The Immigration and Naturalization Service has issued an interim rule amending its regulations regarding receipts that employers may accept from workers completing I-9 employment eligibility verification forms.  Parties who want to comment on the interim rule have until Apr. 12, 1999, to submit written comments to the INS.

Under the Immigration and Nationality Act’s "employer sanctions" provision, employers must complete an I-9 form for each employee hired after Nov. 6, 1986, to verify the employee’s identity and eligibility to be employed in the U.S.  The reverse side of the I-9 form lists documents that an employee can provide to establish his or her identity and employment eligibility.  A "receipt" is a document that an employee may present to his or her employer in lieu of a document listed on the I-9 form.

The regulations currently provide that employers may accept three types of receipts:  (1) a receipt showing that the employee has applied for a "replacement document" (i.e., a document to replace one that has been lost, stolen, or damaged); (2) the arrival portion of an Arrival-Departure Record (Form I-94) if it is marked with a temporary I-551 (resident visa) stamp and has the individual’s picture attached, which serves as temporary evidence that the bearer is a lawful permanent resident of the U.S.; and (3) the departure portion of an Arrival-Departure Record (Form I-94) that contains a refugee admission stamp, which serves as temporary evidence that the bearer has been admitted to the U.S. as a refugee.  Presentation of one of these types of receipts satisfies the I-9 documentation requirement, but only temporarily.  Ultimately, the employee must present the document listed on the I-9 form that corresponds to the receipt—i.e., the actual replacement document, the actual Permanent Resident Card (Form I-551), an Employment Authorization Document, or a combination of acceptable documents that evidences the bearer’s identity and employment eligibility.

The interim rule revises the provisions governing receipts in two ways.  First, the rule revises the validity period of the second type of receipt, the I-94 marked with a temporary I-551 stamp and affixed with the bearer’s photograph ("type 2" receipt).  Second, the rule adds the Employment Authorization Card, Form I-688B, to the list of documents that an individual can present before the receipt validity period expires for the third type of receipt, the Form I-94 marked with a refugee admission stamp ("type 3" receipt).

Forms I-94 Marked with a Temporary I-551 Stamp

Current regulations at 8 C.F.R. section 274a.2(b)(1)(vi)(B) provide that employees who present the type 2 receipt in lieu of a Permanent Resident Card must present the actual I-551 card within 180 days from the date of hire or, in the case of an employee whose employment eligibility is being reverified, from the date the employee’s work authorization expires—even if the temporary I-551 stamp on the I-94 form contains a later expiration date.

The INS is amending the regulations to deal with two problems.  First, in some cases it may take longer than 180 days for the employee to obtain the actual Permanent Resident Card.  Second, some employers might be confused when the expiration date written on the I-94 form itself is not the same as the date on which the validity period of the receipt expires.  Under the interim rule, the alien who presents a type 2 receipt will have until the expiration date of the temporary I-551 written on the I-94 to present the actual Permanent Resident Card to the employer.  According to the INS, most of the I-94 forms with temporary I-551 stamps it issues have a one-year validity period.  However, some type 2 receipts have no expiration dates written on them.  Under the interim rule, persons whose type 2 receipts bear no written expiration date will have one year from the issuance date of the I-94 to present the employer with the actual Permanent Resident Card.

Forms I-94 Marked with a Refugee Admission Stamp

Current regulations at 8 C.F.R. section 274a.2(b)(1)(vi)(C) provide that an employee who presents a type 3 receipt when completing the I-9 process must present either an Employment Authorization Document (EAD, Form I-766) or both an unrestricted Social Security number card and an acceptable identity-establishing document (from List B on the reverse side of the I-9 form) within 90 days of the date of hire or, if his or her employment eligibility is being reverified, from the date his or her employment authorization expires.  The I-766 card was introduced as a new employment authorization document in a final rule published in the Federal Register on Sept. 4, 1996, and eventually will replace other cards that establish their bearers’ employment authorization—the I-688, I-688A, and I-688B, which are being phased out.  However, the INS still issues I-688B cards.  Since some refugees will have an I-688B rather than an I-766 card, the interim rule amends the current regulations to add the I-688B to the list of documents that an employer may accept when the 90-day period during which a type 3 receipt is valid ends.

Temporary Moratorium on Enforcement of Civil Money Penalities

In its notice, the INS announced that for the time being it will not impose civil money penalties for violations associated with the changes made by the interim rule.  The INS currently is reviewing comments received regarding its Feb. 2, 1998, proposed rule that would make comprehensive changes to the employment eligibility verification process, which is to include a reduction in the I-9 form’s list of acceptable documents, and will issue a final rule with a revised I-9 once the review is completed.  The INS’s temporary moratorium on enforcing civil money penalties for violations associated with the changes made by the interim rule will apply to violations committed before the effective date of a final rule containing the revised I-9 form.