110 STAT. 3009–659 PUBLIC LAW 104–208—SEPT. 30, 1996
TITLE IV—ENFORCEMENT OF
RESTRICTIONS AGAINST EMPLOYMENT
Subtitle A—Pilot Programs for
Employment Eligibility Confirmation
SEC. 401. ESTABLISHMENT OF PROGRAMS.
(a) IN GENERAL.—The Attorney General shall conduct 3 pilot
programs of employment eligibility confirmation under this subtitle.
(b) IMPLEMENTATION DEADLINE; TERMINATION.—The Attorney
General shall implement the pilot programs in a manner that
permits persons and other entities to have elections under section
402 of this division made and in effect no later than 1 year after
the date of the enactment of this Act. Unless the Congress otherwise
provides, the Attorney General shall terminate a pilot program
at the end of the 4-year period beginning on the first day the
pilot program is in effect.
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PUBLIC LAW 107–128—JAN. 16, 2002 115 STAT. 2407
.
Public Law 107–128
107th Congress
An Act
To extend the basic pilot program for employment eligibility verification, and for
other purposes.
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Basic Pilot Extension Act of
2001’’.
SEC. 2. EXTENSION OF PROGRAMS.
Section 401(b) of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (8 U.S.C. 1324a note) is amended by
striking ‘‘4-year period’’ and inserting ‘‘6-year period’’.
SEC. 3. EFFECTIVE DATE.
The amendment made by this Act shall take effect on the
date of the enactment of this Act.
Approved January 16, 2002.
8 USC 1324a
note.
8 USC 1101 note.
Basic Pilot
Extension Act of
2001.
Jan. 16, 2002
[H.R. 3030]
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BASIC PILOT PROGRAM EXTENSION AND EXPANSION ACT OF 2003
[[Page 117 STAT. 1944]]
Public Law 108-156
108th Congress
An Act
To extend and expand the basic pilot program for employment
eligibility verification, and for other purposes.
<<NOTE: Dec. 3, 2003 - [S. 1685]>>
Be it enacted by the Senate and House of <<NOTE: Basic Pilot Program
Extension and Expansion Act of 2003.>> Representatives of the United
States of America in Congress assembled,
SECTION 1. <<NOTE: 8 USC 1101 note.>> SHORT TITLE.
This Act may be cited as the ``Basic Pilot Program Extension and
Expansion Act of 2003''.
SEC. 2. EXTENSION OF PROGRAMS.
Section 401(b) of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (8 U.S.C. 1324a note) is amended by striking
``6-year period'' and inserting ``11-year period''.
SEC. 3. EXPANSION OF THE BASIC PILOT PROGRAM.
(a) In <<NOTE: Deadline.>> General.--Section 401(c)(1) of the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8
U.S.C. 1324a note) is amended by inserting after ``United States'' the
following: ``, and the Secretary of Homeland Security shall expand the
operation of the program to all 50 States not later than December 1,
2004''.
(b) Report.--Section 405 of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note) is amended--
(1) by striking ``The'' and inserting:
``(a) In General.--The'', and
(2) by adding at the end the following new subsection:
``(b) Report <<NOTE: Deadline.>> on Expansion.--Not later than June
1, 2004, the Secretary of Homeland Security shall submit to the
Committees on the Judiciary of the House of Representatives and the
Senate a report--
``(1) evaluating whether the problems identified by the
report submitted under subsection (a) have been substantially
resolved; and
``(2) describing what actions the Secretary of Homeland
Security shall take before undertaking the expansion of the
basic pilot program to all 50 States in accordance with section
401(c)(1), in order to resolve any outstanding problems raised
in the report filed under subsection (a).''.
(c) Conforming Amendments.--Section 402(c) of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C.
1324a note) is amended--
(1) in paragraph (2)(B), by striking ``or entity elect-
ing--'' and all that follows through ``(ii) the citizen
attestation
[[Page 117 STAT. 1945]]
pilot program'' and inserting ``or entity electing the citizen
attestation pilot program'';
(2) by striking paragraph (3); and
(3) by redesignating paragraph (4) as paragraph (3).
(d) Additional <<NOTE: 8 USC 1360 note.>> Technical and Conforming
Amendments.--Title IV of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (8 U.S.C. 1324a note) is amended by striking
``Attorney General'' each place that term appears and inserting
``Secretary of Homeland Security''.
SEC. 4. PILOT IMMIGRATION PROGRAM.
(a) Processing Priority Under Pilot Immigration Program for Regional
Centers To Promote Economic Growth.--Section 610 of the Departments of
Commerce, Justice, and State, the Judiciary, and Related Agencies
Appropriations Act, 1993 (8 U.S.C. 1153 note) is amended--
(1) by striking ``Attorney General'' each place such term
appears and inserting ``Secretary of Homeland Security''; and
(2) by adding at the end the following:
``(d) In processing petitions under section 204(a)(1)(H) of the
Immigration and Nationality Act (8 U.S.C. 1154(a)(1)(H)) for
classification under section 203(b)(5) of such Act (8 U.S.C.
1153(b)(5)), the Secretary of Homeland Security may give priority to
petitions filed by aliens seeking admission under the pilot program
described in this section. Notwithstanding section 203(e) of such Act (8
U.S.C. 1153(e)), immigrant visas made available under such section
203(b)(5) may be issued to such aliens in an order that takes into
account any priority accorded under the preceding sentence.''.
(b) Extension.--Section 610(b) of the Departments of Commerce,
Justice, and State, the Judiciary, and Related Agencies Appropriations
Act, 1993 (8 U.S.C. 1153 note) is amended by striking ``10 years'' and
inserting ``15 years''.
SEC. 5. <<NOTE: 8 USC 1153 note.>> GAO STUDY.
(a) In <<NOTE: Deadline. Reports.>> General.--Not later than 1 year
after the date of enactment of this Act, the General Accounting Office
shall report to Congress on the immigrant investor program created under
section 203(b)(5) of the Immigration and Nationality Act (8 U.S.C.
1153(b)(5)).
(b) Contents.--The report described in subsection (a) shall include
information regarding--
(1) the number of immigrant investors that have received
visas under the immigrant investor program in each year since
the inception of the program;
(2) the country of origin of the immigrant investors;
(3) the localities where the immigrant investors are
settling and whether those investors generally remain in the
localities where they initially settle;
(4) the number of immigrant investors that have sought to
become citizens of the United States;
[[Page 117 STAT. 1946]]
(5) the types of commercial enterprises that the immigrant
investors have established; and
(6) the types and number of jobs created by the immigrant
investors.
Approved December 3, 2003.
8 CFR Part 274a.
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 Sec. 274a.5 of this part, a hire occurs when a person or entity uses a contract, subcontract or exchange entered into, renegotiated or extended after November 6, 1986, to obtain the labor of an alien in the United States, knowing that the alien is an unauthorized alien;
(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. 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 the 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;
(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 having actual or constructive knowledge. Constructive knowledge is knowledge that may fairly be inferred through notice of certain facts and circumstances that would lead a person, through the exercise of reasonable care, to know about a certain condition. Examples of situations where the employer may, depending on the totality of relevant circumstances, have constructive knowledge that an employee is an unauthorized alien include, but are not limited to, situations where the employer: (Paragraph(l) revised effective 9/14/07; 72 FR 45611)
(i) Fails to complete or improperly completes the Employment Eligibility Verification, Form I-9;
(ii) 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; and
(iii) Fails to take reasonable steps after receiving information indicating that the employee may be an alien who is not employment authorized, such as--
(A) An employee's request that the employer file a labor certification or employment-based visa petition on behalf of the employee;
(B) Written notice to the employer from the Social Security Administration reporting earnings on a Form W-2 that employees' names and corresponding social security account numbers fail to match Social Security Administration records; or
(C) Written notice to the employer from the Department of Homeland Security that the immigration status document or employment authorization document presented or referenced by the employee in completing Form I-9 is assigned to another person, or that there is no agency record that the document has been assigned to any person.
(2)(i) An employer who receives written notice from the Social Security Administration as described in paragraph (l)(1)(iii)(B) of this section will be considered by the Department of Homeland Security to have taken reasonable steps--and receipt of the written notice will therefore not be used as evidence of constructive knowledge--if the employer takes the following actions:
(A) The employer must check its records to determine whether the discrepancy results from a typographical, transcription, or similar clerical error. If the employer determines that the discrepancy is due to such an error, the employer must correct the error and inform the Social Security Administration of the correct information (in accordance with the written notice's instructions, if any). The employer must also verify with the Social Security Administration that the employee's name and social security account number, as corrected, match Social Security Administration records. The employer should make a record of the manner, date, and time of such verification, and then store such record with the employee's Form I-9(s) in accordance with 8 CFR 274a.2(b). The employer may update the employee's Form I-9 or complete a new Form I-9 (and retain the original Form I-9), but the employer should not perform a new Form I-9 verification. The employer must complete these steps within thirty days of receiving the written notice.
(B) If the employer determines that the discrepancy is not due to an error in its own records, the employer must promptly request that the employee confirm that the name and social security account number in the employer's records are correct. If the employee states that the employer's records are incorrect, the employer must correct, inform, verify, and make a record as set forth in paragraph (l)(2)(i)(A) of this section. If the employee confirms that its records are correct, the employer must promptly request that the employee resolve the discrepancy with the Social Security Administration (in accordance with the written notice's instructions, if any). The employer must advise the employee of the date that the employer received the written notice from the Social Security Administration and advise the employee to resolve the discrepancy with the Social Security Administration within ninety days of the date the employer received the written notice from the Social Security Administration.
(C) If the employer is unable to verify with the Social Security Administration within ninety days of receiving the written notice that the employee's name and social security account number matches the Social Security Administration's records, the employer must again verify the employee's employment authorization and identity within an additional three days by following the verification procedure specified in paragraph (l)(2)(iii) of this section.
(ii) An employer who receives written notice from the Department of Homeland Security as described in paragraph (l)(1)(iii)(C) of this section will be considered by the Department of Homeland Security to have taken reasonable steps--and receipt of the written notice will therefore not be used as evidence of constructive knowledge--if the employer takes the following actions:
(A) The employer must contact the local Department of Homeland Security office (in accordance with the written notice's instructions, if any) and attempt to resolve the question raised by the Department of Homeland Security about the immigration status document or employment authorization document. The employer must complete this step within thirty days of receiving the written notice.
(B) If the employer is unable to verify with the Department of Homeland Security within ninety days of receiving the written notice that the immigration status document or employment authorization document is assigned to the employee, the employer must again verify the employee's employment authorization and identity within an additional 3 days by following the verification procedure specified in paragraph (l)(2)(iii) of this section.
(iii) The verification procedure referenced in paragraphs (l)(2)(i)(B) and (l)(2)(ii)(B) of this section is as follows:
(A) The employer completes a new Form I-9 for the employee, using the same procedures as if the employee were newly hired, as described in section 274a.2(a) and (b) of this part, except that--
(1) The employee must complete Section 1 (“Employee Information and Verification”) and the employer must complete Section 2 (“Employer Review and Verification”) of the new Form I-9 within ninety-three days of the employer's receipt of the written notice referred to in paragraph (l)(1)(iii)(B) or (C) of this section;
(2) The employer must not accept any document referenced in any written notice described in paragraph (l)(1)(iii)(C) of this section, any document that contains a disputed social security account number or alien number referenced in any written notice described in paragraphs (l)(1)(iii)(B) or (l)(1)(iii)(C) of this section, or any receipt for an application for a replacement of such document, to establish employment authorization or identity or both; and
(3) The employee must present a document that contains a photograph in order to establish identity or both identity and employment authorization.
(B) The employer must retain the new Form I-9 with the prior Form(s) I-9 in accordance with 8 CFR 274a.2(b).
(3) 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 274A(b) of the Act or to refuse to honor documents tendered that on their face reasonably appear to be genuine and to relate to the individual, except a document about which the employer has received written notice described in paragraph (l)(1)(iii) of this section and with respect to which the employer has received no verification as described in paragraphs (l)(2)(i)(C) or (l)(2)(ii)(B) of this section.
Sec. 274a.2 Verification of employment eligibility.
(a) General. This section establishes requirements and procedures for compliance by persons or entities when hiring, or when recruiting or referring for a fee, or when continuing to employ individuals in the United States.
(1) Recruiters and referrers for a fee. For 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 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 (29 U.S.C. 1802)).
(2) Verification form. Form I-9, Employment Eligibility Verification Form, is used in complying with the requirements of this 8 CFR 274a.1--274a.11. Form I-9 can be in paper or electronic format. In paper format, the Form I-9 may be obtained in limited quantities at USCIS district offices, or ordered from the Superintendent of Documents, Washington, DC 20402. In electronic format, a fillable electronic Form I-9 may be downloaded from http://www.uscis.gov. Alternatively, Form I-9 can be electronically generated or retained, provided that the resulting form is legible; there is no change to the name, content, or sequence of the data elements and instructions; no additional data elements or language are inserted; and the standards specified under 8 CFR 274a.2(e), (f), (g), (h), and (i), as applicable, are met. When copying or printing the paper Form I-9, the text of the two-sided form may be reproduced by making either double-sided or single-sided copies.
(3) Attestation Under Penalty and Perjury. In conjunction with completing the Form I-9, an employer or recruiter or referrer for a fee must examine documents that evidence the identity and employment eligibility of the individual. The employer or recruiter or referrer for a fee and the individual must each complete an attestation on the Form I-9 under penalty of perjury.
(Paragraph (a) revised 6/15/06; 71 FR 34510) (Amended 10/7/96; 61 FR 52235)
(b) Employment verification requirements--
(1) Examination of documents and completion of Form I-9.
(i) A person or entity that hires or recruits or refers for a fee an individual for employment must ensure that the individual properly:
(A) Completes section 1--”Employee Information and Verification”--on the Form I-9 at the time of hire and signs the attestation with a handwritten or electronic signature in accordance with paragraph (h) of this section; or if an individual is unable to complete the Form I-9 or needs it translated, someone may assist him or her. The preparer or translator must read the Form I-9 to the individual, assist him or her in completing Section 1--”Employee Information and Verification,” and have the individual sign or mark the Form I-9 by a handwritten signature, or an electronic signature in accordance with paragraph (h) of this section, in the appropriate place; and (Revised 6/15/06; 71 FR 34510)
(B) Present to the employer or the recruiter or referrer for a fee documentation as set forth in paragraph (b)(1)(v) of this section establishing his or her identity and employment eligibility within the time limits set forth in paragraphs (b)(1)(ii) through (b)(1)(v) of this section.
(ii) Except as provided in paragraph (b)(1)(viii) of this section, an employer, his or her agent, or anyone acting directly or indirectly in the interest thereof, must within three business days of the hire:
(A) Physically examine the documentation presented by the individual establishing identity and employment eligibility as set forth in paragraph (b)(1)(v) of this section and ensure that the documents presented appear to be genuine and to relate to the individual; and
(B) Complete section 2--”Employer Review and Verification”--on the Form I-9 within three days of the hire and sign the attestation with a handwritten signature or electronic signature in accordance with paragraph (i) of this section. (Revised 6/15/06; 71 FR 34510)
(iii) An employer who hires an individual for employment for a duration of less than three business days must comply with paragraphs (b)(1)(ii)(A) and (b)(1)(ii)(B) of this section at the time of the hire. An employer may not accept a receipt, as described in paragraph (b)(1)(vi) of this section, in lieu of the required document if the employment is for less than three business days. (Revised 9/30/97; 62 FR 51001)
(iv) A recruiter or referrer for a fee for employment must comply with paragraphs (b)(1)(ii)(A) and (b)(1)(ii)(B) of this section within three business days of the date the referred individual is hired by the employer. Recruiters and referrers may designate agents to complete the employment verification procedures on their behalf including but not limited to notaries, national associations, or employers. If a recruiter or referrer designates an employer to complete the employment verification procedures, the employer need only provide the recruiter or referrer with a photocopy or printed electronic image of the Form I-9, electronic Form I-9, or a Form I-9 on microfilm or microfiche. (Amended 6/15/06; 71 FR 34510)
(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. The identification number and expiration date (if any) of all documents must be noted in the appropriate space provided on the Form I-9. An employer or a recruiter or referrer for a fee may not specify which document or documents an individual is to present.
(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 eligibility:
(1) United States passport (unexpired or expired);
(2) Alien Registration Receipt Card or Permanent Resident Card, Form I-551;
(3) An unexpired foreign passport that contains a temporary I-551 stamp;
(4) An unexpired Employment Authorization Document issued by the Immigration And Naturalization Service which contains a photograph, Form I-766; Form I-688, Form I-688A, or Form I-688B;
(5) In the case of a nonimmigrant alien authorized to work for a specific employer incident to status, an unexpired foreign passport with an Arrival-Departure Record, Form I-94, bearing the same name as the passport and containing an endorsement of the alien's nonimmigrant status, so 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 I-94. (Paragraph (b)(1)(v)(A) Amended 9/20/93 at 58 FR 48775 did not become effective until 3/20/96; 60 FR 14353) (Revised effective 10/4/96; 61 FR 46534) (Revised 9/30/97; 62 FR 51001)
(B) The following documents are acceptable to establish identity only:
(1) For individuals 16 years of age or older:
(i) A driver's license or identification card containing a photograph, issued by a state (as defined in section 101(a)(36) of the Act) or an outlying possession of the United States (as defined by section 101(a)(29) of the Act). If the driver's license or identification card does not contain a photograph, identifying information shall be included such as: name, date of birth, sex, height, color of eyes, and address;
(ii) School identification card with a photograph;
(iii) Voter's registration card;
(iv) U.S. military card or draft record;
(v) Identification card issued by federal, state, or local government agencies or entities; If the identification card does not contain a photograph, identifying information shall be included such as: name, date of birth, sex, height, color of eyes, and address;
(vi) Military dependent's identification card;
(vii) Native American tribal documents;
(viii) United States Coast Guard Merchant Mariner Card;
(ix) Driver's license issued by a Canadian government authority;
(2) For individuals under age 18 who are unable to produce a document listed in paragraph (b)(1)(v)(B)((1)) of this section, the following documents are acceptable to establish identity only:
(i) School record or report card;
(ii) Clinic doctor or hospital record;
(iii) Daycare or nursery school record.
(3) Minors under the age of 18 who are unable to produce one of the identity documents listed in paragraph (b)(1)(v)(B)((1)) or ((2)) of this section are exempt from producing one of the enumerated identity documents if:
(i) The minor's parent or legal guardian completes on the Form I-9 Section 1--"Employee Information and Verification" and in the space for the minor's signature, the parent or legal guardian writes the words, "minor under age 18."
(ii) The minor's parent or legal guardian completes on the Form I-9 the "Preparer/Translator certification."
(iii) The employer or the recruiter or referrer for a fee writes in Section 2--"Employer Review and Verification" under List B in the space after the words "Document Identification #" the words, "minor under age 18."
(4) Individuals with handicaps, who are unable to produce one of the identity documents listed in paragraph (b)(1)(v)(B)((1)) or ((2)) of this section, who are being placed into employment by a nonprofit organization, association or as part of a rehabilitation program, may follow the procedures for establishing identity provided in this section for minors under the age of 18, substituting where appropriate, the term "special placement" for "minor under age 18", and permitting, in addition to a parent or legal guardian, a representative from the nonprofit organization, association or rehabilitation program placing the individual into a position of employment, to fill out and sign in the appropriate section, the Form I-9. For purposes of this section the term individual with handicap s means any person who
(i) Has a physical or mental impairment which substantially limits one or more of such person's major life activities,
(ii) Has a record of such impairment, or
(iii) Is regarded as having such impairment.
(C) The following are acceptable documents to establish employment authorization only:
(1) A social security number card other than one which has printed on its face "not valid for employment purposes";
(2) A Certification of Birth Abroad issued by the Department of State, Form FS-545;
(3) A Certification of Birth Abroad issued by the Department of State, Form DS-1350;
(4) An original or certified copy of a birth certificate issued by a State, county, municipal authority or outlying possession of the United States bearing an official seal;
(5) Native American tribal document;
(6) United States Citizen Identification Card, INS Form I-197;
(7) Identification card for use of resident citizen in the United States, INS Form I-179;
(8) An unexpired employment authorization document issued by the Immigration and Naturalization Service.
(vi) Special rules for receipts. Except as provided in paragraph (b)(1)(iii) of this section, unless the individual indicates or the employer or recruiter or referrer for a fee has actual or constructive knowledge that the individual is not authorized to work, an employer or recruiter or referrer for a fee must accept a receipt for the application for a replacement document or a document described in paragraphs (b)(1)(vi)(B)((1) and (b)(1)(vi)(C)((1) of this section in lieu of the required document in order to comply with any requirement to examine documentation imposed by this section, in the following circumstances:
(A) Application for a replacement document. The individual:
(1) Is unable to provide the required document within the time specified in this section because the document was lost, stolen, or damaged;
(2) Presents a receipt for the application for the replacement document within the time specified in this section; and
(3) Presents the replacement document within 90 days of the hire or, in the case of reverification, the date employment authorization expires; or
(B) Form I-94 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: (Paragraph revised 2/9/99; 64 FR 6187)
(1) Presents the arrival portion of Form I-94 containing an unexpired "Temporary I-551" stamp and 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 has no expiration date, within 1 year from the issuance date of the arrival portion of Form I-94; or (Corrected 3/9/99; 64 FR 11533)
(C) Form I-94 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 containing an unexpired refugee admission stamp, which is designated for purposes of this section as a receipt for the Form I-766, Form I-688B, or a social security account number card that contains no employment restrictions; and (Corrected 3/9/99; 64 FR 11533)
(2) Presents, within 90 days of the hire or, in the case of verification, the date employment authorization expires, either an unexpired Form I-766 or Form I-688B, 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.
(Paragraph (b)(1)(vi) revised 9/30/97; 62 FR 51001) (Paragraph (b)(1)(vi)(C) revised 2/9/99; 64 FR 6187)
(vii) If an individual's employment authorization expires, the employer, recruiter or referrer for a fee must reverify on the Form I-9 to reflect that the individual is still authorized to work in the United States; otherwise the individual may no longer be employed, recruited, or referred. Reverification on the Form I-9 must occur not later than the date work authorization expires. In order to reverify on the Form I-9, the employee or referred individual must present a document that either shows continuing employment eligibility or is a new grant of work authorization. The employer or the recruiter or referrer for a fee must review this document, and if it appears to be genuine and relate to the individual, re-verify by noting the document's identification number and expiration date, if any, on the Form I-9 and signing the attestation by a handwritten signature or electronic signature in accordance with paragraph (i) of this section. (Amended 6/15/06; 71 FR 34510)
(viii) An employer will not be deemed to have hired an individual for employment if the individual is continuing in his or her employment and has a reasonable expectation of employment at all times.
(A) An individual is continuing in his or her employment in one of the following situations:
(1) An individual takes approved paid or unpaid leave on account of study, illness or disability of a family member, illness or pregnancy, maternity or paternity leave, vacation, union business, or other temporary leave approved by the employer;
(2) An individual is promoted, demoted, or gets a pay raise;
(3) An individual is temporarily laid off for lack of work;
(4) An individual is on strike or in a labor dispute;
(5) An individual is reinstated after disciplinary suspension for wrongful termination, found unjustified by any court, arbitrator, or administrative body, or otherwise resolved through reinstatement or settlement;
(6) An individual transfers from one distinct unit of an employer to another distinct unit of the same employer; the employer may transfer the individual's Form I-9 to the receiving unit;
(7) An individual continues his or her employment with a related, successor, or reorganized employer, provided that the employer obtains and maintains from the previous employer records and Forms I-9 where applicable. For this purpose, a related, successor, or reorganized employer includes:
(i) The same employer at another location;
(ii) An employer who continues to employ some or all of a previous employer's workforce in cases involving a corporate reorganization, merger, or sale of stock or assets;
(iii) An employer who continues to employ any employee of another employer's workforce where both employers belong to the same multi-employer association and the employee continues to work in the same bargaining unit under the same collective bargaining agreement. For purposes of this subsection, any agent designated to complete and maintain the Form I-9 must record the employee's date of hire and/or termination each time the employee is hired and/or terminated by an employer of the multi-employer association; or
(8) An individual is engaged in seasonal employment.
(B) The employer who is claiming that an individual is continuing in his or her employment must also establish that the individual expected to resume employment at all times and that the individual's expectation is reasonable. Whether an individual's expectation is reasonable will be determined on a case-by-case basis taking into consideration several factors. Factors which would indicate that an individual has a reasonable expectation of employment include, but are not limited to, the following:
(1) The individual in question was employed by the employer on a regular and substantial basis. A determination of a regular and substantial basis is established by a comparison of other workers who are similarly employed by the employer;
(2) The individual in question complied with the employer's established and published policy regarding his or her absence;
(3) The employer's past history of recalling absent employees for employment indicates a likelihood that the individual in question will resume employment with the employer within a reasonable time in the future;
(4) The former position held by the individual in question has not been taken permanently by another worker;
(5) The individual in question has not sought or obtained benefits during his or her absence from employment with the employer that are inconsistent with an expectation of resuming employment with the employer within a reasonable time in the future. Such benefits include, but are not limited to, severance and retirement benefits;
(6) The financial condition of the employer indicates the ability of the employer to permit the individual in question to resume employment within a reasonable time in the future; or
(7) The oral and/or written communication between employer, the employer's supervisory employees and the individual in question indicates that it is reasonably likely that the individual in question will resume employment with the employer within a reasonable time in the future.
(2) Retention and Inspection of Form I-9.
(i) A paper (with original handwritten signatures), electronic (with acceptable electronic signatures that meet the requirements of paragraphs (h) and (i) of this section or original paper scanned into an electronic format that meets the requirements of 8 CFR 274a.2(e), (f), and (g)), or microfilm or microfiche copy of the original signed version of the Form I-9 must be retained by an employer or a recruiter or referrer for a fee for the following time periods: (Introductory text revised 6/15/06; 71 FR 34510)
(A) In the case of an employer, three years after the date of the hire or one year after the date the individual's employment is terminated, whichever is later; or
(B) In the case of a recruiter or referrer for a fee, three years after the date of the hire.
(ii) Any person or entity required to retain Forms I-9 in accordance with this section shall be provided with at least three days notice prior to an inspection of the Forms I-9 by officers of an authorized agency of the United States. At the time of inspection, Forms I-9 must be made available in their original paper, electronic form, a paper copy of the electronic form, or on microfilm or microfiche at the location where the request for production was made. If Forms I-9 are kept at another location, the person or entity must inform the officer of the authorized agency of the United States of the location where the forms are kept and make arrangements for the inspection. Inspections may be performed at an office of an authorized agency of the United States. A recruiter or referrer for a fee who has designated an employer to complete the employment verification procedures may present a photocopy or printed electronic image of the Form I-9 in lieu of presenting the Form I-9 in its original paper or electronic form or on microfilm or microfiche, as set forth in paragraph (b)(1)(iv) of this section. Any refusal or delay in presentation of the Forms I-9 for inspection is a violation of the retention requirements as set forth in section 274A(b)(3) of the Act. No Subpoena or warrant shall be required for such inspection, but the use of such enforcement tools is not precluded. In addition, if the person or entity has not complied with a request to present the Forms I-9, any officer listed in 8 CFR 287.4 may compel production of the Forms I-9 and any other relevant documents by issuing a subpoena. Nothing in this section is intended to limit the subpoena power under section 235(a) of the Act. (Revised 6/15/06; 71 FR 34510)
(iii) The following standards shall apply to Forms I-9 presented on microfilm or microfiche submitted to an officer of the Service, the Special Counsel for Immigration-Related Unfair Employment Practices, or the Department of Labor: Microfilm when displayed on a microfilm reader (viewer) or reproduced on paper must exhibit a high degree of legibility and readability. For this purpose, legibility is defined as the quality of a letter or numeral which enables the observer to postively and quickly identify it to the exclusion of all other letters or numerals. Readability is defined as the quality of a group of letters or numerals being recognizable as words or whole numbers. A detailed index of all microfilmed data shall be maintained and arranged in such a manner as to permit the immediate location of any particular record. It is the responsibility of the employer, recruiter or referrer for a fee:
(A) To provide for the processing, storage and maintenance of all microfilm, and
(B) To be able to make the contents thereof available as required by law. The person or entity presenting the microfilm will make available a reader-printer at the examination site for the ready reading, location and reproduction of any record or records being maintained on microfilm. Reader-printers made available to an officer of the Service, the Special Counsel for Immigration-Related Unfair Employment Practices, or the Department of Labor shall provide safety features and be in clean condition, properly maintained and in good working order. The reader-printers must have the capacity to display and print a complete page of information. A person or entity who is determined to have failed to comply with the criteria established by this regulation for the presentation of microfilm or microfiche to the Service, the Special Counsel for Immigration-Related Unfair Employment Practices, or the Department of Labor, and at the time of the inspection does not present a properly completed Form I-9 for the employee, is in violation of section 274A(a)(1)(B) of the Act and Sec. 274a.2(b)(2).
(iv) Paragraphs (e), (f), (g), (h), and (i) of this section specify the standards for electronic Forms I-9. (Added 6/15/06; 71 FR 34510)
(3) Copying of documentation. An employer, or a recruiter or referrer for a fee may, but is not required to, copy or make an electronic image of a document presented by an individual solely for the purpose of complying with the verification requirements of this section. If such a copy or electronic image is made, it must be retained with the Form I-9. The copying or electronic imaging of any such document and retention of the copy or electronic image does not relieve the employer from the requirement to fully complete section 2 of the Form I-9. An employer, recruiter or referrer for a fee should not, however, copy or electronically image only the documents of individuals of certain national origins or citizenship statuses. To do so may violate section 274B of the Act. (Revised 6/15/06; 71 FR 34510)
(4) Limitation on use of Form I-9. Any information contained in or appended to the Form I-9, including copies of documents listed in paragraph (c) of this section used to verify an individual's identity or employment eligibility, may be used only for enforcement of the Act and Sections 1001, 1028, 1546, or 1621 of Title 18, United States Code.
Sec. 274a.2(c)
(c) Employment verification requirements in the case of hiring an individual who was previously employed.
(1) When an employer hires an individual whom that person or entity has previously employed, if the employer has previously completed the Form I-9 and complied with the verification requirements set forth in paragraph (b) of this section with regard to the individual, the employer may (in lieu of completing a new Form I-9) inspect the previously completed Form I-9 and:
(i) If upon inspection of the Form I-9, the employer determines that the Form I-9 relates to the individual and that the individual is still eligible to work, that previously executed Form I-9 is sufficient for purposes of section 274A(b) of the Act if the individual is hired within three years of the date of the initial execution of the Form I-9 and the employer updates the Form I-9 to reflect the date of rehire; or
(ii) If upon inspection of the Form I-9, the employer determines that the individual's employment authorization has expired, the employer must reverify on the Form I-9 in accordance with paragraph (b)(1)(vii); otherwise the individual may no longer be employed.
(2) For purposes of retention of the Form I-9 by an employer for a previously employed individual hired pursuant to paragraph (c)(1) of this section, the employer shall retain the Form I-9 for a period of three years commencing from the date of the initial execution of the Form I-9 or one year after the individual's employment is terminated, whichever is later.
(d) Employment verification requirements in the case of recruiting or referring for a fee an individual who was previously recruited or referred.
(1) When a recruiter or referrer for a fee refers an individual for whom that recruiter or referrer for a fee has previously completed a Form I-9, and complied with the verification requirements set forth in paragraph (b) of this section with regard to the individual, the recruiter or referrer may (in lieu of completing a new Form I-9) inspect the previously completed Form I-9 and:
(i) If upon inspection of the Form I-9, the recruiter or referrer for a fee determines that the Form I-9 relates to the individual and that the individual is still eligible to work, that previously executed Form I-9 is sufficient for purposes of section 274A(b) of the Act if the individual is referred within three years of the date of the initial execution of the Form I-9 and the recruiter or referrer for a fee updates the Form I-9 to reflect the date of rehire; or
(ii) If upon inspection of the Form I-9, the recruiter or referrer determines that the individual's employment authorization has expired, the recruiter or referrer for a fee must reverify on the Form I-9 in accordance with paragraph (b)(1)(vii) of this section; otherwise the individual may no longer be recruited or referred.
(2) For purposes of retention of the Form I-9 by a recruiter or referrer for a previously recruited or referred individual pursuant to paragraph (d)(1) of this section, the recruiter or referrer shall retain the Form I-9 for a period of three years from the date of the rehire.
(e) Standards for electronic retention of Form I-9.
(1) Any person or entity who is required by this section to complete and retain Forms I-9 may complete or retain electronically Form I-9 in an electronic generation or storage system that includes: (Paragraph (e) added 6/15/06; 71 FR 34510)
(i) Reasonable controls to ensure the integrity, accuracy and reliability of the electronic generation or storage system;
(ii) Reasonable controls designed to prevent and detect the unauthorized or accidental creation of, addition to, alteration of, deletion of, or deterioration of an electronically completed or stored Form I-9, including the electronic signature if used;
(iii) An inspection and quality assurance program evidenced by regular evaluations of the electronic generation or storage system, including periodic checks of the electronically stored Form I-9, including the electronic signature if used;
(iv) In the case of electronically retained Forms I-9, a retrieval system that includes an indexing system that permits searches by any data element; and
(v) The ability to reproduce legible and readable hardcopies.
(2) All documents reproduced by the electronic retention system must exhibit a high degree of legibility and readability when displayed on a video display terminal or when printed on paper, microfilm, or microfiche. The term “legibility” means the observer must be able to identify all letters and numerals positively and quickly, to the exclusion of all other letters or numerals. The term “readability” means that the observer must be able to recognize any group of letters or numerals that form words or numbers as those words or complete numbers. The employer, or recruiter or referrer for a fee, must ensure that the reproduction process maintains the legibility and readability of the electronically stored document.
(3) An electronic generation or storage system must not be subject, in whole or in part, to any agreement (such as a contract or license) that would limit or restrict access to and use of the electronic generation or storage system by an agency of the United States, on the premises of the employer, recruiter or referrer for a fee (or at any other place where the electronic generation or storage system is maintained), including personnel, hardware, software, files, indexes, and software documentation.
(4) A person or entity who chooses to complete or retain Forms I-9 electronically may use more than one electronic generation or storage system. Each electronic generation or storage system must meet the requirements of this paragraph, and remain available as long as required by the Act and these regulations.
(5) For each electronic generation or storage system used, the person or entity retaining the Form I-9 must maintain, and make available upon request, complete descriptions of:
(i) The electronic generation and storage system, including all procedures relating to its use; and
(ii) The indexing system.
(6) An “indexing system” for the purposes of paragraphs (e)(1)(iv) and (e)(5) of this section is a system that permits the identification and retrieval for viewing or reproducing of relevant books and records maintained in an electronic storage system. For example, an indexing system might consist of assigning each electronically stored document a unique identification number and maintaining a separate database that contains descriptions of all electronically stored books and records along with their identification numbers. In addition, any system used to maintain, organize, or coordinate multiple electronic storage systems is treated as an indexing system. The requirement to maintain an indexing system will be satisfied if the indexing system is functionally comparable to a reasonable hardcopy filing system. The requirement to maintain an indexing system does not require that a separate electronically stored books and records description database be maintained if comparable results can be achieved without a separate description database.
(7) Any person or entity choosing to retain completed Forms I-9 electronically may use reasonable data compression or formatting technologies as part of the electronic storage system as long as the requirements of 8 CFR 274a.2 are satisfied.
(8) At the time of an inspection, the person or entity required to retain completed Forms I-9 must:
(i) Retrieve and reproduce (including printing copies on paper, if requested) only the Forms I-9 electronically retained in the electronic storage system and supporting documentation specifically requested by an agency of the United States, along with associated audit trails. Generally, an audit trail is a record showing who has accessed a computer system and the actions performed within or on the computer system during a given period of time, and
(ii) Provide a requesting agency of the United States with the resources (e.g., appropriate hardware and software, personnel and documentation) necessary to locate, retrieve, read, and reproduce (including paper copies) any electronically stored Forms I-9, any supporting documents, and their associated audit trails, reports, and other data used to maintain the authenticity, integrity, and reliability of the records.
(iii) Provide, if requested, any reasonably available or obtainable electronic summary file(s), such as a spreadsheet, containing all of the information fields on all of the electronically stored Forms I-9 requested by a requesting agency of the United States.
(f) Documentation. (Paragraph (f) added 6/15/06; 71 FR 34510)
(1) A person or entity who chooses to complete and/or retain Forms I-9 electronically must maintain and make available to an agency of the United States upon request documentation of the business processes that:
(i) Create the retained Forms I-9;
(ii) Modify and maintain the retained Forms I-9; and
(iii) Establish the authenticity and integrity of the Forms I-9, such as audit trails.
(2) Insufficient or incomplete documentation is a violation of section 274A(a)(1)(B) of the Act.
(3) Any officer listed in 8 CFR 287.4 may issue a subpoena to compel production of any documentation required by 8 CFR 274a.2. Nothing in this section is intended to limit the subpoena power of an agency of the United States under section 235(a) of the Act.
(g) Security. (Paragraph (g) added 6/15/06; 71 FR 34510)
(1) Any person or entity who elects to complete or retain Forms I-9 electronically must implement an effective records security program that:
(i) Ensures that only authorized personnel have access to electronic records;
(ii) Provides for backup and recovery of records to protect against information loss, such as power interruptions;
(iii) Ensures that employees are trained to minimize the risk of unauthorized or accidental alteration or erasure of electronic records; and
(iv) Ensure that whenever the electronic record is created, accessed, viewed, updated, or corrected, a secure and permanent record is created that establishes the date of access, the identity of the individual who accessed the electronic record, and the particular action taken.
(2) An action or inaction resulting in the unauthorized alteration, loss, or erasure of electronic records, if it is known, or reasonably should be known, to be likely to have that effect, is a violation of section 274A(b)(3) of the Act.
(h) Electronic signatures for employee. (Paragraph (h) added 6/15/06; 71 FR 34510)
(1) If a Form I-9 is completed electronically, the attestations in Form I-9 must be completed using a system for capturing an electronic signature that meets the standards set forth in this paragraph. The system used to capture the electronic signature must include a method to acknowledge that the attestation to be signed has been read by the signatory. The electronic signature must be attached to, or logically associated with, an electronically completed Form I-9. In addition, the system must:
(i) Affix the electronic signature at the time of the transaction;
(ii) Create and preserve a record verifying the identity of the person producing the signature; and
(iii) Provide a printed confirmation of the transaction, at the time of the transaction, to the person providing the signature.
(2) Any person or entity who is required to ensure proper completion of a Form I-9 and who chooses electronic signature for a required attestation, but who has failed to comply with the standards set forth in this paragraph, is deemed to have not properly completed the Form I-9, in violation of section 274A(a)(1)(B) of the Act and 8 CFR 274a.2(b)(2).
(i) Electronic signatures for employer, recruiter or referrer, or representative. If a Form I-9 is completed electronically, the employer, the recruiter or referrer for a fee, or the representative of the employer or the recruiter or referrer, must attest to the required information in Form I-9. The system used to capture the electronic signature should include a method to acknowledge that the attestation to be signed has been read by the signatory. Any person or entity who has failed to comply with the criteria established by this regulation for electronic signatures, if used, and at the time of inspection does not present a properly completed Form I-9 for the employee, is in violation of section 274A(a)(1)(B) of the Act and 8 CFR 274a.2(b)(2). (Paragraph (i) added 6/15/06; 71 FR 34510)
Sec. 274a.3 Continuing employment of unauthorized aliens.
An employer who continues the employment of an employee hired after November 6, 1986, knowing that the employee is or has become an unauthorized alien with respect to that employment, is in violation of section 274A(a)(2) of the Act.
Sec. 274a.4 Good faith defense.
An employer or a recruiter or referrer for a fee for employment who shows good faith compliance with the employment verification requirements of Sec. 274a.2(b) of this part shall have established a rebuttable affirmative defense that the person or entity has not violated section 274A(a)(1)(A) of the Act with respect to such hiring, recruiting, or referral.
Sec. 274a.5 Use of labor through contract.
Any person or entity who uses a contract, subcontract, or exchange entered into, renegotiated, or extended after November 6, 1986, to obtain the labor or services of an alien in the United States knowing that the alien is an unauthorized alien with respect to performing such labor or services, shall be considered to have hired the alien for employment in the United States in violation of section 274A(a)(1)(A) of the Act.
Sec. 274a.6 State employment agencies.
(a) General. Pursuant to sections 274A(a)(5) and 274A(b) of the Act, a state employment agency as defined in Sec. 274a.1 of this part may, but is not required to, verify identity and employment eligibility of individuals referred for employment by the agency. However, should a state employment agency choose to do so, it must:
(1) Complete the verification process in accordance with the requirements of Sec. 274a.2(b) of this part provided that the individual may not present receipts in lieu of documents in order to complete the verification process as otherwise permitted by Sec. 274a.2(b)(1)(vi) of this part; and
(2) Complete the verification process prior to referral for all individuals for whom a certification is required to be issued pursuant to paragraph (c) of this section.
(b) Compliance with the provisions of section 274A of the Act. A state employment agency which chooses to verify employment eligibility of individuals pursuant to Sec. 274a.2(b) of this part shall comply with all provisions of section 274A of the Act and the regulations issued thereunder.
(c) State employment agency certification.
(1) A state employment agency which chooses to verify employment eligibility pursuant to paragraph (a) of this section shall issue to an employer who hires an individual referred for employment by the agency, a certification as set forth in paragraph (d) of this section. The certification shall be transmitted by the state employment agency directly to the employer, personally by an agency official, or by mail, so that it will be received by the employer within 21 business days of the date that the referred individual is hired. In no case shall the certification be transmitted to the employer from the state employment agency by the individual referred. During this period:
(i) The job order or other appropriate referral form issued by the state employment agency to the employer, on behalf of the individual who is referred and hired, shall serve as evidence, with respect to that individual, of the employer's compliance with the provisions of section 274A(a)(1)(B) of the Act and the regulations issued thereunder.
(ii) In the case of a telephonically authorized job referral by the state employment agency to the employer, an appropriate annotation by the employer shall be made and shall serve as evidence of the job order. The employer should retain the document containing the annotation where the employer retains Forms I-9.
(2) Job orders or other referrals, including telephonic authorizations, which are used as evidence of compliance pursuant to paragraph (c)(1)(i) of this section shall contain:
(i) The name of the referred individual;
(ii) The date of the referral;
(iii) The job order number or other applicable identifying number relating to the referral;
(iv) The name and title of the referring state employment agency official; and
(v) The telephone number and address of the state employment agency.
(3) A state employment agency shall not be required to verify employment eligibility or to issue a certification to an employer to whom the agency referred an individual if the individual is hired for a period of employment not to exceed 3 days in duration. Should a state agency choose to verify employment eligibility and to issue a certification to an employer relating to an individual who is hired for a period of employment not to exceed 3 days in duration, it must verify employment eligibility and issue certifications relating to all such individuals. Should a state employment agency choose not to verify employment eligibility or issue certifications to employers who hire, for a period not to exceed 3 days in duration, agency-referred individuals, the agency shall notify employers that, as a matter of policy, it does not perform verifications for individuals hired for that length of time, and that the employers must complete the identity and employment eligibility requirements pursuant to Sec. 274a.2(b) of this part. Such notification may be incorporated into the job order or other referral form utilized by the state employment agency as appropriate.
(4) An employer to whom a state employment agency issues a certification relating to an individual referred by the agency and hired by the employer, shall be deemed to have complied with the verification requirements of Sec. 274a.2(b) of this part provided that the employer:
(i) Reviews the identifying information contained in the certification to ensure that it pertains to the individual hired;
(ii) Observes the signing of the certification by the individual at the time of its receipt by the employer as provided for in paragraph (d)(13) of this section;
(iii) Complies with the provisions of Sec. 274a.2(b)(1)(vii) of this part by either:
(A) Updating the state employment agency certification in lieu of Form I-9, upon expiration of the employment authorization date, if any, which was noted on the certification issued by the state employment agency pursuant to paragraph (d)(11) of this section; or
(B) By no longer employing an individual upon expiration of his or her employment authorization date noted on the certification;
(iv) Retains the certification in the same manner prescribed for Form I-9 in Sec. 274a.2(b)(2) of this part, to wit, three years after the date of the hire or one year after the date the individual's employment is terminated, whichever is later; and
(v) Makes it available for inspection to officers of the Service or the Department of Labor, pursuant to the provisions of section 274A(b)(3) of the Act, and Sec. 274a.2(b)(2) of this part.
(5) Failure by an employer to comply with the provisions of paragraph (c)(4)(iii) of this section shall constitute a violation of section 274A(a)(2) of the Act and shall subject the employer to the penalties contained in section 274A(e)(4) of the Act, and Sec. 274a.10 of this part.
(d) Standards for state employment agency certifications. All certifications issued by a state employment agency pursuant to paragraph (c) of this section shall conform to the following standards. They must:
(1) Be issued on official agency letterhead;
(2) Be signed by an appropriately designated official of the agency;
(3) Bear a date of issuance;
(4) Contain the employer's name and address;
(5) State the name and date of birth of the individual referred;
(6) Identify the position or type of employment for which the individual is referred;
(7) Bear a job order number relating to the position or type of employment for which the individual is referred;
(8) Identify the document or documents presented by the individual to the state employment agency for the purposes of identity and employment eligibility verification;
(9) State the identifying number or numbers of the document or documents described in paragraph (d)(8) of this section;
(10) Certify that the agency has complied with the requirements of section 274A(b) of the Act concerning verification of the identity and employment eligibility of the individual referred, and has determined that, to the best of the agency's knowledge, the individual is authorized to work in the United States;
(11) Clearly state any restrictions, conditions, expiration dates or other limitations which relate to the individual's employment eligibility in the United States, or contain an affirmative statement that the employment authorization of the referred individual is not restricted;
(12) State that the employer is not required to verify the individual's identity or employment eligibility, but must retain the certification in lieu of Form I-9;
(13) Contain a space or a line for the signature of the referred individual, requiring the individual under penalty of perjury to sign his or her name before the employer at the time of receipt of the certification by the employer; and
(14) State that counterfeiting, falsification, unauthorized issuance or alteration of the certification constitutes a violation of federal law pursuant to Title 18, U.S.C 1546.
(e) Retention of Form I-9 by state employment agencies. A Form I-9 utilized by a state employment agency in verifying the identity and employment eligibility of an individual pursuant to Sec. 274a.2(b) of this part must be retained by a state employment agency for a period of three years from the date that the individual was last referred by the agency and hired by an employer. A state employment agency may retain a Form I-9 either in its original form, or on microfilm or microfiche.
(f) Retention of state employment agency certifications. A certification issued by a state employment agency pursuant to this section shall be retained:
(1) By a state employment agency, for a period of three years from the date that the individual was last referred by the agency and hired by an employer, and in a manner to be determined by the agency which will enable the prompt retrieval of the information contained on the original certification for comparison with the relating Form I-9;
(2) By the employer, in the original form, and in the same manner and location as the employer has designated for retention of Forms I-9, and for the period of time provided in paragraph (c)(4)(iv) of this section.
(g) State employment agency verification requirements in the case of an individual who was previously referred and certified. When a state employment agency refers an individual for whom the verification requirements have been previously complied with and a Form I-9 completed, the agency shall inspect the previously completed Form I-9:
(1) If, upon inspection of the Form, the agency determines that the Form I-9 pertains to the individual and that the individual remains authorized to be employed in the United States, no additional verification need be conducted and no new Form I-9 need be completed prior to issuance of a new certification provided that the individual is referred by the agency within 3 years of the execution of the initial Form I-9.
(2) If, upon inspection of the Form, the agency determines that the Form I-9 pertains to the individual but that the individual does not appear to be authorized to be employed in the United States based on restrictions, expiration dates or other conditions annotated on the Form I-9, the agency shall not issue a certification unless the agency follows the updating procedures pursuant to Sec. 274a.2(b)(1)(vii) of this part; otherwise the individual may no longer be referred for employment by the state employment agency.
(3) For the purposes of retention of the Form I-9 by a state employment agency pursuant to paragraph (e) of this section, for an individual previously referred and certified, the state employment agency shall retain the Form for a period of 3 years from the date that the individual is last referred and hired.
(h) Employer verification requirements in the case of an individual who was previously referred and certified. When an employer rehires an individual for whom the verification and certification requirements have been previously complied with by a state employment agency, the employer shall inspect the previously issued certification.
(1) If, upon inspection of the certification, the employer determines that the certification pertains to the individual and that the individual remains authorized to be employed in the United States, no additional verification need be conducted and no new Form I-9 or certification need be completed provided that the individual is rehired by the employer within 3 years of the issuance of the initial certification, and that the employer follows the same procedures for the certification which pertain to Form I-9, as specified in Sec. 274a.2(c)(1)(i) of this part.
(2) If, upon inspection of the certification, the employer determines that the certification pertains to the individual but that the certification reflects restrictions, expiration dates or other conditions which indicate that the individual no longer appears authorized to be employed in the United States, the employer shall verify that the individual remains authorized to be employed and shall follow the updating procedures for the certification which pertain to Form I-9, as specified in Sec. 274a.2(c)(1)(ii) of this part; otherwise the individual may no longer be employed.
(3) For the purposes of retention of the certification by an employer pursuant to this paragraph for an individual previously referred and certified by a state employment agency and rehired by the employer, the employer shall retain the certification for a period of 3 years after the date that the individual is last hired, or one year after the date the individual's employment is terminated, whichever is later.
Sec. 274a.7 Pre-enactment provisions for employees hired prior to November 7, 1986.
(a) The penalty provisions set forth in section 274A(e) and (f) of the Act for violations of sections 274A(a)(1)(B) and 274A(a)(2) of the Act shall not apply to employees who were hired prior to November 7, 1986, and who are continuing in their employment and have a reasonable expectation of employment at all times (as set forth in Sec. 274a.2(b)(1)(viii)), except those individuals described in section 274a.2(b)(1)(viii)(A)((7))((iii)) and (b)(1)(viii)(A)((8)).
(b) For purposes of this section, an employee who was hired prior to November 7, 1986 shall lose his or her pre-enactment status if the employee:
(1) Quits; or
(2) Is terminated by the employer; the term termination shall include, but is not limited to, situations in which an employee is subject to seasonal employment; or
(3) Is excluded or deported from the United States or departs the United States under a grant of voluntary departure; or
(4) Is no longer continuing his or her employment (or does not have a reasonable expectation of employment at all times) as set forth in Sec. 274a.2(b)(1)(viii).
Sec. 274a.8 Prohibition of indemnity bonds.
(a) General. It is unlawful for a person or other entity, in hiring or recruiting or referring for a fee for employment of an individual, to require the individual to post a bond or security, to pay or agree to pay an amount, or otherwise to provide a financial guarantee or indemnity, against any potential liability arising under this part relating to such hiring, recruiting, or referring of the individual. However, this prohibition does not apply to performance clauses which are stipulated by agreement between contracting parties.
(b) Penalty. Any person or other entity who requires any individual to post a bond or security as stated in this section shall, after notice and opportunity for an administrative hearing in accordance with section 274A(e)(3)(B) of the Act, be subject to a civil monetary penalty of $1,000 for each violation before September 29, 1999, and $1,100 for each violation occurring on or after September 29, 1999, and to an administrative order requiring the return to the individual of any amounts received in violation of this section or, if the individual cannot be located, to the general fund of the Treasury. (Revised effective 9/29/99; 64 FR 47099)
Sec. 274a.9 Enforcement procedures.
(a) Procedures for the filing of complaints. Any person or entity having knowledge of a violation or potential violation of section 274A of the Act may submit a signed, written complaint in person or by mail to the Service office having jurisdiction over the business or residence of the potential violator. The signed, written complaint must contain sufficient information to identify both the complainant and the potential violator, including their names and addresses. The complaint should also contain detailed factual allegations relating to the potential violation including the date, time and place of the alleged violation and the specific act or conduct alleged to constitute a violation of the Act. Written complaints may be delivered either by mail to the appropriate Service office or by personally appearing before any immigration officer at a Service office.
(b) Investigation. The Service may conduct investigations for violations on its own initiative and without having received a written complaint. When the Service receives a complaint from a third party, it shall investigate only those complaints that have a reasonable probability of validity. If it is determined after investigation that the person or entity has violated section 274A of the Act, the Service may issue and serve a Notice of Intent to Fine or a Warning Notice upon the alleged violator. Service officers shall have reasonable access to examine any relevant evidence of any person or entity being investigated. (Amended 10/7/96; 61 FR 52235)
(c) Warning notice. The Service and/or the Department of Labor may in their discretion issue a Warning Notice to a person or entity alleged to have violated section 274A of the Act. This Warning Notice will contain a statement of the basis for the violations and the statutory provisions alleged to have been violated. (Paragraph (c) added 10/7/96; 61 FR 52235; the previous paragraph (c) was redesignated as paragraph (d))
(d) Notice of Intent to Fine. The proceeding to assess administrative penalties under section 274A of the Act is commenced when the Service issues a Notice of Intent to Fine on Form I-763. Service of this Notice shall be accomplished pursuant to Part 103 of this chapter. The person or entity identified in the Notice of Intent to Fine shall be known as the respondent. The Notice of Intent to Fine may be issued by an officer defined in § 242.1 of this chapter with concurrence of a Service attorney. (Redesignated as paragraph (d), previously paragraph (c); 10/7/96; 61 FR 52235)
(1) Contents of the Notice of Intent to Fine.
(i) The Notice of Intent to Fine will contain the basis for the charge(s) against the respondent, the statutory provisions alleged to have been violated, and the penalty that will be imposed.
(ii) The Notice of Intent to Fine will provide the following advisals to the respondent:
(A) That the person or entity has the right to representation by counsel of his or her own choice at no expense to the government;
(B) That any statement given may be used against the person or entity;
(C) That the person or entity has the right to request a hearing before an Administrative Law Judge pursuant to 5 U.S.C. 554-557, and that such request must be made within 30 days from the service of the Notice of Intent to Fine;
(D) That the Service will issue a final order in 45 days if a written request for a hearing is not timely received and that there will be no appeal of the final order.
(e) Request for Hearing Before an Administrative Law Judge. If a respondent contests the issuance of a Notice of Intent to Fine, the respondent must file with the INS, within thirty days of the service of the Notice of Intent to Fine, a written request for a hearing before an Administrative Law Judge. Any written request for a hearing submitted in a foreign language must be accompanied by an English language translation. A request for a hearing is not deemed to be filed until received by the Service office designated in the Notice of Intent to Fine. In computing the thirty day period prescribed by this section, the day of service of the Notice of Intent to Fine shall not be included. If the Notice of Intent to Fine was served by ordinary mail, five days shall be added to the prescribed thirty day period. In the request for a hearing, the respondent may, but is not required to, respond to each allegation listed in the Notice of Intent to Fine. (Redesignated as paragraph (e), previously paragraph (d); 10/7/96; 61 FR 52235)
(f) Failure to file a request for hearing. If the respondent does not file a request for a hearing in writing within thirty days of the day of service of the Notice of Intent to Fine (thirty-five days if served by ordinary mail), the INS shall issue a final order from which there is no appeal. (Redesignated as paragraph (f), previously paragraph (e); 10/7/96; 61 FR 52235)
Sec. 274a.10 Penalties.
(a) Criminal penalties. Any person or entity which engages in a pattern or practice of violations of subsection (a)(1)(A) or (a)(2) of the Act shall be fined not more than $3,000 for each unauthorized alien, imprisoned for not more than six months for the entire pattern or practice, or both, notwithstanding the provisions of any other Federal law relating to fine levels.
(b) Civil penalties. A person or entity may face civil penalties for a violation of section 274A of the Act. Civil penalties may be imposed by the Service or an administrative law judge for violations under section 274A of the Act. In determining the level of the penalties that will be imposed, a finding of more than one violation in the course of a single proceeding or determination will be counted as a single offense. However, a single offense will include penalties for each unauthorized alien who is determined to have been knowingly hired or recruited or referred for a fee.
(1) A respondent found by the Service or an administrative law judge to have knowingly hired, or to have knowingly recruited or referred for a fee, an unauthorized alien for employment in the United States or to have knowingly continued to employ an unauthorized alien in the United States, shall be subject to the following order:
(i) To cease and desist from such behavior;
(ii) To pay a civil fine according to the following schedule:
(A) First offense--not less than $275 and not more than $2,200 for each unauthorized alien with respect to whom the offense occurred before March 27, 2008, and not less than $375 and not exceeding $3,200, for each unauthorized alien with respect to whom the offense occurred occurring on or after March 27, 2008; (Revised effective 3/27/08; 73 FR 10130)(Revised effective 9/29/99; 64 FR 47009)
(B) Second offense--not less than $2,200 and not more than $5,500 for each unauthorized alien with respect to whom the second offense occurred before March 27, 2008, and not less than $3,200 and not more than $6,500, for each unauthorized alien with respect to whom the second offense occurred on or after March 27, 2008; or (Revised effective 3/27/08; 73 FR 10130) (Revised effective 9/29/99; 64 FR 47009)
(C) More than two offenses--not less than $3,300 and not more than $11,000 for each unauthorized alien with respect to whom the third or subsequent offense occurred before March 27, 2008 and not less than $4,300 and not exceeding $16,000, for each unauthorized alien with respect to whom the third or subsequent offense occurred on or after March 27, 2008; and (Revised effective 3/27/08; 73 FR 10130) (Revised effective 9/29/99; 64 FR 47009)
(iii) To comply with the requirements of section 274a.2(b) of this part, and to take such other remedial action as is appropriate.
(2) A respondent determined by the Service (if a respondent fails to request a hearing) or by an administrative law judge, to have failed to comply with the employment verification requirements as set forth in § 274a.2(b), shall be subject to a civil penalty in an amount of not less than $100 and not more than $1,000 for each individual with respect to whom such violation occurred before September 29, 1999, and not less than $110 and not more than $1,100 for each individual with respect to whom such violation occurred on or after September 29, 1999. In determining the amount of the penalty, consideration shall be given to: (Introductory text revised effective 9/29/99; 64 FR 47099)
(i) The size of the business of the employer being charged;
(ii) The good faith of the employer;
(iii) The seriousness of the violation;
(iv) Whether or not the individual was an unauthorized alien; and
(v) The history of previous violations of the employer.
(3) Where an order is issued with respect to a respondent composed of distinct, physically separate subdivisions which do their own hiring, or their own recruiting or referring for a fee for employment (without reference to the practices of, and under the control of, or common control with another subdivision) the subdivision shall be considered a separate person or entity.
(c) Enjoining pattern or practice violations. If the Attorney General has reasonable cause to believe that a person or entity is engaged in a pattern or practice of employment, recruitment or referral in violation of section 274A(a)(1)(A) or (2) of the Act, the Attorney General may bring civil action in the appropriate United States District Court requesting relief, including a permanent or temporary injunction, restraining order, or other order against the person or entity, as the Attorney General deems necessary.
Sec. 274a.11 [Reserved]
Subpart B--Employment Authorization
Sec. 274a.12 Classes of aliens authorized to accept employment.
(a) Aliens authorized employment incident to status. Pursuant to the statutory or regulatory reference cited, the following classes of aliens are authorized to be employed in the United States without restrictions as to location or type of employment as a condition of their admission or subsequent change to one of the indicated classes. Any alien who is within a class of aliens described in paragraphs (a)(3), (a)(4), (a)(6)-(a)(8), (a)(10)-(a)(15), or (a)(20) of this section, and who seeks to be employed in the United States, must apply to U.S.Citizenship and Immigration Services (USCIS) for a document evidencing such employment authorization. USCIS may, in its discretion, determine the validity period assigned to any document issued evidencing an alien's authorization to work in the United States. (Introductory text revised effective 10/17/07; 72 FR 53014) (Introductory text revised 7/30/04; 69 FR 45555) (Introductory text amended effective 3/4/02; 67 FR 4784) (Introductory text amended 9/7/01; 66 FR 46697) (Introductory text revised 8/14/01; 66 FR 42587) (Introductory text amended 6/1/01; 66 FR 29961)
(1) An alien who is a lawful permanent resident (with or without conditions pursuant to section 216 of the Act), as evidenced by Form I-551 issued by the Service. An expiration date on the Form I-551 reflects only that the card must be renewed, not that the bearer's work authorization has expired; (Final rule amending this paragraph on 9/20/93 at 58 FR 48775 did not become effective until 3/20/96; 60 FR 14353)
(2) An alien admitted to the United States as a lawful temporary resident pursuant to section 245A or 210 of the Act, as evidenced by an employment authorization document issued by the Service;
(3) An alien admitted to the United States as a refugee pursuant to section 207 of the Act for the period of time in that status, as evidenced by an employment authorization document issued by the Service;
(4) An alien paroled into the United States as a refugee for the period of time in that status, as evidenced by an employment authorization document issued by the Service;
(5) An alien granted asylum under section 208 of the Act for the period of time in that status, as evidenced by an employment authorization document, issued by BCIS to the alien. An expiration date on the employment authorization document issued by BCIS reflects only that the document must be renewed, and not that the bearer's work authorization has expired. Evidence of employment authorization shall be granted in increments not exceeding 5 years for the period of time the alien remains in that status. (Revised 7/30/04; 69 FR 45555)
(6) An alien admitted to the United States as a nonimmigrant fiancé or fiancee pursuant to section 101(a)(15)(K)(i) of the Act, or an alien admitted as a child of such alien, for the period of admission in that status, as evidenced by an employment authorization document issued by the Service; (Revised 8/14/01; 66 FR 42587)
(7) An alien admitted as a parent (N-8) or dependent child (N-9) of an alien granted permanent residence under section 101(a)(27)(I) of the Act, as evidenced by an employment authorization document issued by the Service;
(8) An alien admitted to the United States as a citizen of the Federated States of Micronesia (CFA/FSM) or of the Marshall Islands (CFA/MIS) pursuant to agreements between the United States and the former trust territories, as evidenced by an employment authorization document issued by the Service;
(9) Any alien admitted as a nonimmigrant spouse pursuant to section 101(a)(15)(K)(ii) of the Act, or an alien admitted as a child of such alien, for the period of admission in that status, as evidenced by an employment authorization document, with an expiration date issued by the Service; (Added 8/14/01; 66 FR 42587)
(10) An alien granted withholding of deportation or removal for the period of time in that status, as evidenced by an employment authorization document issued by the Service; (Revised effective 4/1/97; 62 FR 10312)
(11) An alien who has been granted extended voluntary departure by the Attorney General as a member of a nationality group pursuant to a request by the Secretary of State. Employment is authorized for the period of time in that status as evidenced by an employment authorization document issued by the Service;
(12) An alien granted Temporary Protected Status under section 244 of the Act for the period of time in that status, as evidenced by an employment authorization document issued by the Service; (Amended 6/1/01; 66 FR 29661) (Revised effective 4/1/97; 62 FR 10312)
(13) An alien granted voluntary departure by the Attorney General under the Family Unity Program established by section 301 of the Immigration Act of 1990, as evidenced by an employment authorization document issued by the Service; (Amended 9/7/01; 66 FR 46697) (Amended 6/1/01; 66 FR 29661)
(14) An alien granted Family Unity benefits under section 1504 of the Legal Immigrant Family Equity (LIFE) Act Amendments, Public Law 106-554, and the provisions of 8 CFR part 245a, Subpart C of this chapter, as evidenced by an employment authorization document issued by the Service; (Amended effective 10/17/07; 72 FR 53014) (Amended 9/7/01; 66 FR 46697) (Added 6/1/01; 66 FR 29661)
(15) Any alien in V nonimmigrant status as defined in section 101(a)(15)(V) of the Act and 8 CFR 214.15. (Amended 7/30/04; 69 FR 45555) (Added 9/7/01; 66 FR 46697)
(16) An alien authorized to be admitted to or remain in the United States as a nonimmigrant alien victim of a severe form of trafficking in persons under section 101(a)(15)(T)(i) of the Act. Employment authorization granted under this paragraph shall expire upon the expiration of the underlying T-1 nonimmigrant status granted by the Service; (Amended effective 10/17/07; 72 FR 53014) (Added effective 3/4/02; 67 FR 4784)
(17) [Reserved] (Added and Reserved paragraph (a)(17) effective 10/17/07; 72 FR 53014)
(18) [Reserved] (Added and Reserved paragraph (a)(18) effective 10/17/07; 72 FR 53014)
(19) Any alien in U-1 nonimmigrant status, pursuant to 8 CFR 214.14, for the period of time in that status, as evidenced by an employment authorization document issued by USCIS to the alien. (Added effective 10/17/07; 72 FR 53014)
(20) Any alien in U-2, U-3, U-4, or U-5 nonimmigrant status, pursuant to 8 CFR 214.14, for the period of time in that status, as evidenced by an employment authorization document issued by USCIS to the alien. (Added effective 10/17/07; 72 FR 53014)
(b) Aliens authorized for employment with a specific employer incident to status. The following classes of nonimmigrant aliens are authorized to be employed in the United States by the specific employer and subject to the restrictions described in the section(s) of this chapter indicated as a condition of their admission in, or subsequent change to, such classification. An alien in one of these classes is not issued an employment authorization document by the Service:
(1) A foreign government official (A-1 or A-2), pursuant to 214.2(a) of this chapter. An alien in this status may be employed only by the foreign government entity;
(2) An employee of a foreign government official (A-3), pursuant to 214.2(a) of this chapter. An alien in this status may be employed only by the foreign government official;
(3) A foreign government official in transit (C-2 or C-3), pursuant to 214.2(c) of this chapter. An alien in this status may be employed only by the foreign government entity;
(4) [Reserved]
(5) A nonimmigrant treaty trader (E-1) or treaty investor (E-2), pursuant to 214.2(e) of this chapter. An alien in this status may be employed only by the treaty-qualifying company through which the alien attained the status. Employment authorization does not extend to the dependents of the principal treaty trader or treaty investor (also designated "E'1" or "E-2"), other than those specified in paragraph (c)(2) of this section;
(6) A nonimmigrant (F-1) student who is in valid nonimmigrant student status and pursuant to 8 CFR 214.2(f) is seeking:
(i) On-campus employment for not more than twenty hours per week when school is in session or full-time employment when school is not in session if the student intends and is eligible to register for the next term or session. Part-time on-campus employment is authorized by the school and no specific endorsement by a school official or Service officer is necessary;
(ii) Reserved (Removed and reserved effective 1/1/03; 67 FR 76256)
(iii) Curricular practical training (internships, cooperative training programs, or work-study programs which are part of an established curriculum) after having been enrolled full-time in a Service approved institution for one full academic year. Curricular practical training (part-time or full-time) is authorized by the Designated School Official on the student's Form I-20. No Service endorsement is necessary. (Revised effective 1/1/03; 67 FR 76256)
(7) A representative of an international organization (G-1, G-2, G-3, or G-4), pursuant to 214.2(g) of this chapter. An alien in this status may be employed only by the foreign government entity or the international organization;
(8) A personal employee of an official or representative of an international organization (G-5), pursuant to 214.2(g) of this chapter. An alien in this status may be employed only by the official or representative of the international organization;
(9) A temporary worker or trainee (H-1, H-2A, H-2B, or H-3), pursuant to § 214.2(h) of this chapter. An alien in this status may be employed only by the petitioner through whom the status was obtained. In the case of a professional H-2B athlete who is traded from one organization to another organization, employment authorization for the player will automatically continue for a period of 30 days after acquisition by the new organization, within which time the new organization is expected to file a new Form I-129 to petition for H-2B classification. If a new Form I-129 is not filed within 30 days, employment authorization will cease. If a new Form I-129 is filed within 30 days, the professional athlete's employment authorization will continue until the petition is adjudicated. If the new petition is denied, employment authorization will cease; (Revised 4/16/97; 62 FR 18508)
(10) An information media representative (I), pursuant to 214.2(i) of this chapter. An alien in this status may be employed only for the sponsoring foreign news agency or bureau. Employment authorization does not extend to the dependents of an information media representative (also designated "I");
(11) An exchange visitor (J-1), pursuant to § 214.2(j) of this chapter and 22 CFR part 62. An alien in this status may be employed only by the exchange visitor program sponsor or appropriate designee and within the guidelines of the program approved by the Department of State as set forth in the Form DS-2019, Certificate of Eligibility, issued by the program sponsor; (Revised effective 1/1/03; 67 FR 76256)
(12) An intra-company transferee (L-1), pursuant to 214.2(i) of this chapter. An alien in this status may be employed only by the petitioner through whom the status was obtained;
(13) An alien having extraordinary ability in the sciences, arts, education, business, or athletics (O-1), and an accompanying alien (O-2), pursuant to § 214.2(o) of this chapter. An alien in this status may be employed only by the petitioner through whom the status was obtained. In the case of a professional O-1 athlete who is traded from one organization to another organization, employment authorization for the player will automatically continue for a period of 30 days after the acquisition by the new organization, within which time the new organization is expected to file a new Form I-129 petition for O nonimmigrant classification. If a new Form I-129 is not filed within 30 days, employment authorization will cease. If a new Form I-129 is filed within 30 days, the professional athlete's employment authorization will continue until the petition is adjudicated. If the new petition is denied, employment authorization will cease. (Revised 4/16/97; 62 FR 18508)
(14) An athlete, artist, or entertainer (P-1, P-2, or P-3), pursuant to § 214.2(p) of this chapter. An alien in this status may be employed only by the petitioner through whom the status was obtained. In the case of a professional P-1 athlete who is traded from one organization to another organization, employment authorization for the player will automatically continue for a period of 30 days after the acquisition by the new organization, within which time the new organization is expected to file a new Form I-129 for P-1 nonimmigrant classification. If a new Form I-129 is not filed within 30 days, employment authorization will cease. If a new Form I-129 is filed within 30 days, the professional athlete's employment authorization will continue until the petition is adjudicated. If the new petition is denied, employment authorization will cease; (Revised 4/16/97; 62 FR 18508)
(15) An international cultural exchange visitor (Q-1), according to § 214.2(q)(1) of this chapter. An alien may only be employed by the petitioner through whom the status was obtained; (Revised 3/17/00; 65 FR 14774)
(16) An alien having a religious occupation, pursuant to 214.2(r) of this chapter. An alien in this status may be employed only by the religious organization through whom the status was obtained
(17) Officers and personnel of the armed services of nations of the North Atlantic Treaty Organization, and representatives, officials, and staff employees of NATO (NATO-1, NATO-2, NATO-3, NATO-4, NATO-5 and NATO-6), pursuant to 214.2(o) of this chapter. An alien in this status may be employed only by NATO;
(18) An attendant, servant or personal employee (NATO-7) of an alien admitted as a NATO-1, NATO-2, NATO-3, NATO-4, NATO-5, or NATO-6, pursuant to 214.2(o) of this chapter. An alien admitted under this classification may be employed only by the NATO alien through whom the status was obtained;
(19) A nonimmigrant pursuant to Section 214(e) of the Act. An alien in this status must be engaged in business activities at a professional level in accordance with the provisions of Chapter 16 of the North American Free Trade Agreement (NAFTA); or (Revised 1/1/94; 58 FR 69217)
(20) A nonimmigrant alien within the class of aliens described in paragraphs (b)(2), (b)(5), (b)(8), (b)(9), (b)(10), (b)(11), (b)(12), (b)(13), (b)(14), (b)(16), and (b)(19) of this section whose status has expired but who has filed a timely application for an extension of such stay pursuant to Secs. 214.2 or 214.6 of this chapter. These aliens are authorized to continue employment with the same employer for a period not to exceed 240 days beginning on the date of the expiration of the authorized period of stay. Such authorization shall be subject to any conditions and limitations noted on the initial authorization. However, if the district director or service center director adjudicates the application prior to the expiration of this 240 day period and denies the application for extension of stay, the employment authorization under this paragraph shall automatically terminate upon notification of the denial decision. (Revised 1/1/94; 58 FR 69217)
Sec. 274a.12(c)
(c) Aliens who must apply for employment authorization. An alien within a class of aliens described in this section must apply for work authorization. If authorized, such an alien may accept employment subject to any restrictions stated in the regulations or cited on the employment authorization document. BCIS, in its discretion, may establish a specific validity period for an employment authorization document, which may include any period when an administrative appeal or judicial review of an application or petition is pending. (Introductory text revised 7/30/04; 69 FR 45555) (Correction effective 7/30/04; 69 FR 47763)
(1) An alien spouse or unmarried dependent child; son or daughter of a foreign government official (A-1 or A-2) pursuant to Sec. 214.2(a)(2) of this chapter and who presents a fully executed Form I-566 bearing the endorsement of an authorized representative of the Department of State;
(2) An alien spouse or unmarried dependent son or daughter of an alien employee of the Coordination Council for North American Affairs (E-1) pursuant to Sec. 214.2(e) of this chapter;
(3) A nonimmigrant (F-1) student who:
(i) Is seeking employment for purposes of optional practical training pursuant to 8 CFR 214.2(f), provided the alien will be employed only in an occupation which is directly related to his or her area of studies and that he or she presents an I-20 ID endorsed by the designated school official;
(ii) Has been offered employment under the sponsorship of an international organization within the meaning of the International Organization Immunities Act (59 Stat. 669) and who presents a written certification from the international organization that the proposed employment is within the scope of the organization's sponsorship. The F-1 student must also present a Form I-20 ID or SEVIS Form I-20 with employment page completed by DSO certifying eligibility for employment; or (Amended effective 1/1/03; 67 FR 76256)
(iii) Is seeking employment because of severe economic hardship pursuant to 8 CFR 214.2(f)(9)(ii)(C) and has filed the Form I-20 ID and Form I-538 (for non-SEVIS schools), or SEVIS Form I-20 with employment page completed by the DSO certifying eligibility, and any other supporting materials such as affidavits which further detail the unforeseen economic circumstances that require the student to seek employment authorization. (Revised effective 1/1/03; 67 FR 76256)
(4) An alien spouse or unmarried dependent child; son or daughter of an officer of, representative to, or employee of an international organization (G-1, G-3 or G-4) pursuant to Sec. 214.2(g) of this chapter who presents a fully executed Form I-566 bearing the endorsement of an authorized representative of the Department of State;
(5) An alien spouse or minor child of an exchange visitor (J-2) pursuant to Sec. 214.2(j) of this chapter;
(6) A nonimmigrant (M-1) student seeking employment for practical training pursuant to 8 CFR 214.2(m) following completion of studies. The alien may be employed only in an occupation or vocation directly related to his or her course of study as recommended by the endorsement of the designated school official on the I-20 ID;
(7) A dependent of an alien classified as NATO-1 through NATO-7 pursuant to Sec. 214.2(n) of this chapter;
(8) An alien who has filed a complete application for asylum or withholding of deportation or removal pursuant to 8 CFR part 208, whose application: (Paragraph (c)(8) revised 1/4/95; 59 FR 62284) (Paragraph (c)(8) revised 4/1/97; 62 FR 10312)
(i) Has not been decided, and who is eligible to apply for employment authorization under § 208.7 of this chapter because the 150-day period set forth in that section has expired. Employment authorization may be granted according to the provisions of § 208.7 of this chapter in increments to be determined by the Commissioner and shall expire on a specified date; or
(ii) Has been recommended for approval, but who has not yet received a grant of asylum or withholding or deportation or removal;
(9) An alien who has filed an application for adjustment of status to lawful permanent resident pursuant to part 245 of this chapter. For purposes of section 245(c)(8) of the Act, an alien will not be deemed to be an "unauthorized alien" as defined in section 274A(h)(3) of the Act while his or her properly filed Form I-485 application is pending final adjudication, if the alien has otherwise obtained permission from the Service pursuant to 8 CFR 274a.12 to engage in employment, or if the alien had been granted employment authorization prior to the filing of the adjustment application and such authorization does not expire during the pendency of the adjustment application. Upon meeting these conditions, the adjustment applicant need not file an application for employment authorization to continue employment during the period described in the preceding sentence; (Amended 7/30/04; 69 FR 45555) (Amended 7/23/97; 62 FR 39417) (Amended effective 6/22/98; 63 FR 27823) (Amended effective 6/11/99; 64 FR 25756) (Amended 3/24/00; 65 FR 15835)
(10) An alien who has filed an application for suspension of deportation under section 244 of the Act (as it existed prior to April 1, 1997), cancellation of removal pursuant to section 240A of the Act, or special rule cancellation of removal under section 309(f)(1) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, enacted as Pub. L. 104-208 (110 Stat. 3009-625) (as amended by the Nicaraguan Adjustment and Central American Relief Act (NACARA)), title II of Pub. L. 105-100 (111 Stat. 2160, 2193) and whose properly filed application has been accepted by the Service or EOIR. (Amended 7/30/04; 69 FR 45555)(Amended 1/4/95; 59 FR 62284) (Amended 6/3/95; 60 FR 21973) (Revised effective 4/1/97; 62 FR 10312) (Amended effective 6/21/99; 64 FR 27856)
(11) An alien paroled into the United States temporarily for emergency reasons or reasons deemed strictly in the public interest pursuant to Sec. 212.5 of this chapter; (Amended 1/4/95; 59 FR 62284)
(12) [Reserved]. (Removed and reserved 7/14/00; 65 FR 43677) (Revised 12/21/95; 60 FR 66062) (Revised effective 4/1/97; 62 FR 10312)
(13) [Reserved]. (Removed and reserved 1/4/95; 59 FR62284)
(14) An alien who has been granted deferred action, an act of administrative convenience to the government which gives some cases lower priority, if the alien establishes an economic necessity for employment;
(15) [Reserved]
(16) Any alien who has filed an application for creation of record of lawful admission for permanent residence pursuant to part 249 of this chapter. (Amended 7/30/04; 69 FR 45555)
(17) A nonimmigrant visitor for business (B-1) who:
(i) Is a personal or domestic servant who is accompanying or following to join an employer who seeks admission into, or is already in, the United States as a nonimmigrant defined under sections 101(a)(15)(B), (E), (F), (H), (I), (J), (L) or section 214(e) of the Act. The personal or domestic servant shall have a residence abroad which he or she has no intention of abandoning and shall demonstrate at least one year's experience as a personal or domestic servant. The nonimmigrant's employer shall demonstrate that the employer/employee relationship has existed for at least one year prior to the employer's admission to the United States; or, if the employer/employee relationship existed for less than one year, that the employer has regularly employed (either year-round or seasonally) personal or domestic servants over a period of several years preceding the employer's admission to the United States;
(ii) Is a domestic servant of a United States citizen accompanying or following to join his or her United States citizen employer who has a permanent home or is stationed in a foreign country, and who is visiting temporarily in the United States. The employer/employee relationship shall have existed prior to the commencement of the employer's visit to the United States; or
(iii) Is an employee of a foreign airline engaged in international transportation of passengers freight, whose position with the foreign airline would otherwise entitle the employee to classification under section 101(a)(15)(E)(i) of the Immigration and Nationality Act, and who is precluded from such classification solely because the employee is not a national of the country of the airline's nationality or because there is no treaty of commerce and navigation in effect between the United States and the country of the airline's nationality.
(18) An alien against whom a final order of deportation or removal exists and who is released on an order of supervision under the authority contained in section 241(a)(3) of the Act may be granted employment authorization in the discretion of the district director only if the alien cannot be removed due to the refusal of all countries designated by the alien or under section 241 of the Act to receive the alien, or because the removal of the alien is otherwise impracticable or contrary to the public interest. Additional factors which may be considered by the district director in adjudicating the application for employment authorization include, but are not limited to, the following: (Paragraph (c)(18) revised effective 4/1/97; 62 FR 10312)
(i) The existence of economic necessity to be employed;
(ii) The existence of a dependent spouse and/or children in the United States who rely on the alien for support; and
(iii) The anticipated length of time before the alien can be removed from the United States.
(19) An alien applying for Temporary Protected Status pursuant to section 244 of the Act shall apply for employment authorization only in accordance with the procedures set forth in part 244 of this chapter. (Amended 11/16/98; 63 FR 63593)
(20) Any alien who has filed a completed legalization application pursuant to section 210 of the Act (and part 210 of this chapter). (Amended 7/30/04; 69 FR 45555) (Added effective 10/4/96; 61 FR 46534)
(21) A principal nonimmigrant witness or informant in S classification, and qualified dependent family members. (Added 8/25/95; 60 FR 44260)
(22) Any alien who has filed a completed legalization application pursuant to section 245A of the Act (and part 245a of this chapter). Employment authorization shall be granted in increments not exceeding 1 year during the period the application is pending (including any period when an administrative appeal is pending) and shall expire on a specified date. (Added effective 10/4/96; 61 FR 46534)
(23) An Irish peace process cultural and training program visitor (Q-2), pursuant to section 214.2(q)(15) of this chapter and 22 CFR 41.57 and 22 CFR part 139. An alien in this status may only accept employment with the employer listed on the Certification Letter issued by the DOS' Program Administrator. (Added 3/17/00; 65 FR 14774)
(24) An alien who has filed an application for adjustment pursuant to section 1104 of the LIFE Act, Public Law 106-553, and the provisions of 8 CFR part 245a, Subpart B of this chapter. (Amended 7/30/04; 69 FR 45555) (Added 6/1/01; 66 FR 29661)
(25) An immediate family member of a T-1 victim of a severe form of trafficking in persons designated as a T-2, T-3 or T-4 nonimmigrant pursuant to § 214.11 of this chapter. Aliens in this status shall only be authorized to work for the duration of their T nonimmigrant status. (Added effective 3/4/02; 67 FR 4784)
(d) Basic criteria to establish economic necessity. Title 45--Public Welfare, Poverty Guidelines, 45 CFR 1060.2 should be used as the basic criteria to establish eligibility for employment authorization when the alien's economic necessity is identified as a factor. The alien shall submit an application for employment authorization listing his or her assets, income, and expenses as evidence of his or her economic need to work. Permission to work granted on the basis of the alien's application for employment authorization may be revoked under Sec. 274a.14 of this chapter upon a showing that the information contained in the statement was not true and correct.
Sec. 274a.13 Application for employment authorization.
(a) General. Aliens authorized to be employed under section 274a.12(a)(3), (a)(4), (a)(6)-(8), (a)(10)-(15), and (a)(20) must file an Application for Employment Authorization (Form I-765) in order to obtain documentation evidencing this fact. (Introductory text revised effective 10/17/07; 72 FR 53014) (Paragraph (a) revised 1/4/95; 59 FR 62284) (Paragraph (a) revised 6/3/95; 60 FR 21973)
(1) Aliens who may apply for employment authorization under Sec. 274a.12(c) of this part, except for those who may apply under Sec. 274a.12(c)(8), shall file a Form I-765 with the director having jurisdiction over applicant's residence, or the director having jurisdiction over the port of entry at which the alien applies, or with such other Service office as the Commissioner may designate. The approval of applications filed under Sec. 274a.12(c) of this part, except for Sec. 274a.12(c)(8), shall be within the discretion of the director or such other officer as the Commissioner may designate. Where economic necessity has been identified as a factor, the alien must provide information regarding his or her assets, income, and expenses in accordance with instructions on Form I-765.
(2) An initial Application for Employment Authorization (Form I-765) for asylum applicants under 274a.12(c)(8) of this part shall be filed in accordance with instructions on or attached to Form I-765 with the appropriate Service Center or with such other Service office as the Commissioner may designate. The applicant also must submit a copy of the underlying application for asylum or withholding of deportation, together with evidence that the application has been filed in accordance with Secs. 208.3 and 208.4 of this chapter. An application for an initial employment authorization or for a renewal of employment authorization filed in relation to a pending claim for asylum shall be adjudicated in accordance with Sec. 208.7 of this chapter. An application for renewal or replacement of employment authorization submitted in relation to a pending claim for asylum, as provided in Sec. 208.7 of this chapter, shall be filed, with fee or application for waiver of such fee, in accordance with the instructions on or attached to Form I-765 with the appropriate Service Center or with such other Service office as the Commissioner may designate.
(b) Approval of application. If the application is granted, the alien shall be notified of the decision and issued an INS employment authorization document valid for a specific period and subject to any terms and conditions as noted.
(c) Denial of application. If the application is denied, the applicant shall be notified in writing of the decision and the reasons for the denial. There shall be no appeal from the denial of the application.
(d) Interim employment authorization. The district director shall adjudicate the application within 90 days from the date of receipt of the application by the INS, except in the case of an initial application for employment authorization under § 274a.12(c)(8), which is governed by paragraph (a)(2) of this section, and § 274a.12(c)(9) in so far as it is governed by § § 245.13(j) and 245.15(n) of this chapter. Failure to complete the adjudication within 90 days will result in the grant of an employment authorization document for a period not to exceed 240 days. Such authorization shall be subject to any conditions noted on the employment authorization document. However, if the director adjudicates the application prior to the expiration date of the interim employment authorization and denies the individual's employment authorization application, the interim employment authorization granted under this section shall automatically terminate as of the date of the director's adjudication and denial. (Amended 7/1/94; 59 FR 33903) (Amended 1/4/95; 59 FR 62284) (Amended effective 6/22/98; 63 FR 27823) (Corrected 7/21/98; 63 FR 39121) (Amended effective 6/11/99; 64 FR 25756) (Amended 3/24/00; 65 FR 15835)
Sec. 274a.14 Termination of employment authorization.
(a) Automatic termination of employment authorization.
(1) Employment authorization granted under Sec. 274a.12(c) of this chapter shall automatically terminate upon the occurrence of one of the following events:
(i) The expiration date specified by the Service on the employment authorization document is reached;
(ii) Exclusion or deportation proceedings are instituted (however, this shall not preclude the authorization of employment pursuant to Sec. 274a.12(c) of this part where appropriate); or
(iii) The alien is granted voluntary departure.
(2) Termination of employment authorization pursuant to this paragraph does not require the service of a notice of intent to revoke; employment authorization terminates upon the occurrence of any event enumerated in paragraph (a)(1) of this section. However, automatic revocation under this section does not preclude reapplication for employment authorization under Sec. 274a.12(c) of this part.
(b) Revocation of employment authorization--
(1) Basis for revocation of employment authorization. Employment authorization granted under Sec. 274a.12(c) of this chapter may be revoked by the district director:
(i) Prior to the expiration date, when it appears that any condition upon which it was granted has not been met or no longer exists, or for good cause shown; or
(ii) Upon a showing that the information contained in the application is not true and correct.
(2) Notice of intent to revoke employment authorization. When a district director determines that employment authorization should be revoked prior to the expiration date specified by the Service, he or she shall serve written notice of intent to revoke the employment authorization. The notice will cite the reasons indicating that revocation is warranted. The alien will be granted a period of fifteen days from the date of service of the notice within which to submit countervailing evidence. The decision by the district director shall be final and no appeal shall lie from the decision to revoke the authorization.
(c) Automatic termination of temporary employment authorization granted prior to June 1, 1987.
(1) Temporary employment authorization granted prior to June 1, 1987, pursuant to 8 CFR 274a.12(c) (§ 109.1(b) contained in the 8 CFR edition revised as of January 1, 1987), shall automatically terminate on the date specified by the Service on the document issued to the alien, or on December 31, 1996, whichever is earlier. Automatic termination of temporary employment authorization does not preclude a subsequent application for temporary employment authorization. (Revised effective 10/4/96; 61 FR 46534)
(2) A document issued by the Service prior to June 1, 1987, that authorized temporary employment authorization for any period beyond December 31, 1996, is null and void pursuant to paragraph (c)(1) of this section. The alien shall be issued a new employment authorization document upon application to the Service if the alien is eligible for temporary employment authorization pursuant to 274A.12(c). (Revised effective 10/4/96; 61 FR 46534)
(3) No notice of intent to revoke is necessary for the automatic termination of temporary employment authorization pursuant to this part.
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