Section

   [Code of Federal Regulations] [Title 8, Volume 1] [Revised as of January 1, 2008] From the U.S. Government Printing Office via GPO Access [CITE: 8CFR274a.1]  [Page 681-684]                        TITLE 8--ALIENS AND NATIONALITY                  CHAPTER I--DEPARTMENT OF HOMELAND SECURITY   PART 274a_CONTROL OF EMPLOYMENT OF ALIENS--Table of Contents                        Subpart A_Employer Requirements   Sec. 274a.1  Definitions.                          Subpart A_Employer Requirements  Sec. 274a.1 Definitions. 274a.2 Verification of employment eligibility. 274a.3 Continuing employment of unauthorized aliens. 274a.4 Good faith defense. 274a.5 Use of labor through contract. 274a.6 State employment agencies. 274a.7 Pre-enactment provisions for employees hired prior to November 7,            1986. 274a.8 Prohibition of indemnity bonds. 274a.9 Enforcement procedures. 274a.10 Penalties. 274a.11 [Reserved]                     Subpart B_Employment Authorization  274a.12 Classes of aliens authorized to accept employment. 274a.13 Application for employment authorization. 274a.14 Termination of employment authorization.      Authority: 8 U.S.C. 1101, 1103, 1324a; 8 CFR part 2.      Source: 52 FR 16221, May 1, 1987, unless otherwise noted.        For the purpose of this part--     (a) The term unauthorized alien means, with respect to employment of  an alien at a particular time, that the alien is not at that time  either: (1) Lawfully admitted for permanent residence, or (2) authorized  to be so employed by this Act or by the Attorney General;     (b) The term entity means any legal entity, including but not  limited to, a corporation, partnership, joint venture, governmental  body, agency, proprietorship, or association;     (c) The term hire means the actual commencement of employment of an  employee for wages or other remuneration. For purposes of section  274A(a)(4) of the Act and Sec. 274a.5 of this part, a hire occurs when  a person or entity uses a contract, subcontract or exchange entered  into, renegotiated or extended after November 6, 1986, to obtain the  labor of an alien in the United States, knowing that the alien is an  unauthorized alien;     (d) The term refer for a fee means the act of sending or directing a  person or transmitting documentation or information to another, directly  or indirectly, with the intent of obtaining employment in the United  States for such person, for remuneration whether on a retainer or  contingency basis; however, this term does not include union hiring  [[Page 682]]  halls that refer union members or non-union individuals who pay union  membership dues;     (e) The term recruit for a fee means the act of soliciting a person,  directly or indirectly, and referring that person to another with the  intent of obtaining employment for that person, for remuneration whether  on a retainer or contingency basis; however, this term does not include  union hiring halls that refer union members or non-union individuals who  pay union membership dues;     (f) The term employee means an individual who provides services or  labor for an employer for wages or other remuneration but does not mean  independent contractors as defined in paragraph (j) of this section or  those engaged in casual domestic employment as stated in paragraph (h)  of this section;     (g) The term employer means a person or entity, including an agent  or anyone acting directly or indirectly in the interest thereof, who  engages the services or labor of an employee to be performed in the  United States for wages or other remuneration. In the case of an  independent contractor or contract labor or services, the term employer  shall mean the independent contractor or contractor and not the person  or entity using the contract labor;     (h) The term employment means any service or labor performed by an  employee for an employer within the United States, including service or  labor performed on a vessel or aircraft that has arrived in the United  States and has been inspected, or otherwise included within the  provisions of the Anti-Reflagging Act codified at 46 U.S.C. 8704, but  not including duties performed by nonimmigrant crewmen defined in  sections 101 (a)(10) and (a)(15)(D) of the Act. However, employment does  not include casual employment by individuals who provide domestic  service in a private home that is sporadic, irregular or intermittent;     (i) The term State employment agency means any State government unit  designated to cooperate with the United States Employment Service in the  operation of the public employment service system;     (j) The term independent contractor includes individuals or entities  who carry on independent business, contract to do a piece of work  according to their own means and methods, and are subject to control  only as to results. Whether an individual or entity is an independent  contractor, regardless of what the individual or entity calls itself,  will be determined on a case-by-case basis. Factors to be considered in  that determination include, but are not limited to, whether the  individual or entity: supplies the tools or materials; makes services  available to the general public; works for a number of clients at the  same time; has an opportunity for profit or loss as a result of labor or  services provided; invests in the facilities for work; directs the order  or sequence in which the work is to be done and determines the hours  during which the work is to be done. The use of labor or services of an  independent contractor are subject to the restrictions in section  274A(a)(4) of the Act and Sec. 274a.5 of this part;     (k) The term pattern or practice means regular, repeated, and  intentional activities, but does not include isolated, sporadic, or  accidental acts;     (l)(1) The term knowing includes having actual or constructive  knowledge. Constructive knowledge is knowledge that may fairly be  inferred through notice of certain facts and circumstances that would  lead a person, through the exercise of reasonable care, to know about a  certain condition. Examples of situations where the employer may,  depending on the totality of relevant circumstances, have constructive  knowledge that an employee is an unauthorized alien include, but are not  limited to, situations where the employer:     (i) Fails to complete or improperly completes the Employment  Eligibility Verification, Form I-9;     (ii) Acts with reckless and wanton disregard for the legal  consequences of permitting another individual to introduce an  unauthorized alien into its work force or to act on its behalf; and     (iii) Fails to take reasonable steps after receiving information  indicating that the employee may be an alien who is not employment  authorized, such as--  [[Page 683]]      (A) An employee's request that the employer file a labor  certification or employment-based visa petition on behalf of the  employee;     (B) Written notice to the employer from the Social Security  Administration reporting earnings on a Form W-2 that employees' names  and corresponding social security account numbers fail to match Social  Security Administration records; or     (C) Written notice to the employer from the Department of Homeland  Security that the immigration status document or employment  authorization document presented or referenced by the employee in  completing Form I-9 is assigned to another person, or that there is no  agency record that the document has been assigned to any person.     (2)(i) An employer who receives written notice from the Social  Security Administration as described in paragraph (l)(1)(iii)(B) of this  section will be considered by the Department of Homeland Security to  have taken reasonable steps--and receipt of the written notice will  therefore not be used as evidence of constructive knowledge--if the  employer takes the following actions:     (A) The employer must check its records to determine whether the  discrepancy results from a typographical, transcription, or similar  clerical error. If the employer determines that the discrepancy is due  to such an error, the employer must correct the error and inform the  Social Security Administration of the correct information (in accordance  with the written notice's instructions, if any). The employer must also  verify with the Social Security Administration that the employee's name  and social security account number, as corrected, match Social Security  Administration records. The employer should make a record of the manner,  date, and time of such verification, and then store such record with the  employee's Form I-9(s) in accordance with 8 CFR 274a.2(b). The employer  may update the employee's Form I-9 or complete a new Form I-9 (and  retain the original Form I-9), but the employer should not perform a new  Form I-9 verification. The employer must complete these steps within  thirty days of receiving the written notice.     (B) If the employer determines that the discrepancy is not due to an  error in its own records, the employer must promptly request that the  employee confirm that the name and social security account number in the  employer's records are correct. If the employee states that the  employer's records are incorrect, the employer must correct, inform,  verify, and make a record as set forth in paragraph (l)(2)(i)(A) of this  section. If the employee confirms that its records are correct, the  employer must promptly request that the employee resolve the discrepancy  with the Social Security Administration (in accordance with the written  notice's instructions, if any). The employer must advise the employee of  the date that the employer received the written notice from the Social  Security Administration and advise the employee to resolve the  discrepancy with the Social Security Administration within ninety days  of the date the employer received the written notice from the Social  Security Administration.     (C) If the employer is unable to verify with the Social Security  Administration within ninety days of receiving the written notice that  the employee's name and social security account number matches the  Social Security Administration's records, the employer must again verify  the employee's employment authorization and identity within an  additional three days by following the verification procedure specified  in paragraph (l)(2)(iii) of this section.     (ii) An employer who receives written notice from the Department of  Homeland Security as described in paragraph (l)(1)(iii)(C) of this  section will be considered by the Department of Homeland Security to  have taken reasonable steps--and receipt of the written notice will  therefore not be used as evidence of constructive knowledge--if the  employer takes the following actions:     (A) The employer must contact the local Department of Homeland  Security office (in accordance with the written notice's instructions,  if any) and attempt to resolve the question raised by the Department of  Homeland Security about the immigration status document or employment  authorization document. The employer must  [[Page 684]]  complete this step within thirty days of receiving the written notice.     (B) If the employer is unable to verify with the Department of  Homeland Security within ninety days of receiving the written notice  that the immigration status document or employment authorization  document is assigned to the employee, the employer must again verify the  employee's employment authorization and identity within an additional 3  days by following the verification procedure specified in paragraph  (l)(2)(iii) of this section.     (iii) The verification procedure referenced in paragraphs  (l)(2)(i)(B) and (l)(2)(ii)(B) of this section is as follows:     (A) The employer completes a new Form I-9 for the employee, using  the same procedures as if the employee were newly hired, as described in  section 274a.2(a) and (b) of this part, except that--     (1) The employee must complete Section 1 (``Employee Information and  Verification'') and the employer must complete Section 2 (``Employer  Review and Verification'') of the new Form I-9 within ninety-three days  of the employer's receipt of the written notice referred to in paragraph  (l)(1)(iii)(B) or (C) of this section;     (2) The employer must not accept any document referenced in any  written notice described in paragraph (l)(1)(iii)(C) of this section,  any document that contains a disputed social security account number or  alien number referenced in any written notice described in paragraphs  (l)(1)(iii)(B) or (l)(1)(iii)(C) of this section, or any receipt for an  application for a replacement of such document, to establish employment  authorization or identity or both; and     (3) The employee must present a document that contains a photograph  in order to establish identity or both identity and employment  authorization.     (B) The employer must retain the new Form I-9 with the prior Form(s)  I-9 in accordance with 8 CFR 274a.2(b).     (3) Knowledge that an employee is unauthorized may not be inferred  from an employee's foreign appearance or accent. Nothing in this  definition should be interpreted as permitting an employer to request  more or different documents than are required under section 274A(b) of  the Act or to refuse to honor documents tendered that on their face  reasonably appear to be genuine and to relate to the individual, except  a document about which the employer has received written notice  described in paragraph (l)(1)(iii) of this section and with respect to  which the employer has received no verification as described in  paragraphs (l)(2)(i)(C) or (l)(2)(ii)(B) of this section.  [52 FR 16221, May 1, 1987, as amended at 53 FR 8612, Mar. 16, 1988; 55  FR 25931, June 25, 1990; 56 FR 41783, Aug. 23, 1991; 72 FR 45623, Aug.  15, 2007]     
Updated August 6, 2015

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