    (2) Evaluate the accuracy of the agency's estimate of the burden of 
the collection of information, including the validity of the 
methodology and assumptions used;
    (3) Enhance the quality, utility, and clarity of the information to 
be collected; and
    (4) Minimize the burden of the collection of the information on 
those who are to respond, including through the use of any and all 
appropriate automated, electronic, mechanical, or other technological 
collection techniques or other forms of information technology, e.g., 
permitting electronic submission of responses.

Overview of This Information Collection

    (1) Type of Information Collection: Revision of a currently 
approved information collection.
    (2) Title of the Form/Collection: Employment Eligibility 
Verification.
    (3) Agency form number, if any, and the applicable component of the 
Department of Homeland Security sponsoring the collection: Form I-9. 
U.S. Citizenship and Immigration Services.
    (4) Affected public who will be asked or required to respond, as 
well as a brief abstract: Primary: Individuals or households. This form 
was developed to facilitate compliance with section 274A of the 
Immigration and Nationality Act, which prohibits the knowing employment 
of unauthorized aliens. The information collected is used by employers 
or by recruiters for enforcement of provisions of immigration laws that 
are designed to control the employment of unauthorized aliens.
    (5) An estimate of the total number of respondents and the amount 
of time estimated for an average respondent to respond: This figure was 
derived by multiplying the number of respondents (78,000,000) x 
frequency of response (1) x hour per response (9 minutes or 0.15 
hours). The annual recordkeeping burden is added to the total annual 
reporting burden that is based on 20,000,000 record keepers at (3 
minutes or .05 hours) per filing.
    (6) An estimate of the total public burden (in hours) associated 
with the collection: 12,700,000 annual burden hours.
    All comments and suggestions or questions regarding additional 
information should be directed to the Department of Homeland Security, 
U.S. Citizenship and Immigration Services, Chief, Regulatory Management 
Division, 111 Massachusetts Avenue, NW., Suite 3008, Washington, DC 
20529.

[[Page 76511]]

List of Subjects in 8 CFR Part 274a

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

0
Accordingly, part 274a of chapter I of title 8 of the Code of Federal 
Regulations is amended as follows:

PART 274a--CONTROL OF EMPLOYMENT OF ALIENS

0
1. The authority citation for part 274a continues to read as follows:

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


0
2. Section 274a.2 is amended by:
0
a. Revising the section heading;
0
b. Revising the term ``eligibility'' to read ``authorization'' in the 
first sentence of paragraphs (a)(3), (b)(1)(i)(B), and (b)(1)(ii)(A);
0
c. Revising paragraph (b)(1)(v) introductory text;
0
d. Revising paragraph (b)(1)(v)(A);
0
e. Revising paragraphs (b)(1)(v)(C)(1), (2), (3), (6), (7), and (8); 
and by
0
f. Revising paragraphs (b)(1)(vi)(B) and (C).
    The revisions read as follows:


Sec.  274a.2  Verification of identity and employment authorization.

* * * * *
    (b) * * *
    (1) * * *
    (v) The individual may present either an original document which 
establishes both employment authorization and identity, or an original 
document which establishes employment authorization and a separate 
original document which establishes identity. Only unexpired documents 
are acceptable. The identification number and expiration date (if any) 
of all documents must be noted in the appropriate space provided on the 
Form I-9.
    (A) The following documents, so long as they appear to relate to 
the individual presenting the document, are acceptable to evidence both 
identity and employment authorization:
    (1) A United States passport;
    (2) An Alien Registration Receipt Card or Permanent Resident Card 
(Form I-551);
    (3) A foreign passport that contains a temporary I-551 stamp, or 
temporary I-551 printed notation on a machine-readable immigrant visa;
    (4) An Employment Authorization Document which contains a 
photograph (Form I-766);
    (5) In the case of a nonimmigrant alien authorized to work for a 
specific employer incident to status, a foreign passport with a Form I-
94 or Form I-94A bearing the same name as the passport and containing 
an endorsement of the alien's nonimmigrant status, as long as the 
period of endorsement has not yet expired and the proposed employment 
is not in conflict with any restrictions or limitations identified on 
the Form;
    (6) A passport from the Federated States of Micronesia (FSM) or the 
Republic of the Marshall Islands (RMI) with Form I-94 or Form I-94A 
indicating nonimmigrant admission under the Compact of Free Association 
Between the United States and the FSM or RMI.
* * * * *
    (C) * * *
    (1) A Social Security account number card other than one that 
specifies on the face that the issuance of the card does not authorize 
employment in the United States;
    (2) Certification of Birth issued by the Department of State, Form 
FS-545;
    (3) Certification of Report of Birth issued by the Department of 
State, Form DS-1350;
* * * * *
    (6) United States Citizen Identification Card, Form I-197;
    (7) Identification card for use of resident citizen in the United 
States, Form I-179;
    (8) An employment authorization document issued by the Department 
of Homeland Security.
    (vi) * * *
    (B) Form I-94 or I-94A indicating temporary evidence of permanent 
resident status. The individual indicates in section 1 of the Form I-9 
that he or she is a lawful permanent resident and the individual:
    (1) Presents the arrival portion of Form I-94 or Form I-94A with an 
unexpired foreign passport containing an unexpired ``Temporary I-551'' 
stamp and a photograph of the individual, which is designated for 
purposes of this section as a receipt for Form I-551; and
    (2) Presents the Form I-551 by the expiration date of the 
``Temporary I-551'' stamp or, if the stamp or statement has no 
expiration date, within one year from the issuance date of the arrival 
portion of the Form I-94 or Form I-94A; or
    (C) Form I-94 or I-94A indicating refugee status. The individual 
indicates in section 1 of the Form I-9 that he or she is an alien 
authorized to work and the individual:
    (1) Presents the departure portion of Form I-94 or I-94A containing 
an unexpired refugee admission stamp, which is designated for purposes 
of this section as a receipt for the Form I-766, or a social security 
account number card that contains no employment restrictions; and
    (2) Presents, within 90 days of the hire or, in the case of 
reverification, the date employment authorization expires, either an 
unexpired Form I-766, or a social security account number card that 
contains no employment restrictions and a document described under 
paragraph (b)(1)(v)(B) of this section.
* * * * *

Paul A. Schneider,
Deputy Secretary.

    Note: The Form I-9 included as an attachment to this document 
should not be codified in Title 8 of the Code of Federal 
Regulations.


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[FR Doc. E8-29874 Filed 12-16-08; 8:45 am]
BILLING CODE 9111-97-C




						



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