Citizenship and immigration status verification backgrounder 05 28-2011

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Citizenship and immigration status verification backgrounder 05 28-2011

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  • 1. Citizenship and Immigration Status Verification for Multiple Purposes: SAVE and E-Verify I. Introduction:Federal law requires various State or local agencies and institutions as well as private sectorentities and individuals to ascertain the citizenship or immigration status of certain individuals itor they may encounter for a variety of purposes. Eligibility is restricted to citizens and alienslawfully present in the United States in regard to a variety of issues. In order to lawfully beemployed within the U.S., an individual must not be an unauthorized alien and meet universallyapplicable requirements. Issuance of certain documents, entrance into or attendance at certaininstitutions, the licensure and/or other forms of permission, entrance into and/or practice ofcertain occupations, or receipt of various benefits requires one to be lawfully in the United Stateseither as a U.S. Citizen, non-citizen national, or eligible alien.The Department of Homeland Security (DHS) through U.S. Citizenship and ImmigrationServices (USCIS) and its SAVE Program and E-Verify provide agencies and organizations aswell as employers with mechanisms to determine legal status and associated eligibility.The USCIS SAVE and E-Verify Programs use basic Memorandums of Agreements (MOAs) andUnderstanding (MOU), shown at the following links. Note that these are subject to change.http://www.uscis.gov/USCIS/E-Verify/Customer%20Support/Employer%20MOU%20%28September%202009%29.pdfhttp://www.uscis.gov/files/nativedocuments/save-state-local.pdfhttp://www.uscis.gov/files/nativedocuments/save-federal.pdfHere is one State example:Below is a list of public benefits commonly provided by county governments in Georgia thatappear to be subject to Systematic Alien Verification for Entitlements (SAVE) verification underGeorgia law. If your county provides any of these benefits, please check the appropriate box andprovide this application to the SAVE program. If these are the only ―public benefits‖ that yourcounty provides, then you do not need to provide any additional documentation of the legalauthority. If you intend to use SAVE for verification of other benefits not on this list, you mustprovide the relevant legal authority (i.e., constitutional provision or statute), as explained in theSAVE Program Registration Checklist.EMPLOYEE BENEFITS:□ Retirement: State law makes this permissive and contingent on the governing body adoptingan ordinance or resolution. See O.C.G.A. §§ 36-35-4(a), 36-34-2(4), 47-5-1, 47-5-40 for cities;O.C.G.A. § 36-1-11.1 & Ga. Const. Art. IX, § 2, ¶ 1(f) for counties; Ga. Const. Art. IX, § 2, ¶ 3(a)(14) for both.Citizenship and Immigration Status Verification Backgrounder Page 1
  • 2. □ Health Benefits: State law makes this permissive and contingent on the governing bodyadopting an ordinance or resolution. See O.C.G.A. §§ 36-35-4(a), 47-5-1, 47-5-40 for cities;O.C.G.A. § 36-1-11.1 for counties; Ga. Const. Art. IX, § 2, ¶ 3(14) for both.□ Disability Benefits: State law makes this permissive and contingent on the governing bodyadopting an ordinance or resolution. See O.C.G.A. §§ 36-35-4(a), 47-5-1, 47-5-40 for cities,O.C.G.A. § 36-1-21 for counties, Ga. Const. Art. IX, § 2, ¶ 3(14) for both.CONTRACTS:Counties are generally authorized to contract either by the state law including the county’senabling legislation.□ Place a check here if you enter into contracts.COMMERCIAL LICENSES/OCCUPATIONAL TAXES:□ Alcoholic Beverage Licenses: The manufacture, distribution, selling, handling, or otherwisedealing in alcoholic beverages is contingent on obtaining a license or permit from the governingbody of the county if it is to be done in the unincorporated area of a county. See O.C.G.A. §§ 3-3-2, 3-4-110, 3-5-40, 3-6-40, 3-7-40.□ Occupation Tax Certificates: (formerly known as business licenses) Counties may enactordinances that impose an occupation tax on practitioners of certain professions and businesseswithin the unincorporated area respectively. These ordinances generally require posting of the―occupation tax‖ certificate and may provide for ―punishments‖ for noncomplianceor require payment of the tax within 30 days of commencing business. See O.C.G.A. § 48-13-6.□ Taxicab Licenses: Counties may require owners or operators of taxicabs and other vehiclesfor hire to obtain certificates of public necessity and convenience or medallion within theunincorporated area of a county, respectively. See O.C.G.A. § 36-60-25.MISCELLANEOUS LICENSES:□ Auctioneers- O.C.G.A. § 43-6-25.1,□ Pawn brokers- O.C.G.A. §§ 44-12-135, 44-12-136,□ Massage therapists- O.C.G.A. § 43-24A-22,□ Billiard rooms operations- O.C.G.A. § 43-8-2,□ Precious metals and gems dealers- O.C.G.A. § 43-37-5,□ Flea markets- O.C.G.A. § 10-1-362.□ Peddlers and itinerant traders- O.C.G.A. § 43-32-1,□ Transient businesses- O.C.G.A. §§ 43-46-4, 43-46-6,□ Fortune telling and palmistry- O.C.G.A. § 36-1-15. Above developed by the Association County Commissioners of Georgia. http://www.accg.org/library/SAVE_Checklist.pdfCitizenship and Immigration Status Verification Backgrounder Page 2
  • 3. II. Shifting Roles:Abolition Of Immigration And Naturalization Service (INS) And Primary And MajorityTransfer Of Functions To The Department Of Homeland Security (DHS):For specifics about the abolition of Immigration and Naturalization Service, transfer offunctions, and treatment of related references, see note set out under section 1551 of 8 USC.The underlying statutory basis for current status verification procedures is IRCA (1986), itfocused on employment eligibility verification. The concept has grown and expanded andtechnological advancements have been exceedingly influential in that development. The initialresponsibility for the new I-9 Employment Eligibility Verification form fell on the shoulders ofthe former Immigration and Nationalization Service (INS). Violations either by employers orunauthorized employees were detected by INS for the most part. If charges were warranted orfines were levied, INS instigated the process through audits and other enforcement actions. TheDOJ Office of Special Counsel (OSC) was contacted for certain unfair immigration relatedemployment practices. INS could file charges against an employer with OSC who could (andstill can) institute a proceeding with the EOIR’s Office of the Chief Administrative HearingOfficer (OCAHO). In the alternative, INS (now ICE) could issue a Notice of Fine (NOF) whichcould be appealed to the OCAHO. Of course, INS no longer exists and the various duties haveshifted. OSC still has the same basic role but the INS role has split to a point within DHS. ICEinitially was seen as the primary successor to INS but USCIS through E-Verify and SAVEwithin its Verification Division1 has taken on a leading role. III. SAVE and E-Verify Governing Statutes: A. Immigration Reform and Control Act of 1986 (IRCA):IRCA, Public Law 99-603, required the former Immigration and Naturalization Service(currently U.S. Citizenship and Immigration Services (USCIS), under the Department ofHomeland Security (DHS), effective March 1, 2003) to establish a system for verifying theimmigration status of non-citizen applicants for, and recipients of, certain types of federallyfunded benefits, and to make the system available to federal, state and local benefit-issuingagencies and institutions that administer such benefits. USCIS is the DHS agency responsiblefor administering the SAVE Program to meet this IRCA requirement. IRCA, as amended,mandates the following programs and overseeing agencies to participate in the verification of anapplicant’s immigration status:  Temporary Assistance to Needy Families (TANF) Program, the Medicaid Program, (U.S. Department of Health and Human Services);  Unemployment Compensation Program (U.S. Department of Labor);  Title IV Educational Assistance Programs (U.S. Department of Education); and  Certain housing assistance programs (U.S. Department of Housing and Urban Development).1 USCIS has entered into formal agreements with DOJ’s OSC and its sister DHS agency, ICE:http://www.uscis.gov/USCIS/Verification/E-Verify/E-Verify/USCIS-ICE-E-Verify-MOA.pdfhttp://www.uscis.gov/USCIS/Native%20Docs/USCIS_DOJ%20MOA_%28signed%29_17Mar10.pdfCitizenship and Immigration Status Verification Backgrounder Page 3
  • 4. B. Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA):PRWORA, Public Law 104-193, restructured the welfare system in the United States andrestricted immigrant eligibility for public benefits, thus expanding the need to verify immigrationstatus by benefit-granting agencies. PRWORA, as codified at 8 U.S.C. §§ 1611 and 1621,defined ―federal public benefits‖ and ―state and local public benefits‖. PRWORA also requiredthe Attorney General to establish regulations and interim guidance for the verification ofimmigration status of persons applying for ―federal public benefits.‖ The Department of Justiceissued interim guidance in 1997. See ―Interim Guidance on Verification of Citizenship,Qualified Alien Status and Eligibility Under Title IV of [PRWORA],‖ 62 Federal Register61,344-416 (Nov. 17, 1997). This guidance is for any entity administering a non-exempt federalpublic benefit, other than non-profit charitable organizations, and is not limited to the agenciesand programs specified in IRCA or those using SAVE. C. Non-INA Section:The following section was enacted as part of the Illegal Immigration Reform and ImmigrantResponsibility Act of 1996, and also as part of the Omnibus Consolidated Appropriations Act,1997, and not as part of the Immigration and Nationality Act which comprises this chapter.8 USC §1373: Communication between government agencies and the Immigration andNaturalization Service [Now USCIS](a) In generalNotwithstanding any other provision of Federal, State, or local law, a Federal, State, or localgovernment entity or official may not prohibit, or in any way restrict, any government entity orofficial from sending to, or receiving from, the Immigration and Naturalization Serviceinformation regarding the citizenship or immigration status, lawful or unlawful, of anyindividual.(b) Additional authority of government entitiesNotwithstanding any other provision of Federal, State, or local law, no person or agency mayprohibit, or in any way restrict, a Federal, State, or local government entity from doing any of thefollowing with respect to information regarding the immigration status, lawful or unlawful, ofany individual: (1) Sending such information to, or requesting or receiving such information from, the Immigration and Naturalization Service. (2) Maintaining such information. (3) Exchanging such information with any other Federal, State, or local government entity.Citizenship and Immigration Status Verification Backgrounder Page 4
  • 5. (c) Obligation to respond to inquiriesThe Immigration and Naturalization Service shall respond to an inquiry by a Federal, State, orlocal government agency, seeking to verify or ascertain the citizenship or immigration status ofany individual within the jurisdiction of the agency for any purpose authorized by law, byproviding the requested verification or status information. (Pub. L. 104–208, div. C, title VI, §642, Sept. 30, 1996, 110 Stat. 3009–707.) D. Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA):IIRIRA, Public Law No. 104-208, passed by Congress in 1996, required that DHS-USCISrespond to inquiries from federal, state, and local agencies seeking to verify or determine thecitizenship or immigration status of any individual within the jurisdiction of the agency for anypurposes authorized by law. Under this authority, agencies can use the SAVE Program forlawful purposes. E. Real ID Act of 2005:The Real ID Act, Public Law No.109-13, passed by Congress in 2005, established certainminimum standards for state-issued drivers licenses and state-issued identification cards in orderfor those documents to be acceptable for official federal purposes as specified by the Act. DHSissued the Real ID Rule, ―Minimum Standards for Driver’s Licenses and Identification CardsAcceptable by Federal Agencies for Official Purposes,‖ Final Rule, 6 C.F.R. Part 37, toimplement the requirements of the Real ID Act. To meet these requirements, states must use theSAVE Program to verify the immigration status of applicants for driver’s licenses andidentification cards. Under the current schedule, states must be Real ID compliant by May 11,2011. F. INA § Sec. 274B [8 USC2 § 1324b] Unfair immigration-related employment practices(a) Prohibition of discrimination based on national origin or citizenship status (1) General rule It is an unfair immigration-related employment practice for a person or other entity to discriminate against any individual (other than an unauthorized alien, as defined in [INA 274A (h)(3)] section 1324a(h)(3)3 of this title) with respect to the hiring, or recruitment or referral for a fee, of the individual for employment or the discharging of the individual from employment—2 Within the cited/quoted text of this statute ―section‖ is referring to 8 USC and its INA counterpart is bracketed.3 Definition of unauthorized alien.-As used in this section, the term "unauthorized alien" means, with respect to theemployment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted forpermanent residence, or (B) authorized to be so employed by this Act or by the Attorney General.Citizenship and Immigration Status Verification Backgrounder Page 5
  • 6. (A) because of such individuals national origin, or (B) in the case of a protected individual (as defined in paragraph (3)), because of such individuals citizenship status. (2) Exceptions Paragraph (1) shall not apply to-- (A) a person or other entity that employs three or fewer employees, (B) a persons or entitys discrimination because of an individuals national origin if the discrimination with respect to that person or entity and that individual is covered under section 703 of the Civil Rights Act of 1964 [42 U.S.C. 2000e- 2], or (C) discrimination because of citizenship status which is otherwise required in order to comply with law, regulation, or executive order, or required by Federal, State, or local government contract, or which the Attorney General determines to be essential for an employer to do business with an agency or department of the Federal, State, or local government. (3) ``Protected individual defined As used in paragraph (1), the term ``protected individual means an individual who-- (A) is a citizen or national of the United States, or (B) is an alien who is lawfully admitted for permanent residence, is granted the status of an alien lawfully admitted for temporary residence under [INA 210] section 1160(a) or [INA 245(a)(1)]1255a(a)(1) of this title, is admitted as a refugee under [INA 207] section 1157 of this title, or is granted asylum under [INA 208] section 1158 of this title; but does not include (i) an alien who fails to apply for naturalization within six months of the date the alien first becomes eligible4 (by virtue of period of lawful permanent residence) to apply for naturalization or, if later, within six months after November 6, 1986, and (ii) an alien who has applied on a timely basis, but has not been naturalized as a citizen within 2 years after the date of the application, unless the alien can establish that the alien is actively pursuing naturalization5, except that time consumed in the Services processing the application shall not be counted toward the 2-year period.4 Matter of United States v. Southwest Marine Corp., 2 OCAHO 400 (June 9, 1989) found at:http://www.justice.gov/eoir/OcahoMain/publisheddecisions/Hardbound/Volume2/400.pdf5 Id.Citizenship and Immigration Status Verification Backgrounder Page 6
  • 7. (4) Additional exception providing right to prefer equally qualified citizens Notwithstanding any other provision of this section, it is not an unfair immigration- related employment practice for a person or other entity to prefer to hire, recruit, or refer an individual who is a citizen or national of the United States over another individual who is an alien if the two individuals are equally qualified. (5) Prohibition of intimidation or retaliation It is also an unfair immigration-related employment practice for a person or other entity to intimidate, threaten, coerce, or retaliate against any individual for the purpose of interfering with any right or privilege secured under this section or because the individual intends to file or has filed a charge or a complaint, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this section. An individual so intimidated, threatened, coerced, or retaliated against shall be considered, for purposes of subsections (d) and (g) of this section, to have been discriminated against. (6) Treatment of certain documentary practices as employment practices A persons or other entitys request, for purposes of satisfying the requirements of [INA 274A6] section 1324a(b) of this title, for more or different documents than are required under such section or refusing to honor documents tendered that on their face reasonably appear to be genuine shall be treated as an unfair immigration-related employment practice if made for the purpose or with the intent of discriminating against an individual in violation of paragraph (1). IV. Hodge-Podge of Implementing Regulations A. 28 CFR: Judicial Administration; Part 44—Unfair Immigration-Related Employment Practices {Legacy INS Regulation.}§ 44.101 Definitions:(c) Protected individual means an individual who— (1) Is a citizen or national of the United States; or (2) Is an alien who is lawfully admitted for permanent residence, is granted the status of an alien lawfully admitted for temporary residence under 8 U.S.C. 1160(a), 8 U.S.C. 1161(a), or 8 U.S.C. 1255a(a)(1), is admitted as a refugee under 8 U.S.C. 1157, or is granted asylum under 8 U.S.C. 1158. The status of an alien whose application for temporary resident status under 8 U.S.C. 1160(a), 8 U.S.C. 1161(a), or 8 U.S.C. 1255a(a)(1) is approved shall be adjusted to that of a lawful temporary resident as of the6 INA § 274A [8 USC § 1324a] - Unlawful Employment Of AliensCitizenship and Immigration Status Verification Backgrounder Page 7
  • 8. date indicated on the application fee receipt issued at the [Legacy] Immigration and Naturalization Service Legalization Office. As used in this definition, the term ―protected individual‖ does not include an alien who— (i) Fails to apply for naturalization within six months of the date the alien first becomes eligible (by virtue of period of lawful permanent residence) to apply for naturalization or, if later, by May 6, 1987; or (ii) Has applied on a timely basis, but has not been naturalized as a citizen within two years after the date of the application, unless the alien can establish that he or she is actively pursuing naturalization, except that time consumed in the Immigration and Naturalization Services [USCIS’] processing of the application shall not be counted toward the two-year period. B. 6 CFR Domestic Security: PART 37—REAL ID DRIVERS LICENSES AND IDENTIFICATION CARDS: {Rather new DHS Regulation.}§ 37.13 Document verification requirements.(a) States shall make reasonable efforts to ensure that the applicant does not have more than onedrivers license or identification card already issued by that State under a different identity. InStates where an individual is permitted to hold both a drivers license and identification card, theState shall ensure that the individual has not been issued identification documents in multiple ordifferent names. States shall also comply with the provisions of §37.29 before issuing a driverslicense or identification card.(b) States must verify the documents and information required under §37.11 with the issuer ofthe document. States shall use systems for electronic validation of document and identity data asthey become available or use alternative methods approved by DHS. (1) States shall verify any document described in §37.11(c) or (g) and issued by DHS (including, but not limited to, the I–94 form described in §37.11(c)(vi)) through the Systematic Alien Verification for Entitlements (SAVE) system or alternate methods approved by DHS, except that if two DHS-issued documents are presented, a SAVE verification of one document that confirms lawful status does not need to be repeated for the second document. In the event of a non-match, the DMV must not issue a REAL ID drivers license or identification card to an applicant, and must refer the individual to U.S. Citizenship and Immigration Services for resolution. (2) States must verify SSNs with the Social Security Administration (SSA) or through another method approved by DHS. In the event of a non-match with SSA, a State may use existing procedures to resolve non-matches. If the State is unable to resolve the non- match, and the use of an exceptions process is not warranted in the situation, the DMV must not issue a REAL ID drivers license or identification card to an applicant until the information verifies with SSA.Citizenship and Immigration Status Verification Backgrounder Page 8
  • 9. (3) States must verify birth certificates presented by applicants. States should use the Electronic Verification of Vital Events (EVVE) system or other electronic systems whenever the records are available. If the document does not appear authentic upon inspection or the data does not match and the use of an exceptions process is not warranted in the situation, the State must not issue a REAL ID drivers license or identification card to the applicant until the information verifies, and should refer the individual to the issuing office for resolution. (4) States shall verify documents issued by the Department of State with the Department of State or through methods approved by DHS. (5) States must verify REAL ID drivers licenses and identification cards with the State of issuance. (6) Nothing in this section precludes a State from issuing an interim license or a license issued under §37.71 that will not be accepted for official purposes to allow the individual to resolve any non-match. C. 45 CFR Public Welfare: Subtitle B--REGULATIONS RELATING TO PUBLIC WELFARE; CHAPTER II--OFFICE OF FAMILY ASSISTANCE (ASSISTANCE PROGRAMS), ADMINISTRATION FOR CHILDREN AND FAMILIES, DEPARTMENT OF HEALTH AND HUMAN SERVICES 1. § 233.50 Citizenship and alienage.A State plan under title I (OAA); title IV-A (AFDC); title X (AB); title XIV (APTD); and titleXVI (AABD-disabled) of the Social Security Act shall provide that an otherwise eligibleindividual, dependent child, or a caretaker relative or any other person whose needs areconsidered in determining the need of the child or relative claiming aid, must be either:(a) A citizen, or(b) An alien lawfully admitted for permanent residence or otherwise permanently residing in theUnited States under color of law, including certain aliens lawfully present in the United States asa result of the application of the following provisions of the Immigration and Nationality Act: (1) Section 207(c), in effect after March 31, 1980—Aliens Admitted as Refugees. (2) Section 203(a)(7), in effect prior to April 1, 1980—Individuals who were Granted Status as Conditional Entrant Refugees. (3) Section 208—Aliens Granted Political Asylum by the Attorney General. (4) Section 212(d)(5)—Aliens Granted Temporary Parole Status by the Attorney General, orCitizenship and Immigration Status Verification Backgrounder Page 9
  • 10. (c) An alien granted lawful temporary resident status pursuant to section 201, 302, or 303 of theImmigration Reform and Control Act of 1986 (Pub. L. 99–603) who must be either: (1) A Cuban and Haitian entrant as defined in paragraph (1) or (2)(A) of section 501(e) of Pub. L. 96–422, as in effect on April 1, 1983, or (2) An adult assistance applicant for OAA, AB, APTD, or AABD, or (3) An applicant for AFDC who is not a Cuban and Haitian applicant under paragraph (c)(1) of this section who was adjusted to lawful temporary resident status more than five years prior to application.All other aliens granted lawful temporary or permanent resident status, pursuant to sections 201,302, or 303 of the Immigration Reform and Control Act of 1986, are disqualified for five yearsfrom the date lawful temporary resident status is granted. [47 FR 5680, Feb. 5, 1982; 47 FR43383, Oct. 1, 1982, as amended at 52 FR 48689, Dec. 24, 1987 (interim); 53 FR 30433, Aug.12, 1988 (final); 54 FR 10544, Mar. 14, 1989] 2. § 233.51 Eligibility of sponsored aliens.Definition: Sponsor is any person who, or any public or private agency or organization that,executed an affidavit(s) of support or similar agreement on behalf of an alien (who is not thechild of the sponsor or the sponsors spouse) as a condition of the aliens entry into the UnitedStates. Paragraphs (a) through (d) of this section apply only to aliens who are sponsored byindividuals and who filed applications for the first time after September 30, 1981. Paragraphs (e)and (f) apply only to aliens sponsored by public or private agencies or organizations with respectto periods after October 1, 1984. A State plan under title IV-A of the Act shall provide that:(a) For a period of three years following entry for permanent residence into the United States, asponsored alien who is not exempt under paragraph (g) of this section, shall provide the Stateagency with any information and documentation necessary to determine the income andresources of the sponsor and the sponsors spouse (if applicable and if living with the sponsor)that can be deemed available to the alien, and obtain any cooperation necessary from thesponsor.(b) The income and resources of a sponsor and the sponsors spouse shall be deemed to be theunearned income and resources of an alien for three years following the aliens entry into theUnited States: (1) Monthly income deemed available to the alien from the sponsor and the sponsors spouse not receiving AFDC or SSI shall be: (i) The total monthly unearned and earned income of the sponsor and sponsors spouse reduced by 20 percent (not to exceed $175) of the total of any amounts received by them in the month as wages or salary or as net earnings from self- employment.Citizenship and Immigration Status Verification Backgrounder Page 10
  • 11. (ii) The amount described in paragraph (b)(1)(i) of this section reduced by: (A) The cash needs standard under the plan in the aliens State of residence for a family of the same size and composition as the sponsor and those other people living in the same household as the sponsor who are or could be claimed by the sponsor as dependents to determine his or her Federal personal income tax liability but whose needs are not taken into account in making a determination under §233.20 of this chapter; (B) Any amounts actually paid by the sponsor or sponsors spouse to people not living in the household who are or could be claimed by them as dependents to determine their Federal personal income tax liability; and (C) Actual payments of alimony or child support, with respect to individuals not living in the household. (2) Monthly resources deemed available to the alien from the sponsor and sponsors spouse shall be the total amount of their resources determined as if they were applying for AFDC in the aliens State of residence, less $1500.(c) In any case where a person is the sponsor of two or more aliens, the income and resources ofthe sponsor and sponsors spouse, to the extent they would be deemed the income and resourcesof any one of the aliens under the provisions of this section, shall be divided equally among thesponsored aliens.(d) Income and resources which are deemed to a sponsored alien shall not be considered indetermining the need of other unsponsored members of the aliens family except to the extent theincome or resources are actually available.(e) For a period of three years following entry for permanent residence into the United States,any alien who is not exempt under paragraph (g) of this section and has been sponsored by apublic or private agency or organization, shall be ineligible for assistance unless the State agencydetermines (in accordance with paragraph (f)) that the sponsor no longer exists or has becomeunable to meet the aliens needs.(f) The State plan shall set forth the criteria the State agency will use in determining whether anagency or organization no longer exists or is unable to meet the aliens needs and thedocumentation the agency will require of the alien in making such determination. The sponsoredalien shall provide the State agency with any information and documentation necessary for suchdetermination and obtain any cooperation necessary from the sponsor.Citizenship and Immigration Status Verification Backgrounder Page 11
  • 12. (g) The provisions of this section shall not apply to any alien who is: (1) Admitted as a conditional entrant refugee to the United States as a result of the application, of the provisions of section 203(a)(7) (in effect prior to April 1, 1980) of the Immigration and Nationality Act; (2) Admitted as a refugee to the United States as a result of the application of the provisions of section 207(c) (in effect after March 31, 1980) of the Immigration and Nationality Act; (3) Paroled into the United States as a refugee under section 212(d)(5) of the Immigration and Nationality Act; (4) Granted political asylum by the Attorney General under section 208 of the Immigration and Nationality Act; (5) A Cuban or Haitian entrant, as defined in section 501(e) of the Refugee Education Assistance Act of 1980 (Pub. L. 96–422); or (6) The dependent child of the sponsor or sponsors spouse.(h) The Secretary shall make information necessary to make a determination under this sectionand supplied under agreement with the Secretary of State and the Attorney General, availableupon request to a concerned State Agency. [47 FR 5680, Feb. 5, 1982; 47 FR 43383, Oct. 1,1982; 47 FR 47828, Oct. 28, 1982; 49 FR 35602, Sept. 10, 1984; 57 FR 30160, July 8, 1992] 3. § 233.52 Overpayment to aliens.A State Plan under title IV-A of the Social Security Act, shall provide that:(a) Any sponsor of an alien and the alien shall be jointly and severally liable for anyoverpayment of aid under the State plan made to the alien during the three years after the aliensentry into the United States due to the sponsors failure to provide correct information under theprovisions of §233.51, except as provided in paragraph (b) of this section.(b) When a sponsor is found to have good cause or to be without fault (as defined in the Stateplan) for not providing information to the agency, the sponsor will not be held liable for theoverpayment and recovery will not be made from this sponsor.(c) An overpayment for which the alien or the sponsor and the alien are liable (as described inparagraphs (a) and (b) of this section) shall be repaid to the State or recovered in accordance with§233.20(a)(13). If the agency is unable to recover the overpayment through this method, funds toreimburse the agency for the overpayment shall be withheld from future payments to which thealien or the alien and the individual sponsor are entitled under:Citizenship and Immigration Status Verification Backgrounder Page 12
  • 13. (1) Any State administered or supervised program established by the Social Security Act, or (2) Any federally administered cash benefit program established by the Social Security Act. [47 FR 5680, Feb. 5, 1982 as amended at 49 FR 35602, Sept. 10, 1984] D. 20 CFR Employees Benefits: CHAPTER III--SOCIAL SECURITY ADMINISTRATION 1. § 416.202 Who may get SSI benefits.You are eligible for SSI benefits if you meet all of the following requirements:(a) You are— (1) Aged 65 or older (subpart H); (2) Blind (subpart I); or (3) Disabled (subpart I).(b) You are a resident of the United States (§416.1603), and— (1) A citizen or a national of the United States (§416.1610); (2) An alien lawfully admitted for permanent residence in the United States (§416.1615); (3) An alien permanently residing in the United States under color of law (§416.1618); or (4) A child of armed forces personnel living overseas as described in §416.216.(c) You do not have more income than is permitted (subparts K and D).(d) You do not have more resources than are permitted (subpart L).(e) You are disabled, drug addiction or alcoholism is a contributing factor material to thedetermination of disability (see §416.935), and you have not previously received a total of 36months of Social Security benefit payments when appropriate treatment was available or 36months of SSI benefits on the basis of disability where drug addiction or alcoholism was acontributing factor material to the determination of disability.(f) You are not— (1) Fleeing to avoid prosecution for a crime, or an attempt to commit a crime, which is a felony under the laws of the place from which you flee (or which, in the case of the State of New Jersey, is a high misdemeanor under the laws of that State);Citizenship and Immigration Status Verification Backgrounder Page 13
  • 14. (2) Fleeing to avoid custody or confinement after conviction for a crime, or an attempt to commit a crime, which is a felony under the laws of the place from which you flee (or which, in the case of the State of New Jersey, is a high misdemeanor under the laws of that State); or (3) Violating a condition of probation or parole imposed under Federal or State law.(g) You file an application for SSI benefits (subpart C). [47 FR 3103, Jan. 22, 1982, asamended at 58 FR 4897, Jan. 19, 1993; 60 FR 8149, Feb. 10, 1995; 61 FR 10277, Mar. 13,1996; 65 FR 40495, June 30, 2000] 2. § 416.1166a How we deem income to you from your sponsor if you are an alien.Before we deem your sponsors income to you if you are an alien, we determine how muchearned and unearned income your sponsor has under §416.1161(b). We then deduct allocationsfor the sponsor and the sponsors dependents. This is an amount equal to the Federal benefit ratefor an individual for the sponsor (or for each sponsor even if two sponsors are married to eachother and living together) plus an amount equal to one-half the Federal benefit rate for an eligibleindividual for each dependent of the sponsor. An ineligible dependents income is not subtractedfrom the sponsors dependents allocation. We deem the balance of the income to be yourunearned income.(a) If you are the only alien applying for or already eligible for SSI benefits who has incomedeemed to you from your sponsor. If you are the only alien who is applying for or alreadyeligible for SSI benefits and who is sponsored by your sponsor, all the deemed income is yourunearned income.(b) If you are not the only alien who is applying for or already eligible for SSI benefits and whohas income deemed from your sponsor. If you and other aliens applying for or already eligiblefor SSI benefits are sponsored by the same sponsor, we deem the income to each of you asthough you were the only alien sponsored by that person. The income deemed to you becomesyour unearned income.(c) When you are an alien and income is no longer deemed from your sponsor. If you are analien and have had your sponsors income deemed to you, we stop deeming the income with themonth in which the third anniversary of your admission into the United States occurs.(d) When sponsor deeming rules do not apply to you if you are an alien. If you are an alien, wedo not apply the sponsor deeming rules to you if— (1) You are a refugee. You are a refugee admitted to the United States as the result of application of one of three sections of the Immigration and Nationality Act: (1) Section 203(a)(7), effective before April 1, 1980; (2) Section 207(c)(1), effective after March 31, 1980; or (3) Section 212(d)(5);Citizenship and Immigration Status Verification Backgrounder Page 14
  • 15. (2) You have been granted asylum. You have been granted political asylum by the Attorney General of the United States; or (3) You become blind or disabled. If you become blind or disabled as defined in §416.901 (at any age) after your admission to the United States, we do not deem your sponsors income to you to determine your eligibility for SSI benefits beginning with the month in which your disability or blindness begins. However, to determine your benefit payment, we follow the rule in §416.420 of counting your income in the second month prior to the current month.(e) Examples. These examples show how we deem a sponsors income to an eligible individualwho is an alien when none of the exceptions in §416.1160(b)(2) applies. The income, incomeexclusions, and the benefit rates are in monthly amounts. The Federal benefit rates are thoseeffective January 1, 1986.Example 1. Mr. John, an alien who has no income, has been sponsored by Mr. Herbert who hasmonthly earned income of $1,300 and unearned income of $70. Mr. Herberts wife and threechildren have no income. We add Mr. Herberts earned and unearned income for a total of $1,370and apply the allocations for the sponsor and his dependents. Allocations total $1,008. These aremade up of $336 (the Federal benefit rate for an eligible individual) for the sponsor, plus $672(one-half the Federal benefit rate for an eligible individual, $168 each) for Mr. Herberts wife andthree children. The $1,008 is subtracted from Mr. Herberts total income of $1,370 which leaves$362 to be deemed to Mr. John as his unearned income. Mr. Johns only exclusion is the $20general income exclusion. Since the $342 balance exceeds the $336 Federal benefit rate, Mr.John is ineligible.Example 2. Mr. and Mrs. Smith are an alien couple who have no income and who have beensponsored by Mr. Hart. Mr. Hart has earned income of $1,350 and his wife, Mrs. Hart, who liveswith him, has earned income of $150. Their two children have no income. We combine Mr. andMrs. Harts income ($1,350+$150=$1,500). We deduct the allocations of $336 for Mr. Hart (theFederal benefit rate for an individual) and $504 for Mrs. Hart and the two children ($168 or one-half the Federal benefit rate for an eligible individual for each), a total of $840. The allocations($840) are deducted from the total $1,500 income which leaves $660. This amount must bedeemed independently to Mr. and Mrs. Smith. Mr. and Mrs. Smith would qualify for SSI benefitsas a couple in the amount of $504 if no income had been deemed to them. The $1,320 ($660each to Mr. and Mrs. Smith) deemed income is unearned income to Mr. and Mrs. Smith and issubject to the $20 general income exclusion, leaving $1,300. This exceeds the couples rate of$504 so Mr. and Mrs. Smith are ineligible for SSI benefits.Example 3. Mr. Bert and Mr. Davis are aliens sponsored by their sister Mrs. Jean, who hasearned income of $800. She also receives $250 as survivors benefits for her two minor children.We do not consider the $250 survivors benefits to be Mrs. Jeans income because it is thechildrens income. We exclude $336 for Mrs. Jean (the Federal benefit rate for an individual)plus $336 ($168, one-half the Federal benefit rate for an eligible individual for each child), atotal of $672. We subtract the $672 from Mrs. Jeans income of $800, which leaves $128 to bedeemed to Mr. Bert and Mr. Davis. Each of the brothers is liable for rent in the boarding house (aCitizenship and Immigration Status Verification Backgrounder Page 15
  • 16. commercial establishment) where they live. Each lives in his own household, receives no in-kindsupport and maintenance, and is eligible for the Federal benefit rate of $336. The $128 deemedincome is deemed both to Mr. Bert and to Mr. Davis. As a result, each has countable income of$108 ($128 minus the $20 general income exclusion). This is less than $336, the Federal benefitrate for an individual, so that both are eligible for SSI. We use their income in a prior month todetermine their benefit payments.Example 4. The same situation applies as in example 3 except that one of Mrs. Jeans children isdisabled and eligible for SSI benefits. The eligibility of the disabled child does not affect theamount of income deemed to Mr. Bert and Mr. Davis since the sponsor-to-alien and parent-to-child rules are applied independently. The childs countable income is computed under the rulesin §416.1165. [52 FR 8887, Mar. 20, 1987] E. 34 CFR: Education: PART 668—STUDENT ASSISTANCE GENERAL PROVISIONS; Subpart C—Student Eligibility 1. § 668.33 Citizenship and residency requirements.(a) Except as provided in paragraph (b) of this section, to be eligible to receive title IV, HEAprogram assistance, a student must— (1) Be a citizen or national of the United States; or (2) Provide evidence from the U.S. Immigration and Naturalization Service that he or she— (i) Is a permanent resident of the United States; or (ii) Is in the United States for other than a temporary purpose with the intention of becoming a citizen or permanent resident;(b) (1) A citizen of the Federated States of Micronesia, Republic of the Marshall Islands, or the Republic of Palau is eligible to receive funds under the FWS, FSEOG, and Federal Pell Grant programs if the student attends an eligible institution in a State, or a public or nonprofit private eligible institution of higher education in those jurisdictions. (2) A student who satisfies the requirements of paragraph (a) of this section is eligible to receive funds under the FWS, FSEOG, and Federal Pell Grant programs if the student attends a public or nonprofit private eligible institution of higher education in the Federated States of Micronesia, Republic of the Marshall Islands, or the Republic of Palau.(c) (1) If a student asserts that he or she is a citizen of the United States on the Free Application for Federal Student Aid (FAFSA), the Secretary attempts to confirm thatCitizenship and Immigration Status Verification Backgrounder Page 16
  • 17. assertion under a data match with the Social Security Administration. If the Social Security Administration confirms the students citizenship, the Secretary reports that confirmation to the institution and the student. (2) If the Social Security Administration does not confirm the students citizenship assertion under the data match with the Secretary, the student can establish U.S. citizenship by submitting documentary evidence of that status to the institution. Before denying title IV, HEA assistance to a student for failing to establish citizenship, an institution must give a student at least 30 days notice to produce evidence of U.S. citizenship. (Authority: 20 U.S.C. 1091, 5 U.S.C. 552a) [52 FR 45727, Dec. 1, 1987, as amended at 71 FR 38002, July 3, 2006; 74 FR 20221, May 1, 2009] F. PART 668—STUDENT ASSISTANCE GENERAL PROVISIONS; Subpart I— Immigration-Status Confirmation Authority: 20 U.S.C. 1091, 1092, and 1094, unless otherwise noted. Source: 58 FR 3184, Jan. 7, 1993, unless otherwise noted. 1. § 668.130 General.(a) Scope and purpose. The regulations in this subpart govern the responsibilities of institutionsand students in determining the eligibility of those noncitizen applicants for title IV, HEAassistance who must, under §668.33(a)(2), produce evidence from the United States Immigrationand Naturalization Service (INS) that they are permanent residents of the United States or in theUnited States for other than a temporary purpose with the intention of becoming citizens orpermanent residents.(b) Student responsibility. At the request of the Secretary or the institution at which an applicantfor title IV, HEA financial assistance is enrolled or accepted for enrollment, an applicant whoasserts eligibility under §668.33(a)(2) shall provide documentation from the INS of immigrationstatus. (Authority: 20 U.S.C. 1091, 1094) [58 FR 3184, Jan. 7, 1993, as amended at 63 FR40626, July 29, 1998] 2. § 668.131 Definitions.The following definitions apply to this subpart:Eligible noncitizen: An individual possessing an immigration status that meets the requirementsof §668.33(a)(2).Immigration status: The status conferred on a noncitizen under the Immigration and NationalityAct of 1952, as amended, 8 U.S.C. 1182.Primary confirmation: A process by which the Secretary, by means of a matching programconducted with the INS, compares the information contained in an Application for FederalStudent Aid or a multiple data entry application regarding the immigration status of a noncitizenapplicant for title IV, HEA assistance with records of that status maintained by the INS in itsCitizenship and Immigration Status Verification Backgrounder Page 17
  • 18. Alien Status Verification Index (ASVI) system for the purpose of determining whether astudents immigration status meets the requirements of §668.33(a)(2) and reports the results ofthis comparison on an output document.Secondary confirmation: A process by which the INS, in response to the submission of INSDocument Verification Form G–845 by an institution, searches pertinent paper and automatedINS files, other than the ASVI database, for the purpose of determining a students immigrationstatus and the validity of the submitted INS documents, and reports the results of this search tothe institution. (Authority: 20 U.S.C. 1091) [58 FR 3184, Jan. 7, 1993, as amended at 59 FR12521, Mar. 16, 1994; 63 FR 40626, July 29, 1998] 3. § 668.132 Institutional determinations of eligibility based on primary confirmation.(a) Except as provided in §668.133(a)(1)(ii), the institution shall determine a student to be aneligible noncitizen if the institution receives an output document for that student establishingthat— (1) The INS has confirmed the students immigration status; and (2) The students immigration status meets the noncitizen eligibility requirements of §668.33(a)(2).(b) If an institution determines a student to be an eligible noncitizen in accordance withparagraph (a) of this section, the institution may not require the student to produce thedocumentation otherwise required under §668.33(a)(2). (Authority: 20 U.S.C. 1091, 1094)[58 FR 3184, Jan. 7, 1993, as amended at 63 FR 40626, July 29, 1998] 4. § 668.133 Conditions under which an institution shall require documentation and request secondary confirmation.(a) General requirements. Except as provided in paragraph (b) of this section, an institution shallrequire the student to produce the documentation required under §668.33(a)(2) and request theINS to perform secondary confirmation for a student claiming eligibility under §668.33(a)(2), inaccordance with the procedures set forth in §668.135, if— (1) The institution— (i) Receives an output document indicating that the student must provide the institution with evidence of the students immigration status required under §668.33(a)(2); or (ii) Receives an output document that satisfies the requirements of §668.132(a) (1) and (2), but the institution—Citizenship and Immigration Status Verification Backgrounder Page 18
  • 19. (A) Has documentation that conflicts with immigration-status documents submitted by the student or the immigration status reported on the output document; or (B) Has reason to believe that the immigration status reported by the student or on the output document is incorrect; and (2) The institution determines that the immigration-status documents submitted by the student constitute reasonable evidence of the students claim to be an eligible noncitizen.(b) Exclusions from secondary confirmation. (1) An institution may not require the student to produce the documentation requested under §668.33(a)(2) and may not request that INS perform secondary confirmation, if the student— (i) Demonstrates eligibility under the provisions of §668.33 (a)(1) or (b); or (ii) Demonstrated eligibility under the provisions of §668.33(a)(2) in a previous award year as a result of secondary confirmation and the documents used to establish that eligibility have not expired; and (iii) The institution does not have conflicting documentation or reason to believe that the students claim of citizenship or immigration status is incorrect. (2) [Reserved] (Approved by the Office of Management and Budget under control number 1840–0650) (Authority: 20 U.S.C. 1091, 1094) [58 FR 3184, Jan. 7, 1993, as amended at 58 FR 26674, May 4, 1993; 60 FR 61813, Dec. 1, 1995; 63 FR 40626, July 29, 1998] 5. § 668.134 Institutional policies and procedures for requesting documentation and receiving secondary confirmation.(a) An institution shall establish and use written policies and procedures for requesting proof andsecuring confirmation of the immigration status of applicants for title IV, HEA student financialassistance who claim to meet the eligibility requirements of §668.33(a)(2). These policies andprocedures must include— (1) Providing the student a deadline by which to provide the documentation that the student wishes to have considered to support the claim that the student meets the requirements of §668.33(a)(2); (2) Providing to the student information concerning the consequences of a failure to provide the documentation by the deadline set by the institution; andCitizenship and Immigration Status Verification Backgrounder Page 19
  • 20. (3) Providing that the institution will not make a determination that the student is not an eligible noncitizen until the institution has provided the student the opportunity to submit the documentation in support of the students claim of eligibility under §668.33(a)(2).(b) An institution shall furnish, in writing, to each student required to undergo secondaryconfirmation— (1) A clear explanation of the documentation the student must submit as evidence that the student satisfies the requirements of §668.33(a)(2); and (2) A clear explanation of the students responsibilities with respect to the students compliance with §668.33(a)(2), including the deadlines for completing any action required under this subpart and the consequences of failing to complete any required action, as specified in §668.137. (Approved by the Office of Management and Budget under control number 1840–0650) (Authority: 20 U.S.C. 1091, 1092, 1094) [58 FR 3184, Jan. 7, 1993, as amended at 58 FR 26674, May 4, 1993; 63 FR 40626, July 29, 1998] 6. § 668.135 Institutional procedures for completing secondary confirmation.Within 10 business days after an institution receives the documentary evidence of immigrationstatus submitted by a student required to undergo secondary confirmation, the institution shall—(a) Complete the request portion of the INS Document Verification Request Form G–845;(b) Copy front and back sides of all immigration-status documents received from the student andattach copies to the Form G–845; and(c) Submit Form G–845 and attachments to the INS District Office. (Approved by the Office ofManagement and Budget under control number 1840–0650) (Authority: 20 U.S.C. 1091,1094) [58 FR 3184, Jan. 7, 1993, as amended at 58 FR 26674, May 4, 1993] 7. § 668.136 Institutional determinations of eligibility based on INS responses to secondary confirmation requests.(a) Except as provided in paragraphs (b) and (c) of this section, an institution that has requestedsecondary confirmation under §668.133(a) shall make its determination concerning a studentseligibility under §668.33(a)(2) by relying on the INS response to the Form G–845.(b) An institution shall make its determination concerning a students eligibility under§668.33(a)(2) pending the institutions receipt of an INS response to the institutions Form G–845request concerning that student, if— (1) The institution has given the student an opportunity to submit documents to the institution to support the students claim to be an eligible noncitizen;Citizenship and Immigration Status Verification Backgrounder Page 20
  • 21. (2) The institution possesses sufficient documentation concerning a students immigration status to make that determination; (3) At least 15 business days have elapsed from the date that the institution sent the Form G–845 request to the INS; (4) The institution has no documentation that conflicts with the immigration-status documentation submitted by the student; and (5) The institution has no reason to believe that the immigration status reported by the applicant is incorrect.(c) An institution shall establish and use policies and procedures to ensure that, if the institutionhas disbursed or released title IV, HEA funds to the student in the award year or employed thestudent under the Federal Work-Study Program, and the institution determines, in reliance on theINS response to the institutions request for secondary confirmation regarding that student, thatthe student was in fact not an eligible noncitizen during that award year, the institution providesthe student with notice of the institutions determination, an opportunity to contest theinstitutions determination, and notice of the institutions final determination. (Authority: 20U.S.C. 1091, 1094) [58 FR 3184, Jan. 7, 1993, as amended at 63 FR 40626, July 29, 1998] 8. § 668.137 Deadlines for submitting documentation and the consequences of failure to submit documentation.(a) A student shall submit before a deadline specified by the institution all documentation thestudent wishes to have considered to support a claim that the student meets the requirements of§668.33(a)(2). The deadline, set by the institution, must be not less than 30 days from the datethe institution receives the students output document.(b) If a student fails to submit the documentation by the deadline established in accordance withparagraph (a) of this section, the institution may not disburse to the student, or certify the studentas eligible for, any title IV, HEA program funds for that period of enrollment or award year;employ the student under the Federal Work-Study Program; certify a Federal Stafford or FederalPLUS loan application, or originate a Direct Loan Program loan application for the student forthat period of enrollment. (Authority: 20 U.S.C. 1091, 1094) [58 FR 3184, Jan. 7, 1993, asamended at 63 FR 40626, July 29, 1998] 9. § 668.138 Liability.(a) A student is liable for any LEAP, FSEOG, Federal Pell Grant, ACG, National SMART Grant,or TEACH Grant payment and for any Federal Stafford, Direct Subsidized, Direct Unsubsidizedor Federal Perkins loan made to him or her if the student was ineligible for the Title IV, HEAassistance.(b) A Federal PLUS or Direct PLUS Loan borrower is liable for any Federal PLUS or DirectPLUS Loan made to him or her on behalf of an ineligible student.Citizenship and Immigration Status Verification Backgrounder Page 21
  • 22. (c) The Secretary does not take any action against an institution with respect to an error in theinstitutions determination that a student is an eligible noncitizen if, in making that determination,the institution followed the provisions in this subpart and relied on— (1) An output document for that student indicating that the INS has confirmed that the students immigration status meets the eligibility requirements for title IV, HEA assistance; (2) An INS determination of the students immigration status and the authenticity of the students immigration documents provided in response to the institutions request for secondary confirmation; or (3) Immigration-status documents submitted by the student and the institution did not have reason to believe that the documents did not support the students claim to be an eligible noncitizen.(d) Except as provided in paragraph (c) of this section, if an institution makes an error in itsdetermination that a student is an eligible noncitizen, the institution is liable for any title IV,HEA disbursements made to this student during the award year or period of enrollment for whichthe student applied for title IV, HEA assistance. (Authority: 20 U.S.C. 1070g, 1091, 1094) [58FR 3184, Jan. 7, 1993, as amended at 63 FR 40626, July 29, 1998; 65 FR 38729, June 22,2000; 71 FR 38003, July 3, 2006; 73 FR 35493, June 23, 2008] 10. § 668.139 Recovery of payments and loan disbursements to ineligible students.(a) If an institution makes a payment of a grant or a disbursement of a Federal Perkins loan to anineligible student for which it is not liable in accordance with §668.138, it shall assist theSecretary in recovering the funds by— (1) Making a reasonable effort to contact the student; and (2) Making a reasonable effort to collect the payment or Federal Perkins loan.(b) If an institution causes a Federal Stafford, Federal PLUS, Direct Subsidized, DirectUnsubsidized, or Direct PLUS Loan to be disbursed to or on behalf of an ineligible student forwhich it is not liable in accordance with §668.138, it shall assist the Secretary in recovering thefunds by notifying the lender in the case of an FFEL Program loan or the Secretary in the case ofa Direct Loan Program loan that the student has failed to establish eligibility under therequirements of §§668.201 or 685.200, as appropriate.(c) If an institution is liable for a payment of a grant or Federal Perkins loan to an ineligiblestudent, the institution shall restore the amount equal to the payment or disbursement to theinstitutions Federal Perkins loan fund or Federal Pell Grant, ACG, National SMART Grant,TEACH Grant, FSEOG, or LEAP amount, even if the institution cannot collect the payment ordisbursement from the student.Citizenship and Immigration Status Verification Backgrounder Page 22
  • 23. (d) If an institution is liable for a Federal Stafford, Federal PLUS, Direct Subsidized, DirectUnsubsidized, or Direct PLUS Loan disbursement to an ineligible student, the institution shallrepay an amount equal to the disbursement to the lender in the case of an FFEL Program loan orthe Secretary in the case of a Direct Loan Program loan, and provide written notice to theborrower. (Authority: 20 U.S.C. 1070g, 1091, 1094) [58 FR 3184, Jan. 7, 1993, as amended at63 FR 40626, July 29, 1998; 64 FR 38729, June 22, 2000; 71 FR 38003, July 3, 2006; 73 FR35493, June 23, 2008] G. 48 CFR Federal Acquisition Regulations System; PART 22—APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS; Subpart 22.18— Employment Eligibility Verification Source: 73 FR 67703, Nov. 14, 2008, unless otherwise noted. 1. 22.1800 Scope.This subpart prescribes policies and procedures requiring contractors to utilize the Department ofHomeland Security (DHS), United States Citizenship and Immigration Services employmenteligibility verification program (E-Verify) as the means for verifying employment eligibility ofcertain employees. 2. 22.1801 Definitions.As used in this subpart—Commercially available off-the-shelf (COTS) item — (1) Means any item of supply that is— (i) A commercial item (as defined in paragraph (1) of the definition at 2.101); (ii) Sold in substantial quantities in the commercial marketplace; and (iii) Offered to the Government, without modification, in the same form in which it is sold in the commercial marketplace; and (2) Does not include bulk cargo, as defined in section 3 of the Shipping Act of 1984 (46 U.S.C. App. 1702), such as agricultural products and petroleum products. Per 46 CFR 525.1 (c)(2), ―bulk cargo‖ means cargo that is loaded and carried in bulk onboard ship without mark or count, in a loose unpackaged form, having homogenous characteristics. Bulk cargo loaded into intermodal equipment, except LASH or Seabee barges, is subject to mark and count and, therefore, ceases to be bulk cargo.Employee assigned to the contract means an employee who was hired after November 6, 1986,who is directly performing work, in the United States, under a contract that is required to includeCitizenship and Immigration Status Verification Backgrounder Page 23
  • 24. the clause prescribed at 22.1803. An employee is not considered to be directly performing workunder a contract if the employee— (1) Normally performs support work, such as indirect or overhead functions; and (2) Does not perform any substantial duties applicable to the contract.Subcontract means any contract, as defined in 2.101, entered into by a subcontractor to furnishsupplies or services for performance of a prime contract or a subcontract. It includes but is notlimited to purchase orders, and changes and modifications to purchase orders.Subcontractor means any supplier, distributor, vendor, or firm that furnishes supplies or servicesto or for a prime contractor or another subcontractor.United States, as defined in 8 U.S.C. 1101(a)(38), means the 50 States, the District of Columbia,Puerto Rico, Guam, and the U.S. Virgin Islands. 3. 22.1802 Policy. (a) Statutes and Executive orders require employers to abide by the immigration laws of theUnited States and to employ in the United States only individuals who are eligible to work in theUnited States. The E-Verify program provides an Internet-based means of verifying employmenteligibility of workers employed in the United States, but is not a substitute for any otheremployment eligibility verification requirements.(b) Contracting officers shall include in solicitations and contracts, as prescribed at 22.1803,requirements that Federal contractors must— (1) Enroll as Federal contractors in E-Verify; (2) Use E-Verify to verify employment eligibility of all new hires working in the United States, except that the contractor may choose to verify only new hires assigned to the contract if the contractor is— (i) An institution of higher education (as defined at 20 U.S.C. 1001(a)); (ii) A State or local government or the government of a Federally recognized Indian tribe; or (iii) A surety performing under a takeover agreement entered into with a Federal agency pursuant to a performance bond; (3) Use E-Verify to verify employment eligibility of all employees assigned to the contract; andCitizenship and Immigration Status Verification Backgrounder Page 24
  • 25. (4) Include these requirements, as required by the clause at 52.222–54, in subcontracts for— (i) Commercial or noncommercial services, except for commercial services that are part of the purchase of a COTS item (or an item that would be a COTS item, but for minor modifications), performed by the COTS provider, and are normally provided for that COTS item; and (ii) Construction.(c) Contractors may elect to verify employment eligibility of all existing employees working inthe United States who were hired after November 6, 1986, instead of just those employeesassigned to the contract. The contractor is not required to verify employment eligibility of— (1) Employees who hold an active security clearance of confidential, secret, or top secret; or (2) Employees for whom background investigations have been completed and credentials issued pursuant to Homeland Security Presidential Directive (HSPD)–12.(d) In exceptional cases, the head of the contracting activity may waive the E-Verify requirementfor a contract or subcontract or a class of contracts or subcontracts, either temporarily or for theperiod of performance. This waiver authority may not be delegated.(e) DHS and the Social Security Administration (SSA) may terminate a contractors MOU anddeny access to the E-Verify system in accordance with the terms of the MOU. If DHS or SSAterminates a contractors MOU, the terminating agency must refer the contractor to a suspensionor debarment official for possible suspension or debarment action. During the period betweentermination of the MOU and a decision by the suspension or debarment official whether tosuspend or debar, the contractor is excused from its obligations under paragraph (b) of the clauseat 52.222–54. If the contractor is suspended or debarred as a result of the MOU termination, thecontractor is not eligible to participate in E-Verify during the period of its suspension ordebarment. If the suspension or debarment official determines not to suspend or debar thecontractor, then the contractor must reenroll in E-Verify. 4. 22.1803 Contract clause.Insert the clause at 52.222–54, Employment Eligibility Verification, in all solicitations andcontracts that exceed the simplified acquisition threshold, except those that—(a) Are only for work that will be performed outside the United States;(b) Are for a period of performance of less than 120 days; or(c) Are only for—Citizenship and Immigration Status Verification Backgrounder Page 25
  • 26. (1) Commercially available off-the-shelf items; (2) Items that would be COTS items, but for minor modifications (as defined at paragraph (3)(ii) of the definition of ―commercial item‖ at 2.101); (3) Items that would be COTS items if they were not bulk cargo; or (4) Commercial services that are— (i) Part of the purchase of a COTS item (or an item that would be a COTS item, but for minor modifications); (ii) Performed by the COTS provider; and (iii) Are normally provided for that COTS item. H. 8 CFR Aliens and Nationality; PART 274a—CONTROL OF EMPLOYMENT OF ALIENS; Subpart A—Employer Requirements {USCIS’ I-9 Regulation.} § 274a.2 Verification of identity and employment authorization. (a) General. This section establishes requirements and procedures for compliance by persons orentities when hiring, or when recruiting or referring for a fee, or when continuing to employindividuals 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. In the Commonwealth of the Northern Mariana Islands (CNMI) only, for a 2-year period starting from the transition program effective date (as defined in 8 CFR 1.1), the Form I–9 CNMI Employment Eligibility Verification Form must be used in lieu of Form I–9 in complying with the requirements of 8 CFR 274a.1 through 274a.11. Whenever ―Form I–9‖ is mentioned in this title 8, ―Form I–9‖ means Form I–9 or, when used in the CNMI for a 2- year period starting from the transition program effective date (as defined in 8 CFR 1.1), Form I–9 CNMI. 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. WhenCitizenship and Immigration Status Verification Backgrounder Page 26
  • 27. 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 authorization 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) 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 (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 authorization 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 authorization 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 business days of the hire and sign the attestation with a handwritten signature or electronic signature in accordance with paragraph (i) of this section.Citizenship and Immigration Status Verification Backgrounder Page 27
  • 28. (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. (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. (v) The individual may present either an original document which establishes both employment authorization and identity, or an original document which establishes employment authorization and a separate original document which establishes identity. Only unexpired documents are acceptable. The identification number and expiration date (if any) of all documents must be noted in the appropriate space provided on the Form I–9. (A) The following documents, so long as they appear to relate to the individual presenting the document, are acceptable to evidence both identity and employment authorization: ( 1 ) A United States passport; ( 2 ) An Alien Registration Receipt Card or Permanent Resident Card (Form I–551); ( 3 ) A foreign passport that contains a temporary I–551 stamp, or temporary I–551 printed notation on a machine-readable immigrant visa; ( 4 ) An Employment Authorization Document which contains a photograph (Form I–766); ( 5 ) In the case of a nonimmigrant alien authorized to work for a specific employer incident to status, a foreign passport with a Form I–94 or Form I–94A bearing the same name as the passport and containing an endorsement of the aliens nonimmigrant status, as long as the period of endorsement has not yet expired and the proposed employment is not in conflict with any restrictions or limitations identified on the Form;Citizenship and Immigration Status Verification Backgrounder Page 28
  • 29. ( 6 ) A passport from the Federated States of Micronesia (FSM) or the Republic of the Marshall Islands (RMI) with Form I–94 or Form I–94A indicating nonimmigrant admission under the Compact of Free Association Between the United States and the FSM or RMI; ( 7 ) In the case of an individual lawfully enlisted for military service in the Armed Forces under 10 U.S.C. 504, a military identification card issued to such individual may be accepted only by the Armed Forces. (B) The following documents are acceptable to establish identity only: ( 1 ) For individuals 16 years of age or older: ( i ) A drivers 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 drivers 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 ) Voters 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 dependents identification card; ( vii ) Native American tribal documents; ( viii ) United States Coast Guard Merchant Mariner Card; ( ix ) Drivers license issued by a Canadian government authority;Citizenship and Immigration Status Verification Backgrounder Page 29
  • 30. ( 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 minors parent or legal guardian completes on the Form I–9 Section 1—―Employee Information and Verification‖ and in the space for the minors signature, the parent or legal guardian writes the words, ―minor under age 18.‖ ( ii ) The minors 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 handicaps means any person who ( i ) Has a physical or mental impairment which substantially limits one or more of such persons major life activities,Citizenship and Immigration Status Verification Backgrounder Page 30
  • 31. ( 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 account number card other than one that specifies on the face that the issuance of the card does not authorize employment in the United States; ( 2 ) Certification of Birth issued by the Department of State, Form FS–545; ( 3 ) Certification of Report of Birth issued by the Department of State, Form DS–1350; ( 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, Form I–197; ( 7 ) Identification card for use of resident citizen in the United States, Form I–179; ( 8 ) An employment authorization document issued by the Department of Homeland Security. (D) The following are acceptable documents to establish both identity and employment authorization in the Commonwealth of the Northern Mariana Islands only, for a two-year period starting from the transition program effective date (as defined in 8 CFR 1.1), in addition to those documents listed in paragraph (b)(1)(v)(A) of this section: (1) In the case of an alien with employment authorization in the Commonwealth of the Northern Mariana Islands incident to status for a period of up to two years following the transition program effective date that is unrestricted or otherwise authorizes a change of employer: (i) The unexpired foreign passport and an Alien Entry Permit with red band issued to the alien byCitizenship and Immigration Status Verification Backgrounder Page 31
  • 32. the Office of the Attorney General, Division of Immigration of the Commonwealth of the Northern Mariana Islands before the transition program effective date, as long as the period of employment authorization has not yet expired, or (ii) An unexpired foreign passport and temporary work authorization letter issued by the Department of Labor of the Commonwealth of the Northern Mariana Islands before the transition program effective date, and containing the name and photograph of the individual, as long as the period of employment authorization has not yet expired and the proposed employment is not in conflict with any restrictions or limitations identified on the Temporary Work Authorization letter; (iii) An unexpired foreign passport and a permanent resident card issued by the Commonwealth of the Northern Mariana Islands. ( 2 ) [Reserved] (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; orCitizenship and Immigration Status Verification Backgrounder Page 32
  • 33. (B) Form I–94 or I–94A indicating temporary evidence of permanent resident status. The individual indicates in section 1 of the Form I–9 that he or she is a lawful permanent resident and the individual: ( 1 ) Presents the arrival portion of Form I–94 or Form I–94A containing an unexpired ―Temporary I–551‖ stamp and a photograph of the individual, which is designated for purposes of this section as a receipt for Form I–551; and ( 2 ) Presents the Form I–551 by the expiration date of the ―Temporary I–551‖ stamp or, if the stamp has no expiration date, within one year from the issuance date of the arrival portion of the Form I–94 or Form I–94A; or (C) Form I–94 or I–94A indicating refugee status . The individual indicates in section 1 of the Form I–9 that he or she is an alien authorized to work and the individual: ( 1 ) Presents the departure portion of Form I–94 or I–94A containing an unexpired refugee admission stamp, which is designated for purposes of this section as a receipt for the Form I– 766, or a social security account number card that contains no employment restrictions; and ( 2 ) Presents, within 90 days of the hire or, in the case of reverification, the date employment authorization expires, either an unexpired Form I–766, or a social security account number card that contains no employment restrictions and a document described under paragraph (b)(1)(v)(B) of this section. (vii) If an individuals 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 documents 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. (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.Citizenship and Immigration Status Verification Backgrounder Page 33
  • 34. (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 individuals 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 employers 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 employers 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 employees date of hire and/or termination each time the employee is hired and/or terminated by an employer of the multi-employer association; orCitizenship and Immigration Status Verification Backgrounder Page 34
  • 35. ( 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 individuals expectation is reasonable. Whether an individuals 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 employers established and published policy regarding his or her absence; ( 3 ) The employers 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 employers 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.Citizenship and Immigration Status Verification Backgrounder Page 35
  • 36. (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, or a combination of paper and electronic formats that meet the requirements of paragraphs (e), (f), and (g) of this section), or microfilm or microfiche copy of the original signed version of 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 individuals 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 business days notice prior to an inspection of 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(d)(4) 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 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 toCitizenship and Immigration Status Verification Backgrounder Page 36
  • 37. 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 §274a.2(b)(2). (iv) Paragraphs (e), (f), (g), (h), and (i) of this section specify the standards for electronic Forms I–9. (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 either be retained with the Form I–9 or stored with the employees records and be retrievable consistent with paragraphs (e), (f), (g), (h), and (i) of this section. 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. (4) Limitation on use of Form I–9. Any information contained in or appended to the Form I–9, including copies or electronic images of documents listed in paragraph (c) of this section used to verify an individuals identity or employment eligibility, may be used onlyCitizenship and Immigration Status Verification Backgrounder Page 37
  • 38. 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 previouslyemployed. (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 individuals 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 individuals employment is terminated, whichever is later.(d) Employment verification requirements in the case of recruiting or referring for a fee anindividual 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; orCitizenship and Immigration Status Verification Backgrounder Page 38
  • 39. (ii) If upon inspection of the Form I–9, the recruiter or referrer determines that the individuals 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 only those pages of the Form I–9 on which employers and employees enter data in an electronic generation or storage system that includes: (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 consistent with the requirements of paragraph (e)(6) of this section; 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.Citizenship and Immigration Status Verification Backgrounder Page 39
  • 40. (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 one or more electronic generation or storage systems. 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. Employers may implement new electronic storage systems provided: (i) All systems meet the requirements of paragraphs (e), (f), (g), (h) and (i) of this section; and (ii) Existing Forms I–9 are retained in a system that remains fully accessible. (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 documents 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 documents 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:Citizenship and Immigration Status Verification Backgrounder Page 40
  • 41. (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; (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; and (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. (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(d)(4) of the Act.(g) Security. (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;Citizenship and Immigration Status Verification Backgrounder Page 41
  • 42. (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, completed, updated, modified, altered, 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. (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) Upon request of the employee, provide a printed confirmation 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 iscompleted electronically, the employer, the recruiter or referrer for a fee, or the representative ofthe employer or the recruiter or referrer, must attest to the required information in Form I–9. Thesystem used to capture the electronic signature should include a method to acknowledge that theattestation to be signed has been read by the signatory. Any person or entity who has failed tocomply with the criteria established by this regulation for electronic signatures, if used, and atthe time of inspection does not present a properly completed Form I–9 for the employee, is inviolation of section 274A(a)(1)(B) of the Act and 8 CFR 274a.2(b)(2).Citizenship and Immigration Status Verification Backgrounder Page 42
  • 43. [52 FR 16221, May 1, 1987, as amended at 53 FR 8612, Mar. 16, 1988; 55 FR 25932, June25, 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; 71 FR 34514, June 15, 2006; 73 FR 76511, Dec. 17, 2008;74 FR 2838, Jan. 16, 2009; 74 FR 7995, Feb. 23, 2009; 74 FR 10455, Mar. 11, 2009; 74 FR55739, Oct. 28, 2009; 74 FR 62207, Nov. 27, 2009; 75 FR 42578, July 22, 2010] V. There is No SAVE or E-Verify Regulation7! A. SAVE:Although there are specific statutory and regulatory requirements for Federal, State and LocalAgencies, educational institutions, and licensing agencies to verify an applicant’s status in orderto determine legal eligibility for the benefits or license sought, there are no specificimplementing regulations in place by the verification agency--USCIS. Actual mechanisms doexist to accomplish the statutorily mandated tasks. Computer databases have been designed andcontinue to be upgraded. There are USCIS re-designed forms (inherited from Legacy INS) beingupdated currently. There are registration requirements, procedures and mechanisms for State andLocal benefits and licensing agencies or boards, etc...USCIS’ Immigration Status Verification Unit also handles requests by SAVE Programparticipating agencies to verify status through the submission of the form G-845, VerificationRequest (SAVE agencies) and the G-845 Supplement, Document Verification RequestSupplement. Such forms are submitted when agencies do not have access to the automated orthere are other factors that require examination of documents or further, more intensiveinvestigation in a particular case. B. E-Verify:The same underlying statute [8 USC, which contains the INA] that contains the basis for creationof the form I-9 on which employment eligibility is documented was subsequently amended andfurther provided for the creation of an electronic employment verification system. It has beencreated and it is called E-Verify. It has long since moved beyond a mere ―pilot program‖ and isin full swing and growing. E-Verify has specific procedures and practices spelled out inMemorandums of Agreement and Memorandums of Understanding. E-Verify itself has noregulations but the statute that created it is written almost like regulations.7 For a recent USCIS powerpoint overview of the Verification Division’s functions see:http://www.uscis.gov/USCIS/Resources/Resources%20for%20Congress/Congressional%20Reports/2011%20National%20Immigration%20&%20Consular%20Conference%20Presentations/Verification_Division_Overview.pdfCitizenship and Immigration Status Verification Backgrounder Page 43
  • 44. 8 USC 1324a Note: Pilot Programs for Employment Eligibility Confirmation Pub. L. 104-208, div. C, title IV, subtitle A, Sept. 30, 1996, 110 Stat. 3009-655, as amended by Pub. L. 107-128, Sec. 2, Jan. 16, 2002, 115 Stat. 2407; Pub. L. 108-156, Secs. 2, 3, Dec. 3, 2003, 117 Stat. 1944, provided that:SEC. 401. ESTABLISHMENT OF PROGRAMS.(a) In General.--The Secretary of Homeland Security shall conduct 3 pilot programs ofemployment eligibility confirmation under this subtitle.(b) Implementation Deadline; Termination.--The Secretary of Homeland Security shallimplement the pilot programs in a manner that permits persons and other entities to haveelections under section 402 of this division made and in effect no later than 1 year after the dateof the enactment of this Act [Sept. 30, 1996]. Unless the Congress otherwise provides, theSecretary of Homeland Security shall terminate a pilot program at the end of the 11-year periodbeginning on the first day the pilot program is in effect.(c) Scope of Operation of Pilot Programs.--The Secretary of Homeland Security shall providefor the operation— (1) of the basic pilot program (described in section 403(a) of this division) in, at a minimum, 5 of the 7 States with the highest estimated population of aliens who are not lawfully present in the United States, and the Secretary of Homeland Security shall expand the operation of the program to all 50 States not later than December 1, 2004; (2) of the citizen attestation pilot program (described in section 403(b) of this division) in at least 5 States (or, if fewer, all of the States) that meet the condition described in section 403(b)(2)(A) of this division; and (3) of the machine-readable-document pilot program (described in section 403(c) of this division) in at least 5 States (or, if fewer, all of the States) that meet the condition described in section 403(c)(2) of this division. {Relates to enhanced driver’s licenses and IDs.}(d) References in Subtitle.--In this subtitle— (1) Pilot program references.--The terms `program or `pilot program refer to any of the 3 pilot programs provided for under this subtitle. (2) Confirmation system.--The term `confirmation system means the confirmation system established under section 404 of this division. {This is E-Verify!} (3) References to section 274a.--Any reference in this subtitle to section 274A (or a subdivision of such section) is deemed a reference to such section (or subdivision thereof) of the Immigration and Nationality Act [8 U.S.C. 1324a].Citizenship and Immigration Status Verification Backgrounder Page 44
  • 45. (4) I-9 or similar form.--The term `I-9 or similar form means the form used for purposes of section 274A(b)(1)(A) or such other form as the Secretary of Homeland Security determines to be appropriate. (5) Limited application to recruiters and referrers.--Any reference to recruitment or referral (or a recruiter or referrer) in relation to employment is deemed a reference only to such recruitment or referral (or recruiter or referrer) that is subject to section 274A(a)(1)(B)(ii). (6) United states citizenship.--The term `United States citizenship includes United States nationality. (7) State.--The term `State has the meaning given such term in section 101(a)(36) of the Immigration and Nationality Act [8 U.S.C. 1101(a)(36)].SEC. 402. VOLUNTARY ELECTION TO PARTICIPATE IN A PILOT PROGRAM.(a) Voluntary Election.--Subject to subsection (c)(3)(B), any person or other entity that conductsany hiring (or recruitment or referral) in a State in which a pilot program is operating may electto participate in that pilot program. Except as specifically provided in subsection (e), theSecretary of Homeland Security may not require any person or other entity to participate in apilot program.(b) Benefit of Rebuttable Presumption.— (1) In general.--If a person or other entity is participating in a pilot program and obtains confirmation of identity and employment eligibility in compliance with the terms and conditions of the program with respect to the hiring (or recruitment or referral) of an individual for employment in the United States, the person or entity has established a rebuttable presumption that the person or entity has not violated section 274A(a)(1)(A) with respect to such hiring (or such recruitment or referral). (2) Construction.--Paragraph (1) shall not be construed as preventing a person or other entity that has an election in effect under subsection (a) from establishing an affirmative defense under section 274A(a)(3) if the person or entity complies with the requirements of section 274A(a)(1)(B) but fails to obtain confirmation under paragraph (1).(c) General Terms of Elections.-- (1) In general.--An election under subsection (a) shall be in such form and manner, under such terms and conditions, and shall take effect, as the Secretary of Homeland Security shall specify. The Secretary of Homeland Security may not impose any fee as a condition of making an election or participating in a pilot program. (2) Scope of election.--Citizenship and Immigration Status Verification Backgrounder Page 45
  • 46. (A) In general.--Subject to paragraph (3), any electing person or other entity may provide that the election under subsection (a) shall apply (during the period in which the election is in effect)-- (i) to all its hiring (and all recruitment or referral) in the State (or States) in which the pilot program is operating, or (ii) to its hiring (or recruitment or referral) in one or more pilot program States or one or more places of hiring (or recruitment or referral, as the case may be) in the pilot program States. (B) Application of programs in non-pilot program states.--In addition, the Secretary of Homeland Security may permit a person or entity electing the citizen attestation pilot program (described in 403(b) of this division) or the machine- readable-document pilot program (described in section 403(c) of this division) to provide that the election applies to its hiring (or recruitment or referral) in one or more States or places of hiring (or recruitment or referral) in which the pilot program is not otherwise operating but only if such States meet the requirements of 403(b)(2)(A) and 403(c)(2) of this division, respectively. (3) Termination of elections.--The Secretary of Homeland Security may terminate an election by a person or other entity under his section because the person or entity has substantially failed to comply with its obligations under the pilot program. A person or other entity may terminate an election in such form and manner as the Secretary of Homeland Security shall specify.(d) Consultation, Education, and Publicity.-- (1) Consultation.--The Secretary of Homeland Security shall closely consult with representatives of employers (and recruiters and referrers) in the development and implementation of the pilot programs, including the education of employers (and recruiters and referrers) about such programs. (2) Publicity.--The Secretary of Homeland Security shall widely publicize the election process and pilot programs, including the voluntary nature of the pilot programs and the advantages to employers (and recruiters and referrers) of making an election under this section. (3) Assistance through district offices.--The Secretary of Homeland Security shall designate one or more individuals in each District office of the Immigration and Naturalization Service for a Service District in which a pilot program is being implemented-- (A) to inform persons and other entities that seek information about pilot programs of the voluntary nature of such programs, andCitizenship and Immigration Status Verification Backgrounder Page 46
  • 47. (B) to assist persons and other entities in electing and participating in any pilot programs in effect in the District, in complying with the requirements of section 274A, and in facilitating confirmation of the identity and employment eligibility of individuals consistent with such section.(e) Select Entities Required to Participate in a Pilot Program.-- (1) Federal government.-- (A) Executive departments.-- (i) In general.--Each Department of the Federal Government shall elect to participate in a pilot program and shall comply with the terms and conditions of such an election. (ii) Election.--Subject to clause (iii), the Secretary of each such Department-- (I) shall elect the pilot program (or programs) in which the Department shall participate, and (II) may limit the election to hiring occurring in certain States (or geographic areas) covered by the program (or programs) and in specified divisions within the Department, so long as all hiring by such divisions and in such locations is covered. (iii) Role of secretary of homeland security.--The Secretary of Homeland Security shall assist and coordinate elections under this subparagraph in such manner as assures that-- (I) a significant portion of the total hiring within each Department within States covered by a pilot program is covered under such a program, and (II) there is significant participation by the Federal Executive branch in each of the pilot programs. (B) Legislative branch.--Each Member of Congress, each officer of Congress, and the head of each agency of the legislative branch, that conducts hiring in a State in which a pilot program is operating shall elect to participate in a pilot program, may specify which pilot program or programs (if there is more than one) in which the Member, officer, or agency will participate, and shall comply with the terms and conditions of such an election. (2) Application to certain violators.--An order under section 274A(e)(4) or section 274B(g) of the Immigration and Nationality Act [8 U.S.C. 1324a(e)(4), 1324b(g)] may require the subject of the order to participate in, and comply with the terms of, a pilotCitizenship and Immigration Status Verification Backgrounder Page 47
  • 48. program with respect to the subjects hiring (or recruitment or referral) of individuals in a State covered by such a program. (3) Consequence of failure to participate.--If a person or other entity is required under this subsection to participate in a pilot program and fails to comply with the requirements of such program with respect to an individual-- (A) such failure shall be treated as a violation of section 274A(a)(1)(B) with respect to that individual, and (B) a rebuttable presumption is created that the person or entity has violated section 274A(a)(1)(A). Subparagraph (B) shall not apply in any prosecution under section274A(f)(1).(f) Construction.--This subtitle shall not affect the authority of the Secretary of HomelandSecurity under any other law (including section 274A(d)(4)) to conduct demonstration projects inrelation to Section 274A.SEC. 403. PROCEDURES FOR PARTICIPANTS IN PILOT PROGRAMS.(a) Basic Pilot Program.--A person or other entity that elects to participate in the basic pilotprogram described in this subsection agrees to conform to the following procedures in the case ofthe hiring (or recruitment or referral) for employment in the United States of each individualcovered by the election: (1) Provision of additional information.--The person or entity shall obtain from the individual (and the individual shall provide) and shall record on the I-9 or similar form-- (A) the individuals social security account number, if the individual has been issued such a number, and (B) if the individual does not attest to United States citizenship under section 274A(b)(2), such identification or authorization number established by the Immigration and Naturalization Service for the alien as the Secretary of Homeland Security shall specify, and shall retain the original form and make it available for inspection for the period and in the manner required of I-9 forms under section 274A(b)(3). (2) Presentation of documentation.-- (A) In general.--The person or other entity, and the individual whose identity and employment eligibility are being confirmed, shall, subject to subparagraph (B), fulfill the requirements of section 274A(b) with the following modifications: (i) A document referred to in section 274A(b)(1)(B)(ii) (as redesignated by section 412(a) of this division) must be designated by the Secretary ofCitizenship and Immigration Status Verification Backgrounder Page 48
  • 49. Homeland Security as suitable for the purpose of identification in a pilot program. (ii) A document referred to in section 274A(b)(1)(D) must contain a photograph of the individual. (iii) The person or other entity has complied with the requirements of section 274A(b)(1) with respect to examination of a document if the document reasonably appears on its face to be genuine and it reasonably appears to pertain to the individual whose identity and work eligibility is being confirmed. (B) Limitation of requirement to examine documentation.--If the Secretary of Homeland Security finds that a pilot program would reliably determine with respect to an individual whether-- (i) the person with the identity claimed by the individual is authorized to work in the United States, and (ii) the individual is claiming the identity of another person, if a person or entity could fulfill the requirement to examine documentation contained in subparagraph (A) of section 274A(b)(1) by examining a document specified in either subparagraph (B) or (D) of such Section, the Secretary of Homeland Security may provide that, for purposes of such requirement, only such a document need be examined. In such case, any reference in section 274A(b)(1)(A) to a verification that an individual is not an unauthorized alien shall be deemed to be a verification of the individuals identity. (3) Seeking confirmation.-- (A) In general.--The person or other entity shall make an inquiry, as provided in section 404(a)(1) of this division, using the confirmation system to seek confirmation of the identity and employment eligibility of an individual, by not later than the end of 3 working days (as specified by the Secretary of Homeland Security) after the date of the hiring (or recruitment or referral, as the case may be). (B) Extension of time period.--If the person or other entity in good faith attempts to make an inquiry during such 3 working days and the confirmation system has registered that not all inquiries were received during such time, the person or entity can make an inquiry in the first subsequent working day in which the confirmation system registers that it has received All inquiries. If the confirmation system cannot receive inquiries at all times during a day, the person or entity merely has to assert that the entity attempted to make the inquiry on that day for the previous sentence to apply to such an inquiry, and does not have to provide any additional proof concerning such inquiry.Citizenship and Immigration Status Verification Backgrounder Page 49
  • 50. (4) Confirmation or nonconfirmation.-- (A) Confirmation upon initial inquiry.--If the person or other entity receives an appropriate confirmation of an individuals identity and work eligibility under the confirmation system within the time period specified under section 404(b) of this division, the person or entity shall record on the I-9 or similar form an appropriate code that is provided under the system and that indicates a final confirmation of such identity and work eligibility of the individual. (B) Nonconfirmation upon initial inquiry and secondary verification.-- (i) Nonconfirmation.--If the person or other entity receives a tentative nonconfirmation of an individuals identity or work eligibility under the confirmation system within the time period specified under 404(b) of this division, the person or entity shall so inform the individual for whom the confirmation is sought. (ii) No contest.--If the individual does not contest the nonconfirmation within the time period specified in section 404(c) of this division, the nonconfirmation shall be considered final. The person or entity shall then record on the I-9 or similar form an appropriate code which has been provided under the system to indicate a tentative nonconfirmation. (iii) Contest.--If the individual does contest the nonconfirmation, the individual shall utilize the process for secondary verification provided under section 404(c) of this division. The nonconfirmation will remain tentative until a final confirmation or nonconfirmation is provided by the confirmation system within the time period specified in such section. In no case shall an employer terminate employment of an individual because of a failure of the individual to have identity and work eligibility confirmed under this section until a nonconfirmation becomes final. Nothing in this clause shall apply to a termination of employment for any reason other than because of such a failure. (iv) Recording of conclusion on form.--If a final confirmation or nonconfirmation is provided by the confirmation system under section 404(c) of this division regarding an individual, the person or entity shall record on the I-9 or similar form an appropriate code that is provided under the system and that indicates a confirmation or nonconfirmation of identity and work eligibility of the individual. (C) Consequences of nonconfirmation.-- (i) Termination or notification of continued employment.--If the person or other entity has received a final nonconfirmation regarding an individualCitizenship and Immigration Status Verification Backgrounder Page 50
  • 51. under subparagraph (B), the person or entity may terminate employment (or recruitment or referral) of the individual. If the person or entity does not terminate employment (or recruitment or referral) of the individual, the person or entity shall notify the Secretary of Homeland Security of such fact through the confirmation system or in such other manner as the Secretary of Homeland Security may specify. (ii) Failure to notify.--If the person or entity fails to provide notice with respect to an individual as required under clause (i), the failure is deemed to constitute a violation of section 274A(a)(1)(B) with respect to that individual and the applicable civil monetary penalty under section 274A(e)(5) shall be (notwithstanding the amounts specified in such section) no less than $500 and no more than $1,000 for each individual with respect to whom such violation occurred. (iii) Continued employment after final nonconfirmation.--If the person or other entity continues to employ (or to recruit or refer) an individual after receiving final nonconfirmation, a rebuttable presumption is created that the person or entity has violated section 274A(a)(1)(A). The previous sentence shall not apply in any prosecution under section 274A(f)(1). ********The remainder of Sec. 403 is beyond this topic.*********SEC. 404. EMPLOYMENT ELIGIBILITY CONFIRMATION SYSTEM. [E-Verify](a) In General.--The Secretary of Homeland Security shall establish a pilot programconfirmation system through which the Secretary of Homeland Security (or a designee ofthe Secretary of Homeland Security, which may be a nongovernmental entity)-- (1) responds to inquiries made by electing persons and other entities (including those made by the transmittal of data from machine-readable documents under the machine-readable pilot program) at any time through a toll-free telephone line or other toll-free electronic media concerning an individuals identity and whether the individual is authorized to be employed, and (2) maintains records of the inquiries that were made, of confirmations provided (or not provided), and of the codes provided to inquirers as evidence of their compliance with their obligations under the pilot programs. To the extent practicable, the Secretary of Homeland Security shall seek to establish such a system using one or more nongovernmental entities.(b) Initial Response.--The confirmation system shall provide confirmation or a tentativenonconfirmation of an individuals identity and employment eligibility within 3 workingdays of the initial inquiry. If providing confirmation or tentative nonconfirmation, theconfirmation system shall provide an appropriate code indicating such confirmation orsuch nonconfirmation.Citizenship and Immigration Status Verification Backgrounder Page 51
  • 52. (c) Secondary Verification Process in Case of Tentative Nonconfirmation.--In cases oftentative nonconfirmation, the Secretary of Homeland Security shall specify, inconsultation with the Commissioner of Social Security and the Commissioner of theImmigration and Naturalization Service, an available secondary verification process toconfirm the validity of information provided and to provide a final confirmation ornonconfirmation within 10 working days after the date of the tentative nonconfirmation.When final confirmation or nonconfirmation is provided, the confirmation system shallprovide an appropriate code indicating such confirmation or nonconfirmation.(d) Design and Operation of System.--The confirmation system shall be designed andoperated-- (1) to maximize its reliability and ease of use by persons and other entities making elections under section 402(a) of this division consistent with insulating and protecting the privacy and security of the underlying information; (2) to respond to all inquiries made by such persons and entities on whether individuals are authorized to be employed and to register all times when such inquiries are not received; (3) with appropriate administrative, technical, and physical safeguards to prevent unauthorized disclosure of personal information; and (4) to have reasonable safeguards against the systems resulting in unlawful discriminatory practices based on national origin or citizenship status, including-- (A) the selective or unauthorized use of the system to verify eligibility; (B) the use of the system prior to an offer of employment; or (C) the exclusion of certain individuals from consideration for employment as a result of a perceived likelihood that additional verification will be required, beyond what is required for most job applicants.(e) Responsibilities of the Commissioner of Social Security.--As part of the confirmationsystem, the Commissioner of Social Security, in consultation with the entity responsible foradministration of the system, shall establish a reliable, secure method, which, within thetime periods specified under subsections (b) and (c), compares the name and social securityaccount number provided in an inquiry against such information maintained by theCommissioner in order to confirm (or not confirm) the validity of the information providedregarding an individual whose identity and employment eligibility must be confirmed, thecorrespondence of the name and number, and whether the individual has presented asocial security account number that is not valid for employment. The Commissioner shallnot disclose or release social security information (other than such confirmation ornonconfirmation).Citizenship and Immigration Status Verification Backgrounder Page 52
  • 53. (f) Responsibilities of the Commissioner of the Immigration and Naturalization Service8.--Aspart of the confirmation system, the Commissioner of the Immigration and NaturalizationService, in consultation with the entity responsible for administration of the system, shallestablish a reliable, secure method, which, within the time periods specified undersubsections (b) and (c), compares the name and alien identification or authorizationnumber described in section 403(a)(1)(B) of this division which are provided in an inquiryagainst such information maintained by the Commissioner in order to confirm (or notconfirm) the validity of the information provided, the correspondence of the name andnumber, and whether the alien is authorized to be employed in the United States.(g) Updating Information.--The Commissioners of Social Security and the Immigration andNaturalization Service shall update their information in a manner that promotes themaximum accuracy and shall provide a process for the prompt correction of erroneousinformation, including instances in which it is brought to their attention in the secondaryverification process described in subsection (c).(h) Limitation on Use of the Confirmation System and Any Related Systems.-- (1) In general.--Notwithstanding any other provision of law, nothing in this subtitle shall be construed to permit or allow any department, bureau, or other agency of the United States Government to utilize any information, data base, or other records assembled under this subtitle for any other purpose other than as provided for under a pilot program. (2) No national identification card. --Nothing in this subtitle shall be construed to authorize, directly or indirectly, the issuance or use of national identification cards or the establishment of a national identification card.8 INS and other agencies (~22, or parts thereof, in all) was replaced by DHS on March 1, 2003. USCIS VerificationDivision runs E-Verify in cooperation with SSA and incorporates new sources of data as they become available (likepassport photos and soon possibly driver license/state ID databases). USCIS/VER cooperates with OSC ofDOJ/CRT with ―referrals‖ on suspect situations of violations under INA § 274B, while ICE performs I-9 audits andcommensurate enforcement actions. The specific roles are still in a state of flux. ICE attempted to promulgateregulations in 2007 and 2008 but following litigation, dropped the whole thing in 2009. The MOA w/OSC wassigned in 2010 and is due for review and adjustment as of this writing and that review may be underway right now.There is also a MOA between USCIS and ICE for referrals and other coordination.Citizenship and Immigration Status Verification Backgrounder Page 53