Reference Citation

TITLE 8 OF CODE OF FEDERAL REGULATIONS (8 CFR) \ 8 CFR PART 274a -- CONTROL OF
EMPLOYMENT OF ALIENS \ § Sec. 274a.1 Definitions.

§ Sec. 274a.1 Definitions.
For the purpose of this part-(a) The term unauthorized alien means, with respect to employment of an alien at a particular
time, that the alien is not at that time either:
(1) Lawfully admitted for permanent residence, or
(2) authorized to be so employed by this Act or by the Attorney General;
(b) The term entity means any legal entity, including but not limited to, a corporation,
partnership, joint venture, governmental body, agency, proprietorship, or association;
(c) The term hire means the actual commencement of employment of an employee for wages or
other remuneration. For purposes of section 274A(a)(4) of the Act and 8 CFR 274a.5 , a hire
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occurs when a person or entity uses a contract, subcontract, or exchange entered into,
renegotiated, or extended after November 6, 1986 (or, with respect to the Commonwealth of the
Northern Mariana Islands, after the transition program effective date as defined in 8 CFR 1.1 ),
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to obtain the labor of an alien in the United States, knowing that the alien is an unauthorized
alien; (Revised effective 11/28/09; 74 FR 55725 )
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(d) The term refer for a fee means the act of sending or directing a person or transmitting
documentation or information to another, directly or indirectly, with the intent of obtaining
employment in the United States for such person, for remuneration whether on a retainer or
contingency basis; however, this term does not include union hiring halls that refer union
members or non-union individuals who pay union membership dues;
(e) The term recruit for a fee means the act of soliciting a person, directly or indirectly, and
referring that person to another with the intent of obtaining employment for that person, for
remuneration whether on a retainer or contingency basis; however, this term does not include
union hiring halls that refer union members or non-union individuals who pay union membership
dues;

(f) The term employee means an individual who provides services or labor for an employer for
wages or other remuneration but does not mean independent contractors as defined in
paragraph (j) of this section or those engaged in casual domestic employment as stated in
paragraph (h) of this section;

(g) The term employer means a person or entity, including an agent or anyone acting directly or
indirectly in the interest thereof, who engages the services or labor of an employee to be
performed in the United States for wages or other remuneration. In the case of an independent
contractor or contract labor or services, the term employer shall mean the independent
contractor or contractor and not the person or entity using the contract labor;
(h) The term employment means any service or labor performed by an employee for an
employer within the United States, including service or labor performed on a vessel or aircraft
that has arrived in the United States and has been inspected, or otherwise included within the
provisions of the Anti-Reflagging Act codified at 46 U.S.C. 8704, but not including duties
performed by nonimmigrant crewmen defined in sections 101(a)(10) and (a)(15)(D) of the Act.
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However, employment does not include casual employment by individuals who provide
domestic service in a private home that is sporadic, irregular or intermittent;
(i) The term State employment agency means any State government unit designated to
cooperate with the United States Employment Service in the operation of the public employment
service system;
(j) The term independent contractor includes individuals or entities who carry on independent
business, contract to do a piece of work according to their own means and methods, and are
subject to control only as to results. Whether an individual or entity is an independent contractor,
regardless of what the individual or entity calls itself, will be determined on a case-by-case
basis. Factors to be considered in that determination include, but are not limited to, whether the
individual or entity: supplies th e tools or materials; makes services available to the general
public; works for a number of clients at the same time; has an opportunity for profit or loss as a
result of labor or services provided; invests in the facilities for work; directs the order or
sequence in which the work is to be done and determines the hours during which the work is to
be done. The use of labor or services of an independent contractor are subject to the
restrictions in section 274A(a)(4) of the Act and Sec. 274a.5 of this part;
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(k) The term pattern or practice means regular, repeated, and intentional activities, but does not
include isolated, sporadic, or accidental acts;
(l)(1) The term knowing includes not only actual knowledge but also knowledge which may fairly
be inferred through notice of certain facts and circumstances which would lead a person,
through the exercise of reasonable care, to know about a certain condition. Constructive
knowledge may include, but is not limited to, situations where an employer: (Paragraph (l)
revised effective 11/6/09; 74 FR 51447 ) (Paragraph (l) amended 10/28/08; 73 FR 63843 )
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(Paragraph (l) revised effective 9/14/07; 72 FR 45611 )
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(i) Fails to complete or improperly completes the Employment Eligibility Verification Form, I-9;

(ii) Has information available to it that would indicate that the alien is not authorized to work,
such as Labor Certification and/or an Application for Prospective Employer; or

(iii) Acts with reckless and wanton disregard for the legal consequences of permitting another
individual to introduce an unauthorized alien into its work force or to act on its behalf.
(2) Knowledge that an employee is unauthorized may not be inferred from an employee's
foreign appearance or accent. Nothing in this definition should be interpreted as permitting an
employer to request more or different documents than are required under section 274(b) of the
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Act or to refuse to honor documents tendered that on their face reasonably appear to be
genuine and to relate to the individual.

\ slb \ SERVICE LAW BOOKS MENU \ TITLE 8 OF CODE OF FEDERAL REGULATIONS
(8 CFR) \ 8 CFR PART 274a -- CONTROL OF EMPLOYMENT OF ALIENS \ § Sec. 274a.1
Definitions.