DHS Publishes Final Rule On Acceptable Employment Eligibility Verification Documents

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[Federal Register: April 15, 2011 (Volume 76, Number 73)]
[Rules and Regulations]              
[Page 21225-21232]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15ap11-1]                        

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Rules and Regulations
                                                Federal Register
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[[Page 21225]]

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 (USCIS), DHS.

ACTION: Final rule.

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SUMMARY: This rule finalizes without change a 2008 interim final rule
amending Department of Homeland Security (DHS) regulations governing
the types of acceptable identity and employment authorization documents
(EADs) and receipts that employees may present to employers for
completion of Form I-9, Employment Eligibility Verification.

DATES: This final rule is effective May 16, 2011.

FOR FURTHER INFORMATION CONTACT: Letitia Coffin, Verification Division,
U.S. Citizenship and Immigration Services, Department of Homeland
Security, 131 M Street, NE., Suite 200, Washington, DC 20002, telephone
(888) 464-4218 or e-mail at Everify@dhs.gov.

SUPPLEMENTARY INFORMATION: The supplementary section is organized as
follows:

Table of Contents

I. Background
    A. Interim Rule
    B. Final Rule
II. Public Comments on the Interim Rule
    A. Summary of Comments
    B. Requiring Unexpired Documents
    C. Comprehensive Review of the Form I-9 Process
    D. The 1998 Notice of Proposed Rulemaking
    E. Mistake in Interim Rule
    F. Delay in Effective Date of Interim Rule
    G. Comments to the Form I-9
    H. Suggested Revisions to the Lists of Acceptable Documents
    I. Standardizing State and Federal Document Requirements
    J. Requests for Outreach and Guidance
    K. Comprehensive Immigration Reform
III. Regulatory Requirements
IV. Paperwork Reduction Act (PRA)

I. Background

    All employers, agricultural recruiters and referrers for a fee \1\
(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 Form I-9, ``Employment
Eligibility Verification,'' retain the form for a statutorily
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 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 document, record the document information on Form I-9, and
attest that the document reasonably appears both to be genuine and to
relate to the individual presenting it.
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    \1\ Title 8 CFR 274a.2(a)(1) provides that ``[f]or purposes of
complying with section 274A(b) of the [INA] and this section, all
references to recruiters and referrers for a fee are limited to a
person or entity who is either an agricultural association,
agricultural employer, or farm labor contractor (as defined in
section 3 of the Migrant and Seasonal Agricultural Worker Protection
Act, Pub. L. 97-470).''
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    The Form I-9 has three categories of documents that employers may
accept, alone or in combination, for employment authorization
verification:
    (1) List A--documents that establish both identity and employment
authorization (e.g., U.S. passport; Form I-551, ``Permanent Resident
Card;'' or Form I-766, ``Employment Authorization Document'');
    (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 or an unrestricted Social
Security Account Number card).

See INA section 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.
See INA section 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.'' See 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
documents specified in the regulations as acceptable to present. An
employer may accept a receipt, however, only under specific
circumstances prescribed under 8 CFR 274a.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.\2\ See 8 CFR
274a.2(b)(1)(vii).
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    \2\ Note that an expiration date on Form I-551 does not trigger
the reverification requirement. See ``Handbook for Employers,
Instructions for Completing Form I-9'' (M-274) (Rev. 01/05/11),
http://www.uscis.gov, (``Handbook for Employers''), pages 9 and 39.

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[[Page 21226]]

A. Interim Rule

    On December 17, 2008, DHS published an interim rule amending DHS
regulations governing the Form I-9 process. See 73 FR 76505. The
interim rule became effective on April 3, 2009.\3\ DHS improved the
integrity of the Form I-9 process by:
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    \3\ On February 3, 2009, DHS delayed the effective date of the
December 17, 2008, interim rule to April 3, 2009 to provide DHS with
an opportunity for further consideration of the interim rule. The
February 3, 2009 document also extended the public comment period
until March 4, 2009. See 74 FR 5899.
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    Prohibiting employers from accepting expired documents.
Expired documents may not demonstrate the correct status of the bearer;
are prone to tampering and fraudulent use; and may create confusion
among employers. This change is intended to ensure that the documents
accepted by employers as evidence of an employee's identity and
employment authorization are valid and reliable;
    Removing Form I-688, ``Temporary Resident Card,'' and
Forms I-688A and I-688B, ``Employment Authorization Cards,'' from the
Lists of Acceptable Documents because USCIS no longer issues these
documents and any such documents in possession of an employee would now
have expired;
    Adding to the List of Acceptable Documents on List A of
Form I-9: (1) The new U.S. passport card and (2) the temporary Form I-
551, ``Permanent Resident Card,'' with a printed notation on a machine-
readable immigrant visa;
    Adding documentation for certain citizens of the Federated
States of Micronesia (FSM) and the Republic of the Marshall Islands
(RMI) to List A to more accurately reflect their status under the
Compacts of Free Association.
    In addition to the amendments made by the 2008 interim rule, USCIS
issued an amended Form I-9 which clarified changes, such as providing a
separate box for noncitizen nationals to clearly delineate U.S.
citizens from noncitizen nationals, and making minor format changes
that make the form easier to use.
    On January 16, 2009, DHS published a correction to the interim rule
to remove extraneous language from two paragraphs of the regulation
that describe a type of receipt that can be presented by lawful
permanent residents to their employers in lieu of the Form I-551,
``Permanent Resident Card,'' for completion of Form I-9. See 74 FR
2838.
    On February 3, 2009, DHS extended the comment period for the
interim rule to March 4, 2009. See 74 FR 5899.\4\ During the entire
comment period, DHS received 75 comments. These comments came from a
broad spectrum of individuals and organizations, including refugee and
immigrant services advocacy organizations and public policy and
advocacy groups. Many commenters addressed multiple issues and provided
variations on the same substantive issues.
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    \4\ See supra footnote 3.
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    In preparing this final rule, DHS considered the comments that were
received during the comment period and were within the scope of this
rulemaking as well as the other materials contained in the docket. The
final rule does not address comments seeking changes in United States
statutes, changes in regulations or petitions unrelated to or not
addressed by the interim rule, changes in procedures of other
components within DHS or other agencies, or the resolution of any other
issues not within the scope of the rulemaking or the authority of DHS.
    All comments may be reviewed at the Federal Docket Management
System (FDMS) at http://www.regulations.gov, docket number USCIS-2008-
0001.

B. Final Rule

    The final rule adopts, without change, all of the regulatory
amendments set forth in the interim rule. The rationale for the interim
rule and the reasoning provided in the preamble to the interim rule
remain valid with respect to these regulatory amendments, and DHS
adopts such reasoning in support of the promulgation of this final
rule.

II. Public Comments on the Interim Rule

A. Summary of Comments

    Many commenters supported the improvements to the Form I-9 process
made in the interim rule, such as: Prohibiting employers from accepting
expired documents; removing certain documents no longer issued by
USCIS; adding two new documents to List A; adding documentation for
certain citizens of the FSM and RMI to List A; and making clarifying
changes to Form I-9, such as providing a separate box for noncitizen
nationals. Most commenters discussed the prohibition on employers from
accepting expired documents and supported the change because they
believe that this change would prevent unauthorized aliens from
obtaining employment in the United States by using expired documents
which are more susceptible to fraud and counterfeiting than unexpired
documents.
    Although most commenters supported one or more changes to the Form
I-9 process, several commenters opposed the prohibition on the use of
expired documents because they believe that many employment-authorized
individuals such as asylees, refugees, and conditional residents should
not be required to present an unexpired document as evidence of
employment authorization. The commenters were concerned that such
employees will be unable to work if processing or issuance of a new
document is delayed. Several commenters also opposed the prohibition on
the use of expired documents because they believe that these changes
will create additional burdens and costs for employers and employees.
Some of the commenters who opposed the prohibition on the use of
expired documents requested a delay in implementation of the interim
rule. In response to public comments requesting an extension of the
effective date, DHS delayed the effective date of the interim rule from
February 2, 2009, to April 3, 2009. See 74 FR 5899.
    Many commenters pointed out the need for comprehensive immigration
reform including a thorough review of the Form I-9 process. Some
commenters suggested improvements to the Form I-9 process such as:
Biometrics; providing the public a truly electronic Form I-9; and
detailed changes to the form. Other commenters discussed document
reduction or suggested changes to the acceptability of specific
document types such as: School IDs; U.S. Passports; State-issued
drivers' licenses including enhanced drivers' licenses; voter
registration cards; Native American tribal documents; and the
Certificates of Citizenship and Naturalization.
    Comments that were received are addressed below and are organized
by subject area. Comments related to the economic burdens of this rule
are addressed in the Executive Order 12866 and Regulatory Flexibility
Act sections of part III of the Supplementary Information.

B. Requiring Unexpired Documents

    DHS received 23 comments addressing the interim rule's requirement
that all documents presented for Form I-9 be unexpired. Fifteen
commenters supported the requirement and eight commenters opposed it.
Most of the commenters who supported the requirement wrote that
allowing employers to accept expired documents would lead to the
inadvertent acceptance of fraudulent documents and, therefore, the
employment of unauthorized aliens. Some commenters who supported the

[[Page 21227]]

requirement wrote that this change eliminates confusion in the Form I-9
process and that requiring unexpired documents provides benefits to law
enforcement.
1. Continued Acceptance of Expired Documents
    Eight commenters opposed the requirement that documents must be
unexpired for Form I-9 and stated that employers should be able to
continue to accept expired documents as permitted before the interim
rule went into effect. Five of these commenters proposed the continued
acceptance of expired documents for varying periods between 30 days and
five years after expiration of the document. Two of these commenters
wrote that the cost of obtaining replacement documents was too high.
One commenter wrote that refugees and asylees should be excused from
this requirement because these individuals are authorized for
employment incident to their status.
    DHS is retaining the requirement that documents be unexpired and is
not adopting the commenters' suggestions to continue accepting expired
documents. Concerns about document fraud were among the most important
reasons for this rulemaking. Unexpired documents are more likely to
contain up-to-date security features that make them less vulnerable to
counterfeiting and fraud. Because expired documents may lack security
features or may have outdated security features, these documents can
more easily be counterfeited.
    DHS disagrees with the commenters who wrote that expired documents
should be allowed within specified parameters (e.g., 30 days after
expiration). Establishing a requirement that all documents be unexpired
sets a clear standard that is easy for U.S. employers to apply. Such a
requirement honors the time limits of validity placed on documents by
their issuing authorities. In addition, precluding employers from
accepting expired documents alleviates confusion when determining
whether documents are valid for Form I-9 and helps to ensure that the
documents relate to the person presenting them. Moreover, disallowing
the acceptance of expired documents reduces document fraud and may
prevent unauthorized aliens, criminals and even terrorists from evading
detection.
2. Refugees and Asylees
    One commenter requested that DHS allow employers to accept
Employment Authorization Documents (EADs) presented by refugees and
asylees that have been expired no longer than 90 days. The commenter
wrote that neither group requires an EAD because both are authorized to
work incident to their lawful immigration status.
    DHS has not adopted the commenter's request in this final rule. DHS
is aware of the many difficulties that refugees and asylees face in
adapting to a new life in the United States and has carefully
considered those difficulties as they relate to employment
authorization. However, permitting the use of expired documents for
Form I-9, even for the limited period of 90 days as suggested by the
commenter, introduces vulnerabilities into the verification process
that undermine the purpose of the process as a whole. The EAD is not
the only acceptable document that refugees and asylees may present for
Form I-9 purposes. They may satisfy Form I-9 requirements by presenting
a combination of a List B and a List C document, such as a State-issued
driver's license and an unrestricted Social Security Account Number
card. Many refugees and asylees instead choose to present an EAD
because of the simplicity of having a List A document that meets
identity and employment authorization requirements. DHS acknowledges
the desire for simplicity on the part of both groups; however,
permitting the use of expired EADs for only refugees and asylees and
for only a 90-day period after a particular document's expiration
conflicts with DHS' desire to provide a consistent rule prohibiting the
use of expired documents.
3. Alleged Delays in the Issuance of Documents by USCIS
    Five commenters wrote that expired documents should be acceptable
because USCIS is unable to timely process applications for new
documents demonstrating employment authorization.
    DHS is not adopting the commenters' recommendations. DHS processes
applications for renewal of immigration-related documents in a timely
manner for applicants who apply to renew their immigration documents
with sufficient planning in advance of expiration dates. In the event
of a processing delay or unforeseen emergency, or for applications
filed too close to the documents' expiration dates, applicants may
request expedited processing. The regulations at 8 CFR 274a.13(d)
impose a 90-day processing time for DHS to adjudicate applications for
Form I-765, ``Application for Employment Authorization Document,'' and
to issue an EAD. DHS records indicate that the current average cycle
time for Form I-765 processing was 1.9 months as of November 2008.\5\
Aliens whose applications for employment authorization have been
pending for more than 90 days may call USCIS to request expedited
processing of their applications. Lawful permanent residents (LPRs)
seeking to replace a Form I-551, ``Permanent Resident Card,'' that has
expired or has been lost, stolen, or mutilated can present other non-
USCIS documents to meet Form I-9 requirements, such as a State-issued
driver's license and an unrestricted Social Security Account Number
card, until a new card can be issued. In the alternative, LPRs may
request a temporary Form I-551 stamp in their passports or on Form I-
94, ``Arrival-Departure Record,'' that is evidence of LPR status while
their renewal or replacement application is pending. Consequently, DHS
does not adopt the commenters' recommendations.
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    \5\ See Memorandum by Michael Aytes, Former Acting Director,
USCIS, Response to Recommendation 35, Recommendations on USCIS
Processing Delays for Employment Authorization Documents, (Jan. 2,
2009) (available at http://www.dhs.gov (Citizenship and Immigration
Services Ombudsman page)).
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    Two of the five commenters also wrote that if USCIS precludes the
use of expired documents, then USCIS should adopt a rule that permits
employers to accept, in lieu of an acceptable Form I-9 document, a
receipt for the application of replacement of an expired document, for
a 240-day period. These two commenters also stated that the current 90-
day period provides insufficient time to present proper documentation
due to USCIS's processing delays.
    DHS is not adopting the suggestion by the commenter to expand the
period of time that a receipt for the application for a replacement
document may be used in lieu of a document listed as acceptable for
Form I-9. The commenter is referring to the ``receipt rule'' which
allows employers to accept a document specified in the regulations as a
``receipt'' in lieu of a List A, B, or C document for a temporary
period. Under the receipt rule, an employer may accept a receipt for
the application for a replacement document for a 90-day period for Form
I-9 if the List A, B, or C document that is being replaced has been
lost, stolen, or damaged. See 8 CFR 274a.2(b)(1)(vi)(A). Because the
receipt rule only applies if the List A, B, or C document has been
lost, stolen, or damaged, and not when the document has expired, it is
not relevant to DHS's preclusion of the use of expired documents.
    Another commenter wrote that refugees should be permitted a grace

[[Page 21228]]

period of 90 days from the requirement that they present an unexpired
document because refugees are employment-authorized incident to their
status and may not receive an initial EAD from USCIS in a timely
manner. The commenter also wrote that refugees may not be aware that
expired documents are no longer acceptable.
    DHS has not adopted the commenter's suggestions in this final rule.
USCIS expedites applications for those refugees who choose to apply for
an EAD. DHS records show that, in most instances, USCIS issues EADs to
refugees within two weeks of their admission to the United States. In
addition, current regulations already contain a ``90-day grace period''
for refugees. Until refugees receive their EADs, they may present Form
I-94, ``Arrival-Departure Record,'' with an unexpired refugee admission
stamp as temporary proof of employment authorization. See 8 CFR
274a.2(b)(1)(vi)(C)(1). Refugees have 90 days from receipt of the
admission stamp to present either an EAD or a combination of a List B
and List C document. See 8 CFR 274a.2(b)(1)(vi)(C)(2).
4. Definition of an Unexpired Document
    One commenter requested that DHS provide a definition of the term
``unexpired.'' In general, DHS considers a document to be unexpired
when the expiration date on the face of the document, if any, has not
passed. DHS is not, however, including a formal definition of
``unexpired'' in this final rule. DHS has determined that, given the
wide variety of documents acceptable for Form I-9 purposes, and the
fact that the term has been present in the regulations for many years,
it would not be appropriate or necessary to provide an all-encompassing
definition of the term in this rulemaking. DHS will provide guidance to
the public in response to specific questions concerning particular
documents as appropriate.

C. Comprehensive Review of the Form I-9 Process

    Six commenters expressed concerns about the entire Form I-9
employment verification process. Three of the six commenters requested
that DHS conduct a comprehensive review of the entire Form I-9 process
that carefully considers the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA).
    DHS has not adopted these comments as they are outside the scope of
the interim rule. The interim rule did not make changes to the
verification process as a whole. Instead, the rule made limited changes
to the types of documents that are acceptable for employment
verification, such as eliminating outdated List A documents and
precluding the presentation of expired documents. See, e.g., 73 FR
76506-07. DHS regularly reviews and analyzes its programs for
improvement and greater effectiveness and may consider changes to the
employment verification process in a future rulemaking.
    One of the commenters wrote that DHS has not removed enough
documents from the Lists of Acceptable Documents on Form I-9 to fulfill
its mandate under the authorizing statute. DHS assumes that the
commenter is referring to the document reduction provision of IIRIRA.
IIRIRA amended section 274A(b)(1) of the INA, 8 U.S.C. 1324a(b)(1), by
removing several documents from List A (e.g., certificate of
naturalization) and List C (e.g., birth certificate). However, IIRIRA
retained the authority of the Attorney General (now the Secretary of
Homeland Security) to designate additional documents within certain
boundaries, including the requirement that the designated documents
contain security features that make them resistant to tampering,
counterfeiting, and fraudulent use. The former Immigration and
Naturalization Service (INS) implemented the document reduction mandate
of IIRIRA in its interim rulemaking at 62 FR 51001 (Sept. 30, 1997).
DHS believes that the 1997 interim rulemaking met its statutory mandate
to ensure that the documents remaining on List A and C contain certain
minimum security features. Through this final rule, DHS is making
additional changes to further secure the Form I-9 process.
    One commenter suggested that Form I-9 is not an effective tool to
discourage unauthorized employment because an employer can easily
discard a Form I-9 after three years under certain circumstances. The
same commenter also noted that an employee's departure from the United
States is not confirmed after his or her employment authorization has
expired.
    DHS has not addressed Form I-9's effectiveness as a means of
providing employment verification or reporting the departure of aliens
previously authorized to work in this rulemaking. The Form I-9
retention requirement is statutory, and, therefore, is not within DHS's
authority to change. The statute requires that employers retain
completed Forms I-9 for all employees for three years after the date an
employee is hired, or one year after the date employment is terminated,
whichever is later. See INA section 274(b)(3), 8 U.S.C. 1324a(b)(3); 8
CFR 274a.2(b)(2)(i)(B). For more information on retention requirements,
please refer to the Handbook.\6\
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    \6\ Part Three, ``Photocopying and Retaining Form I-9''
``Handbook for Employers, Instructions for Completing Form I-9'' (M-
274) (Rev. 01/05/11), http://www.uscis.gov, pages 23-26.
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    With respect to the commenter's suggestion that an employee's
departure from the United States be noted on Form I-9, current rules
only require reverification of employment authorization once the
employment authorization noted on Form I-9 expires. See 8 CFR
274a.2(b)(1)(vii). The interim rule did not modify the reverification
provision. Note that an individual whose employment authorization has
expired may not necessarily be required to depart the United States if
he or she remains lawfully present in the United States (e.g., asylees)
or has received a renewal of employment authorization.
    Another commenter requested that the 2008 interim rule be withdrawn
because of DHS's failure to perform a comprehensive review of the Form
I-9 process, noting that time and resources could be better spent on a
comprehensive review.
    DHS is not withdrawing the 2008 interim rule for purposes of
conducting a comprehensive review. The changes made in the interim rule
will lead to significant administrative benefits by reducing employer
confusion and increasing compliance. Moreover, to withdraw the rule and
revert to the preceding Form I-9 also would result in considerable
confusion among employers. DHS continually reviews and analyzes the
employment eligibility verification process and considers changes to
the process as appropriate. DHS may propose additional changes in the
Form I-9 verification process in the future as needed.

D. The 1998 Notice of Proposed Rulemaking

    Two commenters discussed the 1998 notice of proposed rulemaking
found at 63 FR 5287. One commenter wrote that prior to the 2008 interim
rule, the former INS last requested public comments in 1998 and has not
published responses to those comments. The commenter added that DHS has
not promulgated a rule in the Federal Register on one issue mentioned
in the preamble to the 1998 proposed rule: The good faith defense
against technical Form I-9 paper violations. The commenter also wrote
that the failure to promulgate rules has denied employers

[[Page 21229]]

a compliance standard and led to confusion.
    DHS agrees with the commenter that the INS did not publish
responses to the public comments received with respect to the 1998
proposed rule, and neither has DHS published responses to the comments.
As stated in the Supplementary Information to the interim rule,
however, the interim rule superseded the 1998 proposed rule, and the
comments received as part of that rulemaking informed the development
of the interim rule. DHS does not intend to publish responses to the
public comments, given the time that has passed since the 1998 proposed
rule. INS published a proposed rule in 1998 regarding the good faith
defense against technical Form I-9 paper violations. See 63 FR 16909
(Apr. 7, 1998). DHS disagrees that employers have been operating
without a compliance standard. The Handbook for Employers provides
guidance for employers on Form I-9 compliance.\7\
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    \7\ Part Four, ``Unlawful Discrimination and Penalties for
Prohibited Practices,'' ``Handbook for Employers, Instructions for
Completing Form I-9'' (M-274) (Rev. 01/05/11), http://www.uscis.gov,
page 30. See also Part Four, ``Unlawful Discrimination and Penalties
for Prohibited Practices,'' ``Handbook for Employers, Instructions
for Completing Form I-9'' (M-274) (Rev. 07/31/09) (no longer
available online), p. 22. Part Four, ``Unlawful Discrimination and
Penalties for Prohibited Practices,'' ``Handbook for Employers,
Instructions for Completing Form I-9'' (M-274) (Rev. 04/03/09) (no
longer available online), p. 19; Part Four, ``Unlawful
Discrimination and Penalties for Prohibited Practices,'' ``Handbook
for Employers, Instructions for Completing Form I-9'' (M-274) (Rev.
11/1/2007) (no longer available online), p. 17; and Part 5,
``Penalties for Prohibited Practices,'' ``Handbook for Employers,
Instructions for Completing Form I-9'' (M-274) (11/1991) (no longer
available online), p. 10.
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E. Mistake in Interim Rule

    One commenter alerted DHS that the interim rule erroneously added
the language ``with an unexpired passport'' to the regulation found at
8 CFR 274a.2(b)(1)(vi)(B)(1). The commenter pointed out that the
regulation in question describes a receipt for Form I-551, ``Permanent
Resident Card,'' (the arrival portion of Form I-94 with an unexpired
temporary Form I-551 stamp and photograph of the individual) and that
the interim rule had placed language in the wrong section.
    DHS published a correction to 8 CFR 274a.2(b)(1)(vi)(B)(1) in the
Federal Register on January 16, 2009 at 74 FR 2838 and deleted the
erroneous language.

F. Delay in Effective Date of Interim Rule

    Ten commenters requested a delay in implementation of the interim
rule. DHS did delay the initial effective date, extending the date from
February 2, 2009, to April 3, 2009. DHS determined that there was no
basis for any further delay in the effective date for this rule.

G. Comments to the Form I-9

    DHS received several comments regarding Form I-9 in response to the
information collection published with the interim rule. These comments
are addressed below.
1. Expiration Date of Form I-9
    Eight commenters discussed the expiration date indicated on Form I-
9. Six commenters were concerned that the revised Form I-9 (Rev. 02/02/
09) might expire on June 30, 2009, as indicated on the form. Four
commenters suggested that because the current Form I-9 bears an
expiration date of June 30, 2009, employers should be allowed to
continue using the preceding Form I-9 until that time, with its
allowance for accepting expired documents. Three commenters noted that
the gap between the implementation date of the new form and the
expiration of the old form is confusing. One commenter argued that DHS
should allow the use of either Form I-9 until June 30, 2009.
    Employers may use either Form I-9 with the new revision date of 08/
07/09 or Form I-9 with the 02/02/09 revision date. On April 28, 2009,
DHS published a 30-day notice in the Federal Register at 74 FR 19233,
extending the expiration date of Form I-9 (Rev. 02/02/09) beyond June
30, 2009. The expiration date is now August 31, 2012. Therefore, the
commenters' concerns about whether to use Form I-9 (Rev. 02/02/09) are
moot. DHS recognizes that the expiration date on Form I-9 may be
confusing to some employers. The Office of Management and Budget (OMB)
expiration date found on the front page of Form I-9 refers only to the
control number assigned for the information collection requirements of
the form, which must be updated and renewed periodically.
2. Adding Miscellaneous Instructions and Reorganizing Form I-9
    Seven commenters recommended specific changes to Form I-9. Two
commenters recommended that all acceptable documents and receipts be
included on Lists A, B, and C. Another commenter requested that Part 8
of the Handbook be updated to include the current Lists of Acceptable
Documents. One commenter requested that DHS provide guidance about List
A, Item 5, the foreign passport with Form I-94 indicating:
    Nonimmigrant status,
    Work is authorized incident to status, and that
    Work is restricted for a specific employer.
    While DHS appreciates the commenters' recommendations, DHS is not
making further changes to Form I-9 beyond those made based on the
interim rule. DHS may consider these recommendations when undertaking
future revisions to Form I-9 and the Handbook.\8\ Note that the
Handbook contains a listing of all documents, including receipts, that
are acceptable for Form I-9. DHS has also included a section in the
Handbook that provides images of common documents acceptable as
permanent or temporary proof of employment authorization.\9\ The
Handbook provides guidance on nonimmigrant aliens with temporary
employment authorization who present List A, Item 5 documents.\10\ DHS
released a revised Handbook on January 5, 2011.
---------------------------------------------------------------------------

    \8\ Id.
    \9\ Part Eight, ``Acceptable Documents for Verifying Employment
Authorization and Identity,'' in the ``Handbook for Employers,
Instructions for Completing Form I-9'' (M-274) (Rev. 01/05/11),

http://www.uscis.gov, pages 51-63.
    \10\ Part Two, ``Completing Form I-9,'' ``Handbook for
Employers, Instructions for Completing Form I-9'' (M-274) (Rev. 01/
05/11), http://www.uscis.gov, pages 3-19.
---------------------------------------------------------------------------

    One commenter requested that instructions to Form I-9 be written in
plain language. DHS promotes and supports the use of plain language and
regrets that the commenter found the instructions difficult to
understand. DHS will continue carefully to examine future changes to
Form I-9 for plain language.
    Another commenter recommended that the boxes to attest to U.S.
citizenship and noncitizen national status should be separated on Form
I-9. In the Form I-9 accompanying the interim rule, DHS added a
separate check box for U.S. citizens and noncitizen nationals in the
immigration/citizenship status attestation of Section 1 of Form I-9.
DHS is retaining this change in Form I-9.
3. Public Access to New Forms I-9 Prior to Issuance
    Two commenters requested that any future version of Form I-9 be
made available at http://www.uscis.gov further in advance to allow the
public time to prepare for changes.
    DHS recognizes the need for employers and human resource
professionals to have sufficient time to prepare for any changes to
Form I-9. For this rulemaking, DHS made Form I-9 available to the
public for informational

[[Page 21230]]

purposes on December 17, 2008. DHS will make every effort to make any
future version of Form I-9 available on USCIS's Web site at the
earliest possible time.
4. Discretion in Use of Incorrect Form I-9 Due to Employer Confusion
Following Implementation of the Interim Rule
    One commenter requested that DHS exercise favorable discretion for
employers who unintentionally used the wrong Form I-9 after the interim
rule went into effect.
    Beginning April 3, 2009, employers were required to use the Form I-
9 (Rev. 02/02/09) containing the revisions based on the interim rule. A
subsequent Form I-9 was made available on August 7, 2009 (Rev. 8/7/09).
Employers may use either form. DHS may exercise favorable discretion if
an employer unintentionally used the wrong Form I-9 due to confusion
regarding which form to use between February 2009 and April 2009.
Employers who used the wrong form during this time period are still
expected to comply with all other Form I-9 regulations applicable to
the preceding form.
5. Creating an Electronic Employment Eligibility Verification Process
    Three commenters requested that DHS make an electronic Form I-9
available that could be used with human resources software. Another
commenter requested specific technical improvements to create a solely
electronic employment authorization verification process. Four
commenters noted that the Form I-9 provided on the USCIS Web site was
password-protected or had security settings that prohibited them from
completing and saving the form electronically. These commenters also
requested that DHS provide an electronic Form I-9 that can be
completed, signed electronically and saved on their computer systems.
    DHS appreciates the commenters' recommendations regarding requested
enhancements in electronic completion and storage of the electronic
Form I-9. These comments are technical in nature and outside the scope
of the changes that DHS is making to Form I-9 through this rulemaking.
Changes to Form I-9 are limited to amending the Lists of Acceptable
Documents and making minor clarifications to the data elements on the
form.
    The revised Form I-9 that DHS posted on the USCIS Web site as of
January 16, 2009, can be completed online but cannot be signed and
stored electronically. As such, DHS must password-protect the form to
prevent the public from making any changes to it. DHS recognizes the
public's desire for an electronic Form I-9. DHS is continually
evaluating possible improvements to the Form I-9 process so that it is
more user-friendly.

H. Suggested Revisions to the Lists of Acceptable Documents

    DHS received several suggested changes to the lists of documents
acceptable for Form I-9. Suggested changes to List A documents include
one commenter's proposal for DHS to rename the Native American tribal
document and add it to List A because it is already acceptable as both
a List B and List C document. Two commenters requested that Form I-797,
``Notice of Action,'' be made an acceptable document for permanent
residents who possess an expired Form I-551 and whose conditions on
status have been removed. One commenter requested that Form I-797 serve
as an acceptable receipt for a List A document until the initial Form
I-551 is received in the mail. Four commenters requested that
Certificates of Naturalization or Citizenship be added to List A of
Form I-9. One commenter wrote that it is discriminatory to allow U.S.
citizens to use certified copies of birth certificates but not allow
Certificates of Naturalization or Citizenship for those born outside of
the United States. Two commenters requested that enhanced State-issued
drivers' licenses be added to the list of documents that establish both
identity and employment authorization (List A).
    Suggested changes to acceptable documents on List B of Form I-9
included one commenter's suggestion that Native American tribal
documents meet the same minimum requirements as State-issued driver's
licenses if they are included on List B. Two commenters wrote that
school ID cards should meet the same minimum requirements as State-
issued driver's licenses.
    With respect to changes to acceptable documents on List C of Form
I-9, one commenter proposed that voter registration cards, currently
under List B, be made acceptable documents on List C because such
documents evidence that the bearer is 18 or older and a U.S. citizen.
Concerning all documents acceptable for Form I-9, two commenters
suggested the addition of biometrics to Form I-9 documents. One of the
two commenters suggested that the addition of biometrics would prevent
identity fraud.
    DHS appreciates these commenters' concerns and suggestions.
However, these comments do not address the changes made in the interim
rule to the Lists of Acceptable Documents for Form I-9 and, therefore,
are outside the scope of this rulemaking. In considering any future
changes to the Lists of Acceptable Documents, DHS may consider
commenters' suggestions.

I. Standardizing State and Federal Document Requirements

    One commenter suggested that all State and Federal agencies should
accept the documents on Lists A, B, and C of Form I-9 as proof of
entitlement to a benefit.
    This suggestion is outside the scope of the interim rule, which is
limited to documents used for the Form I-9 employment eligibility
verification process. Moreover, DHS does not have the authority to
mandate that State and Federal agencies accept Form I-9 documents as
proof of entitlement to benefits.

J. Requests for Outreach and Guidance

    DHS received several requests for additional outreach to the public
and additional guidance on the Form I-9 process. Two commenters
requested that DHS perform greater outreach to inform the public about
their responsibilities concerning Form I-9. One of the two commenters
indicated that special efforts should be made to reach refugees and
asylees.
    One commenter asked whether Forms I-9 that were completed a few
days before the effective date of the revised Form I-9 still have to
meet the requirements of the final rule.
    Two commenters wrote that there is insufficient guidance for the
many categories of aliens with temporary employment authorization. One
commenter wrote that many of these aliens are at risk of losing or
being denied employment because they are unable to meet the
requirements of the interim rule. The first commenter wrote that since
the notice of proposed rulemaking at 63 FR 5287 was published in 1998,
Congress and USCIS have created a number of new categories of
employment authorization, for which it provided only sporadic or no
guidance. The first commenter also wrote that the 1997 interim rule
that precedes this interim rule (see 62 FR 51001) provides no guidance
for these categories. Both commenters, however, requested DHS guidance
for the special categories of temporary employment authorization with
varying validity periods, such as those with automatic extensions.
    With respect to acceptable documents for Form I-9, one commenter
requested that DHS provide examples of school ID cards acceptable as
List B documents.

[[Page 21231]]

One commenter asked whether an employer can accept documents other than
those the employee originally presented under the receipt rule and
would like this clarification to be included in the Handbook.
    With respect to completion of Form I-9, one commenter wanted to
know whether a notary public can act on behalf of an employer.
    Several commenters requested that DHS provide additional guidance
for employers about reverification of an employee's continued
employment authorization. Six commenters requested clarification on
reverifying documents that have expired after the time of hire and
after Form I-9 is completed. Four commenters asked if U.S. passports or
State-issued drivers' licenses had to be reverified. One commenter
requested that refugees and asylees not be required to be reverified
once their EADs expire because both are authorized to work incident to
status. One commenter wanted to know how to complete Form I-9 for
employees who are rehired by the same employer and whose documents that
were used to complete the original Form I-9 have expired. The commenter
also questioned whether Section 3 of Form I-9 has sufficient room to
reverify two documents. Two commenters asked if they were required to
reverify expired passports from FSM or RMI that were not expired at the
time Form I-9 was initially completed.
    DHS appreciates the commenters' requests for outreach and further
guidance on the Form I-9 process. In addition to multiple written
resources, including the Handbook, USCIS continually provides
individualized outreach to employers. USCIS regularly provides Web-
based seminars on Form I-9 and E-Verify and conducts live presentations
in several states. Employers may request these seminars and live
presentations at the DHS Web site. USCIS also collaborates with U.S.
Immigration and Customs Enforcement (ICE) to provide additional
outreach to employers regarding employment authorization requirements.
Employers with specific questions related to the Form I-9 process are
encouraged to call the USCIS Verification Division at 1-888-464-4218.

K. Comprehensive Immigration Reform

    Nineteen commenters requested that DHS conduct a comprehensive
reform of current immigration policies. Thirteen of the 19 commenters
expressed opposition to the displacement of U.S citizens and/or
employment-authorized persons in the workforce by undocumented workers.
Two of the 19 commenters supported the legalization of undocumented
workers. Three of the 19 commenters opposed continued legal immigration
to the United States. Six of the 19 commenters specifically supported
the use of E-Verify, and five commenters specifically opposed it.
    These comments are outside the scope of the interim rule which was
limited to making discrete changes to the Lists of Acceptable Documents
for Form I-9.

III. Regulatory Requirements

    The interim rule published by DHS on December 17, 2008, contains a
complete regulatory analysis for the changes implemented under that
rule. See 73 FR 76505, 76507-10.

A. Executive Order 12866

    This rule is a significant regulatory action under Executive Order
12866, section 3(f)(1), Regulatory Planning and Review. Accordingly,
the Office of Management and Budget (OMB) has reviewed this rule.
    DHS received three comments on the interim rule's estimated cost of
renewing an expired document to comply with the rule. One commenter
suggested that the costs may be too high for many individuals or may
force an employee to get a new type of document. The commenter also
wrote that the basis for the decision to remove expired documents is
not supported by any study or statistic.
    DHS appreciates the concerns of the commenters regarding the added
costs that some individuals may bear to obtain unexpired documents to
meet the new Form I-9 requirement. However, DHS has determined that any
such costs are outweighed by the benefits of retaining the requirement
that all documents be unexpired. Continuing to permit use of expired
documents for Form I-9 would undermine the reliability of the
verification process. Expired documents are subject to fraud. DHS
experience indicates that:
    Older, invalid, expired documents are too easily converted
to uses other than the purpose intended by their issuing authorities,
    Requiring documents to be unexpired establishes a clear
standard for U.S. employers,
    Since an expired document is no longer useful for its
original purpose as intended by the issuer, DHS should not impute
validity to an expired document for purposes of Form I-9,
    As stated in the interim rule, once the transition to the
new Form I-9 is complete, DHS anticipates that the costs incurred by
employers will decrease because the updated Lists of Acceptable
Documents, 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.

DHS is not adopting the commenters' suggestions in this final rule.
    Another commenter objected to the use of leisure time to calculate
the cost of the time spent obtaining unexpired documents, noting that
the time spent retrieving documents could be spent working. DHS agrees
that it is possible that some of the opportunity costs associated with
obtaining replacements for expired documents could be based on the
value of time spent working and not solely the value of leisure time as
the interim rule estimated. In the example that the commenter refers
to, the interim rule stated that if 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. See 73 FR 76510. The example
said that costs for an identification card was $14.40, and that each
affected person would spend about 4 hours of personal time to obtain a
new card at a cost per hour of $14.06. Id. If the interim rule had used
the Bureau of Labor Statistics employer compensation costs for all
civilian occupations of $28.11 per hour worked, instead of the value of
leisure, the example would have estimated that a person could expend up
to $14.40 in cash and $112.44 in opportunity costs, or total costs of
$126.84, to obtain a State-issued identification card. Thus, using, as
suggested by the commenter, the value of time spent working instead of
the value of leisure, along with the 1.2 percent figure from the
American University study cited in the interim rule,\11\ the rule would
have shown that the aggregate employee expense for obtaining an
acceptable document could be as high as $88,280,640, instead of the
$49,137,600 that was cited in the interim rule's example. It is likely
that the time spent obtaining unexpired documents would be a mix of
foregone leisure time and foregone work time and the actual cost would
be within the range of the $49,137,000 cited in the interim rule and
the $88,280,640 calculated above. DHS continues to believe these costs
are outweighed by the benefits of retaining the requirement that all
documents be unexpired.
---------------------------------------------------------------------------

    \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.

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[[Page 21232]]

B. Regulatory Flexibility Act

    As discussed in the interim rule, DHS determined that this
regulatory action is exempt from notice and comment rulemaking pursuant
to 5 U.S.C. 553(b)(B). Therefore, the interim rule was exempt from the
provisions of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq.
Accordingly, USCIS has not prepared a regulatory flexibility analysis
of this action.

IV. Paperwork Reduction Act (PRA)

    In the December 17, 2008, interim rule DHS requested and received
OMB approval to use the revised Form I-9 when the interim rule became
effective until June 30, 2009. The interim rule also allowed the public
to submit comments on the revised Form I-9 for 60 days. The comments to
the revised Form I-9 have been addressed in the supplementary portion
of this final rule, and DHS determined it would not make additional
changes to Form I-9 at this time. On April 28, 2009, DHS published a
30-day notice in the Federal Register at 74 FR 19233 to extend the use
of the revised Form I-9 past the June 30, 2009, expiration date. OMB
approved the extension request on August 7, 2009. Form I-9 does not
expire until August 31, 2012.

List of Subjects in 8 CFR Part 274a

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

    Accordingly, the interim rule amending 8 CFR part 274a, which was
published in the Federal Register at 73 FR 76505 on December 17, 2008,
including the corrections to the interim rule which were published in
the Federal Register on January 16, 2009, at 74 FR 2838 and March 11,
2009, at 74 FR 10455 are adopted as a final rule without change.

Janet Napolitano,
Secretary.
[FR Doc. 2011-9152 Filed 4-14-11; 8:45 am]
BILLING CODE 9111-97-P

Agency: