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Citizenship and Immigration Status Verification Backgrounder Page 1
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.
Citizenship and Immigration Status Verification Backgrounder Page 2
□ 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
Citizenship and Immigration Status Verification Backgrounder Page 3
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
Citizenship and Immigration Status Verification Backgrounder Page 4
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.
Citizenship and Immigration Status Verification Backgrounder Page 5
(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.
Citizenship and Immigration Status Verification Backgrounder Page 6
(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.
Citizenship and Immigration Status Verification Backgrounder Page 7
(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
Citizenship and Immigration Status Verification Backgrounder Page 8
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.
Citizenship and Immigration Status Verification Backgrounder Page 9
(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
Citizenship and Immigration Status Verification Backgrounder Page 10
(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.
Citizenship and Immigration Status Verification Backgrounder Page 11
(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.
Citizenship and Immigration Status Verification Backgrounder Page 12
(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:
Citizenship and Immigration Status Verification Backgrounder Page 13
(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);
Citizenship and Immigration Status Verification Backgrounder Page 14
(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);
Citizenship and Immigration Status Verification Backgrounder Page 15
(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
Citizenship and Immigration Status Verification Backgrounder Page 16
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
Citizenship and Immigration Status Verification Backgrounder Page 17
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
Citizenship and Immigration Status Verification Backgrounder Page 18
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—
Citizenship and Immigration Status Verification Backgrounder Page 19
(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
Citizenship and Immigration Status Verification Backgrounder Page 20
(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;
Citizenship and Immigration Status Verification Backgrounder Page 21
(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.
Citizenship and Immigration Status Verification Backgrounder Page 22
(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.
Citizenship and Immigration Status Verification Backgrounder Page 23
(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
Citizenship and Immigration Status Verification Backgrounder Page 24
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
Citizenship and Immigration Status Verification Backgrounder Page 25
(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—
Citizenship and Immigration Status Verification Backgrounder Page 26
(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
Citizenship and Immigration Status Verification Backgrounder Page 27
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.
Citizenship and Immigration Status Verification Backgrounder Page 28
(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;
Citizenship and Immigration Status Verification Backgrounder Page 29
( 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;
Citizenship and Immigration Status Verification Backgrounder Page 30
( 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,
Citizenship and Immigration Status Verification Backgrounder Page 31
( 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
Citizenship and Immigration Status Verification Backgrounder Page 32
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
Citizenship and Immigration Status Verification Backgrounder Page 33
(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.
Citizenship and Immigration Status Verification Backgrounder Page 34
(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
Citizenship and Immigration Status Verification Backgrounder Page 35
( 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.
Citizenship and Immigration Status Verification Backgrounder Page 36
(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
Citizenship and Immigration Status Verification Backgrounder Page 37
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
Citizenship and Immigration Status Verification Backgrounder Page 38
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
Citizenship and Immigration Status Verification Backgrounder Page 39
(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.
Citizenship and Immigration Status Verification Backgrounder Page 40
(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:
Citizenship and Immigration Status Verification Backgrounder Page 41
(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;
Citizenship and Immigration Status Verification Backgrounder Page 42
(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).
Citizenship and Immigration Status Verification Backgrounder Page 43
[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
Citizenship and Immigration Status Verification Backgrounder Page 44
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].
Citizenship and Immigration Status Verification Backgrounder Page 45
(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.--
Citizenship and Immigration Status Verification Backgrounder Page 46
(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
Citizenship and Immigration Status Verification Backgrounder Page 47
(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
Citizenship and Immigration Status Verification Backgrounder Page 48
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
Citizenship and Immigration Status Verification Backgrounder Page 49
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.
Citizenship and Immigration Status Verification Backgrounder Page 50
(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
Citizenship and Immigration Status Verification Backgrounder Page 51
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.
Citizenship and Immigration Status Verification Backgrounder Page 52
(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).
Citizenship and Immigration Status Verification Backgrounder Page 53
(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.