[Federal Register Volume 63, Number 66 (Tuesday, April 7, 1998)]
[Proposed Rules]
[Pages 16909-16913]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-8969]
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DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Part 274a
[INS No. 1819-96]
RIN 1115-AE70
Limiting Liability for Certain Technical and Procedural
Violations of Paperwork Requirements
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Proposed rule.
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SUMMARY: This rule proposes to amend the regulations of the Immigration
and Naturalization Service (Service) by limiting liability for certain
technical and procedural violations of paperwork requirements for those
employers that have made a good faith attempt to comply with a
particular employment verification requirement. This rule is necessary
to implement section 411 of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (IIRIRA) Public Law 104-208.
DATES: Written comments must be submitted on or before June 8, 1998.
[[Page 16910]]
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. 1819-96 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:
Angelo Sorrento, Senior Special Agent, Immigration and Naturalization
Service, HQINV, 425 I Street, NW., Washington, DC 20536; telephone
(202) 514-2998.
SUPPLEMENTARY INFORMATION:
What is the Purpose of This Rule?
This rule proposes to amend Service regulations to implement
section 411 of IIRIRA, which was enacted on September 30, 1996. This
legislation significantly amended the Immigration and Nationality Act
(Act) by allowing employers who have made a good faith attempt to
comply with a particular employment verification requirement to correct
technical or procedural failures to meet the verification requirement
before such failures are deemed to be violations of the Act. This
proposed rule ensures that the good faith compliance provision relieves
employers from strict liability with respect to minor, unintentional
violations of the employment verification requirements, but does not
provide a shield for employers to avoid the requirements of the Act.
Isn't the Service Preparing to Change the Form I-9? How Will That
Affect This Rule?
This proposed rule applies to technical or procedural verification
failures with respect to the current Form I-9 (11/21/91 version). On
February 2, the Service published a proposed rule, INS# 1890-97,
Reduction in the Number of Acceptable Documents and Other Changes to
Employment Verification Requirements (63 FR 5287). A draft revision to
the Form I-9 was published for comment with that proposed rule. That
revision was intended to simplify and clarify the verification
requirements, and the Service hopes that improvements to the form will
help employers avoid inadvertent violations. Any changes to the good
faith compliance regulations which are required by a future revision of
the Form I-9 will be published with appropriate notice and comment
periods.
What is the Good Faith Compliance Provision? Does it Apply in all
Circumstances?
The good faith compliance provision amends section 274A(b) of the
Act by adding a new provision, found in sections 274A(b)(6)(A), (B),
and (C) of the Act. Section 274A(b)(6)(A) of the Act provides that a
person or entity that has made a good faith attempt to comply with an
employment verification requirement of section 274A(b) of the Act will
be considered to have complied with the requirement, notwithstanding a
technical or procedural failure to meet such requirement. This holds
true unless one of two exceptions applies. First, section 274A(b)(6)(B)
of the Act provides that a person or entity will be considered not to
have complied with the requirement if: (1) the Service or other
enforcement agency has explained to the person or entity the basis for
the failure; (2) the person or entity has been provided a period of not
less than 10 business days, beginning after the date of the
explanation, within which to correct the failure; and (3) the person or
entity has not corrected the failure within such period. Second,
section 274A(b)(6)(C) of the Act provides that a person or entity will
be considered not to have complied with the requirement if the person
or entity is engaging in a pattern or practice of knowing hire or
continuing to employ violations of sections 274A(a)(1)(A) or 274A(a)(2)
of the Act.
When does the Good Faith Compliance Provision Take effect?
Section 411 of IIRIRA applies to failures occurring on or after
September 30, 1996. Except for timeliness failures, failures to meet a
verification requirement continue from the first day the requirement
must be met until: (1) the day that the failures are corrected; (2) the
day that the failures can no longer be corrected, such as when the
Service or other enforcement agency inspects the employer's Employment
Verification Forms (Form I-9); or (3) the day that the duty to meet the
requirement ceases. Continuing failures that persist on or after
September 30, 1996, therefore, fall within the purview of section 411
of IIRIRA, even if the failures first occurred on Form I-9 prepared
before the date of enactment. The Service has determined that section
411 of IIRIRA will apply to cases arising out of inspections conducted
on or after September 30, 1996. For failures associated with timely
completion of the Form I-9, section 411 of IIRIRA will not apply if the
requirement to complete the Form I-9 should have been met before
September 30, 1996.
What Does This Proposed Rule do?
This proposed rule defines the term technical or procedural failure
to meet such requirement, clairifes when an employer has not made a
good faith attempt to comply with the requirement, and describe show an
employer who is notified of technical or procedural failures is
required to correct such failures to bring himself or herself into
compliance with the employment verification requirements of the Act.
What are Technical or Procedural Verification Failures?
Because the good faith compliance provision applies to technical or
procedural failures to comply with a particular verification
requirement rather than the verification requirements as a whole, the
Service must identify the substantive and technical or procedural
components of each statutory verification requirement in section 274(b)
of the Act in order to form the basis for the proposed rule.
This rule proposes to define the term technical or procedural
failure to meet such requirement as the failure of a person or entity
to: (1) ensure that an individual provides his or her maiden name,
address, or birth date in section 1 of the Form I-9; (2) ensure that an
individual provides his or her Alien number on the line next to the
phrase in section 1 of the Form I-9, ``A Lawful permanent Resident,''
but only if the Alien number is provided in sections 2 or 3 of the Form
I-9 (or on a legible copy of a document retained with the Form I-9 (or
on a legible copy of a document retained with the Form I-9 and
presented at the I-9 inspection); (3) ensure that an individual
provides his or her Alien number or Admission number on the line
provided under the phrase in section 1 of the Form I-9, ``An alien
authorized to work until'' but only if the Alien number or Admission
number is provided in sections 2 or 3 of the Form I-9 (or on a legible
copy of a document retained with the Form I-9 and presented at the I-9
inspection); (4) ensure that an individual dates section 1 of the Form
I-9; (5) ensure that an individual completes section 1 of the Form I-9
timely by dating section 1 of the Form I-9 at the time of hire, if the
time of hire occurred on or after September 30, 1996; (6) ensure that a
preparer and/or translator provides his or her name, address,
signature, or date; (7) provide the document title, identification
number(s) and/or expiration date(s) of a proper List A document or
proper List B and List C
[[Page 16911]]
documents in section 2 of the Form I-9, but only if a legible copy of
the document(s) is retained with the Form I-9 and presented at the I-9
inspection; (8) provide the title, business name and business address
in section 2 of the Form I-9; (9) provide the date of hire in the
attestation portion of section 2 of the Form I-9; (10) date section 2
of the Form I-9; (11) complete section 2 of the Form I-9 timely by
dating section 2 of the Form I-9 within 3 business days of the date the
individual is hired or, if the individual is hired for 3 business days
or less, at the time of hire if the date on which section 2 had to be
completed occurred on or after September 30, 1996; (12) provide the
document title, identification number(s), and/or expiration date(s) of
a proper List A or List C document in section 3 of the Form I-9, but
only if a legible copy of the document is retained with the Form I-9
and presented at the I-9 inspection; or (13) provide the date of rehire
in section 3 of the Form I-9.
What are the Principal Verification Requirements That are not
covered by This Definition?
Section 274A(b) of the Act delineates three principal employment
verification requirements: (1) individual attestation of employment
authorization on a verification form; (2) employer attestation on a
verification form after examination of identity and employment
eligibility documents; and (3) retention of the verification form. The
list of technical or procedural failures defined in this proposed rule
reflects those components of the statutory provision and current
regulations that fall outside the principal components.
The principal components of the individual attestation are
identified as the subject matter of the attestation, namely, the
individual's identification of whether he or she is a citizen or
national of the United States, Lawful Permanent Resident or alien
authorized to work until a specified date, and the individual's
signature. The principal components of the employer attestation are
identified as the subject matter of the attestation, namely, the
examination of proper identity and employment authorization documents,
and the employer's signature. The principal components of the retention
requirements are identified as completion of the Form I-9 itself and
maintenance of the Form I-9 for the periods specified in the Act since,
without either the Form I-9 or its retention, the employment
verification requirements would be ineffectual.
How does the Proposed Rule Address Good Faith Attempts to Comply?
The term good faith attempt to comply with the requirement is not
directly defined in this proposed rule. Rather, this proposed rule
clarifies when an employer has not made a good faith attempt to comply
with a particular requirement and, thus, does not gain the benefit of
the notification and correction period requirements of section
274A(b)(6) of the Act.
When has an Employer not Made a Good Faith Attempt to Comply?
An employer has not made a good faith attempt to comply with a
particular requirement when: (a) the employer committed the technical
or procedural failure to intentionally avoid the verification
requirement or knowingly relied on the good faith compliance provision;
(b) the employer corrected or attempted to correct the failure with
knowledge, or in reckless disregard of the fact that the correction or
the attempted correction contains false information or a material
misrepresentation; (c) the employer prepared the Form I-9 with
knowledge or in reckless disregard of the fact that the Form I-9
contains false information or a material misrepresentation; or (d) the
type of failure was previously the subject of a Warning Notice, Notice
of Intent to Fine, or notification of technical or procedural failures.
Intentional avoidance of the requirements can be demonstrated
circumstantially through such evidence as a large number of
unauthorized aliens in the employer's work force combined with a
pattern of failures with respect to those unauthorized aliens, or
failure of the employer to prepare Forms I-9 for his or her employees
until after the Service notifies the employer through the Notice of
Inspection that the Service intends to conduct an I-9 inspection. This
proposed rule is not intended to provide a shield for employers to
avoid the requirements of the Act.
How can Employers Correct Technical or Procedural Verification
Failures?
This rule proposes a mechanism for employers to correct technical
or procedural failures for which they have been notified. To be deemed
to have properly corrected a technical or procedural failure identified
in section 1 of the Form I-9, the employer must ensure that the
individual, preparer, and/or translator corrects the failure on the
Form I-9, initials the correction, and dates the correction. To be
deemed to have properly corrected a technical or procedural failure
identified in sections 2 or 3 of the Form I-9, the employer must
correct the failure on the Form I-9, and then initial and date the
correction.
The Service recognizes that the correction of technical or
procedural failures is sometimes impossible, whether due to the nature
of the failure, such as a timeliness failure, or to the inability of
the employer to access the necessary information, such as when the
information has been independently destroyed or is inaccessible due to
termination of the individual's employment. This rule proposes that,
where the employer's explanation of an inability to correct a technical
or procedural failure is reasonable, the employer will be deemed to
have complied with the requirement, notwithstanding the inability to
correct the failure.
This proposed rule in no way affects the Service's authority to
enforce verification failures that are not characterized as technical
or procedural.
What About the Other Employment-Related IIRIRA Provisions?
This is one of four rules the Service is proposing to implement
IIRIRA amendments to section 274A of the Act. In addition to this rule,
we are developing and publishing proposed rules to:
(a) Implement sections 412(a), 412(d), and 416 of the IIRIRA by:
(1) eliminating certain documents currently used in the employment
eligibility verification (Form I-9) process; (2) including any branch
of the Federal Government in the definition of entity for employer
sanctions purposes; and (3) clarifying the Service's authority to
compel by subpoena the appearance of witnesses and production of
evidence when investigating possible violations of section 274A of the
Act. This proposed rule and a proposed revision to the Form I-9 were
published for comment on February 2. This proposed rule includes
numerous changes intended to simplify the verification procedures;
(b) Implement changes to the application process for obtaining
employment authorization from the Service. This proposed rule will
include a revision to the Form I-765, Application for Employment
Authorization, and revisions to Subpart B of Part 274a; and
(c) Implement section 412(b) of IIRIRA, which permits an employer
which is a member of an association of two or more employers that hires
an individual who is a member of a collective bargaining unit and is
employed under a collective bargaining agreement entered into between
one or
[[Page 16912]]
more employee organizations and the association to use the Form I-9
completed for that individual within 3 years (or, if less, the period
of time that the individual is authorized to be employed in the United
States) by a prior employer which is a member of the same association.
Regulatory Flexibility Act
The Commissioner, in accordance with the Regulatory Flexibility Act
(5 U.S.C. 605(b)), has reviewed this regulation and, by approving it,
certifies that this rule does not have a significant economic impact on
a substantial number of small entities. This rule eases the burden on
small businesses by ensuring that employers who make a good faith
effort to comply with the employment verification provisions are not
penalized for technical and procedural failures.
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 1 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 Fairness 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.
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, this regulation has been submitted to the Office
of Management and Budget for review.
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 proposed rule meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of E.O. 12988.
Paperwork Reduction Act
This proposed rule does not impose any new reporting or
recordkeeping requirements. The information collection requirements
contained in this rule were previously approved for use by the Office
of Management and Budget (OMB). The OMB control number for these
collections 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 proposed to be 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.1 is amended by:
a. Removing the ``.'' at the end of paragraph (1)(2) and replacing
it with a ``;'' and by
b. Adding a new paragraph (n) to read as follows:
Sec. 274a.1 Definitions
* * * * *
(n) The term technical or procedural failure to meet such
requirement means failure of a person or entity to:
(1) In section 1 of the Form I-9:
(i) Ensure that an individual hired or recruited or referred for a
fee provides his or her maiden name, address, or birth date;
(ii) Ensure that an individual provides his or her Alien number on
the line next to the phrase ``A Lawful Permanent Resident'', but only
if the Alien number is provided in sections 2 or 3 of the Form I-9 (or
on a legible copy of a document retained with the Form I-9 and
presented at the I-9 inspection);
(iii) Ensure that an individual provides his or her Alien number or
Admission number on the line provided under the phrase ``An alien
authorized to work until'', but only if the Alien number or Admission
number is provided in sections 2 or 3 of the Form I (or on a legible
copy of a document retained with the Form I-9 and presented at the I-9
inspection);
(iv) Ensure that an individual dates section 1 of the Form I-9;
(v) Ensure that an individual completes section 1 of the Form I-9
timely by dating section 1 of the Form I-9 at the time of hire, if the
time of hire occurred on or after September 30, 1996; and
(vi) Ensure that a preparer/translator provides his or her name,
address, signature, and date.
(2) In section 2 of the Form I-9:
(i) Provide the document title, identification number(s) and/or
expiration date(s) of a proper List A document or proper List B and
List C documents, but only if a legible copy of the document(s) is
retained with the Form I-9 and presented at the I-9 inspection;
(ii) Provide the title, business name, and business address;
(iii) Provide the date of hire in the attestation portion;
(iv) Date section 2 of the Form I-9; and
(v) Complete section 2 of the Form I-9 timely by dating section 2
of the Form I-9 within 3 business days of the date the individual is
hired or, if the individual is hired for 3 business days or less, at
the time of hire, if the date on which section 2 had to be completed
occurred on or after September 30, 1996.
(3) In section 3 of the Form I-9:
(i) Provide the document title, identification number(s), and/or
expiration date(s) of a proper List A or List C document, but only if a
legible copy of the document is retained with the Form I-9 and
presented at the I-9 inspection; and
(ii) Provide the date of rehire.
3. Section 274a.2 is amended by adding a new paragraph (e) to read
as follows:
Sec. 274a.2 Verification of employment eligibility.
* * * * *
(e) Good faith compliance with the employment verification
requirements notwithstanding technical or procedural failures. (1) In
the case of I-9 inspections conducted on or after September 30, 1996,
an employer or recruiter or referrer for a fee will not be subject to
civil monetary penalties under Sec. 274a.10(b) for technical or
[[Page 16913]]
procedural failures to meet a requirement of section 274A(b) of the Act
if the employer or recruiter or referrer for a fee made a good faith
attempt to meet such requirement. An employer or recruiter or referrer
for a fee will not be considered to have made a good faith attempt to
meet such requirement when:
(i) The technical or procedural failure was committed with the
intent to avoid a requirement of the Act, as demonstrated by the
totality of circumstances including but not limited to the substantial
presence of unauthorized aliens hired by the employer combined with a
pattern of repeated failures in the completion of the Form I-9 with
respect to such unauthorized aliens, or failure of the employer to
prepare the Form I-9 until after the employer is served with a Notice
of Inspection;
(ii) The technical or procedural failure was committed in knowing
reliance on section 274A(b)(6) of the Act;
(iii) The employer or recruiter or referrer for a fee corrected or
attempted to correct the technical or procedural failure with knowledge
or in reckless disregard of the fact that the correction or attempted
correction contained a false, fictitious, or fraudulent statement or
material misrepresentation, or has no basis in law or fact;
(iv) The employer or recruiter or referrer for a fee prepared the
Form I-9 with knowledge or in reckless disregard of the fact that the
Form I-9 contained a false, fictitious, or fraudulent statement or
material misrepresentation, or has no basis in law or fact; or
(v) The type of failure was previously the subject of a Warning
Notice described in Sec. 274a.9(c) or Notice of Intent to Fine
described in Sec. 274a.9(d), or a notice of technical or procedural
failures.
(2) An employer or recruiter or referrer for a fee will be subject
to civil money penalties under Sec. 274a.10(b) notwithstanding
paragraph (e)(1) of this section if, after receiving notice of the
technical or procedural failure(s), the employer or recruiter or
referrer for a fee does not voluntarily correct the failure(s) on the
Form I-9 by the date specified in the notice. The date specified in the
notice must be at least 10 days after the date the notice is received
in the case of personal service and 15 days after the date on the
notice in the case of service by certified or regular mail. No penalty
will apply if the failure could not reasonably be corrected, and the
employer or recruiter or referrer for a fee provides a Service officer
with an explanation of why the failure(s) cannot reasonably be
corrected by the date specified in the notice. This explanation may be
written or oral at the discretion of the Service officer. The employer
or recruiter or referrer for a fee will be deemed to have properly
corrected a technical or procedural failure where the employer or
recruiter or referrer for a fee:
(i) In the case of a failure in section 1 of the Form I-9, ensures
that the individual, preparer and/or translator corrects the failure on
the Form I-9, initials the correction, and dates the correction; or
(ii) In the case of a failure in sections 2 or 3 of the Form I-9,
corrects the failure on the Form I-9, initials the correction, and
dates the correction.
Dated: March 29, 1998.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 98-8969 Filed 4-6-98; 8:45 am]
BILLING CODE 4410-10-M
