[Code of Federal Regulations]
[Title 8, Volume 1]
[Revised as of January 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 8CFR274a.2]

[Page 667-673]
 
                     TITLE 8--ALIENS AND NATIONALITY
 
CHAPTER I--IMMIGRATION AND NATURALIZATION SERVICE, DEPARTMENT OF JUSTICE
 
PART 274a--CONTROL OF EMPLOYMENT OF ALIENS--Table of Contents
 
                    Subpart A--Employer Requirements
 
Sec. 274a.2  Verification of employment eligibility.

    (a) General. This section states the requirements and procedures 
persons or entities must comply with when hiring, or when recruiting or 
referring for a fee, or when continuing to employ individuals in the 
United States. For purposes of complying with section 274A(b) of the Act 
and this section, all references to recruiters and referrers for a fee 
are limited to a person or entity who is either an agricultural 
association, agricultural employer, or farm labor contractor (as defined 
in section 3 of the Migrant and Seasonal Agricultural Worker Protection 
Act, 29 U.S.C. 1802). The Form I-9, Employment Eligibility Verification 
Form, has been designated by the Service as the form to be used in 
complying with the requirements of this section. The Form I-9 may be 
obtained in limited quantities at INS District Offices, or ordered from 
the Superintendent of Documents, Washington, DC 20402. Employers may 
electronically generate blank Forms I-9, provided that: the resulting 
form is legible; there is no change to the name, content, or sequence of 
the data elements and instructions; no additional data elements or 
language are inserted; and the paper used meets the standards for 
retention and production for inspection specified under Sec. 274a.2(b). 
When copying or printing the Form I-9, the text of the two-sided form 
may be reproduced by making either double-sided or single-sided copies. 
Employers need only complete the Form I-9 for individuals who are hired 
after November 6, 1986 and continue to be employed after May 31, 1987. 
Employers shall have until September 1, 1987 to complete the Form I-9 
for individuals hired from November 7, 1986 through May 31, 1987. 
Recruiters and referrers for a fee need complete the Form I-9 only for 
those individuals who are recruited or referred and hired after May 31, 
1987. In conjunction with completing the Form I-9, an employer or 
recruiter or referrer for a fee must examine documents that evidence the 
identity and employment eligibility of the individual. The employer or 
recruiter or referrer for a fee and the individual must each complete an 
attestation on the Form I-9 under penalty of perjury.
    (b) Employment verification requirements--(1) Examination of 
documents and completion of Form I-9. (i) A person or entity that hires 
or recruits or refers for a fee an individual for employment must ensure 
that the individual properly:
    (A) Complete section 1--``Employee Information and Verification''--
on the Form I-9 at the time of hire; or if an individual is unable to 
complete the Form I-9 or needs it translated, someone may assist him or 
her. The preparer or translator must read the Form to the individual, 
assist him or her in completing Section 1--``Employee Information and 
Verification,'' and have the individual sign or mark the Form in the 
appropriate place. The preparer or translator must then complete the 
``Preparer/Translator Certification'' portion of the Form I-9; and
    (B) Present to the employer or the recruiter or referrer for a fee 
documentation as set forth in paragraph (b)(1)(v) of this section 
establishing his or her identity and employment eligibility within the 
time limits set forth in paragraphs (b)(1)(ii) through (b)(1)(v) of this 
section.

[[Page 668]]

    (ii) Except as provided in paragraph (b)(1)(viii) of this section, 
an employer, his or her agent, or anyone acting directly or indirectly 
in the interest thereof, must within three business days of the hire:
    (A) Physically examine the documentation presented by the individual 
establishing identity and employment eligibility as set forth in 
paragraph (b)(1)(v) of this section and ensure that the documents 
presented appear to be genuine and to relate to the individual; and
    (B) Complete section 2--``Employer Review and Verification''--of the 
Form I-9.
    (iii) An employer who hires an individual for employment for a 
duration of less than three business days must comply with paragraphs 
(b)(1)(ii)(A) and (b)(1)(ii)(B) of this section at the time of the hire. 
An employer may not accept a receipt, as described in paragraph 
(b)(1)(vi) of this section, in lieu of the required document if the 
employment is for less than three business days.
    (iv) A recruiter or referrer for a fee for employment must comply 
with paragraphs (b)(1)(ii)(A) and (b)(1)(ii)(B) of this section within 
three business days of the date the referred individual is hired by the 
employer. Recruiters and referrers may designate agents to complete the 
employment verification procedures on their behalf including but not 
limited to notaries, national associations, or employers. If a recruiter 
or referrer designates an employer to complete the employment 
verification procedures, the employer need only provide the recruiter or 
referrer with a photocopy of the Form I-9.
    (v) The individual may present either an original document which 
establishes both employment authorization and identity, or an original 
document which establishes employment authorization and a separate 
original document which establishes identity. The identification number 
and expiration date (if any) of all documents must be noted in the 
appropriate space provided on the Form I-9.
    (A) The following documents, so long as they appear to relate to the 
individual presenting the document, are acceptable to evidence both 
identity and employment eligibility:
    (1) United States passport (unexpired or expired);
    (2) Alien Registration Receipt Card or Permanent Resident Card, Form 
I-551;
    (3) An unexpired foreign passport that contains a temporary I-551 
stamp;
    (4) An unexpired Employment Authorization Document issued by the 
Immigration And Naturalization Service which contains a photograph, Form 
I-766; Form I-688, Form I-688A, or Form I-688B;
    (5) In the case of a nonimmigrant alien authorized to work for a 
specific employer incident to status, an unexpired foreign passport with 
an Arrival-Departure Record, Form I-94, bearing the same name as the 
passport and containing an endorsement of the alien's nonimmigrant 
status, so long as the period of endorsement has not yet expired and the 
proposed employment is not in conflict with any restrictions or 
limitations identified on the Form I-94.
    (B) The following documents are acceptable to establish identity 
only:
    (1) For individuals 16 years of age or older:
    (i) A driver's license or identification card containing a 
photograph, issued by a state (as defined in section 101(a)(36) of the 
Act) or an outlying possession of the United States (as defined by 
section 101(a)(29) of the Act). If the driver's license or 
identification card does not contain a photograph, identifying 
information shall be included such as: name, date of birth, sex, height, 
color of eyes, and address;
    (ii) School identification card with a photograph;
    (iii) Voter's registration card;
    (vi) U.S. military card or draft record;
    (v) Identification card issued by federal, state, or local 
government agencies or entities. If the identification card does not 
contain a photograph, identifying information shall be included such as: 
name, date of birth, sex, height, color of eyes, and address;
    (vi) Military dependent's identification card;
    (vii) Native American tribal documents;

[[Page 669]]

    (viii) United States Coast Guard Merchant Mariner Card;
    (ix) Driver's license issued by a Canadian government authority;
    (2) For individuals under age 18 who are unable to produce a 
document listed in paragraph (b)(1)(v)(B)(1) of this section, the 
following documents are acceptable to establish identity only:
    (i) School record or report card;
    (ii) Clinic doctor or hospital record;
    (iii) Daycare or nursery school record.
    (3) Minors under the age of 18 who are unable to produce one of the 
identity documents listed in paragraph (b)(1)(v)(B) (1) or (2) of this 
section are exempt from producing one of the enumerated identity 
documents if:
    (i) The minor's parent or legal guardian completes on the Form I-9 
Section 1--``Employee Information and Verification'' and in the space 
for the minor's signature, the parent or legal guardian writes the 
words, ``minor under age 18.''
    (ii) The minor's parent or legal guardian completes on the Form I-9 
the ``Preparer/Translator certification.''
    (iii) The employer or the recruiter or referrer for a fee writes in 
Section 2--``Employer Review and Verification'' under List B in the 
space after the words ``Document Identification '' the words, ``minor 
under age 18.''
    (4) Individuals with handicaps, who are unable to produce one of the 
identity documents listed in paragraph (b)(1)(v)(B) (1) or (2) of this 
section, who are being placed into employment by a nonprofit 
organization, association or as part of a rehabilitation program, may 
follow the procedures for establishing identity provided in this section 
for minors under the age of 18, substituting where appropriate, the term 
``special placement'' for ``minor under age 18'', and permitting, in 
addition to a parent or legal guardian, a representative from the 
nonprofit organization, association or rehabilitation program placing 
the individual into a position of employment, to fill out and sign in 
the appropriate section, the Form I-9. For purposes of this section the 
term individual with handicaps means any person who
    (i) Has a physical or mental impairment which substantially limits 
one or more of such person's major life activities,
    (ii) Has a record of such impairment, or
    (iii) Is regarded as having such impairment.
    (C) The following are acceptable documents to establish employment 
authorization only:
    (1) A social security number card other than one which has printed 
on its face ``not valid for employment purposes'';
    (2) A Certification of Birth Abroad issued by the Department of 
State, Form FS-545;
    (3) A Certification of Birth Abroad issued by the Department of 
State, Form DS-1350;
    (4) An original or certified copy of a birth certificate issued by a 
State, county, municipal authority or outlying possession of the United 
States bearing an official seal;
    (5) Native American tribal document;
    (6) United States Citizen Identification Card, INS Form I-197;
    (7) Identification card for use of resident citizen in the United 
States, INS Form I-179;
    (8) An unexpired employment authorization document issued by the 
Immigration and Naturalization Service.
    (vi) Special rules for receipts. Except as provided in paragraph 
(b)(1)(iii) of this section, unless the individual indicates or the 
employer or recruiter or referrer for a fee has actual or constructive 
knowledge that the individual is not authorized to work, an employer or 
recruiter or referrer for a fee must accept a receipt for the 
application for a replacement document or a document described in 
paragraphs (b)(1)(vi)(B)((1) and (b)(1)(vi)(C)((1) of this section in 
lieu of the required document in order to comply with any requirement to 
examine documentation imposed by this section, in the following 
circumstances:
    (A) Application for a replacement document. The individual:
    (1) Is unable to provide the required document within the time 
specified in this section because the document was lost, stolen, or 
damaged;

[[Page 670]]

    (2) Presents a receipt for the application for the replacement 
document within the time specified in this section; and
    (3) Presents the replacement document within 90 days of the hire or, 
in the case of reverification, the date employment authorization 
expires; or
    (B) Form I-94 indicating temporary evidence of permanent resident 
status. The individual indicates in section 1 of the Form I-9 that he or 
she is a lawful permanent resident and the individual:
    (1) Presents the arrival portion of Form I-94 containing an 
unexpired ``Temporary I-551'' stamp and photograph of the individual, 
which is designated for purposes of this section as a receipt for Form 
I-551; and
    (2) Presents the Form I-551 by the expiration date of the 
``Temporary I-551'' stamp or, if the stamp has no expiration date, 
within 1 year from the issuance date of the arrival portion of Form I-
94; or
    (C) Form I-94 indicating refugee status. The individual indicates in 
section 1 of the Form I-9 that he or she is an alien authorized to work 
and the individual:
    (1) Presents the departure portion of Form I-94 containing an 
unexpired refugee admission stamp, which is designated for purposes of 
this section as a receipt for the Form I-766, Form I-688B, or a social 
security account number card that contains no employment restrictions; 
and
    (2) Presents, within 90 days of the hire or, in the case of 
reverification, the date employment authorization expires, either an 
unexpired Form I-766 or Form I-688B, or a social security account number 
card that contains no employment restrictions, and a document described 
under paragraph (b)(1)(v)(B) of this section.
    (vii) If an individual's employment authorization expires, the 
employer, recruiter or referrer for a fee must reverify on the Form I-9 
to reflect that the individual is still authorized to work in the United 
States; otherwise the individual may no longer be employed, recruited, 
or referred. Reverification on the Form I-9 must occur not later than 
the date work authorization expires. In order to reverify on the Form I-
9, the employee or referred individual must present a document that 
either shows continuing employment eligibility or is a new grant of work 
authorization. The employer or the recruiter or referrer for a fee must 
review this document, and if it appears to be genuine and to relate to 
the individual, reverify by noting the document's identification number 
and expiration date on the Form I-9.
    (viii) An employer will not be deemed to have hired an individual 
for employment if the individual is continuing in his or her employment 
and has a reasonable expectation of employment at all times.
    (A) An individual is continuing in his or her employment in one of 
the following situations:
    (1) An individual takes approved paid or unpaid leave on account of 
study, illness or disability of a family member, illness or pregnancy, 
maternity or paternity leave, vacation, union business, or other 
temporary leave approved by the employer;
    (2) An individual is promoted, demoted, or gets a pay raise;
    (3) An individual is temporarily laid off for lack of work;
    (4) An individual is on strike or in a labor dispute;
    (5) An individual is reinstated after disciplinary suspension for 
wrongful termination, found unjustified by any court, arbitrator, or 
administrative body, or otherwise resolved through reinstatement or 
settlement;
    (6) An individual transfers from one distinct unit of an employer to 
another distinct unit of the same employer; the employer may transfer 
the individual's Form I-9 to the receiving unit;
    (7) An individual continues his or her employment with a related, 
successor, or reorganized employer, provided that the employer obtains 
and maintains from the previous employer records and Forms I-9 where 
applicable. For this purpose, a related, successor, or reorganized 
employer includes:
    (i) The same employer at another location;
    (ii) An employer who continues to employ some or all of a previous 
employer's workforce in cases involving a corporate reorganization, 
merger, or sale of stock or assets;

[[Page 671]]

    (iii) An employer who continues to employ any employee of another 
employer's workforce where both employers belong to the same multi-
employer association and the employee continues to work in the same 
bargaining unit under the same collective bargaining agreement. For 
purposes of this subsection, any agent designated to complete and 
maintain the Form I-9 must record the employee's date of hire and/or 
termination each time the employee is hired and/or terminated by an 
employer of the multi-employer association; or
    (8) An individual is engaged in seasonal employment.
    (B) The employer who is claiming that an individual is continuing in 
his or her employment must also establish that the individual expected 
to resume employment at all times and that the individual's expectation 
is reasonable. Whether an individual's expectation is reasonable will be 
determined on a case-by-case basis taking into consideration several 
factors. Factors which would indicate that an individual has a 
reasonable expectation of employment include, but are not limited to, 
the following:
    (1) The individual in question was employed by the employer on a 
regular and substantial basis. A determination of a regular and 
substantial basis is established by a comparison of other workers who 
are similarly employed by the employer;
    (2) The individual in question complied with the employer's 
established and published policy regarding his or her absence;
    (3) The employer's past history of recalling absent employees for 
employment indicates a likelihood that the individual in question will 
resume employment with the employer within a reasonable time in the 
future;
    (4) The former position held by the individual in question has not 
been taken permanently by another worker;
    (5) The individual in question has not sought or obtained benefits 
during his or her absence from employment with the employer that are 
inconsistent with an expectation of resuming employment with the 
employer within a reasonable time in the future. Such benefits include, 
but are not limited to, severance and retirement benefits;
    (6) The financial condition of the employer indicates the ability of 
the employer to permit the individual in question to resume employment 
within a reasonable time in the future; or
    (7) The oral and/or written communication between employer, the 
employer's supervisory employees and the individual in question 
indicates that it is reasonably likely that the individual in question 
will resume employment with the employer within a reasonable time in the 
future.
    (2) Retention and Inspection of Form I-9. (i) Form I-9 must be 
retained by an employer or a recruiter or referrer for a fee for the 
following time periods:
    (A) In the case of an employer, three years after the date of the 
hire or one year after the date the individual's employment is 
terminated, whichever is later; or
    (B) In the case of a recruiter or referrer for a fee, three years 
after the date of the hire.
    (ii) Any person or entity required to retain Forms I-9 in accordance 
with this section shall be provided with at least three days notice 
prior to an inspection of the Forms I-9 by officers of the Service, the 
Special Counsel for Immigration-Related Unfair Employment Practices, or 
the Departmet of Labor. At the time of inspection, Forms I-9 must be 
made available in their original form or on microfilm or microfiche at 
the location where the request for production was made. If Forms I-9 are 
kept at another location, the person or entity must inform the officer 
of the Service, the Special Counsel for Immigration-Related Unfair 
Employment Practices, or the Department of Labor of the location where 
the forms are kept and make arrangements for the inspection. Inspections 
may be performed at an INS office. A recruiter or referrer for a fee who 
has designated an employer to complete the employment verification 
procedures may present a photocopy of the Form I-9 in lieu of presenting 
the Form I-9 in its original form or on microfilm or microfiche, as set 
forth in paragraph (b)(1)(iv) of this section. Any refusal or delay in 
presentation of the Forms I-9 for inspection is a violation

[[Page 672]]

of the retention requirements as set forth in section 274A(b) (3) of the 
Act. No Subpoena or warrant shall be required for such inspection, but 
the use of such enforcement tools is not precluded. In addition, if the 
person or entity has not complied with a request to present the Forms I-
9, any Service officer listed in Sec. 287.4 of this chapter may compel 
production of the Forms I-9 and any other relevant documents by issuing 
a subpoena. Nothing in this section is intended to limit the Service's 
subpoena power under section 235(a) of the Act.
    (iii) The following standards shall apply to Forms I-9 presented on 
microfilm or microfiche submitted to an officer of the Service, the 
Special Counsel for Immigration-Related Unfair Employment Practices, or 
the Department of Labor: Microfilm, when displayed on a microfilm reader 
(viewer) or reproduced on paper must exhibit a high degree of legibility 
and readability. For this purpose, legibility is defined as the quality 
of a letter or numeral which enables the observer to positively and 
quickly identify it to the exclusion of all other letters or numerals. 
Readability is defined as the quality of a group of letters or numerals 
being recognizable as words or whole numbers. A detailed index of all 
microfilmed data shall be maintained and arranged in such a manner as to 
permit the immediate location of any particular record. It is the 
responsibility of the employer, recruiter or referrer for a fee:
    (A) To provide for the processing, storage and maintenace of all 
microfilm, and
    (B) To be able to make the contents thereof available as required by 
law. The person or entity presenting the microfilm will make available a 
reader-printer at the examination site for the ready reading, location 
and reproduction of any record or records being maintained on microfilm. 
Reader-printers made available to an officer of the Service, the Special 
Counsel for Immigration-Related Unfair Employment Practices, or the 
Department of Labor shall provide safety features and be in clean 
condition, properly maintained and in good working order. The reader-
printers must have the capacity to display and print a complete page of 
information. A person or entity who is determined to have failed to 
comply with the criteria established by this regulation for the 
presentation of microfilm or microfiche to the Service, the Special 
Counsel for Immigration-Related Unfair Employment Practices, or the 
Department of Labor, and at the time of the inspection does not present 
a properly completed Form I-9 for the employee, is in violation of 
section 274A(a)(1)(B) of the Act and Sec. 274a.2(b)(2).
    (3) Copying of documentation. An employer, or a recruiter or 
referrer for a fee may, but is not required to, copy a document 
presented by an individual solely for the purpose of complying with the 
verification requirements of this section. If such a copy is made, it 
must be retained with the Form I-9. The retention requirements in 
paragraph (b)(2) of this section do not apply to the photocopies. The 
copying of any such document and retention of the copy does not relieve 
the employer from the requirement to fully complete section 2 of the 
Form I-9. An employer, recruiter or referrer for a fee should not, 
however, copy the documents only of individuals of certain national 
origins or citizenship statuses. To do so may violate section 274B of 
the Act.
    (4) Limitation on use of Form I-9. Any information contained in or 
appended to the Form I-9, including copies of documents listed in 
paragraph (c) of this section used to verify an individual's identity or 
employment eligibility, may be used only for enforcement of the Act and 
sections 1001, 1028, 1546, or 1621 of title 18, United States Code.
    (c) Employment verification requirements in the case of hiring an 
individual who was previously employed. (1) When an employer hires an 
individual whom that person or entity has previously employed, if the 
employer has previously completed the Form I-9 and complied with the 
verification requirements set forth in paragraph (b) of this section 
with regard to the individual, the employer may (in lieu of completing a 
new Form I-9) inspect the previously completed Form I-9 and:
    (i) If upon inspection of the Form I-9, the employer determines that 
the

[[Page 673]]

Form I-9 relates to the individual and that the individual is still 
eligible to work, that previously executed Form I-9 is sufficient for 
purposes of section 274A(b) of the Act if the individual is hired within 
three years of the date of the initial execution of the Form I-9 and the 
employer updates the Form I-9 to reflect the date of rehire; or
    (ii) If upon inspection of the Form I-9, the employer determines 
that the individual's employment authorization has expired, the employer 
must reverify on the Form I-9 in accordance with paragraph (b)(1)(vii); 
otherwise the individual may no longer be employed.
    (2) For purposes of retention of the Form I-9 by an employer for a 
previously employed individual hired pursuant to paragraph (c)(1) of 
this section, the employer shall retain the Form I-9 for a period of 
three years commencing from the date of the initial execution of the 
Form I-9 or one year after the individual's employment is terminated, 
whichever is later.
    (d) Employment verification requirements in the case of recruiting 
or referring for a fee an individual who was previously recruited or 
referred. (1) When a recruiter or referrer for a fee refers an 
individual for whom that recruiter or referrer for a fee has previously 
completed a Form I-9 and complied with the verification requirements set 
forth in paragraph (b) of this section with regard to the individual, 
the recruiter or referrer may (in lieu of completing a new Form I-9) 
inspect the previously completed Form I-9 and:
    (i) If upon inspection of the Form I-9, the recruiter or referrer 
for a fee determines that the Form I-9 relates to the individual and 
that the individual is still eligible to work, that previously executed 
Form I-9 is sufficient for purposes of section 274A(b) of the Act if the 
individual is referred within three years of the date of the initial 
execution of the Form I-9 and the recruiter or referrer for a fee 
updates the Form I-9 to reflect the date of rehire; or
    (ii) If upon inspection of the Form I-9, the recruiter or referrer 
determines that the individual's employment authorization has expired, 
the recruiter or referrer for a fee must reverify on the Form I-9 in 
accordance with paragraph (b)(1)(vii) of this section; otherwise the 
individual may no longer be recruited or referred.
    (2) For purposes of retention of the Form I-9 by a recruiter or 
referrer for a previously recruited or referred individual pursuant to 
paragraph (d)(1) of this section, the recruiter or referrer shall retain 
the Form I-9 for a period of three years from the date of the rehire.

[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]