TO: Department and Agency Personnel, Human Resource and Affirmative Action Offices
FROM: Daniel E. Wall, Counsel
SUBJECT: The Immigration and Nationality Act: Verifying Employment Eligibility

URGENT

THIS UPDATES STATE PERSONNEL MANAGEMENT MANUAL ADVISORY MEMORANDUM #94-06, DATED OCTOBER 11, 1994, "THE IMMIGRATION AND NATIONALITY ACT" LOCATED IN SECTIONS 1000 AND 1800.
NOTE ON BOTH COPIES OF THE 1994 MEMO THAT THIS MEMO MUST ALSO BE SEEN.

As stated in Advisory Memorandum #94-06, the Act requires employers to verify the employment eligibility and identity of all new hires. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996, (IIRIRA) Pub L. 104-208, amended the Immigration and Nationality Act by removing certain documents from the list of documents acceptable for verifying employment eligibility on the Employment Eligibility Verification Form (Form I-9). The Immigration and Naturalization Service (INS) issued an interim rule, effective September 30, 1997, (62 FR 51001), to implement the amendments. However, the INS exercised its discretion under the Act to designate specifc documents as acceptable, to retain some of the documents eliminated by IIRIRA.

The rule deletes the following documents from "List A" on the I-9. These documents are no longer acceptable for verifying identity and employment eligibility:

• Certificate of US Citizenship, INS Form N-560 or N-561, and
• Certificate of Naturalization, INS Form N-550 or N-570.

Under the amended regulations, the following documents, so long as they appear to relate to the individual presenting the document, are acceptable as "List A" documents to evidence both identity and employment eligibility:

• A United States passport (unexpired or expired);
• An Alien Registration Receipt Card or Permanent Resident Card (Form I-551);
• A foreign passport with a Temporary I-551 stamp;
• An Employment Authorization Document (EAD) issued by INS which contains a photograph (Form I-766, Form I-688, or Form I-6888; and, in the case of a nonimmigrant alien authorized to work for a specific employer incident to status, a foreign passport with an Arrival-Departure Record (Form I-94) bearing the same name as the passport and containing an endorsement of the alien's nonimmigrant status, so long as the period of endorsement has not yet expired and the proposed employment is not in conflict with any restrictions or limitations identified on the Form I-94.
  
  
There is no change with respect to either the "List B" documents or "List C' documents at this time. INS has advised that additional changes will be made within the next six months as a result of a document reduction initiative. Recognizing that these changes are being implemented with little advance public notice, and without any changes to the existing Form I-9 and the Handbook for Employers (Form M-274). INS has advised that it will not seek monetary civil penalties against employers who accept the documents removed by the interim rule.

Since a revised Form I-9 has not yet been promulgated, employers are to use the current version of the Form I-9 (edition 11/21/91), to complete the verification process. You may, however, want to note on the Form which of the documents are no longer acceptable.

Receipts

The rule also amends the regulations governing the use of receipts,( 8 C.F.R. section 274a.2(b)(1)(vi)). The current regulations permit individuals to present a receipt showing that they have applied for a replacement document if the individual is unable to provide a required document(s) at the time of hire. The individual must then present the required document(s) within 90 days of the hire.

The interim rule provides that an employer must accept a receipt that appears to be genuine on its face and relate to the individual presenting it in lieu of the required document, unless the employer has actual or constructive knowledge that the individual is not authorized to work. A receipt is not acceptable for initial work authorization or an extension of expiring work authorization. Receipts are acceptable in the following three instances:

1. When an individual presents a receipt for the application for a replacement document because the original document was lost, stolen or damaged. The individual must present the replacement document within 90 days of hire or the date employment authorization expires.
2. When an individual presents the anival portion of the Form I-94 that INS has marked with a temporary I-551 stamp and has affixed with the alien's picture, which is designated as a receipt for Form I-551 for 180 days;
3. When as individual presents the departure portion of Form I-94 containing a refugee admission stamp. The refugee is permitted to present either an unrestricted Social Security card or a Form I-766 EAD at the end of the 90-day receipt period. If the refugee presents a Social Security card, the refugee will also need to present a "List B" document. If the refugee present a Form I-766 EAD, he or she need not present another document.

Receipts are not acceptable where the individual is hired for less than three business days.

If you have any questions concerning this information, you may contact the Office of Counsel of the Department of Civil Service at (518) 457-6207.

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