[Code of Federal Regulations]
[Title 8, Volume 1]
[Revised as of January 1, 2006]
From the U.S. Government Printing Office via GPO Access
[CITE: 8CFR274]
[Page 640-654]
TITLE 8--ALIENS AND NATIONALITY
CHAPTER I--DEPARTMENT OF HOMELAND SECURITY
PART 274a_CONTROL OF EMPLOYMENT OF ALIENS--Table of Contents
Subpart A_Employer Requirements
Subpart A_Employer Requirements
Sec.
274a.1 Definitions.
274a.2 Verification of employment eligibility.
274a.3 Continuing employment of unauthorized aliens.
274a.4 Good faith defense.
274a.5 Use of labor through contract.
274a.6 State employment agencies.
274a.7 Pre-enactment provisions for employees hired prior to November 7,
1986.
274a.8 Prohibition of indemnity bonds.
274a.9 Enforcement procedures.
274a.10 Penalties.
274a.11 [Reserved]
Subpart B_Employment Authorization
274a.12 Classes of aliens authorized to accept employment.
274a.13 Application for employment authorization.
274a.14 Termination of employment authorization.
Authority: 8 U.S.C. 1101, 1103, 1324a; 8 CFR part 2.
Source: 52 FR 16221, May 1, 1987, unless otherwise noted.
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
[[Page 641]]
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 not only actual knowledge but also
knowledge which may fairly be inferred through notice of certain facts
and circumstances which would lead a person, through the exercise of
reasonable care, to know about a certain condition. Constructive
knowledge may include, but is not limited to, situations where an
employer:
(i) Fails to complete or improperly completes the Employment
Eligibility Verification Form, I-9;
(ii) Has information available to it that would indicate that the
alien is not authorized to work, such as Labor Certification and/or an
Application for Prospective Employer; or
(iii) Acts with reckless and wanton disregard for the legal
consequences of permitting another individual to introduce an
unauthorized alien into its work force or to act on its behalf.
(2) Knowledge that an employee is unauthorized may not be inferred
from an employee's foreign appearance or accent. Nothing in this
definition should be interpreted as permitting an
[[Page 642]]
employer to request more or different documents than are required under
section 274(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.
[52 FR 16221, May 1, 1987, as amended at 53 FR 8612, Mar. 16, 1988; 55
FR 25931, June 25, 1990; 56 FR 41783, Aug. 23, 1991]
Sec. 274a.2 Verification of employment eligibility.
(a) General. This section states the requirements and procedures
persons or entities must comply with when hiring, or when recruiting or
referring for a fee, or when continuing to employ individuals in the
United States. 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, 29 U.S.C. 1802). The Form I-9, Employment Eligibility Verification
Form, has been designated by the Service as the form to be used in
complying with the requirements of this section. The Form I-9 may be
obtained in limited quantities at INS District Offices, or ordered from
the Superintendent of Documents, Washington, DC 20402. Employers may
electronically generate blank Forms I-9, 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 paper used meets the standards for
retention and production for inspection specified under Sec. 274a.2(b).
When copying or printing the Form I-9, the text of the two-sided form
may be reproduced by making either double-sided or single-sided copies.
Employers need only complete the Form I-9 for individuals who are hired
after November 6, 1986 and continue to be employed after May 31, 1987.
Employers shall have until September 1, 1987 to complete the Form I-9
for individuals hired from November 7, 1986 through May 31, 1987.
Recruiters and referrers for a fee need complete the Form I-9 only for
those individuals who are recruited or referred and hired after May 31,
1987. 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.
(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) Complete section 1--``Employee Information and Verification''--
on the Form I-9 at the time of hire; 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 to the individual,
assist him or her in completing Section 1--``Employee Information and
Verification,'' and have the individual sign or mark the Form in the
appropriate place. The preparer or translator must then complete the
``Preparer/Translator Certification'' portion of the Form I-9; and
(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''--of the
Form I-9.
(iii) An employer who hires an individual for employment for a
duration
[[Page 643]]
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.
(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 of the Form I-9.
(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.
(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.
(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;
(vi) 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:
[[Page 644]]
(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 <greek-i>'' 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 handicaps 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:
(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
[[Page 645]]
(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
(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
(2) Presents, within 90 days of the hire or, in the case of
reverification, the date employment authorization expires, either an
unexpired Form I-766 or 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.
(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 to relate to
the individual, reverify by noting the document's identification number
and expiration date on the Form I-9.
(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
[[Page 646]]
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) Form I-9 must be
retained by an employer or a recruiter or referrer for a fee for the
following time periods:
(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 the Service, the
Special Counsel for Immigration-Related Unfair Employment Practices, or
the Departmet of Labor. At the time of inspection, Forms I-9 must be
made available in their original 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 Service, the Special Counsel for Immigration-Related Unfair
Employment Practices, or the Department of Labor of the location where
the forms are kept and make arrangements for the inspection. Inspections
may be performed at an INS office. A recruiter or referrer for a fee who
has designated an employer to complete the employment verification
procedures may present a photocopy of the Form I-9 in lieu of presenting
the Form I-9 in its original 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 Service officer listed in Sec. 287.4 of this chapter 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 Service's
subpoena power under section 235(a) of the Act.
(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
[[Page 647]]
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 positively 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 maintenace 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).
(3) Copying of documentation. An employer, or a recruiter or
referrer for a fee may, but is not required to, copy a document
presented by an individual solely for the purpose of complying with the
verification requirements of this section. If such a copy is made, it
must be retained with the Form I-9. The retention requirements in
paragraph (b)(2) of this section do not apply to the photocopies. The
copying of any such document and retention of the copy 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 the documents only of individuals of certain national
origins or citizenship statuses. To do so may violate section 274B of
the Act.
(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.
(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.
[[Page 648]]
(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.
[52 FR 16221, May 1, 1987, as amended at 53 FR 8612, Mar. 16, 1988; 55
FR 25932, June 25, 1990; 56 FR 41784-41786, Aug. 23, 1991; 58 FR 48780,
Sept. 20, 1993; 61 FR 46537, Sept. 4, 1996; 61 FR 52236, Oct. 7, 1996;
62 FR 51005, Sept. 30, 1997; 64 FR 6189, Feb. 9, 1999; 64 FR 11533, Mar.
9, 1999]
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.
[52 FR 16221, May 1, 1987, as amended at 53 FR 8613, Mar. 16, 1988]
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.
[55 FR 25934, June 25, 1990]
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
[[Page 649]]
(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:
[[Page 650]]
(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
[[Page 651]]
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.
[52 FR 43053, Nov. 9, 1987]
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
[[Page 652]]
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).
[52 FR 16221, May 1, 1987, as amended at 53 FR 8613, Mar. 16, 1988; 55
FR 25935, June 25, 1990; 56 FR 41786, Aug. 23, 1991]
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.
[52 FR 16221, May 1, 1987, as amended at 64 FR 47101, Aug. 30, 1999]
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.
(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.
(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
[[Page 653]]
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 Sec. 242.1 of this chapter with concurrence of a Service
attorney.
(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.
(2) [Reserved]
(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.
(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.
[52 FR 16221, May 1, 1987, as amended at 53 FR 8613, Mar. 16, 1988; 55
FR 25935, June 25, 1990; 56 FR 41786, Aug. 23, 1991; 61 FR 52236, Oct.
7, 1996]
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 $250 and not more than $2,000 for
each unauthorized alien with respect to whom
[[Page 654]]
the offense occurred before September 29, 1999, and not less than $275
and not exceeding $2,200, for each unauthorized alien with respect to
whom the offense occurred occurring on or after September 29, 1999.
(B) Second offense--not less than $2,000 and not more than $5,000
for each unauthorized alien with respect to whom the second offense
occurred before September 29, 1999, and not less than $2,200 and not
exceeding $5,500, for each unauthorized alien with respect to whom the
second offense occurred on or after September 29, 1999; or
(C) More than two offenses--not less than $3,000 and not more than
$10,000 for each unauthorized alien with respect to whom the third or
subsequent offense occurred before September 29, 1999, and not less than
$3,300 and not exceeding $11,000, for each unauthorized alien with
respect to whom the third or subsequent offense occurred on or after
September 29, 1999; and
(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
Sec. 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:
(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.
[52 FR 16221, May 1, 1987, as amended at 55 FR 25935, June 25, 1990; 56
FR 41786, Aug. 23, 1991; 64 FR 47101, Aug. 30, 1999]
Sec. 274a.11 [Reserved]