Federal Register: October 7, 2009 (Volume 74, Number 193)
DOCID: fr07oc09-1 FR Doc E9-24200
DEPARTMENT OF HOMELAND SECURITY
Homeland Security Department
CFR Citation: 8 CFR Part 274a
RIN ID: RIN 1653-AA59
ICE ID: [ICE 2377-06; DHS Docket No. ICEB-2006-0004]
NOTICE: RULES
DOCID: fr07oc09-1
DOCUMENT ACTION: Final rule.
SUBJECT CATEGORY:
Safe-Harbor Procedures for Employers Who Receive a No-Match Letter: Rescission
DATES: This final rule is effective November 6, 2009.
DOCUMENT SUMMARY:
The Department of Homeland Security (DHS) is amending its regulations by rescinding the amendments promulgated on August 15, 2007, and October 28, 2008, relating to procedures that employers may take to acquire a safe harbor from receipt of NoMatch letters. DHS is amending its regulations as proposed on August 19, 2009, without change. Implementation of the 2007 final rule was preliminarily enjoined by the United States District Court for the Northern District of California on October 10, 2007. After further review, DHS has determined to focus its enforcement efforts relating to the employment of aliens not authorized to work in the United States on increased compliance through improved verification, including participation in E Verify, ICE Mutual Agreement Between Government and Employers (IMAGE), and other programs.
SUMMARY:
Safe-Harbor Procedures for Employers Who Receive a No-Match Letter; Rescission
SUPPLEMENTAL INFORMATION
I. Docket
Public comments on this docket may be viewed online at http:// www.regulations.gov or in person at U.S Immigration and Customs Enforcement, Department of Homeland Security, 500 12th Street, SW., Room 1000, Washington, DC 20024, by appointment. To make an appointment to review the docket, call 2023070071.
II. Final Rule
After considering the public comments, DHS has determined, for the reasons stated in the proposed rule and in this final rule, to promulgate the rescission of the 2007 and 2008 final rules (referred to collectively as the ``NoMatch rules'') without change.
III. Background
It is unlawful for a person or other entity to hire, or to recruit or refer for a fee, an alien for employment in the United States knowing the alien is not authorized to work in the United States. Immigration and Nationality Act of 1952, as amended (INA), section 274A(a)(1)(A), 8 U.S.C. 1324a(a)(1)(A). It is also unlawful for a person or other entity, after hiring an alien for employment, to continue to employ the alien in the United States knowing the alien is (or has become) an unauthorized alien with respect to such employment. INA section 274A(a)(2), 8 U.S.C. 1324a(a)(2).
All persons or entities that hire, or recruit or refer persons for
a fee, for employment must verify the identity and employment
eligibility of all employees hired to work in the United States. INA
section 274A(a)(1)(B), (b)(1), (b)(2), 8 U.S.C. 1324a(a)(1)(B), (b)(1),
(b)(2). Under the INA, this verification is performed by completing an
Employment Eligibility Verification form (Form I9) for all employees,
including United States citizens. INA section 274A(b)(1), (b)(2), 8
U.S.C. 1324a(b)(1), (b)(2); 8 CFR 274a.2. The INA provides, however,
that an employer may not conduct this verification in a manner that
treats employees differently based on their citizenship status or
national origin. INA section 274B(a), 8 U.S.C. 1324b(a). An employer,
or a recruiter or referrer for a fee, must retain the completed Form I
9 for three years after hiring, recruiting or referral, or, where the
employment extends longer, for the life of the individual's employment
and for one year following the employee's departure. INA section
274A(b)(3), 8 U.S.C. 1324a(b)(3). These forms are not routinely filed
with any Government agency; employers are responsible for maintaining
these records, and they may be requested and reviewed by U.S. Immigration and Customs Enforcement (ICE). INA section
274A(b)(1)(E)(3); 8 CFR 274a.2(b)(2), (c)(2); see 71 FR 34510 (June 15,
2006) (Electronic Signature and Storage of Form I9, Employment Eligibility Verification).
Employers annually send the Social Security Administration (SSA) millions of earnings reports (W2 Forms) in which the combination of employee name and social security number (SSN) does not match SSA records. In some of these cases, SSA sends a letter, such as an ``Employer Correction Request,'' that informs the employer of the mismatch. The letter is commonly referred to as an employer ``NoMatch letter.'' NoMatch letters may be caused by many things, including clerical error and name changes. One potential cause may be the submission of information for an alien who is not authorized to work in the United States and who may be using a false SSN or an SSN assigned to someone else. Such a letter may be one indicator to an employer that one of its employees may be an unauthorized alien; the letter itself, however, does not make any statement about an employee's immigration status. ICE sends a similar letter (currently called a ``Notice of Suspect Documents'') after it has inspected an employer's Employment Eligibility Verification forms (Forms I9) during an investigation audit and after unsuccessfully attempting to confirm, in agency records, that an immigration status document or employment authorization document presented or referenced by the employee in completing the Form I9 was assigned to that person. After a Form I9 is completed by an employer and employee, it is retained by the employer and made available to DHS investigators on request, such as during an audit.
Over the years, employers have inquired of the former Immigration
and Naturalization Service, and now DHS, whether receipt of a NoMatch
letter constitutes constructive knowledge on the part of the employer that he or she may have hired an alien who is not
[[Page 51448]]
authorized to work in the United States. On August 15, 2007, DHS issued
a final rule describing the legal obligations of an employer following
receipt of a NoMatch letter from SSA or a letter from DHS regarding
employment verification forms. See 72 FR 45611. That final rule also
established ``safeharbor'' procedures for employers receiving NoMatch letters.
The rule has never been implemented in light of a preliminary injunction issued by the United States District Court for the Northern District of California. AFLCIO v. Chertoff, 552 F. Supp. 2d 999 (N.D. Cal. 2007) (order granting motion for preliminary injunction). As a result of that litigation, DHS also issued a supplemental proposed and final rule providing to address specific issues raised by the court. See, e.g., 73 FR 15944 (Mar. 26, 2008) (supplemental proposed rule), 73 FR 63843 (Oct. 28, 2008) (supplemental final rule). Neither the supplemental nor 2008 final rules, however, changed any regulatory text.
DHS proposed to rescind the NoMatch rules on August 19, 2009, explaining that a more appropriate utilization of DHS resources would be to focus enforcement/community outreach efforts on increased compliance through improved verification, including increased participation in the U.S. Citizenship and Immigration Services (USCIS) EVerify employment eligibility verification system, the ICE Mutual Agreement Between Government and Employers (IMAGE), and other programs. The proposed rescission rule and this final rule are part of a Governmentwide reexamination of regulatory processes. 74 FR 41801, 41802 (Aug. 19, 2009); Docket ICEB200600040923. DHS requested public comments on the proposed rescission of the NoMatch rules and provided a 30day public comment period.
IV. Public Comments
DHS received 22 comments during the 30day comment period. DHS received comments from individuals, professional associations, unions, trade organizations, and advocacy organizations. DHS received comments from the litigants in AFLCIO v. Chertoff, No. 07cv4472CRB (N.D. Cal.). Many commenters supported the rescission of the 2007 final rule and provided arguments why the 2007 final rule should be rescinded. Other commenters argued in favor of retaining and implementing the 2007 final rule. The substantive comments are addressed below.
A. Viability of the 2007 and 2008 Rules
One commenter suggested that the guidance provided in the NoMatch rules clarified and interpreted existing law. The commenter suggested that the safe harbor provision provided valuable guidance to employers that need guidance in this area. The commenter further argued that removal of the NoMatch rule will just create uncertainty and more room for unscrupulous employers to continue to hire and retain workers they know or should know are not authorized to work. Another commenter expressed concern that rescinding the NoMatch rules will leave employers wanting to resolve discrepancies but having no guidance on what DHS would consider a good faith attempt to resolve the discrepancy to avoid a finding of constructive knowledge, as opposed to violating the antidiscrimination laws; and that EVerify, IMAGE and other DHS programs identified in this rule do not provide guidance in dealing with NoMatch letters or provide a safe harbor to employers.
DHS does not disagree that additional guidance would be valuable to employers. DHS disagrees, however, with the suggestion that if the No Match rules are rescinded, employers will have no guidance on compliance with the Immigration and Nationality Act's employment verification requirements. As discussed in all of the proposed and final rules in this rulemaking, DHS and its predecessor agencies have provided guidance on the immigration implications and responding to No Match letters. Similarly, the Office of Special Counsel for Immigration Related Unfair Employment Practices, Civil Rights Division, Department of Justice, enforces the antidiscrimination provisions of INA section 274B, 8 U.S.C. 1324b, and provides guidance to employers about responding to SSA nomatch letters in a manner consistent with the antidiscrimination provision of the INA. The NoMatch rules set out that advice and provided a safe harbor if employers followed specified steps to resolve the discrepancy. The commenter, a professional association, has provided similar advice to its members. DHS, in considering all of its options, does not believe that the addition of a ``safeharbor'' to that guidance is as effective as other tools to assist in compliance with the employment restrictions of the Immigration and Nationality Act.
DHS continues to provide employer support through IMAGE. IMAGE is specifically designed to help the business community develop and implement hiring and employment verification best practices.
As of September 2009, more than 155,000 employers have signed an
MOU with DHS to participate in EVerify, representing more than 500,000
hiring sites; in fiscal year (FY) 2009, employers queried EVerify
nearly 8.6 million times. The Administration and DHS fully support the
expansion of EVerify and have taken steps to encourage use of E
Verify, including ensuring that federal contractors use EVerify to
ensure an employment eligible workforce.\1\ USCIS also recently updated
the Handbook for Employers (M274) to provide more comprehensive
guidance and instructions for completing the Employment Eligibility
Verification Form (Form I9). http://www.uscis.gov/files/ nativedocuments/m274.pdf.
\1\ A modest expansion of EVerify will occur with the
requirement that certain government contractors utilize EVerify.
See Executive Order 13,465, 73 FR 33285 (June 11, 2008); Designation
of the Electronic Employment Eligibility Verification System Under
Executive Order 12,989, 73 FR 33837 (June 13, 2008); Proposed
Employment Eligibility Verification Rule, 73 FR 33,374 (June 12,
2008); Final Employment Eligibility Verification Rule, 73 FR 67651
(Nov. 14, 2008); Chamber of Commerce of the United States v.
Napolitano, 2009 WL 2632761, D. Md. No. 08civ3444 (AW), Memorandum
Opinion, Dk. No. 51 (Aug. 26, 2009) (denying plaintiff's motion for
summary judgment and preliminary injunction; granting defendant's
motion for summary judgment), appeal filed No. 092006 (Sept. 4,
2009. DHS also encourages States and other jurisdictions to utilize
EVerify. Cf., Chicanos por la Causa, Inc. v. Napolitano, 558 F.3d
856, 867 (9th Cir. 2009) (amended on denial of petition for
rehearing) (holding that ``Congress could have, but did not, expressly forbid state laws from requiring EVerify
participation.''), pet. for cert. filed sub nom. Chamber of Commerce v. Candelaria, U.S. No 09115 (filed May 28, 2009).
These tools focus on more universal compliance with the employment eligibility verification requirements of the Immigration and Nationality Act than a safe harbor procedure for a limited number of employers who receive a NoMatch letter. A NoMatch letter is reactive, either one specifically guided to the employment eligibility issue from ICE or one indirectly pointing to a potential employment eligibility issue through social security number record mismatches on tax filings through SSA.
Furthermore, DHS has acknowledged that unscrupulous employers would
continue to find ways to take advantage of the system, regardless of
whether the NoMatch rules were in place. DHS focuses criminal and
civil enforcement against the most egregious violators: employers who
use unauthorized workers in order to gain a competitive advantage or
those who exploit the vulnerable, often engaging in human trafficking and smuggling, identity theft,
[[Page 51449]]
and social security number and document fraud; and employers in the
Nation's critical infrastructure sites, including airports, seaports and power plants.
B. Issues Raised in the 2007 and 2008 Rules
Other commenters repeated arguments previously made in the 2007 and 2008 rulemaking, and in the subsequent litigation, that the NoMatch rules created confusion among many small businesses, including farm businesses, and that the NoMatch rules would have resulted in additional costs; and also that the process outlined in the NoMatch rules would have resulted in additional labor, resource and personnel costs, which many small businesses would be unable to absorb.
The 2007 and 2008 NoMatch rules were intended to clarify the obligations of an employer following the receipt of a nomatch letter from SSA or a letter from DHS regarding employment verification forms. Further, as explained, DHS does not believe the NoMatch rules imposed a mandate that forced employers to incur ``compliance'' costs. 73 FR 63863. Only small entities that choose to avail themselves of the safe harbor would incur direct costs as a result of the NoMatch rules, and all entities are responsible for the wage statement (Form W2) that creates a NoMatch letter.
Commenters asserted that the NoMatch rules should be rescinded
because the correction period allowed in the final rules is inadequate.
SSA, according to the commenters, would be unable to resolve mismatches
presented by authorized workers within the correction period. One commenter further alleged that the NoMatch rules would
disproportionately impact authorized workers of color, transgender
workers, and those who appear or sound ``foreign;'' the rules would lead to retaliatory firings.
Although DHS agrees with the commenters' suggestions that the rules should be rescinded, DHS disagrees with the suggestion that the No Match rules would have generated additional costs or would have disproportionately impacted authorized workers or any discrete group. As stated above, the NoMatch rules were intended to clarify the obligations of an employer following the receipt of a NoMatch letter from SSA or a letter from DHS regarding employment verification forms.
Another commenter alleged that the NoMatch rules were an unlawful expansion of the definition of ``constructive knowledge'' because the NoMatch letters are sent out for reasons unrelated to immigration status. Similarly, another commenter supported the rescission of the NoMatch rules arguing that the rules would have led to the termination of large numbers of United States citizens and other authorized workers because many of the ``nomatches'' in the SSA's Earning Suspense File have nothing to do with immigration status.
DHS disagrees. DHS has not changed its position as to the merits of the 2007 and 2008 rules; DHS has decided to focus on more universal means of encouraging employer compliance than the narrowly focused and reactive process of granting a safe harbor for following specific steps in response to a nomatch letter. DHS has determined that focusing on the management practices of employers would be more efficacious than focusing on a single element of evidence. Receipt of a NoMatch letter, when considered with other probative evidence, is a factor that may be considered in the totality of the circumstances and may in certain situations support a finding of ``constructive knowledge.'' A reasonable employer would be prudent, upon receipt of a NoMatch letter, to check their own records for errors, inform the employee of the nomatch letter, and ask the employee to review the information. Employers would be prudent also to allow employees a reasonable period of time to resolve the nomatch with SSA.
Another commenter noted that employers are wrongly implementing the 2007 and 2008 final rules even though implementation of the 2007 rule was enjoined and that employees who receive nomatch letters are being discriminated against and terminated if they are unable to resolve their discrepancies with SSA within ten days. DHS acknowledges that an employer who terminates an employee without attempting to resolve the issues raised in a NoMatch letter, or who treats employees differently based upon national origin, perceived citizenship status, or other prohibited characteristics may be found to have engaged in unlawful discrimination under the antidiscrimination provision of the INA section 274B, 8 U.S.C. 1324b. That fact does not, however, warrant DHS changing its earlier position that receipt of a NoMatch letter and an employer's response to a NoMatch letter, in the totality of the circumstances, may be used as evidence of a violation of the employment restrictions of the Immigration and Nationality Act. 73 FR at 63848, n.2; 74 FR 41804, n.4. Employers should not use NoMatch letters, without more, as a basis for firing employees without resolution of the mismatch, and DHS has never countenanced such a practice. DHS urges employers, employees, and other interested parties to contact the Office of Special Counsel for ImmigrationRelated Unfair Employment Practices, (800) 2558155 or http://www.usdoj.gov/crt/osc/, for additional information and guidance about the application of the anti discrimination provisions.
Another commenter alleges that the NoMatch rules failed to address the concerns of the District Court that led to the injunction of the rules. This comment appears more attuned to the 2008 supplemental proposed rule, rather than the rescission of the 2007 final rule. Although DHS disagrees that the supplemental rule failed to address the District Court rationale in the order granting a motion for preliminary injunction, DHS is nonetheless rescinding the NoMatch rule as the commenter urged.
C. Scope of NoMatch Letters as an Enforcement Tool
Several commenters suggested that SSA discontinue issuing NoMatch letters to employers and instead send them to affected employees. The commenters further recommend that, if sent to employers, DHS not use the nomatch letters for immigration compliance purposes or, if the letters are obtained through audits or investigations, that DHS inform employers that they will have safe harbor from wrongful termination and Privacy Act charges. Another commenter further noted that NoMatch letters are issued for administrative purposes; that they were not designed as an immigration enforcement tool and are, in fact, ill suited for this purpose.
Whether the SSA will continue to provide employers and employees with written notice indicating that there is a discrepancy between the worker's name and social security number is a decision to be made by SSA. DHS believes that SSA notification is beneficial to the employer and the employee, and that the different letters to employers and employees serve different purposes for SSA. Employers and employees are made aware of discrepancies in their filings and that the discrepancy may affect employees' potential benefits, respectively, and the letters encourage corrective action to ensure that the employee's earnings are properly credited for retirement, disability, survivor and other benefits.
As discussed above, a finding of constructive knowledge of
unauthorized employment may be based on the totality of the circumstances. Employers
[[Page 51450]]
remain liable where the totality of the circumstances establishes
constructive knowledge that the employer knowingly hired or continued
to employ unauthorized workers. An employer's receipt of a NoMatch
letter and the nature of the employer's response to the letter are only
two factors that may be considered in determining the totality of the circumstances.
Another commenter argued that the use of social security numbers for immigration enforcement through delivery of NoMatch letters turns employers into de facto immigration agents, which goes beyond the scope of SSA's mission. DHS strongly disagrees. DHS acknowledges that receipt of the NoMatch letter, without more, does not mean that the employee is not authorized to work or that the employee provided a fraudulent name or social security number. The discrepancy may be based upon a number of reasons unrelated to immigration status, such as clerical errors or employees' name changes that may not have been reported to SSA. However, a NoMatch letter may also be generated because the individual is unauthorized to work in the United States and provided fraudulent information to the employer at the time of hire.
With regard to the comment that DHS provide a safe harbor from wrongful termination and Privacy Act charges, such action is outside of DHS's authority. DHS, therefore, declines to accept the recommendation. D. Viability of EVerify and IMAGE
Several commenters suggested that EVerify and IMAGE cannot replace the NoMatch rules. One commenter argued that improvements in EVerify and other DHS programs do not provide better tools for employers to reduce the incidence of unauthorized employment and to better detect and deter the use of fraudulent identity documents by employees, because IMAGE and EVerify are voluntary, and unscrupulous employers will not sign up for either. The commenter further argued that EVerify is deeply flawed and will confirm work authorization for individuals who claim to be a citizen and obtain identity documents using the citizen's name and social security number. Some commenters expressed reservations about expansion of EVerify without significant modifications because of alleged reliance on databases that are flawed or riddled with errors that would result in denial of employment to authorized workers, including United States citizens, and in discrimination against immigrant workers. Another commenter supported the rescission of the 2007 and 2008 NoMatch Rules, but opposes mandated participation in EVerify or IMAGE.
Another commenter suggested that a mandatory or vast expansion of the EVerify electronic employment verification system is not a solution to our nation's immigration problems. Further, the commenter suggested that the degree of inaccuracy in the EVerify underlying databases means that large numbers of Americans will be denied employment and paychecks, at least temporarily, while they attempt to resolve the problem with relevant government agencies. Finally, the commenter suggests that evidence coming from those who have used E Verify indicate that the current program is seriously flawed, ineffective, and could potentially cost thousands of United States citizens and legal residents their jobs due to database errors.
Other commenters suggested that EVerify relies upon databases which are flawed or errorprone and have unacceptably high error rates that misidentify authorized workers; abuse of the program by employers is substantial and results in discrimination, profiling of a vulnerable segment of workers, and illegal employment practices by unscrupulous employers; the privacy and security concerns of the program have not been addressed; and expanded use of the program jeopardizes the labor rights and livelihoods of workauthorized immigrant and citizen workers.
Other commenters similarly expressed reservations about expansion of EVerify without significant modifications to the program, its timely implementation with added employer safeguards, and fair procedures to ensure the system's accuracy and accountability. Another commenter supported the rescission of the 2007 and 2008 final rules, but opposed mandated participation in EVerify or IMAGE.
DHS agrees that EVerify and IMAGE do not replace the nomatch rules per seDHS never intended to suggest that its change in focus was a replacement for the NoMatch rule. The EVerify and IMAGE programs, and DHS enforcement priorities, are not a part of this rule and the proposed rule did not propose any action that would make E Verify or IMAGE or any other program a replacement or mandatory. DHS stated only that it was changing enforcement priorities and focus. These comments address broader policy decisions, not the content of the rescission proposed rule. DHS continues to believe that EVerify provides the best available method for employers to verify the employment eligibility of employees.
DHS strongly disagrees, however, with the commenters' suggestion
that EVerify contains a degree of inaccuracy that warrants not using
EVerify.\2\ Although outside the scope of the proposed rule, DHS notes
that many of the statistics used by commenters are out of date and some
do not establish the point suggested by the commenter. As discussed
above, the Administration and DHS are expanding the use of EVerify
because it is an accurate and effective tool for employers to verify employment eligibility.
\2\ Current statistics are available on the Internet at http:// www.uscis.gov/portal/site/uscis/
menuitem.5af9bb95919f35e66f614176543f6d1a/
?vgnextoid=f82d8557a487a110VgnVCM1000004718190aRCRD&vgnextchannel=a16
988e60a405110VgnVCM1000004718190aRCRD. See Committee on Oversight
and Government Reform, Subcommittee on Government Management, Organization and Procurement, EVerify: Challenges and
Opportunities, 111th Cong., 1st Sess. (July 23, 2009) (prepared
statements available at http://
governmentmanagement.oversight.house.gov/story.asp?ID=2552).
In addition, the IMAGE outreach program and other initiatives, such as requiring all government contractors to utilize EVerify, positively influence United States employers to exercise proactive immigration compliance, thus restricting the competitive field in which unscrupulous employers operate.
Several commenters suggested that relying solely on electronic
verification of employment eligibility would disadvantage agricultural
employers who are located in rural areas where modern internet
capability is not readily available; these commenters further argued
that the difficulty faced by these employers in using electronic
verification may subject them to an imprecise interpretation of
constructive knowledge. DHS has made clear that EVerify is not a
requirement and is one of many means to assure compliance. An employer
who decides to use EVerify, however, may choose, for example, to use
an outside company or vendor to run EVerify queries. Employers could
also seek out other sources of internet access, such as public sites.
Accordingly, DHS does not believe that it is impracticable for some
employers to use electronic employment verification methods such as E
Verify in areas where internet capability may currently be limited. As
discussed above, EVerify is one of many tools available to employers,
not the exclusive tool available or the exclusive focus of DHS'
assistance to employers. To the extent that agricultural employers are
located in rural areas that are not well served with modern [[Page 51451]]
internet capability, employers may continue to complete the Employment
Eligibility Verification Form I9 in the paper format and comply with
the employer verification requirements of the Immigration and
Nationality Act by carefully examining the identification and
employment eligibility documents presented by the employee at the time of hire.
E. Other Issues
A commenter suggested that the Employment Eligibility Verification Form I9 process is flawed and that employers refer to it as the ``ten foot rule''i.e. that if the documents presented look valid from ten feet away, then they are acceptable. DHS shares the commenter's concern that the Employment Eligibility Verification process can be abused by fraudulent document holders. The standard implicated in this comment by which employers are held to account regarding document verification is fixed by statute. INA section 274A(b)(1)(A), 8 U.S.C. 1324a(b)(1)(A) requires employers to verify an alien's work eligibility where a work authorization document presented ``reasonably appears on its face to be genuine.'' Accordingly the comment treats matters outside the scope of this rule. DHS is making improvements in the Employment Eligibility Verification Form I9 to assist employers and improve the integrity of employment verification. See, e.g., Documents Acceptable for Employment Eligibility Verification, 73 FR 76505 (Dec. 17, 2008) (interim final rule with request for comments amending lists of acceptable documents); 74 FR 5899 (Feb. 3, 2009) (delayed effective date); 74 FR 10455 (Mar. 11, 2009) (correction).
A few commenters further suggested that this rescission rule should
address guest worker programs. These comments are outside the scope of
this rulemaking action and thus will not be addressed in this final rule. DHS may consider these issues separately.
V. Statutory and Regulatory Reviews
A. Regulatory Flexibility Act
Under the Regulatory Flexibility Act, 5 U.S.C. 601612, we have considered whether this rule would have a significant economic impact on a substantial number of small entities. This rule would amend DHS regulations to rescind the amendments promulgated in the 2007 final rule and the 2008 supplemental final rule relating to procedures that employers may take to acquire a safe harbor from evidentiary use of receipt of nomatch letters. Implementation of the 2007 final rule was preliminarily enjoined by the United States District Court for the Northern District of California on October 10, 2007. This rule reinstates the language of 8 CFR 274.1(l) as it existed prior to the effective date of the 2007 final rule.
As explained at 73 FR 63863, DHS does not believe the safeharbor offered by the 2007 final rule and the 2008 supplemental final rule imposed a mandate that forced employers to incur ``compliance'' costs for the purposes of the Regulatory Flexibility Act. Only small entities that choose to avail themselves of the safe harbor would incur direct costs as a result of the 2007 final rule and the 2008 supplemental final rule. As this rulemaking proposes to rescind the offer of a safe harbor, this rule does not propose any compliance requirements and consequently would not impose any direct costs on small entities if promulgated as a final rule. Therefore, DHS certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
B. Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in one year, and it would not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995, Public Law No. 1044, 109 Stat. 48 (1995), 2 U.S.C. 1501 et seq. C. Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Act of 1996, Public Law 104121, 804, 110 Stat. 847, 872 (1996), 5 U.S.C. 804(2). This rule has not been found to be likely to result in an annual effect on the economy of $100 million or more, a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United Statesbased companies to compete with foreignbased companies in domestic or foreign markets. D. Executive Order 12866 (Regulatory Planning and Review)
This rule constitutes a ``significant regulatory action'' under Executive Order 12866, and therefore has been reviewed by the Office of Management and Budget. Under Executive Order 12866, a significant regulatory action is subject to an Office of Management and Budget (OMB) review and to the requirements of the Executive Order. The Executive Order defines ``significant regulatory action'' as one that is likely to result in a rule that may (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights or obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.
E. Executive Order 13132 (Federalism)
This rule does not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order No. 13132, 64 FR 43255 (Aug. 4, 1999), this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.
F. Executive Order 12988 (Civil Justice Reform)
This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order No. 12988, 61 FR 4729 (Feb. 5, 1996). G. Paperwork Reduction Act
This rule calls for no new collection of information under the Paperwork Reduction Act of 1995, 44 U.S.C. 35013520.
List of Subjects in 8 CFR Part 274a
Administrative practice and procedure, Aliens, Employment, Penalties, Reporting and recordkeeping requirements.
Accordingly, for the reasons set forth in the preamble, DHS amends part
274a of title 8 of the Code of Federal Regulations as follows: [[Page 51452]]
8 CFR CHAPTER 1DEPARTMENT OF HOMELAND SECURITY
PART 274aCONTROL OF EMPLOYMENT OF ALIENS
1. The authority citation for part 274a continues to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1624a, 8 CFR part 2, Public Law
101410, 104 Stat. 890, as amended by Public Law 104134, 110 Stat. 1321.
2. Section 274a.1 is amended by revising paragraph (l) to read as follows:
Sec. 274a.1 Definitions.
* * * * *
(l)(1) The term knowing includes not only actual knowledge but also
knowledge which may fairly be inferred through notice of certain facts
and circumstances which would lead a person, through the exercise of
reasonable care, to know about a certain condition. Constructive
knowledge may include, but is not limited to, situations where an employer:
(i) Fails to complete or improperly completes the Employment Eligibility Verification Form, I9;
(ii) Has information available to it that would indicate that the
alien is not authorized to work, such as Labor Certification and/or an Application for Prospective Employer; or
(iii) Acts with reckless and wanton disregard for the legal
consequences of permitting another individual to introduce an
unauthorized alien into its work force or to act on its behalf.
(2) Knowledge that an employee is unauthorized may not be inferred
from an employee's foreign appearance or accent. Nothing in this
definition should be interpreted as permitting an employer to request
more or different documents than are required under section 274(b) of
the Act or to refuse to honor documents tendered that on their face
reasonably appear to be genuine and to relate to the individual. Janet Napolitano,
Secretary.
[FR Doc. E924200 Filed 10609; 8:45 am]
BILLING CODE 911128P
FOR FURTHER INFORMATION CONTACT
National Program Manager Charles McClain, U.S. Immigration and Customs Enforcement, Office of InvestigationsMS 5112, 500 12th Street, SW., Washington DC, 20536. Telephone: 2027323988 (not a tollfree number).