WAIS Document Retrieval

[Code of Federal Regulations] [Title 8, Volume 1] [Revised as of January 1, 2006] From the U.S. Government Printing Office via GPO Access [CITE: 8CFR274]  [Page 640-654]                        TITLE 8--ALIENS AND NATIONALITY                  CHAPTER I--DEPARTMENT OF HOMELAND SECURITY   PART 274a_CONTROL OF EMPLOYMENT OF ALIENS--Table of Contents   Subpart A_Employer Requirements                          Subpart A_Employer Requirements  Sec. 274a.1 Definitions. 274a.2 Verification of employment eligibility. 274a.3 Continuing employment of unauthorized aliens. 274a.4 Good faith defense. 274a.5 Use of labor through contract. 274a.6 State employment agencies. 274a.7 Pre-enactment provisions for employees hired prior to November 7,            1986. 274a.8 Prohibition of indemnity bonds. 274a.9 Enforcement procedures. 274a.10 Penalties. 274a.11 [Reserved]                     Subpart B_Employment Authorization  274a.12 Classes of aliens authorized to accept employment. 274a.13 Application for employment authorization. 274a.14 Termination of employment authorization.      Authority: 8 U.S.C. 1101, 1103, 1324a; 8 CFR part 2.      Source: 52 FR 16221, May 1, 1987, unless otherwise noted.   Sec. 274a.1  Definitions.      For the purpose of this part--     (a) The term unauthorized alien means, with respect to employment of  an alien at a particular time, that the alien is not at that time  either: (1) Lawfully admitted for permanent residence, or (2) authorized  to be so employed by this Act or by the Attorney General;     (b) The term entity means any legal entity, including but not  limited to, a corporation, partnership, joint venture, governmental  body, agency, proprietorship, or association;     (c) The term hire means the actual commencement of employment of an  employee for wages or other remuneration. For purposes of section  274A(a)(4) of the Act and Sec. 274a.5 of this part, a hire occurs when  a person or entity uses a contract, subcontract or exchange entered  into, renegotiated or extended after November 6, 1986, to obtain the  labor of an alien in the United States, knowing that the alien is an  unauthorized alien;     (d) The term refer for a fee means the act of sending or directing a  person or transmitting documentation or information to another, directly  or indirectly, with the intent of obtaining employment in the United  States for such person, for remuneration whether on a retainer or  contingency basis; however, this term does not include union hiring  [[Page 641]]  halls that refer union members or non-union individuals who pay union  membership dues;     (e) The term recruit for a fee means the act of soliciting a person,  directly or indirectly, and referring that person to another with the  intent of obtaining employment for that person, for remuneration whether  on a retainer or contingency basis; however, this term does not include  union hiring halls that refer union members or non-union individuals who  pay union membership dues;     (f) The term employee means an individual who provides services or  labor for an employer for wages or other remuneration but does not mean  independent contractors as defined in paragraph (j) of this section or  those engaged in casual domestic employment as stated in paragraph (h)  of this section;     (g) The term employer means a person or entity, including an agent  or anyone acting directly or indirectly in the interest thereof, who  engages the services or labor of an employee to be performed in the  United States for wages or other remuneration. In the case of an  independent contractor or contract labor or services, the term employer  shall mean the independent contractor or contractor and not the person  or entity using the contract labor;     (h) The term employment means any service or labor performed by an  employee for an employer within the United States, including service or  labor performed on a vessel or aircraft that has arrived in the United  States and has been inspected, or otherwise included within the  provisions of the Anti-Reflagging Act codified at 46 U.S.C. 8704, but  not including duties performed by nonimmigrant crewmen defined in  sections 101 (a)(10) and (a)(15)(D) of the Act. However, employment does  not include casual employment by individuals who provide domestic  service in a private home that is sporadic, irregular or intermittent;     (i) The term State employment agency means any State government unit  designated to cooperate with the United States Employment Service in the  operation of the public employment service system;     (j) The term independent contractor includes individuals or entities  who carry on independent business, contract to do a piece of work  according to their own means and methods, and are subject to control  only as to results. Whether an individual or entity is an independent  contractor, regardless of what the individual or entity calls itself,  will be determined on a case-by-case basis. Factors to be considered in  that determination include, but are not limited to, whether the  individual or entity: supplies the tools or materials; makes services  available to the general public; works for a number of clients at the  same time; has an opportunity for profit or loss as a result of labor or  services provided; invests in the facilities for work; directs the order  or sequence in which the work is to be done and determines the hours  during which the work is to be done. The use of labor or services of an  independent contractor are subject to the restrictions in section  274A(a)(4) of the Act and Sec. 274a.5 of this part;     (k) The term pattern or practice means regular, repeated, and  intentional activities, but does not include isolated, sporadic, or  accidental acts;     (l)(1) The term knowing includes not only actual knowledge but also  knowledge which may fairly be inferred through notice of certain facts  and circumstances which would lead a person, through the exercise of  reasonable care, to know about a certain condition. Constructive  knowledge may include, but is not limited to, situations where an  employer:     (i) Fails to complete or improperly completes the Employment  Eligibility Verification Form, I-9;     (ii) Has information available to it that would indicate that the  alien is not authorized to work, such as Labor Certification and/or an  Application for Prospective Employer; or     (iii) Acts with reckless and wanton disregard for the legal  consequences of permitting another individual to introduce an  unauthorized alien into its work force or to act on its behalf.     (2) Knowledge that an employee is unauthorized may not be inferred  from an employee's foreign appearance or accent. Nothing in this  definition should be interpreted as permitting an  [[Page 642]]  employer to request more or different documents than are required under  section 274(b) of the Act or to refuse to honor documents tendered that  on their face reasonably appear to be genuine and to relate to the  individual.  [52 FR 16221, May 1, 1987, as amended at 53 FR 8612, Mar. 16, 1988; 55  FR 25931, June 25, 1990; 56 FR 41783, Aug. 23, 1991]  Sec. 274a.2  Verification of employment eligibility.      (a) General. This section states the requirements and procedures  persons or entities must comply with when hiring, or when recruiting or  referring for a fee, or when continuing to employ individuals in the  United States. For purposes of complying with section 274A(b) of the Act  and this section, all references to recruiters and referrers for a fee  are limited to a person or entity who is either an agricultural  association, agricultural employer, or farm labor contractor (as defined  in section 3 of the Migrant and Seasonal Agricultural Worker Protection  Act, 29 U.S.C. 1802). The Form I-9, Employment Eligibility Verification  Form, has been designated by the Service as the form to be used in  complying with the requirements of this section. The Form I-9 may be  obtained in limited quantities at INS District Offices, or ordered from  the Superintendent of Documents, Washington, DC 20402. Employers may  electronically generate blank Forms I-9, provided that: the resulting  form is legible; there is no change to the name, content, or sequence of  the data elements and instructions; no additional data elements or  language are inserted; and the paper used meets the standards for  retention and production for inspection specified under Sec. 274a.2(b).  When copying or printing the Form I-9, the text of the two-sided form  may be reproduced by making either double-sided or single-sided copies.  Employers need only complete the Form I-9 for individuals who are hired  after November 6, 1986 and continue to be employed after May 31, 1987.  Employers shall have until September 1, 1987 to complete the Form I-9  for individuals hired from November 7, 1986 through May 31, 1987.  Recruiters and referrers for a fee need complete the Form I-9 only for  those individuals who are recruited or referred and hired after May 31,  1987. In conjunction with completing the Form I-9, an employer or  recruiter or referrer for a fee must examine documents that evidence the  identity and employment eligibility of the individual. The employer or  recruiter or referrer for a fee and the individual must each complete an  attestation on the Form I-9 under penalty of perjury.     (b) Employment verification requirements--(1) Examination of  documents and completion of Form I-9. (i) A person or entity that hires  or recruits or refers for a fee an individual for employment must ensure  that the individual properly:     (A) Complete section 1--``Employee Information and Verification''-- on the Form I-9 at the time of hire; or if an individual is unable to  complete the Form I-9 or needs it translated, someone may assist him or  her. The preparer or translator must read the Form to the individual,  assist him or her in completing Section 1--``Employee Information and  Verification,'' and have the individual sign or mark the Form in the  appropriate place. The preparer or translator must then complete the  ``Preparer/Translator Certification'' portion of the Form I-9; and     (B) Present to the employer or the recruiter or referrer for a fee  documentation as set forth in paragraph (b)(1)(v) of this section  establishing his or her identity and employment eligibility within the  time limits set forth in paragraphs (b)(1)(ii) through (b)(1)(v) of this  section.     (ii) Except as provided in paragraph (b)(1)(viii) of this section,  an employer, his or her agent, or anyone acting directly or indirectly  in the interest thereof, must within three business days of the hire:     (A) Physically examine the documentation presented by the individual  establishing identity and employment eligibility as set forth in  paragraph (b)(1)(v) of this section and ensure that the documents  presented appear to be genuine and to relate to the individual; and     (B) Complete section 2--``Employer Review and Verification''--of the  Form I-9.     (iii) An employer who hires an individual for employment for a  duration  [[Page 643]]  of less than three business days must comply with paragraphs  (b)(1)(ii)(A) and (b)(1)(ii)(B) of this section at the time of the hire.  An employer may not accept a receipt, as described in paragraph  (b)(1)(vi) of this section, in lieu of the required document if the  employment is for less than three business days.     (iv) A recruiter or referrer for a fee for employment must comply  with paragraphs (b)(1)(ii)(A) and (b)(1)(ii)(B) of this section within  three business days of the date the referred individual is hired by the  employer. Recruiters and referrers may designate agents to complete the  employment verification procedures on their behalf including but not  limited to notaries, national associations, or employers. If a recruiter  or referrer designates an employer to complete the employment  verification procedures, the employer need only provide the recruiter or  referrer with a photocopy of the Form I-9.     (v) The individual may present either an original document which  establishes both employment authorization and identity, or an original  document which establishes employment authorization and a separate  original document which establishes identity. The identification number  and expiration date (if any) of all documents must be noted in the  appropriate space provided on the Form I-9.     (A) The following documents, so long as they appear to relate to the  individual presenting the document, are acceptable to evidence both  identity and employment eligibility:     (1) United States passport (unexpired or expired);     (2) Alien Registration Receipt Card or Permanent Resident Card, Form  I-551;     (3) An unexpired foreign passport that contains a temporary I-551  stamp;     (4) An unexpired Employment Authorization Document issued by the  Immigration And Naturalization Service which contains a photograph, Form  I-766; Form I-688, Form I-688A, or Form I-688B;     (5) In the case of a nonimmigrant alien authorized to work for a  specific employer incident to status, an unexpired foreign passport with  an Arrival-Departure Record, Form I-94, bearing the same name as the  passport and containing an endorsement of the alien's nonimmigrant  status, so long as the period of endorsement has not yet expired and the  proposed employment is not in conflict with any restrictions or  limitations identified on the Form I-94.     (B) The following documents are acceptable to establish identity  only:     (1) For individuals 16 years of age or older:     (i) A driver's license or identification card containing a  photograph, issued by a state (as defined in section 101(a)(36) of the  Act) or an outlying possession of the United States (as defined by  section 101(a)(29) of the Act). If the driver's license or  identification card does not contain a photograph, identifying  information shall be included such as: name, date of birth, sex, height,  color of eyes, and address;     (ii) School identification card with a photograph;     (iii) Voter's registration card;     (vi) U.S. military card or draft record;     (v) Identification card issued by federal, state, or local  government agencies or entities. If the identification card does not  contain a photograph, identifying information shall be included such as:  name, date of birth, sex, height, color of eyes, and address;     (vi) Military dependent's identification card;     (vii) Native American tribal documents;     (viii) United States Coast Guard Merchant Mariner Card;     (ix) Driver's license issued by a Canadian government authority;     (2) For individuals under age 18 who are unable to produce a  document listed in paragraph (b)(1)(v)(B)(1) of this section, the  following documents are acceptable to establish identity only:     (i) School record or report card;     (ii) Clinic doctor or hospital record;     (iii) Daycare or nursery school record.     (3) Minors under the age of 18 who are unable to produce one of the  identity documents listed in paragraph (b)(1)(v)(B) (1) or (2) of this  section are exempt from producing one of the enumerated identity  documents if:  [[Page 644]]      (i) The minor's parent or legal guardian completes on the Form I-9  Section 1--``Employee Information and Verification'' and in the space  for the minor's signature, the parent or legal guardian writes the  words, ``minor under age 18.''     (ii) The minor's parent or legal guardian completes on the Form I-9  the ``Preparer/Translator certification.''     (iii) The employer or the recruiter or referrer for a fee writes in  Section 2--``Employer Review and Verification'' under List B in the  space after the words ``Document Identification '' the words,  ``minor under age 18.''     (4) Individuals with handicaps, who are unable to produce one of the  identity documents listed in paragraph (b)(1)(v)(B) (1) or (2) of this  section, who are being placed into employment by a nonprofit  organization, association or as part of a rehabilitation program, may  follow the procedures for establishing identity provided in this section  for minors under the age of 18, substituting where appropriate, the term  ``special placement'' for ``minor under age 18'', and permitting, in  addition to a parent or legal guardian, a representative from the  nonprofit organization, association or rehabilitation program placing  the individual into a position of employment, to fill out and sign in  the appropriate section, the Form I-9. For purposes of this section the  term individual with handicaps means any person who     (i) Has a physical or mental impairment which substantially limits  one or more of such person's major life activities,     (ii) Has a record of such impairment, or     (iii) Is regarded as having such impairment.     (C) The following are acceptable documents to establish employment  authorization only:     (1) A social security number card other than one which has printed  on its face ``not valid for employment purposes'';     (2) A Certification of Birth Abroad issued by the Department of  State, Form FS-545;     (3) A Certification of Birth Abroad issued by the Department of  State, Form DS-1350;     (4) An original or certified copy of a birth certificate issued by a  State, county, municipal authority or outlying possession of the United  States bearing an official seal;     (5) Native American tribal document;     (6) United States Citizen Identification Card, INS Form I-197;     (7) Identification card for use of resident citizen in the United  States, INS Form I-179;     (8) An unexpired employment authorization document issued by the  Immigration and Naturalization Service.     (vi) Special rules for receipts. Except as provided in paragraph  (b)(1)(iii) of this section, unless the individual indicates or the  employer or recruiter or referrer for a fee has actual or constructive  knowledge that the individual is not authorized to work, an employer or  recruiter or referrer for a fee must accept a receipt for the  application for a replacement document or a document described in  paragraphs (b)(1)(vi)(B)((1) and (b)(1)(vi)(C)((1) of this section in  lieu of the required document in order to comply with any requirement to  examine documentation imposed by this section, in the following  circumstances:     (A) Application for a replacement document. The individual:     (1) Is unable to provide the required document within the time  specified in this section because the document was lost, stolen, or  damaged;     (2) Presents a receipt for the application for the replacement  document within the time specified in this section; and     (3) Presents the replacement document within 90 days of the hire or,  in the case of reverification, the date employment authorization  expires; or     (B) Form I-94 indicating temporary evidence of permanent resident  status. The individual indicates in section 1 of the Form I-9 that he or  she is a lawful permanent resident and the individual:     (1) Presents the arrival portion of Form I-94 containing an  unexpired ``Temporary I-551'' stamp and photograph of the individual,  which is designated for purposes of this section as a receipt for Form  I-551; and  [[Page 645]]      (2) Presents the Form I-551 by the expiration date of the  ``Temporary I-551'' stamp or, if the stamp has no expiration date,  within 1 year from the issuance date of the arrival portion of Form I- 94; or     (C) Form I-94 indicating refugee status. The individual indicates in  section 1 of the Form I-9 that he or she is an alien authorized to work  and the individual:     (1) Presents the departure portion of Form I-94 containing an  unexpired refugee admission stamp, which is designated for purposes of  this section as a receipt for the Form I-766, Form I-688B, or a social  security account number card that contains no employment restrictions;  and     (2) Presents, within 90 days of the hire or, in the case of  reverification, the date employment authorization expires, either an  unexpired Form I-766 or Form I-688B, or a social security account number  card that contains no employment restrictions, and a document described  under paragraph (b)(1)(v)(B) of this section.     (vii) If an individual's employment authorization expires, the  employer, recruiter or referrer for a fee must reverify on the Form I-9  to reflect that the individual is still authorized to work in the United  States; otherwise the individual may no longer be employed, recruited,  or referred. Reverification on the Form I-9 must occur not later than  the date work authorization expires. In order to reverify on the Form I- 9, the employee or referred individual must present a document that  either shows continuing employment eligibility or is a new grant of work  authorization. The employer or the recruiter or referrer for a fee must  review this document, and if it appears to be genuine and to relate to  the individual, reverify by noting the document's identification number  and expiration date on the Form I-9.     (viii) An employer will not be deemed to have hired an individual  for employment if the individual is continuing in his or her employment  and has a reasonable expectation of employment at all times.     (A) An individual is continuing in his or her employment in one of  the following situations:     (1) An individual takes approved paid or unpaid leave on account of  study, illness or disability of a family member, illness or pregnancy,  maternity or paternity leave, vacation, union business, or other  temporary leave approved by the employer;     (2) An individual is promoted, demoted, or gets a pay raise;     (3) An individual is temporarily laid off for lack of work;     (4) An individual is on strike or in a labor dispute;     (5) An individual is reinstated after disciplinary suspension for  wrongful termination, found unjustified by any court, arbitrator, or  administrative body, or otherwise resolved through reinstatement or  settlement;     (6) An individual transfers from one distinct unit of an employer to  another distinct unit of the same employer; the employer may transfer  the individual's Form I-9 to the receiving unit;     (7) An individual continues his or her employment with a related,  successor, or reorganized employer, provided that the employer obtains  and maintains from the previous employer records and Forms I-9 where  applicable. For this purpose, a related, successor, or reorganized  employer includes:     (i) The same employer at another location;     (ii) An employer who continues to employ some or all of a previous  employer's workforce in cases involving a corporate reorganization,  merger, or sale of stock or assets;     (iii) An employer who continues to employ any employee of another  employer's workforce where both employers belong to the same multi- employer association and the employee continues to work in the same  bargaining unit under the same collective bargaining agreement. For  purposes of this subsection, any agent designated to complete and  maintain the Form I-9 must record the employee's date of hire and/or  termination each time the employee is hired and/or terminated by an  employer of the multi-employer association; or     (8) An individual is engaged in seasonal employment.     (B) The employer who is claiming that an individual is continuing in  his or her employment must also establish  [[Page 646]]  that the individual expected to resume employment at all times and that  the individual's expectation is reasonable. Whether an individual's  expectation is reasonable will be determined on a case-by-case basis  taking into consideration several factors. Factors which would indicate  that an individual has a reasonable expectation of employment include,  but are not limited to, the following:     (1) The individual in question was employed by the employer on a  regular and substantial basis. A determination of a regular and  substantial basis is established by a comparison of other workers who  are similarly employed by the employer;     (2) The individual in question complied with the employer's  established and published policy regarding his or her absence;     (3) The employer's past history of recalling absent employees for  employment indicates a likelihood that the individual in question will  resume employment with the employer within a reasonable time in the  future;     (4) The former position held by the individual in question has not  been taken permanently by another worker;     (5) The individual in question has not sought or obtained benefits  during his or her absence from employment with the employer that are  inconsistent with an expectation of resuming employment with the  employer within a reasonable time in the future. Such benefits include,  but are not limited to, severance and retirement benefits;     (6) The financial condition of the employer indicates the ability of  the employer to permit the individual in question to resume employment  within a reasonable time in the future; or     (7) The oral and/or written communication between employer, the  employer's supervisory employees and the individual in question  indicates that it is reasonably likely that the individual in question  will resume employment with the employer within a reasonable time in the  future.     (2) Retention and Inspection of Form I-9. (i) Form I-9 must be  retained by an employer or a recruiter or referrer for a fee for the  following time periods:     (A) In the case of an employer, three years after the date of the  hire or one year after the date the individual's employment is  terminated, whichever is later; or     (B) In the case of a recruiter or referrer for a fee, three years  after the date of the hire.     (ii) Any person or entity required to retain Forms I-9 in accordance  with this section shall be provided with at least three days notice  prior to an inspection of the Forms I-9 by officers of the Service, the  Special Counsel for Immigration-Related Unfair Employment Practices, or  the Departmet of Labor. At the time of inspection, Forms I-9 must be  made available in their original form or on microfilm or microfiche at  the location where the request for production was made. If Forms I-9 are  kept at another location, the person or entity must inform the officer  of the Service, the Special Counsel for Immigration-Related Unfair  Employment Practices, or the Department of Labor of the location where  the forms are kept and make arrangements for the inspection. Inspections  may be performed at an INS office. A recruiter or referrer for a fee who  has designated an employer to complete the employment verification  procedures may present a photocopy of the Form I-9 in lieu of presenting  the Form I-9 in its original form or on microfilm or microfiche, as set  forth in paragraph (b)(1)(iv) of this section. Any refusal or delay in  presentation of the Forms I-9 for inspection is a violation of the  retention requirements as set forth in section 274A(b) (3) of the Act.  No Subpoena or warrant shall be required for such inspection, but the  use of such enforcement tools is not precluded. In addition, if the  person or entity has not complied with a request to present the Forms I- 9, any Service officer listed in Sec. 287.4 of this chapter may compel  production of the Forms I-9 and any other relevant documents by issuing  a subpoena. Nothing in this section is intended to limit the Service's  subpoena power under section 235(a) of the Act.     (iii) The following standards shall apply to Forms I-9 presented on  microfilm or microfiche submitted to an officer of the Service, the  Special Counsel for Immigration-Related Unfair Employment Practices, or  the Department  [[Page 647]]  of Labor: Microfilm, when displayed on a microfilm reader (viewer) or  reproduced on paper must exhibit a high degree of legibility and  readability. For this purpose, legibility is defined as the quality of a  letter or numeral which enables the observer to positively and quickly  identify it to the exclusion of all other letters or numerals.  Readability is defined as the quality of a group of letters or numerals  being recognizable as words or whole numbers. A detailed index of all  microfilmed data shall be maintained and arranged in such a manner as to  permit the immediate location of any particular record. It is the  responsibility of the employer, recruiter or referrer for a fee:     (A) To provide for the processing, storage and maintenace of all  microfilm, and     (B) To be able to make the contents thereof available as required by  law. The person or entity presenting the microfilm will make available a  reader-printer at the examination site for the ready reading, location  and reproduction of any record or records being maintained on microfilm.  Reader-printers made available to an officer of the Service, the Special  Counsel for Immigration-Related Unfair Employment Practices, or the  Department of Labor shall provide safety features and be in clean  condition, properly maintained and in good working order. The reader- printers must have the capacity to display and print a complete page of  information. A person or entity who is determined to have failed to  comply with the criteria established by this regulation for the  presentation of microfilm or microfiche to the Service, the Special  Counsel for Immigration-Related Unfair Employment Practices, or the  Department of Labor, and at the time of the inspection does not present  a properly completed Form I-9 for the employee, is in violation of  section 274A(a)(1)(B) of the Act and Sec. 274a.2(b)(2).     (3) Copying of documentation. An employer, or a recruiter or  referrer for a fee may, but is not required to, copy a document  presented by an individual solely for the purpose of complying with the  verification requirements of this section. If such a copy is made, it  must be retained with the Form I-9. The retention requirements in  paragraph (b)(2) of this section do not apply to the photocopies. The  copying of any such document and retention of the copy does not relieve  the employer from the requirement to fully complete section 2 of the  Form I-9. An employer, recruiter or referrer for a fee should not,  however, copy the documents only of individuals of certain national  origins or citizenship statuses. To do so may violate section 274B of  the Act.     (4) Limitation on use of Form I-9. Any information contained in or  appended to the Form I-9, including copies of documents listed in  paragraph (c) of this section used to verify an individual's identity or  employment eligibility, may be used only for enforcement of the Act and  sections 1001, 1028, 1546, or 1621 of title 18, United States Code.     (c) Employment verification requirements in the case of hiring an  individual who was previously employed. (1) When an employer hires an  individual whom that person or entity has previously employed, if the  employer has previously completed the Form I-9 and complied with the  verification requirements set forth in paragraph (b) of this section  with regard to the individual, the employer may (in lieu of completing a  new Form I-9) inspect the previously completed Form I-9 and:     (i) If upon inspection of the Form I-9, the employer determines that  the Form I-9 relates to the individual and that the individual is still  eligible to work, that previously executed Form I-9 is sufficient for  purposes of section 274A(b) of the Act if the individual is hired within  three years of the date of the initial execution of the Form I-9 and the  employer updates the Form I-9 to reflect the date of rehire; or     (ii) If upon inspection of the Form I-9, the employer determines  that the individual's employment authorization has expired, the employer  must reverify on the Form I-9 in accordance with paragraph (b)(1)(vii);  otherwise the individual may no longer be employed.  [[Page 648]]      (2) For purposes of retention of the Form I-9 by an employer for a  previously employed individual hired pursuant to paragraph (c)(1) of  this section, the employer shall retain the Form I-9 for a period of  three years commencing from the date of the initial execution of the  Form I-9 or one year after the individual's employment is terminated,  whichever is later.     (d) Employment verification requirements in the case of recruiting  or referring for a fee an individual who was previously recruited or  referred. (1) When a recruiter or referrer for a fee refers an  individual for whom that recruiter or referrer for a fee has previously  completed a Form I-9 and complied with the verification requirements set  forth in paragraph (b) of this section with regard to the individual,  the recruiter or referrer may (in lieu of completing a new Form I-9)  inspect the previously completed Form I-9 and:     (i) If upon inspection of the Form I-9, the recruiter or referrer  for a fee determines that the Form I-9 relates to the individual and  that the individual is still eligible to work, that previously executed  Form I-9 is sufficient for purposes of section 274A(b) of the Act if the  individual is referred within three years of the date of the initial  execution of the Form I-9 and the recruiter or referrer for a fee  updates the Form I-9 to reflect the date of rehire; or     (ii) If upon inspection of the Form I-9, the recruiter or referrer  determines that the individual's employment authorization has expired,  the recruiter or referrer for a fee must reverify on the Form I-9 in  accordance with paragraph (b)(1)(vii) of this section; otherwise the  individual may no longer be recruited or referred.     (2) For purposes of retention of the Form I-9 by a recruiter or  referrer for a previously recruited or referred individual pursuant to  paragraph (d)(1) of this section, the recruiter or referrer shall retain  the Form I-9 for a period of three years from the date of the rehire.  [52 FR 16221, May 1, 1987, as amended at 53 FR 8612, Mar. 16, 1988; 55  FR 25932, June 25, 1990; 56 FR 41784-41786, Aug. 23, 1991; 58 FR 48780,  Sept. 20, 1993; 61 FR 46537, Sept. 4, 1996; 61 FR 52236, Oct. 7, 1996;  62 FR 51005, Sept. 30, 1997; 64 FR 6189, Feb. 9, 1999; 64 FR 11533, Mar.  9, 1999]  Sec. 274a.3  Continuing employment of unauthorized aliens.      An employer who continues the employment of an employee hired after  November 6, 1986, knowing that the employee is or has become an  unauthorized alien with respect to that employment, is in violation of  section 274A(a)(2) of the Act.  [52 FR 16221, May 1, 1987, as amended at 53 FR 8613, Mar. 16, 1988]  Sec. 274a.4  Good faith defense.      An employer or a recruiter or referrer for a fee for employment who  shows good faith compliance with the employment verification  requirements of Sec. 274a.2(b) of this part shall have established a  rebuttable affirmative defense that the person or entity has not  violated section 274A(a)(1)(A) of the Act with respect to such hiring,  recruiting, or referral.  Sec. 274a.5  Use of labor through contract.      Any person or entity who uses a contract, subcontract, or exchange  entered into, renegotiated, or extended after November 6, 1986, to  obtain the labor or services of an alien in the United States knowing  that the alien is an unauthorized alien with respect to performing such  labor or services, shall be considered to have hired the alien for  employment in the United States in violation of section 274A(a)(1)(A) of  the Act.  [55 FR 25934, June 25, 1990]  Sec. 274a.6  State employment agencies.      (a) General. Pursuant to sections 274A(a)(5) and 274A(b) of the Act,  a state employment agency as defined in Sec. 274a.1 of this part may,  but is not required to, verify identity and employment eligibility of  individuals referred for employment by the agency. However, should a  state employment agency choose to do so, it must:     (1) Complete the verification process in accordance with the  requirements of Sec. 274a.2(b) of this part provided that the  individual may not present receipts in lieu of documents in order to  complete the verification process as otherwise permitted by Sec.  274a.2(b)(1)(vi) of this part; and  [[Page 649]]      (2) Complete the verification process prior to referral for all  individuals for whom a certification is required to be issued pursuant  to paragraph (c) of this section.     (b) Compliance with the provisions of section 274A of the Act. A  state employment agency which chooses to verify employment eligibility  of individuals pursuant to Sec. 274a.2(b) of this part shall comply  with all provisions of section 274A of the Act and the regulations  issued thereunder.     (c) State employment agency certification. (1) A state employment  agency which chooses to verify employment eligibility pursuant to  paragraph (a) of this section shall issue to an employer who hires an  individual referred for employment by the agency, a certification as set  forth in paragraph (d) of this section. The certification shall be  transmitted by the state employment agency directly to the employer,  personally by an agency official, or by mail, so that it will be  received by the employer within 21 business days of the date that the  referred individual is hired. In no case shall the certification be  transmitted to the employer from the state employment agency by the  individual referred. During this period:     (i) The job order or other appropriate referral form issued by the  state employment agency to the employer, on behalf of the individual who  is referred and hired, shall serve as evidence, with respect to that  individual, of the employer's compliance with the provisions of section  274A(a)(1)(B) of the Act and the regulations issued thereunder.     (ii) In the case of a telephonically authorized job referral by the  state employment agency to the employer, an appropriate annotation by  the employer shall be made and shall serve as evidence of the job order.  The employer should retain the document containing the annotation where  the employer retains Forms I-9.     (2) Job orders or other referrals, including telephonic  authorizations, which are used as evidence of compliance pursuant to  paragraph (c)(1)(i) of this section shall contain:     (i) The name of the referred individual;     (ii) The date of the referral;     (iii) The job order number or other applicable identifying number  relating to the referral;     (iv) The name and title of the referring state employment agency  official; and     (v) The telephone number and address of the state employment agency.     (3) A state employment agency shall not be required to verify  employment eligibility or to issue a certification to an employer to  whom the agency referred an individual if the individual is hired for a  period of employment not to exceed 3 days in duration. Should a state  agency choose to verify employment eligibility and to issue a  certification to an employer relating to an individual who is hired for  a period of employment not to exceed 3 days in duration, it must verify  employment eligibility and issue certifications relating to all such  individuals. Should a state employment agency choose not to verify  employment eligibility or issue certifications to employers who hire,  for a period not to exceed 3 days in duration, agency-referred  individuals, the agency shall notify employers that, as a matter of  policy, it does not perform verifications for individuals hired for that  length of time, and that the employers must complete the identity and  employment eligibility requirements pursuant to Sec. 274a.2(b) of this  part. Such notification may be incorporated into the job order or other  referral form utilized by the state employment agency as appropriate.     (4) An employer to whom a state employment agency issues a  certification relating to an individual referred by the agency and hired  by the employer, shall be deemed to have complied with the verification  requirements of Sec. 274a.2(b) of this part provided that the employer:     (i) Reviews the identifying information contained in the  certification to ensure that it pertains to the individual hired;     (ii) Observes the signing of the certification by the individual at  the time of its receipt by the employer as provided for in paragraph  (d)(13) of this section;     (iii) Complies with the provisions of Sec. 274a.2(b)(1)(vii) of  this part by either:  [[Page 650]]      (A) Updating the state employment agency certification in lieu of  Form I-9, upon expiration of the employment authorization date, if any,  which was noted on the certification issued by the state employment  agency pursuant to paragraph (d)(11) of this section; or     (B) By no longer employing an individual upon expiration of his or  her employment authorization date noted on the certification;     (iv) Retains the certification in the same manner prescribed for  Form I-9 in Sec. 274a.2(b)(2) of this part, to wit, three years after  the date of the hire or one year after the date the individual's  employment is terminated, whichever is later; and     (v) Makes it available for inspection to officers of the Service or  the Department of Labor, pursuant to the provisions of section  274A(b)(3) of the Act, and Sec. 274a.2(b)(2) of this part.     (5) Failure by an employer to comply with the provisions of  paragraph (c)(4)(iii) of this section shall constitute a violation of  section 274A(a)(2) of the Act and shall subject the employer to the  penalties contained in section 274A(e)(4) of the Act, and Sec. 274a.10  of this part.     (d) Standards for state employment agency certifications. All  certifications issued by a state employment agency pursuant to paragraph  (c) of this section shall conform to the following standards. They must:     (1) Be issued on official agency letterhead;     (2) Be signed by an appropriately designated official of the agency;     (3) Bear a date of issuance;     (4) Contain the employer's name and address;     (5) State the name and date of birth of the individual referred;     (6) Identify the position or type of employment for which the  individual is referred;     (7) Bear a job order number relating to the position or type of  employment for which the individual is referred;     (8) Identify the document or documents presented by the individual  to the state employment agency for the purposes of identity and  employment eligibility verification;     (9) State the identifying number or numbers of the document or  documents described in paragraph (d)(8) of this section;     (10) Certify that the agency has complied with the requirements of  section 274A(b) of the Act concerning verification of the identity and  employment eligibility of the individual referred, and has determined  that, to the best of the agency's knowledge, the individual is  authorized to work in the United States;     (11) Clearly state any restrictions, conditions, expiration dates or  other limitations which relate to the individual's employment  eligibility in the United States, or contain an affirmative statement  that the employment authorization of the referred individual is not  restricted;     (12) State that the employer is not required to verify the  individual's identity or employment eligibility, but must retain the  certification in lieu of Form I-9;     (13) Contain a space or a line for the signature of the referred  individual, requiring the individual under penalty of perjury to sign  his or her name before the employer at the time of receipt of the  certification by the employer; and     (14) State that counterfeiting, falsification, unauthorized issuance  or alteration of the certification constitutes a violation of federal  law pursuant to title 18, U.S.C. 1546.     (e) Retention of Form I-9 by state employment agencies. A Form I-9  utilized by a state employment agency in verifying the identity and  employment eligibility of an individual pursuant to Sec. 274a.2(b) of  this part must be retained by a state employment agency for a period of  three years from the date that the individual was last referred by the  agency and hired by an employer. A state employment agency may retain a  Form I-9 either in its original form, or on microfilm or microfiche.     (f) Retention of state employment agency certifications. A  certification issued by a state employment agency pursuant to this  section shall be retained:     (1) By a state employment agency, for a period of three years from  the date that the individual was last referred by the agency and hired  by an employer, and in a manner to be determined by the agency which  will enable the prompt retrieval of the information  [[Page 651]]  contained on the original certification for comparison with the relating  Form I-9;     (2) By the employer, in the original form, and in the same manner  and location as the employer has designated for retention of Forms I-9,  and for the period of time provided in paragraph (c)(4)(iv) of this  section.     (g) State employment agency verification requirements in the case of  an individual who was previously referred and certified. When a state  employment agency refers an individual for whom the verification  requirements have been previously complied with and a Form I-9  completed, the agency shall inspect the previously completed Form I-9:     (1) If, upon inspection of the Form, the agency determines that the  Form I-9 pertains to the individual and that the individual remains  authorized to be employed in the United States, no additional  verification need be conducted and no new Form I-9 need be completed  prior to issuance of a new certification provided that the individual is  referred by the agency within 3 years of the execution of the initial  Form I-9.     (2) If, upon inspection of the Form, the agency determines that the  Form I-9 pertains to the individual but that the individual does not  appear to be authorized to be employed in the United States based on  restrictions, expiration dates or other conditions annotated on the Form  I-9, the agency shall not issue a certification unless the agency  follows the updating procedures pursuant to Sec. 274a.2(b)(1)(vii) of  this part; otherwise the individual may no longer be referred for  employment by the state employment agency.     (3) For the purposes of retention of the Form I-9 by a state  employment agency pursuant to paragraph (e) of this section, for an  individual previously referred and certified, the state employment  agency shall retain the Form for a period of 3 years from the date that  the individual is last referred and hired.     (h) Employer verification requirements in the case of an individual  who was previously referred and certified. When an employer rehires an  individual for whom the verification and certification requirements have  been previously complied with by a state employment agency, the employer  shall inspect the previously issued certification.     (1) If, upon inspection of the certification, the employer  determines that the certification pertains to the individual and that  the individual remains authorized to be employed in the United States,  no additional verification need be conducted and no new Form I-9 or  certification need be completed provided that the individual is rehired  by the employer within 3 years of the issuance of the initial  certification, and that the employer follows the same procedures for the  certification which pertain to Form I-9, as specified in Sec.  274a.2(c)(1)(i) of this part.     (2) If, upon inspection of the certification, the employer  determines that the certification pertains to the individual but that  the certification reflects restrictions, expiration dates or other  conditions which indicate that the individual no longer appears  authorized to be employed in the United States, the employer shall  verify that the individual remains authorized to be employed and shall  follow the updating procedures for the certification which pertain to  Form I-9, as specified in Sec. 274a.2(c)(1)(ii) of this part; otherwise  the individual may no longer be employed.     (3) For the purposes of retention of the certification by an  employer pursuant to this paragraph for an individual previously  referred and certified by a state employment agency and rehired by the  employer, the employer shall retain the certification for a period of 3  years after the date that the individual is last hired, or one year  after the date the individual's employment is terminated, whichever is  later.  [52 FR 43053, Nov. 9, 1987]  Sec. 274a.7  Pre-enactment provisions for employees hired prior to            November 7, 1986.      (a) The penalty provisions set forth in section 274A (e) and (f) of  the Act for violations of sections 274A(a)(1)(B) and 274A(a)(2) of the  Act shall not apply to employees who were hired prior to November 7,  1986, and who are continuing in their employment and have a reasonable  expectation of employment at all times (as set forth in  [[Page 652]]  Sec. 274a.2(b)(1)(viii)), except those individuals described in section  274a.2 (b)(1)(viii)(A)(7)(iii) and (b)(1)(viii)(A)(8).     (b) For purposes of this section, an employee who was hired prior to  November 7, 1986 shall lose his or her pre-enactment status if the  employee:     (1) Quits; or     (2) Is terminated by the employer; the term termination shall  include, but is not limited to, situations in which an employee is  subject to seasonal employment; or     (3) Is excluded or deported from the United States or departs the  United States under a grant of voluntary departure; or     (4) Is no longer continuing his or her employment (or does not have  a reasonable expectation of employment at all times) as set forth in  Sec. 274a.2(b)(1)(viii).  [52 FR 16221, May 1, 1987, as amended at 53 FR 8613, Mar. 16, 1988; 55  FR 25935, June 25, 1990; 56 FR 41786, Aug. 23, 1991]  Sec. 274a.8  Prohibition of indemnity bonds.      (a) General. It is unlawful for a person or other entity, in hiring  or recruiting or referring for a fee for employment of an individual, to  require the individual to post a bond or security, to pay or agree to  pay an amount, or otherwise to provide a financial guarantee or  indemnity, against any potential liability arising under this part  relating to such hiring, recruiting, or referring of the individual.  However, this prohibition does not apply to performance clauses which  are stipulated by agreement between contracting parties.     (b) Penalty. Any person or other entity who requires any individual  to post a bond or security as stated in this section shall, after notice  and opportunity for an administrative hearing in accordance with section  274A(e)(3)(B) of the Act, be subject to a civil monetary penalty of  $1,000 for each violation before September 29, 1999, and $1,100 for each  violation occurring on or after September 29, 1999, and to an  administrative order requiring the return to the individual of any  amounts received in violation of this section or, if the individual  cannot be located, to the general fund of the Treasury.  [52 FR 16221, May 1, 1987, as amended at 64 FR 47101, Aug. 30, 1999]  Sec. 274a.9  Enforcement procedures.      (a) Procedures for the filing of complaints. Any person or entity  having knowledge of a violation or potential violation of section 274A  of the Act may submit a signed, written complaint in person or by mail  to the Service office having jurisdiction over the business or residence  of the potential violator. The signed, written complaint must contain  sufficient information to identify both the complainant and the  potential violator, including their names and addresses. The complaint  should also contain detailed factual allegations relating to the  potential violation including the date, time and place of the alleged  violation and the specific act or conduct alleged to constitute a  violation of the Act. Written complaints may be delivered either by mail  to the appropriate Service office or by personally appearing before any  immigration officer at a Service office.     (b) Investigation. The Service may conduct investigations for  violations on its own initiative and without having received a written  complaint. When the Service receives a complaint from a third party, it  shall investigate only those complaints that have a reasonable  probability of validity. If it is determined after investigation that  the person or entity has violated section 274A of the Act, the Service  may issue and serve a Notice of Intent to Fine or a Warning Notice upon  the alleged violator. Service officers shall have reasonable access to  examine any relevant evidence of any person or entity being  investigated.     (c) Warning notice. The Service and/or the Department of Labor may  in their discretion issue a Warning Notice to a person or entity alleged  to have violated section 274A of the Act. This Warning Notice will  contain a statement of the basis for the violations and the statutory  provisions alleged to have been violated.     (d) Notice of Intent to Fine. The proceeding to assess  administrative penalties under section 274A of the Act is commenced when  the Service issues a  [[Page 653]]  Notice of Intent to Fine on Form I-763. Service of this Notice shall be  accomplished pursuant to part 103 of this chapter. The person or entity  identified in the Notice of Intent to Fine shall be known as the  respondent. The Notice of Intent to Fine may be issued by an officer  defined in Sec. 242.1 of this chapter with concurrence of a Service  attorney.     (1) Contents of the Notice of Intent to Fine. (i) The Notice of  Intent to Fine will contain the basis for the charge(s) against the  respondent, the statutory provisions alleged to have been violated, and  the penalty that will be imposed.     (ii) The Notice of Intent to Fine will provide the following  advisals to the respondent:     (A) That the person or entity has the right to representation by  counsel of his or her own choice at no expense to the government;     (B) That any statement given may be used against the person or  entity;     (C) That the person or entity has the right to request a hearing  before an Administrative Law Judge pursuant to 5 U.S.C. 554-557, and  that such request must be made within 30 days from the service of the  Notice of Intent to Fine;     (D) That the Service will issue a final order in 45 days if a  written request for a hearing is not timely received and that there will  be no appeal of the final order.     (2) [Reserved]     (e) Request for Hearing Before an Administrative Law Judge. If a  respondent contests the issuance of a Notice of Intent to Fine, the  respondent must file with the INS, within thirty days of the service of  the Notice of Intent to Fine, a written request for a hearing before an  Administrative Law Judge. Any written request for a hearing submitted in  a foreign language must be accompanied by an English language  translation. A request for a hearing is not deemed to be filed until  received by the Service office designated in the Notice of Intent to  Fine. In computing the thirty day period prescribed by this section, the  day of service of the Notice of Intent to Fine shall not be included. If  the Notice of Intent to Fine was served by ordinary mail, five days  shall be added to the prescribed thirty day period. In the request for a  hearing, the respondent may, but is not required to, respond to each  allegation listed in the Notice of Intent to Fine.     (f) Failure to file a request for hearing. If the respondent does  not file a request for a hearing in writing within thirty days of the  day of service of the Notice of Intent to Fine (thirty-five days if  served by ordinary mail), the INS shall issue a final order from which  there is no appeal.  [52 FR 16221, May 1, 1987, as amended at 53 FR 8613, Mar. 16, 1988; 55  FR 25935, June 25, 1990; 56 FR 41786, Aug. 23, 1991; 61 FR 52236, Oct.  7, 1996]  Sec. 274a.10  Penalties.      (a) Criminal penalties. Any person or entity which engages in a  pattern or practice of violations of subsection (a)(1)(A) or (a)(2) of  the Act shall be fined not more than $3,000 for each unauthorized alien,  imprisoned for not more than six months for the entire pattern or  practice, or both, notwithstanding the provisions of any other Federal  law relating to fine levels.     (b) Civil penalties. A person or entity may face civil penalties for  a violation of section 274A of the Act. Civil penalties may be imposed  by the Service or an administrative law judge for violations under  section 274A of the Act. In determining the level of the penalties that  will be imposed, a finding of more than one violation in the course of a  single proceeding or determination will be counted as a single offense.  However, a single offense will include penalties for each unauthorized  alien who is determined to have been knowingly hired or recruited or  referred for a fee.     (1) A respondent found by the Service or an administrative law judge  to have knowingly hired, or to have knowingly recruited or referred for  a fee, an unauthorized alien for employment in the United States or to  have knowingly continued to employ an unauthorized alien in the United  States, shall be subject to the following order:     (i) To cease and desist from such behavior;     (ii) To pay a civil fine according to the following schedule:     (A) First offense--not less than $250 and not more than $2,000 for  each unauthorized alien with respect to whom  [[Page 654]]  the offense occurred before September 29, 1999, and not less than $275  and not exceeding $2,200, for each unauthorized alien with respect to  whom the offense occurred occurring on or after September 29, 1999.     (B) Second offense--not less than $2,000 and not more than $5,000  for each unauthorized alien with respect to whom the second offense  occurred before September 29, 1999, and not less than $2,200 and not  exceeding $5,500, for each unauthorized alien with respect to whom the  second offense occurred on or after September 29, 1999; or     (C) More than two offenses--not less than $3,000 and not more than  $10,000 for each unauthorized alien with respect to whom the third or  subsequent offense occurred before September 29, 1999, and not less than  $3,300 and not exceeding $11,000, for each unauthorized alien with  respect to whom the third or subsequent offense occurred on or after  September 29, 1999; and     (iii) To comply with the requirements of section 274a.2(b) of this  part, and to take such other remedial action as is appropriate.     (2) A respondent determined by the Service (if a respondent fails to  request a hearing) or by an administrative law judge, to have failed to  comply with the employment verification requirements as set forth in  Sec. 274a.2(b), shall be subject to a civil penalty in an amount of not  less than $100 and not more than $1,000 for each individual with respect  to whom such violation occurred before September 29, 1999, and not less  than $110 and not more than $1,100 for each individual with respect to  whom such violation occurred on or after September 29, 1999. In  determining the amount of the penalty, consideration shall be given to:     (i) The size of the business of the employer being charged;     (ii) The good faith of the employer;     (iii) The seriousness of the violation;     (iv) Whether or not the individual was an unauthorized alien; and     (v) The history of previous violations of the employer.     (3) Where an order is issued with respect to a respondent composed  of distinct, physically separate subdivisions which do their own hiring,  or their own recruiting or referring for a fee for employment (without  reference to the practices of, and under the control of, or common  control with another subdivision) the subdivision shall be considered a  separate person or entity.     (c) Enjoining pattern or practice violations. If the Attorney  General has reasonable cause to believe that a person or entity is  engaged in a pattern or practice of employment, recruitment or referral  in violation of section 274A(a)(1)(A) or (2) of the Act, the Attorney  General may bring civil action in the appropriate United States District  Court requesting relief, including a permanent or temporary injunction,  restraining order, or other order against the person or entity, as the  Attorney General deems necessary.  [52 FR 16221, May 1, 1987, as amended at 55 FR 25935, June 25, 1990; 56  FR 41786, Aug. 23, 1991; 64 FR 47101, Aug. 30, 1999]  Sec. 274a.11  [Reserved]    
Updated August 6, 2015

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