60-Day Notice

76505

Rules and Regulations

Federal Register
Vol. 73, No. 243
Wednesday, December 17, 2008

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.

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

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

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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 email at [email protected].
SUPPLEMENTARY INFORMATION: The
supplementary section is organized as
follows:
ADDRESSES:

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

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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 statutorily2 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).

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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.
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’’);
(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
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).

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

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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.
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 postpromulgation 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

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Federal Register / Vol. 73, No. 243 / Wednesday, December 17, 2008 / Rules and Regulations
closes this loophole and sets a brightline 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

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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).
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
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.

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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, ‘‘ArrivalDeparture 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

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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.’’

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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).

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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 l/l/l (Alien
# or Admission llllllll’’ with
‘‘An alien authorized to work (A# or
Admission #llllll ) until
(expiration date, if applicable—month/
day/year) l/l/l’’.
• 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

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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.
Accordingly, DHS finds that good
cause exists under 5 U.S.C. 553(b) to
7 DHS Fact Sheet: Combating Fraudulent
Documents. August 1, 2006. Available at http://
www.dhs.gov/xnews/releases/
pr_1158347347660.shtm.

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Federal Register / Vol. 73, No. 243 / Wednesday, December 17, 2008 / Rules and Regulations
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.

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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,

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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
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.

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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.
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

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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 Stateissued identification cards than the
driving age population suggests that a
very small portion of the working-age
population would have neither a Stateissued 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
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.

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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.
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

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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) × frequency of response (1)
× 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.

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Federal Register / Vol. 73, No. 243 / Wednesday, December 17, 2008 / Rules and Regulations
List of Subjects in 8 CFR Part 274a
Administrative practice and
procedure, Aliens, Employment,
Penalties, Reporting and recordkeeping
requirements.
■ Accordingly, part 274a of chapter I of
title 8 of the Code of Federal
Regulations is amended as follows:
PART 274a—CONTROL OF
EMPLOYMENT OF ALIENS
1. The authority citation for part 274a
continues to read as follows:

■

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

2. Section 274a.2 is amended by:
a. Revising the section heading;
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);
■ c. Revising paragraph (b)(1)(v)
introductory text;
■ d. Revising paragraph (b)(1)(v)(A);
■ e. Revising paragraphs (b)(1)(v)(C)(1),
(2), (3), (6), (7), and (8); and by
■ f. Revising paragraphs (b)(1)(vi)(B)
and (C).
The revisions read as follows:
■
■
■

§ 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:

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*

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(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 machinereadable 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.

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(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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Federal Register / Vol. 73, No. 243 / Wednesday, December 17, 2008 / Rules and Regulations
[FR Doc. E8–29874 Filed 12–16–08; 8:45 am]
BILLING CODE 9111–97–C

DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 71

Issued in College Park, Georgia, on
November 28, 2008.
Barry A. Knight,
Acting Manager, Operations Support Group,
Eastern Service Center, Air Traffic
Organization.
[FR Doc. E8–29814 Filed 12–16–08; 8:45 am]
BILLING CODE 4910–13–P

[Docket No. FAA–2008–0836; Airspace
Docket No. 08–AEA–23]

Amendment of Class E Airspace;
Butler, PA; Removal of Class E
Airspace; East Butler, PA

DEPARTMENT OF TRANSPORTATION

AGENCY: Federal Aviation
Administration (FAA), DOT.
ACTION: Final rule; confirmation of
effective date.

14 CFR Part 71

Federal Aviation Administration

[Docket No. FAA–2008–0960; Airspace
Docket No. 08–ASW–17]

This action confirms the
effective date of a direct final rule
published in the Federal Register (73
FR 56470) that amends Class E Airspace
at Butler, PA to merge the existing Class
E Airspace listed under East Butler, PA,
and corrects a technical error to the
airport name by correctly listing the
Butler County Airport as Butler Co./K W
Scholter Field Airport.
DATES: Effective 0901 UTC, January 15,
2009. The Director of the Federal
Register approves this incorporation by
reference action under title 1, Code of
Federal Regulations, part 51, subject to
the annual revision of FAA Order
7400.9 and publication of conforming
amendments.
SUMMARY:

FOR FURTHER INFORMATION CONTACT:
Melinda Giddens, Operations Support
Group, Eastern Service Center, Federal
Aviation Administration, P.O. Box
20636, Atlanta, Georgia 30320;
telephone (404) 305–5610.
SUPPLEMENTARY INFORMATION:

Confirmation of Effective Date

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received, and thus this notice confirms
that effective date.
*
*
*
*
*

The FAA published this direct final
rule with a request for comments in the
Federal Register on September 29, 2008
(73 FR 56470), Docket No. FAA–2008–
0836; Airspace Docket No. 08–AEA–23.
The FAA uses the direct final
rulemaking procedure for a noncontroversial rule where the FAA
believes there will be no adverse public
comment. This direct final rule advised
the public that no adverse comments
were anticipated, and that unless a
written adverse comment, or a written
notice of intent to submit such an
adverse comment, were received within
the comment period, the regulation
would become effective on January 15,
2009. No adverse comments were

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Establishment of Class D and Class E
Airspace; Conroe, TX
AGENCY: Federal Aviation
Administration (FAA), DOT.
ACTION: Final rule.
SUMMARY: This action establishes Class
D airspace and Class E airspace at Lone
Star Executive Airport, Conroe, TX.
Establishment of an air traffic control
tower at Lone Star Executive Airport has
made this action necessary for the safety
of Instrument Flight Rule (IFR)
operations at the airport. Class D
airspace will revert to a Class E Surface
Area during periods when the control
tower is not operating. This action also
corrects the radials used to define the
airspace.
DATES: Effective Date: 0901 UTC, March
12, 2009. The Director of the Federal
Register approves this incorporation by
reference action under 1 CFR part 51,
subject to the annual revision of FAA
Order 7400.9 and publication of
conforming amendments.
FOR FURTHER INFORMATION CONTACT:
Scott Enander, Central Service Center,
Operations Support Group, Federal
Aviation Administration, Southwest
Region, 2601 Meacham Blvd., Ft. Worth,
TX 76193–0530; telephone (817) 222–
5582.
SUPPLEMENTARY INFORMATION:

History
On October 7, 2008, the FAA
published in the Federal Register a
notice of proposed rulemaking to
establish Class D airspace and Class E
airspace at Conroe, TX (73 FR 58512,
Docket No. FAA–2008–0960). Interested
parties were invited to participate in
this rulemaking effort by submitting
written comments on the proposal to the
FAA. No comments were received.

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76517

Subsequent to publication, the FAA
found that a minor correction to the
radials defining the airspace was
needed. This action makes that
correction. With the exception of
editorial changes, and the changes
described above, this rule is the same as
that proposed in the NPRM. Class D
airspace designations are published in
paragraph 5000 of FAA Order 7400.9S
signed October 3, 2008, and effective
October 31, 2008, which is incorporated
by reference in 14 CFR part 71.1. Class
E Surface Area airspace designations are
published in paragraph 6002 of FAA
Order 7400.9S signed October 3, 2008,
and effective October 31, 2008, which is
incorporated by reference in 14 CFR
part 71.1. The Class D airspace and
Class E airspace designations listed in
this document will be published
subsequently in that Order.
The Rule
This action amends Title 14 Code of
Federal Regulations (14 CFR) part 71 by
establishing Class D airspace and Class
E Surface Area airspace extending
upward from the surface to and
including 2,700 feet MSL within a 4.1mile radius of Lone Star Executive
Airport, excluding that airspace within
the 4.1-mile radius north and east of the
intersection of the IAH 357° radial and
the TNV 083° radial.
The FAA has determined that this
regulation only involves an established
body of technical regulations for which
frequent and routine amendments are
necessary to keep them operationally
current. Therefore, this regulation: (1) Is
not a ‘‘significant regulatory action’’
under Executive Order 12866; (2) is not
a ‘‘significant rule’’ under DOT
Regulatory Policies and Procedures (44
FR 11034; February 26, 1979); and (3)
does not warrant preparation of a
regulatory evaluation as the anticipated
impact is so minimal. Since this is a
routine matter that will only affect air
traffic procedures and air navigation, it
is certified that this rule, when
promulgated, will not have a significant
economic impact on a substantial
number of small entities under the
criteria of the Regulatory Flexibility Act.
The FAA’s authority to issue rules
regarding aviation safety is found in
Title 49 of the U.S. Code. Subtitle I,
Section 106, describes the authority of
the FAA Administrator. Subtitle VII,
Aviation Programs, describes in more
detail the scope of the agency’s
authority. This rulemaking is
promulgated under the authority
described in Subtitle VII, Part A,
Subpart I, Section 40103. Under that
section, the FAA is charged with
prescribing regulations to assign the use

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