citizenship and immigration status verification backgrounder 05 28-2011

Citizenship and Immigration Status Verification Backgrounder

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 sector

entities and individuals to ascertain the citizenship or immigration status of certain individuals it

or they may encounter for a variety of purposes. Eligibility is restricted to citizens and aliens

lawfully present in the United States in regard to a variety of issues. In order to lawfully be

employed within the U.S., an individual must not be an unauthorized alien and meet universally

applicable requirements. Issuance of certain documents, entrance into or attendance at certain

institutions, the licensure and/or other forms of permission, entrance into and/or practice of

certain occupations, or receipt of various benefits requires one to be lawfully in the United States

either as a U.S. Citizen, non-citizen national, or eligible alien.

The Department of Homeland Security (DHS) through U.S. Citizenship and Immigration

Services (USCIS) and its SAVE Program and E-Verify provide agencies and organizations as

well as employers with mechanisms to determine legal status and associated eligibility.

The USCIS SAVE and E-Verify Programs use basic Memorandums of Agreements (MOAs) and

Understanding (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.pdf

http://www.uscis.gov/files/nativedocuments/save-state-local.pdf

http://www.uscis.gov/files/nativedocuments/save-federal.pdf

Here is one State example:

Below is a list of public benefits commonly provided by county governments in Georgia that

appear to be subject to Systematic Alien Verification for Entitlements (SAVE) verification under

Georgia law. If your county provides any of these benefits, please check the appropriate box and

provide this application to the SAVE program. If these are the only ―public benefits‖ that your

county provides, then you do not need to provide any additional documentation of the legal

authority. If you intend to use SAVE for verification of other benefits not on this list, you must

provide the relevant legal authority (i.e., constitutional provision or statute), as explained in the

SAVE Program Registration Checklist.

EMPLOYEE BENEFITS:

□ Retirement: State law makes this permissive and contingent on the governing body adopting

an 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.

http://www.uscis.gov/USCIS/E-Verify/Customer%20Support/Employer%20MOU%20%28September%202009%29.pdf

http://www.uscis.gov/USCIS/E-Verify/Customer%20Support/Employer%20MOU%20%28September%202009%29.pdf

http://www.uscis.gov/files/nativedocuments/save-state-local.pdf

http://www.uscis.gov/files/nativedocuments/save-federal.pdf


□ Health Benefits: State law makes this permissive and contingent on the governing body

adopting 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 body

adopting 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’s

enabling legislation.

□ Place a check here if you enter into contracts.

COMMERCIAL LICENSES/OCCUPATIONAL TAXES:

□ Alcoholic Beverage Licenses: The manufacture, distribution, selling, handling, or otherwise

dealing in alcoholic beverages is contingent on obtaining a license or permit from the governing

body 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 enact

ordinances that impose an occupation tax on practitioners of certain professions and businesses

within the unincorporated area respectively. These ordinances generally require posting of the

―occupation tax‖ certificate and may provide for ―punishments‖ for noncompliance

or 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 vehicles

for hire to obtain certificates of public necessity and convenience or medallion within the

unincorporated 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.pdf

http://www.accg.org/library/SAVE_Checklist.pdf


II. Shifting Roles:

Abolition Of Immigration And Naturalization Service (INS) And Primary And Majority

Transfer Of Functions To The Department Of Homeland Security (DHS):

For specifics about the abolition of Immigration and Naturalization Service, transfer of

functions, 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), it

focused on employment eligibility verification. The concept has grown and expanded and

technological advancements have been exceedingly influential in that development. The initial

responsibility for the new I-9 Employment Eligibility Verification form fell on the shoulders of

the former Immigration and Nationalization Service (INS). Violations either by employers or

unauthorized employees were detected by INS for the most part. If charges were warranted or

fines were levied, INS instigated the process through audits and other enforcement actions. The

DOJ Office of Special Counsel (OSC) was contacted for certain unfair immigration related

employment practices. INS could file charges against an employer with OSC who could (and

still can) institute a proceeding with the EOIR’s Office of the Chief Administrative Hearing

Officer (OCAHO). In the alternative, INS (now ICE) could issue a Notice of Fine (NOF) which

could be appealed to the OCAHO. Of course, INS no longer exists and the various duties have

shifted. OSC still has the same basic role but the INS role has split to a point within DHS. ICE

initially was seen as the primary successor to INS but USCIS through E-Verify and SAVE

within 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 of

Homeland Security (DHS), effective March 1, 2003) to establish a system for verifying the

immigration status of non-citizen applicants for, and recipients of, certain types of federally

funded benefits, and to make the system available to federal, state and local benefit-issuing

agencies and institutions that administer such benefits. USCIS is the DHS agency responsible

for 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 an

applicant’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.pdf

http://www.uscis.gov/USCIS/Native%20Docs/USCIS_DOJ%20MOA_%28signed%29_17Mar10.pdf

http://www.uscis.gov/USCIS/Verification/E-Verify/E-Verify/USCIS-ICE-E-Verify-MOA.pdf

http://www.uscis.gov/USCIS/Native%20Docs/USCIS_DOJ%20MOA_%28signed%29_17Mar10.pdf


B. Personal Responsibility and Work Opportunity Reconciliation Act of 1996

(PRWORA):

PRWORA, Public Law 104-193, restructured the welfare system in the United States and

restricted immigrant eligibility for public benefits, thus expanding the need to verify immigration

status 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 required

the Attorney General to establish regulations and interim guidance for the verification of

immigration status of persons applying for ―federal public benefits.‖ The Department of Justice

issued interim guidance in 1997. See ―Interim Guidance on Verification of Citizenship,

Qualified Alien Status and Eligibility Under Title IV of [PRWORA],‖ 62 Federal Register

61,344-416 (Nov. 17, 1997). This guidance is for any entity administering a non-exempt federal

public benefit, other than non-profit charitable organizations, and is not limited to the agencies

and 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 Immigrant

Responsibility 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 and

Naturalization Service [Now USCIS]

(a) In general

Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local

government entity or official may not prohibit, or in any way restrict, any government entity or

official from sending to, or receiving from, the Immigration and Naturalization Service

information regarding the citizenship or immigration status, lawful or unlawful, of any

individual.

(b) Additional authority of government entities

Notwithstanding any other provision of Federal, State, or local law, no person or agency may

prohibit, or in any way restrict, a Federal, State, or local government entity from doing any of the

following with respect to information regarding the immigration status, lawful or unlawful, of

any 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.


(c) Obligation to respond to inquiries

The Immigration and Naturalization Service shall respond to an inquiry by a Federal, State, or

local government agency, seeking to verify or ascertain the citizenship or immigration status of

any individual within the jurisdiction of the agency for any purpose authorized by law, by

providing 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-USCIS

respond to inquiries from federal, state, and local agencies seeking to verify or determine the

citizenship or immigration status of any individual within the jurisdiction of the agency for any

purposes authorized by law. Under this authority, agencies can use the SAVE Program for

lawful purposes.

E. Real ID Act of 2005:

The Real ID Act, Public Law No.109-13, passed by Congress in 2005, established certain

minimum standards for state-issued drivers' licenses and state-issued identification cards in order

for those documents to be acceptable for official federal purposes as specified by the Act. DHS

issued the Real ID Rule, ―Minimum Standards for Driver’s Licenses and Identification Cards

Acceptable by Federal Agencies for Official Purposes,‖ Final Rule, 6 C.F.R. Part 37, to

implement the requirements of the Real ID Act. To meet these requirements, states must use the

SAVE Program to verify the immigration status of applicants for driver’s licenses and

identification 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 the

employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for

permanent residence, or (B) authorized to be so employed by this Act or by the Attorney General.


(A) because of such individual's national origin, or

(B) in the case of a protected individual (as defined in paragraph (3)), because of

such individual's citizenship status.

(2) Exceptions

Paragraph (1) shall not apply to--

(A) a person or other entity that employs three or fewer employees,

(B) a person's or entity's discrimination because of an individual's 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

Service's 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.pdf 5 Id.

http://www.justice.gov/eoir/OcahoMain/publisheddecisions/Hardbound/Volume2/400.pdf


(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 person's or other entity's 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 the

6 INA § 274A [8 USC § 1324a] - Unlawful Employment Of Aliens


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 Service's [USCIS’] processing of the application

shall not be counted toward the two-year period.

B. 6 CFR Domestic Security: PART 37—REAL ID DRIVER'S 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 one

driver's license or identification card already issued by that State under a different identity. In

States where an individual is permitted to hold both a driver's license and identification card, the

State shall ensure that the individual has not been issued identification documents in multiple or

different names. States shall also comply with the provisions of §37.29 before issuing a driver's

license or identification card.

(b) States must verify the documents and information required under §37.11 with the issuer of

the document. States shall use systems for electronic validation of document and identity data as

they 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

driver's 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 driver's license or identification card to an applicant until the

information verifies with SSA.


(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 driver's 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 driver's 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 title

XVI (AABD-disabled) of the Social Security Act shall provide that an otherwise eligible

individual, dependent child, or a caretaker relative or any other person whose needs are

considered 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 the

United States under color of law, including certain aliens lawfully present in the United States as

a 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,

or


(c) An alien granted lawful temporary resident status pursuant to section 201, 302, or 303 of the

Immigration 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 years

from the date lawful temporary resident status is granted. [47 FR 5680, Feb. 5, 1982; 47 FR

43383, 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 the

child of the sponsor or the sponsor's spouse) as a condition of the alien's entry into the United

States. Paragraphs (a) through (d) of this section apply only to aliens who are sponsored by

individuals 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 respect

to 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, a

sponsored alien who is not exempt under paragraph (g) of this section, shall provide the State

agency with any information and documentation necessary to determine the income and

resources of the sponsor and the sponsor's spouse (if applicable and if living with the sponsor)

that can be deemed available to the alien, and obtain any cooperation necessary from the

sponsor.

(b) The income and resources of a sponsor and the sponsor's spouse shall be deemed to be the

unearned income and resources of an alien for three years following the alien's entry into the

United States:

(1) Monthly income deemed available to the alien from the sponsor and the sponsor's

spouse not receiving AFDC or SSI shall be:

(i) The total monthly unearned and earned income of the sponsor and sponsor's

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.


(ii) The amount described in paragraph (b)(1)(i) of this section reduced by:

(A) The cash needs standard under the plan in the alien's 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 sponsor's 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 sponsor's

spouse shall be the total amount of their resources determined as if they were applying

for AFDC in the alien's State of residence, less $1500.

(c) In any case where a person is the sponsor of two or more aliens, the income and resources of

the sponsor and sponsor's spouse, to the extent they would be deemed the income and resources

of any one of the aliens under the provisions of this section, shall be divided equally among the

sponsored aliens.

(d) Income and resources which are deemed to a sponsored alien shall not be considered in

determining the need of other unsponsored members of the alien's family except to the extent the

income 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 a

public or private agency or organization, shall be ineligible for assistance unless the State agency

determines (in accordance with paragraph (f)) that the sponsor no longer exists or has become

unable to meet the alien's needs.

(f) The State plan shall set forth the criteria the State agency will use in determining whether an

agency or organization no longer exists or is unable to meet the alien's needs and the

documentation the agency will require of the alien in making such determination. The sponsored

alien shall provide the State agency with any information and documentation necessary for such

determination and obtain any cooperation necessary from the sponsor.


(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 sponsor's spouse.

(h) The Secretary shall make information necessary to make a determination under this section

and supplied under agreement with the Secretary of State and the Attorney General, available

upon 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 any

overpayment of aid under the State plan made to the alien during the three years after the alien's

entry into the United States due to the sponsor's failure to provide correct information under the

provisions 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 State

plan) for not providing information to the agency, the sponsor will not be held liable for the

overpayment 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 in

paragraphs (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 to

reimburse the agency for the overpayment shall be withheld from future payments to which the

alien or the alien and the individual sponsor are entitled under:


(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 the

determination of disability (see §416.935), and you have not previously received a total of 36

months of Social Security benefit payments when appropriate treatment was available or 36

months of SSI benefits on the basis of disability where drug addiction or alcoholism was a

contributing 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);


(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, as

amended 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 sponsor's income to you if you are an alien, we determine how much

earned and unearned income your sponsor has under §416.1161(b). We then deduct allocations

for the sponsor and the sponsor's dependents. This is an amount equal to the Federal benefit rate

for an individual for the sponsor (or for each sponsor even if two sponsors are married to each

other and living together) plus an amount equal to one-half the Federal benefit rate for an eligible

individual for each dependent of the sponsor. An ineligible dependent's income is not subtracted

from the sponsor's dependent's allocation. We deem the balance of the income to be your

unearned income.

(a) If you are the only alien applying for or already eligible for SSI benefits who has income

deemed to you from your sponsor. If you are the only alien who is applying for or already

eligible for SSI benefits and who is sponsored by your sponsor, all the deemed income is your

unearned income.

(b) If you are not the only alien who is applying for or already eligible for SSI benefits and who

has income deemed from your sponsor. If you and other aliens applying for or already eligible

for SSI benefits are sponsored by the same sponsor, we deem the income to each of you as

though you were the only alien sponsored by that person. The income deemed to you becomes

your unearned income.

(c) When you are an alien and income is no longer deemed from your sponsor. If you are an

alien and have had your sponsor's income deemed to you, we stop deeming the income with the

month 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, we

do 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);


(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 sponsor's

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 sponsor's income to an eligible individual

who is an alien when none of the exceptions in §416.1160(b)(2) applies. The income, income

exclusions, and the benefit rates are in monthly amounts. The Federal benefit rates are those

effective January 1, 1986.

Example 1. Mr. John, an alien who has no income, has been sponsored by Mr. Herbert who has

monthly earned income of $1,300 and unearned income of $70. Mr. Herbert's wife and three

children have no income. We add Mr. Herbert's earned and unearned income for a total of $1,370

and apply the allocations for the sponsor and his dependents. Allocations total $1,008. These are

made 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. Herbert's wife and

three children. The $1,008 is subtracted from Mr. Herbert's total income of $1,370 which leaves

$362 to be deemed to Mr. John as his unearned income. Mr. John's only exclusion is the $20

general 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 been

sponsored by Mr. Hart. Mr. Hart has earned income of $1,350 and his wife, Mrs. Hart, who lives

with him, has earned income of $150. Their two children have no income. We combine Mr. and

Mrs. Hart's income ($1,350+$150=$1,500). We deduct the allocations of $336 for Mr. Hart (the

Federal 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 be

deemed independently to Mr. and Mrs. Smith. Mr. and Mrs. Smith would qualify for SSI benefits

as a couple in the amount of $504 if no income had been deemed to them. The $1,320 ($660

each to Mr. and Mrs. Smith) deemed income is unearned income to Mr. and Mrs. Smith and is

subject to the $20 general income exclusion, leaving $1,300. This exceeds the couple's 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 has

earned 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. Jean's income because it is the

children's 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), a

total of $672. We subtract the $672 from Mrs. Jean's income of $800, which leaves $128 to be

deemed to Mr. Bert and Mr. Davis. Each of the brothers is liable for rent in the boarding house (a


commercial establishment) where they live. Each lives in his own household, receives no in-kind

support and maintenance, and is eligible for the Federal benefit rate of $336. The $128 deemed

income 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 benefit

rate for an individual, so that both are eligible for SSI. We use their income in a prior month to

determine their benefit payments.

Example 4. The same situation applies as in example 3 except that one of Mrs. Jean's children is

disabled and eligible for SSI benefits. The eligibility of the disabled child does not affect the

amount of income deemed to Mr. Bert and Mr. Davis since the sponsor-to-alien and parent-to-

child rules are applied independently. The child's countable income is computed under the rules

in §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, HEA

program 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 that

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assertion under a data match with the Social Security Administration. If the Social

Security Administration confirms the student's citizenship, the Secretary reports that

confirmation to the institution and the student.

(2) If the Social Security Administration does not confirm the student's 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 institutions

and students in determining the eligibility of those noncitizen applicants for title IV, HEA

assistance who must, under §668.33(a)(2), produce evidence from the United States Immigration

and Naturalization Service (INS) that they are permanent residents of the United States or in the

United States for other than a temporary purpose with the intention of becoming citizens or

permanent residents.

(b) Student responsibility. At the request of the Secretary or the institution at which an applicant

for title IV, HEA financial assistance is enrolled or accepted for enrollment, an applicant who

asserts eligibility under §668.33(a)(2) shall provide documentation from the INS of immigration

status. (Authority: 20 U.S.C. 1091, 1094) [58 FR 3184, Jan. 7, 1993, as amended at 63 FR

40626, 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 requirements

of §668.33(a)(2).

Immigration status: The status conferred on a noncitizen under the Immigration and Nationality

Act of 1952, as amended, 8 U.S.C. 1182.

Primary confirmation: A process by which the Secretary, by means of a matching program

conducted with the INS, compares the information contained in an Application for Federal

Student Aid or a multiple data entry application regarding the immigration status of a noncitizen

applicant for title IV, HEA assistance with records of that status maintained by the INS in its



Alien Status Verification Index (ASVI) system for the purpose of determining whether a

student's immigration status meets the requirements of §668.33(a)(2) and reports the results of

this comparison on an output document.

Secondary confirmation: A process by which the INS, in response to the submission of INS

Document Verification Form G–845 by an institution, searches pertinent paper and automated

INS files, other than the ASVI database, for the purpose of determining a student's immigration

status and the validity of the submitted INS documents, and reports the results of this search to

the institution. (Authority: 20 U.S.C. 1091) [58 FR 3184, Jan. 7, 1993, as amended at 59 FR

12521, 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 an

eligible noncitizen if the institution receives an output document for that student establishing

that—

(1) The INS has confirmed the student's immigration status; and

(2) The student's 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 with

paragraph (a) of this section, the institution may not require the student to produce the

documentation 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 shall

require the student to produce the documentation required under §668.33(a)(2) and request the

INS to perform secondary confirmation for a student claiming eligibility under §668.33(a)(2), in

accordance 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 student's 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—


(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 student's 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 student's 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 and

securing confirmation of the immigration status of applicants for title IV, HEA student financial

assistance who claim to meet the eligibility requirements of §668.33(a)(2). These policies and

procedures 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; and


(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 student's claim of eligibility under §668.33(a)(2).

(b) An institution shall furnish, in writing, to each student required to undergo secondary

confirmation—

(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 student's responsibilities with respect to the student's

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 immigration

status 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 and

attach copies to the Form G–845; and

(c) Submit Form G–845 and attachments to the INS District Office. (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]

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 requested

secondary confirmation under §668.133(a) shall make its determination concerning a student's

eligibility 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 student's eligibility under

§668.33(a)(2) pending the institution's receipt of an INS response to the institution's Form G–845

request concerning that student, if—

(1) The institution has given the student an opportunity to submit documents to the

institution to support the student's claim to be an eligible noncitizen;


(2) The institution possesses sufficient documentation concerning a student's 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 institution

has disbursed or released title IV, HEA funds to the student in the award year or employed the

student under the Federal Work-Study Program, and the institution determines, in reliance on the

INS response to the institution's request for secondary confirmation regarding that student, that

the student was in fact not an eligible noncitizen during that award year, the institution provides

the student with notice of the institution's determination, an opportunity to contest the

institution's determination, and notice of the institution's final determination. (Authority: 20

U.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 the

student 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 date

the institution receives the student's output document.

(b) If a student fails to submit the documentation by the deadline established in accordance with

paragraph (a) of this section, the institution may not disburse to the student, or certify the student

as 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 Federal

PLUS loan application, or originate a Direct Loan Program loan application for the student for

that period of enrollment. (Authority: 20 U.S.C. 1091, 1094) [58 FR 3184, Jan. 7, 1993, as

amended 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 Unsubsidized

or Federal Perkins loan made to him or her if the student was ineligible for the Title IV, HEA

assistance.

(b) A Federal PLUS or Direct PLUS Loan borrower is liable for any Federal PLUS or Direct

PLUS Loan made to him or her on behalf of an ineligible student.


(c) The Secretary does not take any action against an institution with respect to an error in the

institution's 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

student's immigration status meets the eligibility requirements for title IV, HEA

assistance;

(2) An INS determination of the student's immigration status and the authenticity of the

student's immigration documents provided in response to the institution's 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 student's claim to be an

eligible noncitizen.

(d) Except as provided in paragraph (c) of this section, if an institution makes an error in its

determination 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 which

the student applied for title IV, HEA assistance. (Authority: 20 U.S.C. 1070g, 1091, 1094) [58

FR 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 an

ineligible student for which it is not liable in accordance with §668.138, it shall assist the

Secretary 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, Direct

Unsubsidized, or Direct PLUS Loan to be disbursed to or on behalf of an ineligible student for

which it is not liable in accordance with §668.138, it shall assist the Secretary in recovering the

funds by notifying the lender in the case of an FFEL Program loan or the Secretary in the case of

a Direct Loan Program loan that the student has failed to establish eligibility under the

requirements 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 ineligible

student, the institution shall restore the amount equal to the payment or disbursement to the

institution's 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 or

disbursement from the student.


(d) If an institution is liable for a Federal Stafford, Federal PLUS, Direct Subsidized, Direct

Unsubsidized, or Direct PLUS Loan disbursement to an ineligible student, the institution shall

repay an amount equal to the disbursement to the lender in the case of an FFEL Program loan or

the Secretary in the case of a Direct Loan Program loan, and provide written notice to the

borrower. (Authority: 20 U.S.C. 1070g, 1091, 1094) [58 FR 3184, Jan. 7, 1993, as amended at

63 FR 40626, July 29, 1998; 64 FR 38729, June 22, 2000; 71 FR 38003, July 3, 2006; 73 FR

35493, 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 of

Homeland Security (DHS), United States Citizenship and Immigration Service's employment

eligibility verification program (E-Verify) as the means for verifying employment eligibility of

certain 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 include


the clause prescribed at 22.1803. An employee is not considered to be directly performing work

under 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 furnish

supplies or services for performance of a prime contract or a subcontract. It includes but is not

limited to purchase orders, and changes and modifications to purchase orders.

Subcontractor means any supplier, distributor, vendor, or firm that furnishes supplies or services

to 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 the

United States and to employ in the United States only individuals who are eligible to work in the

United States. The E-Verify program provides an Internet-based means of verifying employment

eligibility of workers employed in the United States, but is not a substitute for any other

employment 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; and


(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 in

the United States who were hired after November 6, 1986, instead of just those employees

assigned 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 requirement

for a contract or subcontract or a class of contracts or subcontracts, either temporarily or for the

period of performance. This waiver authority may not be delegated.

(e) DHS and the Social Security Administration (SSA) may terminate a contractor's MOU and

deny access to the E-Verify system in accordance with the terms of the MOU. If DHS or SSA

terminates a contractor's MOU, the terminating agency must refer the contractor to a suspension

or debarment official for possible suspension or debarment action. During the period between

termination of the MOU and a decision by the suspension or debarment official whether to

suspend or debar, the contractor is excused from its obligations under paragraph (b) of the clause

at 52.222–54. If the contractor is suspended or debarred as a result of the MOU termination, the

contractor is not eligible to participate in E-Verify during the period of its suspension or

debarment. If the suspension or debarment official determines not to suspend or debar the

contractor, 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 and

contracts 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—


(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 or

entities when hiring, or when recruiting or referring for a fee, or when continuing to employ

individuals 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. When

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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.


(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 alien's 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;


( 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 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:

( 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 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 by


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; or


(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 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 relate to the individual, re-verify by noting the

document's 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.


(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 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) 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 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 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 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 §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 employee's 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 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.

(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.

(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.


(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:


(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;


(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 is

completed electronically, the employer, the recruiter or referrer for a fee, or the representative of

the employer or the recruiter or referrer, must attest to the required information in Form I–9. The

system used to capture the electronic signature should include a method to acknowledge that the

attestation to be signed has been read by the signatory. Any person or entity who has failed to

comply with the criteria established by this regulation for electronic signatures, if used, and at

the time of 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 8 CFR 274a.2(b)(2).


[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; 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 FR

55739, 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 Local

Agencies, educational institutions, and licensing agencies to verify an applicant’s status in order

to determine legal eligibility for the benefits or license sought, there are no specific

implementing regulations in place by the verification agency--USCIS. Actual mechanisms do

exist to accomplish the statutorily mandated tasks. Computer databases have been designed and

continue to be upgraded. There are USCIS re-designed forms (inherited from Legacy INS) being

updated currently. There are registration requirements, procedures and mechanisms for State and

Local benefits and licensing agencies or boards, etc...

USCIS’ Immigration Status Verification Unit also handles requests by SAVE Program

participating agencies to verify status through the submission of the form G-845, Verification

Request (SAVE agencies) and the G-845 Supplement, Document Verification Request

Supplement. Such forms are submitted when agencies do not have access to the automated or

there are other factors that require examination of documents or further, more intensive

investigation in a particular case.

B. E-Verify:

The same underlying statute [8 USC, which contains the INA] that contains the basis for creation

of the form I-9 on which employment eligibility is documented was subsequently amended and

further provided for the creation of an electronic employment verification system. It has been

created and it is called E-Verify. It has long since moved beyond a mere ―pilot program‖ and is

in full swing and growing. E-Verify has specific procedures and practices spelled out in

Memorandums of Agreement and Memorandums of Understanding. E-Verify itself has no

regulations 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%20Nation

al%20Immigration%20&%20Consular%20Conference%20Presentations/Verification_Division_Overview.pdf

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=b79e4154d7b3d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=b79e4154d7b3d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=149500df1a96b110VgnVCM1000004718190aRCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=149500df1a96b110VgnVCM1000004718190aRCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD

http://www.uscis.gov/USCIS/Resources/Resources%20for%20Congress/Congressional%20Reports/2011%20National%20Immigration%20&%20Consular%20Conference%20Presentations/Verification_Division_Overview.pdf

http://www.uscis.gov/USCIS/Resources/Resources%20for%20Congress/Congressional%20Reports/2011%20National%20Immigration%20&%20Consular%20Conference%20Presentations/Verification_Division_Overview.pdf


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 of

employment eligibility confirmation under this subtitle.

(b) Implementation Deadline; Termination.--The Secretary of Homeland Security shall

implement the pilot programs in a manner that permits persons and other entities to have

elections under section 402 of this division made and in effect no later than 1 year after the date

of the enactment of this Act [Sept. 30, 1996]. Unless the Congress otherwise provides, the

Secretary of Homeland Security shall terminate a pilot program at the end of the 11-year period

beginning on the first day the pilot program is in effect.

(c) Scope of Operation of Pilot Programs.--The Secretary of Homeland Security shall provide

for 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].


(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 conducts

any hiring (or recruitment or referral) in a State in which a pilot program is operating may elect

to participate in that pilot program. Except as specifically provided in subsection (e), the

Secretary of Homeland Security may not require any person or other entity to participate in a

pilot 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.--


(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, and


(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 pilot


program with respect to the subject's 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 Homeland

Security under any other law (including section 274A(d)(4)) to conduct demonstration projects in

relation 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 pilot

program described in this subsection agrees to conform to the following procedures in the case of

the hiring (or recruitment or referral) for employment in the United States of each individual

covered 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 individual's 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 of


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 individual's 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.


(4) Confirmation or nonconfirmation.--

(A) Confirmation upon initial inquiry.--If the person or other entity receives an

appropriate confirmation of an individual's 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 individual's 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 individual


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 program

confirmation system through which the Secretary of Homeland Security (or a designee of

the 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 individual's 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 tentative

nonconfirmation of an individual's identity and employment eligibility within 3 working

days of the initial inquiry. If providing confirmation or tentative nonconfirmation, the

confirmation system shall provide an appropriate code indicating such confirmation or

such nonconfirmation.


(c) Secondary Verification Process in Case of Tentative Nonconfirmation.--In cases of

tentative nonconfirmation, the Secretary of Homeland Security shall specify, in

consultation with the Commissioner of Social Security and the Commissioner of the

Immigration and Naturalization Service, an available secondary verification process to

confirm the validity of information provided and to provide a final confirmation or

nonconfirmation within 10 working days after the date of the tentative nonconfirmation.

When final confirmation or nonconfirmation is provided, the confirmation system shall

provide an appropriate code indicating such confirmation or nonconfirmation.

(d) Design and Operation of System.--The confirmation system shall be designed and

operated--

(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 system's 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 confirmation

system, the Commissioner of Social Security, in consultation with the entity responsible for

administration of the system, shall establish a reliable, secure method, which, within the

time periods specified under subsections (b) and (c), compares the name and social security

account number provided in an inquiry against such information maintained by the

Commissioner in order to confirm (or not confirm) the validity of the information provided

regarding an individual whose identity and employment eligibility must be confirmed, the

correspondence of the name and number, and whether the individual has presented a

social security account number that is not valid for employment. The Commissioner shall

not disclose or release social security information (other than such confirmation or

nonconfirmation).


(f) Responsibilities of the Commissioner of the Immigration and Naturalization Service8.--As

part of the confirmation system, the Commissioner of the Immigration and Naturalization

Service, in consultation with the entity responsible for administration of the system, shall

establish a reliable, secure method, which, within the time periods specified under

subsections (b) and (c), compares the name and alien identification or authorization

number described in section 403(a)(1)(B) of this division which are provided in an inquiry

against such information maintained by the Commissioner in order to confirm (or not

confirm) the validity of the information provided, the correspondence of the name and

number, and whether the alien is authorized to be employed in the United States.

(g) Updating Information.--The Commissioners of Social Security and the Immigration and

Naturalization Service shall update their information in a manner that promotes the

maximum accuracy and shall provide a process for the prompt correction of erroneous

information, including instances in which it is brought to their attention in the secondary

verification 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 Verification

Division runs E-Verify in cooperation with SSA and incorporates new sources of data as they become available (like

passport photos and soon possibly driver license/state ID databases). USCIS/VER cooperates with OSC of

DOJ/CRT with ―referrals‖ on suspect situations of violations under INA § 274B, while ICE performs I-9 audits and

commensurate enforcement actions. The specific roles are still in a state of flux. ICE attempted to promulgate

regulations in 2007 and 2008 but following litigation, dropped the whole thing in 2009. The MOA w/OSC was

signed 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.