Safe-Harbor Procedures for Employers Who Receive a No-Match Letter, 34281-34285 [E6-9303]

Agencies

• DEPARTMENT OF HOMELAND SECURITY

[Federal Register Volume 71, Number 114 (Wednesday, June 14, 2006)]
[Proposed Rules]
[Pages 34281-34285]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-9303]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 71, No. 114 / Wednesday, June 14, 2006 / 
Proposed Rules

[[Page 34281]]



DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 274a

[ICE 2377-06; Docket No. ICEB-2006-0004]
RIN 1653-AA50


Safe-Harbor Procedures for Employers Who Receive a No-Match 
Letter

AGENCY: Bureau of Immigration and Customs Enforcement, Department of 
Homeland Security.

ACTION: Proposed rule.

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SUMMARY: The Bureau of Immigration and Customs Enforcement proposes to 
amend the regulations relating to the unlawful hiring or continued 
employment of unauthorized aliens. The amended regulation describes the 
legal obligations of an employer, under current immigration law, when 
the employer receives a no-match letter from the Social Security 
Administration or the Department of Homeland Security. It also 
describes ``safe-harbor'' procedures that the employer can follow in 
response to such a letter and thereby be certain that DHS will not find 
that the employer had constructive knowledge that the employee referred 
to in the letter was an alien not authorized to work in the United 
States. The proposed rule adds two more examples of situations that may 
lead to a finding that an employer had such constructive knowledge to 
the current regulation's definition of ``knowing.'' These additional 
examples involve an employer's failure to take reasonable steps in 
response to either of two events: (1) The employer receives written 
notice from the Social Security Administration (SSA) that the 
combination of name and social security account number submitted to SSA 
for an employee does not match agency records; or (2) the employer 
receives written notice from the Department of Homeland Security (DHS) 
that the immigration-status or employment-authorization documentation 
presented or referenced by the employee in completing Form I-9 was not 
assigned to the employee according to DHS records. (Form I-9 is 
retained by the employer and made available to DHS investigators on 
request, such as during an audit.) The proposed rule also states that 
whether DHS will actually find that an employer had constructive 
knowledge that an employee was an unauthorized alien in a situation 
described in any of the regulation's examples will depend on the 
totality of relevant circumstances. The ``safe-harbor'' procedures 
include attempting to resolve the no-match and, if it cannot be 
resolved within a certain period of time, verifying again the 
employee's identity and employment authorization through a specified 
process.

DATES: Written comments must be submitted on or before August 14, 2006.

ADDRESSES: You may submit comments, identified by DHS Docket No. ICEB-
2006-0004, by one of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
     E-mail: You may submit comments directly to ICE by email 
at rfs.regs@dhs.gov. Include docket number in the subject line of the 
message.
     Mail: Director, Regulatory Management Division, U.S. 
Citizenship and Immigration Services, Department of Homeland Security, 
111 Massachusetts Avenue, NW., 2nd Floor, Washington, DC 20529, Contact 
Telephone Number (202) 272-8377. To ensure proper handling, please 
reference DHS Docket No. ICEB-2006-0004 on your correspondence. This 
mailing address may also be used for paper, disk, or CD-ROM 
submissions.
     Hand Delivery/Courier: Regulatory Management Division, 
U.S. Citizenship and Immigration Services, Department of Homeland 
Security, 111 Massachusetts Avenue, NW., 2nd Floor, Washington, DC 
20529, Contact Telephone Number (202) 272-8377.

FOR FURTHER INFORMATION CONTACT: Charles Wood, Regulatory Counsel, 
Office of the Principal Legal Advisor, Bureau of Immigration and 
Customs Enforcement, Department of Homeland Security, 425 I Street, 
NW., Washington, DC 20536. Contact Telephone Number (202) 514-2895.

SUPPLEMENTARY INFORMATION:

I. Public Participation

    Interested persons are invited to participate in this rulemaking by 
submitting written data, views, or arguments on all aspects of the 
proposed rule. The Bureau of Immigration and Customs Enforcement (ICE) 
also invites comments that relate to the potential economic, 
environmental, or federalism effects of this proposed rule. Comments 
that will provide the most assistance to ICE in developing these 
procedures will reference a specific portion of the proposed rule, 
explain the reason for any recommended change, and include data, 
information, or authority that support such recommended change. ICE 
would be particularly interested in comments on the time limits 
described in the rule. Comments that will provide the most assistance 
to ICE will include specific factual support, including examples of 
circumstances under which it would be difficult for the commenting 
employer to resolve the issues raised in a no-match letter within the 
stated time frame.
    Instructions: All submissions received must include the agency name 
and DHS docket No. ICEB-2006-0004 for this rulemaking. All comments 
received will be posted without change to https://www.regulations.gov, 
including any personal information provided. See ADDRESSES above for 
information on how to submit comments.
    Docket: For access to the docket to read background documents or 
comments received, go to https://www.regulations.gov. Submitted comments 
may also be inspected at the office of the Director, Regulatory 
Management Division, U.S. Citizenship and Immigration Services, 
Department of Homeland Security, 111 Massachusetts Avenue, NW., 2nd 
Floor, Washington, DC 20529, Contact Telephone Number (202) 272-8377.

II. Background

    Employers annually send the Social Security Administration (SSA) 
millions of earnings reports (W-2 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 that informs the 
employer of this fact. The letter is commonly referred to as a ``no-
match letter.'' There are many causes for such a no-match, including 
clerical

[[Page 34282]]

error and name changes. But one of the causes is the submission of 
information for an alien who is not authorized to work in the United 
States and is using a false SSN or a SSN assigned to someone else. Such 
a letter may be one of the only indicators to an employer that one of 
its employees may be an unauthorized alien.
    ICE sends a similar letter after it has inspected an employer's 
Employment Eligibility Verification forms (Forms I-9) 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 I-9 was 
assigned to that person. (After a Form I-9 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.)
    This proposed regulation describes an employer's current 
obligations under the immigration laws, and its options for avoiding 
liability, after receiving a no-match letter from either SSA or DHS. 
The proposed regulation specifies the steps to be taken by the employer 
that will be considered by DHS to be a reasonable response to receiving 
a no-match letter--a response that will eliminate the possibility that 
DHS, when seeking civil money penalties against an employer, will 
allege, based on the totality of relevant circumstances, that an 
employer had constructive knowledge that it was employing an alien not 
authorized to work in the United States, in violation of section 
274A(a)(2) of the Immigration and Nationality Act (INA), 8 U.S.C. 
1324a(a)(2). This provision of the Act states:

    It is unlawful for a person or other entity, after hiring an 
alien for employment in accordance with paragraph (1), 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. 
[Emphasis added.]

    Both regulation and case law support the view that an employer can 
be in violation of section 274A(a)(2), 8 U.S.C. 1324a(a)(2) by having 
constructive rather than actual knowledge that an employee is 
unauthorized to work. A definition of ``knowing'' first appeared in the 
regulations on June 25, 1990 at 8 CFR 274a.1(l)(1). See 55 FR 25928. 
That definition stated:

    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.

As noted in the preamble to the original regulation, that definition, 
which is essentially the same as the definition adopted in this rule, 
is consistent with the Ninth Circuit's holding in Mester Mfg. Co. v. 
INS, 879 F.2d 561, 567 (9th Cir. 1989) (an employer who received 
information that some employees were suspected of having presented a 
false document to show work authorization was held to have had 
constructive knowledge of their unauthorized status when he failed to 
make any inquiries or take appropriate corrective action). The court 
cited its opinion in United States v. Jewell, 532 F.2d 697 (9th Cir.) 
(en banc), and explained its ruling in Jewell as follows: ``deliberate 
failure to investigate suspicious circumstances imputes knowledge.'' 
879 F.2d at 567. See also New El Rey Sausage Co. v. INS, 925 F.2d 1153, 
1158 (9th Cir. 1991).
    The regulatory language quoted above also begins the current 
regulatory definition of ``knowing,'' which is still at 8 CFR 
274a.1(l)(1). In the current definition, additional language follows 
this passage, describing situations that may involve constructive 
knowledge by the employer that an employee is an unauthorized alien. 
The Immigration and Naturalization Service added this language on 
August 23, 1991. See 56 FR 41767. The current definition contains an 
additional, concluding paragraph, which relates to foreign appearance 
or accent, and to the documents that may be requested by an employer as 
part of the verification system that must be used at the time of 
hiring, as required by INA section 274A(a)(1)(B), 8 U.S.C. 
1324a(a)(1)(B). This paragraph will be described in greater detail 
below. The verification system referenced in this paragraph is 
described in INA section 274A(b), 8 U.S.C. 1324a(b).

III. Proposed rule

    The proposed rule would amend the definition of ``knowing'' in 8 
CFR 274a.1(l)(1), in the portion relating to ``constructive 
knowledge.'' First, it would add two more examples to the existing 
examples of information available to an employer indicating that an 
employee could be an alien who is not authorized to work in the United 
States. It also explicitly states the employer's obligations under 
current law, which is that if the employer fails to take reasonable 
steps after receiving such information, and if the employee is in fact 
an unauthorized alien, the employer may be found to have had 
constructive knowledge of that fact. The proposed rule would also state 
explicitly another implication of the employer's obligation under 
current law--whether an employer would be found to have constructive 
knowledge in particular cases of the kind described in each of the 
examples (the ones in the current regulation and in the proposed 
regulation) depends on the ``totality of relevant circumstances'' 
present in the particular case.
    The additional examples are:
    (1) Written notice from SSA that the combination of name and SSN 
submitted for an employee does not match SSA records; and
    (2) written notice from DHS that the immigration status document, 
or employment authorization document, presented or referenced by the 
employee in completing Form I-9 was assigned to another person, or that 
there is no agency record that the document was assigned to anyone.
    The proposed regulation also describes more specifically the steps 
that an employer might take after receiving a no-match letter, steps 
that DHS considers reasonable. By taking these steps in a timely 
fashion, an employer would avoid the risk that DHS may find, based on 
the totality of circumstance present in the particular case, that the 
employer had constructive knowledge that the employee was not 
authorized to work in the United States. The steps that a reasonable 
employer may take include one or more of the following:
    (I) A reasonable employer would check its records promptly after 
receiving a no-match letter, to determine whether the discrepancy 
results from a typographical, transcribing, or similar clerical error 
in the employer's records or in its communication to the SSA or DHS. If 
there is such an error, the employer would correct its records, inform 
the relevant agencies (in accordance with the letter's instructions, if 
any; otherwise in any reasonable way), and verify that the name and 
number, as corrected, match agency records--in other words, verify with 
the relevant agency that the discrepancy has been resolved--and make a 
record of the manner, date, and time of the verification. ICE would 
consider a reasonable employer to have acted promptly if the employer 
took such steps within 14 days of receipt of the no-match letter.
    (II) If such actions do not resolve the discrepancy, the reasonable 
employer would promptly request the employee to confirm that the 
employer's records are correct. If they are not correct, the employer 
would take the actions needed to correct them, inform the relevant 
agencies (in accordance with the letter's instructions, if any; 
otherwise in any reasonable way), and verify the corrected records with 
the relevant

[[Page 34283]]

agency. If the records are correct according to the employee, the 
reasonable employer would ask the employee to pursue the matter 
personally with the relevant agency, such as by visiting a local SSA 
office, bringing original documents or certified copies required by 
SSA, which might include documents that prove age, identity, 
citizenship or alien status, and other relevant documents, such as 
proof of a name change, or by mailing these documents or certified 
copies to the SSA office, if permitted by SSA. ICE would consider a 
reasonable employer to have acted promptly if the employer took such 
steps within 14 days of receipt of the no-match letter. The proposed 
regulation provides that a discrepancy will be considered resolved only 
if the employer verifies with SSA or DHS, as the case may be, that the 
employee's name matches in SSA's records a number assigned to that 
name, and the number is valid for work or is valid for work with DHS 
authorization (and, with respect to the latter, verifies the 
authorization with DHS) or that DHS records indicate that the 
immigration status document or employment authorization document was 
assigned to the employee. In the case of a number from SSA, the valid 
number may be the number that was the subject of the no-match letter or 
a different number, for example a new number resulting from the 
employee's contacting SSA to resolve the discrepancy. Employers may 
verify a SSN with SSA by telephoning toll-free 1-800-772-6270, weekdays 
from 7 a.m. to 7 p.m. EST. See https://www.ssa.gov/employer/
ssnvadditional.htm. For info on SSA's online verification procedure, 
see https://www.ssa.gov/employer/ssnv.htm. Employers should make a 
record of the manner, date, and time of any such verification, as SSA 
may not provide any documentation.
    (III) The proposed regulation also describes a verification 
procedure that the employer may follow if the discrepancy is not 
resolved within 60 days of receipt of the no-match letter. This 
procedure would verify (or fail to verify) the employee's identity and 
work authorization. If the described procedure is completed, and the 
employee is verified, then even if the employee is in fact an 
unauthorized alien, the employer will not be considered to have 
constructive knowledge of that fact. Please note that, as stated in the 
``PUBLIC PARTICIPATION'' section above, ICE is interested in receiving 
public comments on the time frames in this proposed regulation. That 
would include the 60-day period, and also possible alternatives, such 
as a 30-day or 90-day time frame. In determining the time frame to be 
included in the final rule, ICE will consider all comments received. As 
further stated in ``PUBLIC PARTICIPATION,'' the comments that will 
provide the most assistance to ICE on this issue will include specific 
factual support, including examples of circumstances under which it 
would be difficult for the commenting employer to resolve the issues 
raised in a no-match letter within 60 days of receipt of the letter.
    If the discrepancy referred to in the no-match letter is not 
resolved, and if the employee's identity and work authorization cannot 
be verified using a reasonable verification procedure, such as that 
described in the proposed rule (see below), then the employer must 
choose between taking action to terminate the employee or facing the 
risk that DHS may find that the employer had constructive knowledge 
that the employee was an unauthorized alien and therefore, by 
continuing to employ the alien, violated INA section 274A(a)(2), 8 
U.S.C. 1324a(a)(2).
    The procedure to verify the employee's identity and work 
authorization described in the proposed rule would involve the employer 
and employee completing a new Form I-9, Employment Eligibility 
Verification Form, using the same procedures as if the employee were 
newly hired, as described in 8 CFR 274a.2, with certain restrictions. 
The proposed rule identifies these restrictions:

    (1) Under the proposed rule, both Section 1 (``Employee 
Information and Verification'') and Section 2 (``Employer Review and 
Verification'') would have to be completed within 63 days of receipt 
of the no-match letter. Therefore, if an employer tried to resolve 
the discrepancy described in the no-match letter for the full 60 
days provided for in the proposed rule, it would have an additional 
3 days to complete a new I-9. Under current regulations, three days 
are provided for the completion of the form after a new hire. 8 CFR 
274a.2(b)(1)(ii).
    (2) No document containing the SSN or alien number that is the 
subject of the no-match letter, and no receipt for an application 
for a replacement of such a document, may be used to establish 
employment authorization or identity or both.
    (3) No document without a photograph may be used to establish 
identity (or both identity and employment authorization). (This is 
consistent with the documentary requirements of the Basic Pilot 
Program. See https://uscis.gov/graphics/services/SAVE.htm.)

    Employers should apply these procedures uniformly to all of their 
employees having unresolved no-match indicators. If they do not do so, 
they may violate applicable anti-discrimination laws. In this regard, 
the proposed regulation also amends the last paragraph of the current 
definition of ``knowing.'' The current rule provides, in relevant part, 
that--

    Nothing in this definition should be interpreted as permitting 
an employer to request more or different documents than are required 
under section 274(b) \1\ 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.
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    \1\ Please note, this citation is inaccurate and should read 
``section 274A(b) of the Act.'' The proposed rule makes this 
correction.

The proposed rule clarifies that this language applies to employers who 
receive no-match letters, but that employers who follow the safe harbor 
procedures set forth in this rule will not be found to have violated 
the provisions of 274B(a)(6) of the INA. This clarification is 
accomplished by adding the following language after ``individual'': ``, 
except a document about which the employer has received a notice 
described in paragraph (l)(1)(iii) of this section and with respect to 
which the employer has received no verification as described in 
paragraph (l)(2)(i)(B) or (l)(2)(ii)(B) of this section.''. Alternative 
documents that show work authorization are specified in 8 CFR 
274a.2(b)(1)(v). Examples are a U.S. passport (unexpired or expired), a 
U.S. birth certificate, or any of several documents issued to lawful 
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permanent resident aliens or to nonimmigrants with work authorization.

    There may be other procedures a particular employer could follow in 
response to a no-match letter, procedures that would be considered 
reasonable by DHS and inconsistent with a finding that the employer had 
constructive knowledge that the employee was an unauthorized alien. But 
such a finding would depend on the totality of relevant circumstances. 
An employer that followed a procedure other than the ``safe-harbor'' 
procedures described in the regulation would face the risk that DHS may 
not agree.
    It is important that employers understand that the proposed 
regulation describes the meaning of constructive knowledge and 
specifies ``safe-harbor'' procedures that employers could follow to 
avoid the risk of being found to have constructive knowledge that an 
employee is not authorized to work in the United States. The regulation 
would not preclude DHS from finding that an employer had actual 
knowledge that an employee was an unauthorized alien. An employer with 
actual knowledge

[[Page 34284]]

that one of its employees is an unauthorized alien could not avoid 
liability by following the procedures described in the proposed 
regulation. The burden of proving actual knowledge would, however, be 
on the government. Finally, it is important that employers understand 
that the resolution of discrepancies in a no-match letter, or other 
information that an employee's Social Security Number presented to an 
employer matches the records for the employee held by the Social 
Security Administration, does not, in and of itself, demonstrate that 
the employee is authorized to work in the United States.

IV. Regulatory Requirements

A. Regulatory Flexibility Act

    The Secretary of Homeland Security, in accordance with the 
Regulatory Flexibility Act, 5 U.S.C. 605(b), has reviewed this 
regulation and, by approving it, certifies that this rule would not 
have a significant economic impact on a substantial number of small 
entities. This rule would not affect small entities as that term is 
defined in 5 U.S.C. 601(6). This rule would describe when receipt by an 
employer of a no-match letter from the Social Security Administration 
or the Department of Homeland Security may result in a finding that the 
employer had constructive knowledge that it was employing an alien not 
authorized to work in the United States. The rule would also describe 
steps that DHS would consider a reasonable response by an employer to 
receipt of a no-match letter. The rule would not mandate any new 
burdens on the employer and would not impose any new or additional 
costs on the employer, but would merely add specific examples and a 
description of a ``safe harbor'' to an existing DHS regulation for 
purposes of enforcing the immigration laws and providing guidance to 
employers.

B. Unfunded Mandates Reform Act of 1995

    This rule would 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.

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. This rule would not 
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 States-based companies to compete with foreign-
based companies in domestic or foreign markets.

D. Executive Order 12866 (Regulatory Planning and Review)

    This proposed rule is considered by the Department of Homeland 
Security (DHS) to be a ``significant regulatory action'' under 
Executive Order 12866. 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. Because this rule would describe what 
specific steps an employer that has received a no-match letter could 
take that would eliminate the possibility that DHS would find that the 
employer had constructive knowledge that it is employing an 
unauthorized alien, this rule may raise novel policy issues.

E. Executive Order 13132 (Federalism)

    This rule would 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 13132, it is determined that 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 12988.

G. Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995, Public Law 104-13, all 
Departments are required to submit to the Office of Management and 
Budget (OMB), for review and approval, any reporting requirements 
inherent in a rule. This proposed rule would not impose any additional 
information collection burden or affect information currently collected 
by ICE.

List of Subjects in 8 CFR Part 274a

    Administrative practice and procedure, Aliens, Employment, 
Penalties, Reporting and recordkeeping requirements.

    Accordingly, part 274a of chapter I of title 8 of the Code of 
Federal Regulations is amended as follows:

PART 274a--CONTROL OF EMPLOYMENT OF ALIENS

    1. The authority citation for part 274a continues to read as 
follows:

    Authority: 8 U.S.C. 1101, 1103, 1324a; 8 CFR part 2.

    2. Section 274a.1(l) is revised to read as follows:


Sec.  274a.1  Definitions.

* * * * *
    (l)(1) The term knowing includes having actual or constructive 
knowledge. Constructive knowledge is knowledge which may fairly be 
inferred through notice of certain facts and circumstances that would 
lead a person, through the exercise of reasonable care, to know about a 
certain condition. Examples of situations where the employer may, 
depending on the totality of relevant circumstances, have constructive 
knowledge that an employee is an unauthorized alien include, but are 
not limited to, situations where the employer:
    (i) Fails to complete or improperly completes the Employment 
Eligibility Verification Form, I-9;
    (ii) 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;
    (iii) Fails to take reasonable steps after receiving information 
indicating that the employee may be an alien who is not employment 
authorized, such as--
    (A) Labor Certification or an Application for Prospective Employer;

[[Page 34285]]

    (B) Written notice from the Social Security Administration that the 
combination of name and social security account number submitted for 
the employee does not match Social Security Administration records; or
    (C) Written notice from the Department of Homeland Security that 
the immigration status document or employment authorization document 
presented or referenced by the employee in completing Form I-9 was 
assigned to another person, or that there is no agency record that the 
document was assigned to any person.
    (2)(i) An employer who receives the notice from SSA described in 
paragraph (l)(1)(iii)(B) of this section will not be deemed to have 
constructive knowledge that the employee is an unauthorized alien if--
    (A) The employer takes reasonable steps, within 14 days, to attempt 
to resolve the discrepancy; such steps may include:
    (1) Checking the employer's records promptly after receiving the 
notice, to determine whether the discrepancy results from a 
typographical, transcribing, or similar clerical error, and if so, 
correcting the error(s), informing the Social Security Administration 
of the correct information (in accordance with the letter's 
instructions, if any; otherwise in any reasonable way), verifying with 
the Social Security Administration that the employee's name and social 
security account number, as corrected, match in Social Security 
Administration records, and making a record of the manner, date, and 
time of such verification; and
    (2) If no such error is found, promptly requesting the employee to 
confirm that the name and social security account number in the 
employer's records are correct--and, if they are correct according to 
the employee, requesting the employee to resolve the discrepancy with 
the Social Security Administration, such as by visiting a Social 
Security Administration office, bringing original documents or 
certified copies required by SSA, which might include documents that 
prove age, identity, and citizenship or alien status, and other 
documents that may be relevant, such as those that prove a name change, 
or, if the employee states that the employer's records are in error, 
taking the actions to correct, inform, verify, and make a record 
described in paragraph (l)(2)(i)(A)(1) of this section; and
    (B) In the event that, within 60 days of receiving the notice, the 
employer does not verify with the Social Security Administration that 
the employee's name matches in the Social Security Administration's 
records a number assigned to that name and that the number is valid for 
work or is valid for work with DHS authorization (and, with respect to 
the latter, verify the authorization with DHS), the employer takes 
reasonable steps, within an additional 3 days, to verify the employee's 
employment authorization and identity, such as by following the 
verification procedure specified in paragraph (l)(2)(iii) of this 
section.
    (ii) An employer who receives the notice from DHS described in 
paragraph (l)(1)(iii)(C) of this section will not be deemed to have 
constructive knowledge that the employee is an unauthorized alien if--
    (A) The employer takes reasonable steps, within 14 days of 
receiving the notice, to attempt to resolve the question raised by DHS 
about the immigration status document or the employment authorization 
document; and
    (B) In the event that, within 60 days of receiving the notice, the 
employer does not verify with DHS that the document was assigned to the 
employee, the employer takes reasonable steps, within an additional 3 
days, to verify the employee's employment authorization and identity, 
such as by following the verification procedure specified in paragraph 
(l)(2)(iii) of this section.
    (iii) The verification procedure referenced in paragraphs 
(l)(2)(i)(B) and (l)(2)(ii)(B) of this section is as follows:
    (A) The employer completes a new Form I-9 for the employee, using 
the same procedures as if the employee were newly hired, as described 
in Sec.  274a.2(a) and (b) of this part, except that--
    (1) Both Section 1--``Employee Information and Verification''--and 
Section 2--``Employer Review and Verification''--of the new Form I-9 
should be completed within 63 days of receiving the notice referred to 
in paragraph (l)(1)(iii)(B) or (C) of this section;
    (2) No document containing the social security account number or 
alien number that is the subject of a written notice referred to in 
paragraph (l)(1)(iii)(B) or (C) of this section, and no receipt for an 
application for a replacement of such document, may be used to 
establish employment authorization or identity or both; and
    (3) No document without a photograph may be used to establish 
identity or both identity and employment authorization; and
    (B) The employer retains the new Form I-9 with the prior Form(s) I-
9 for the same period and in the same manner as if the employee were 
newly hired at the time the new Form I-9 is completed, as described in 
Sec.  274a.2(b) of this part.
    (3) 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 274A(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, except 
a document about which the employer has received a notice described in 
paragraph (l)(1)(iii) of this section and with respect to which the 
employer has received no verification as described in paragraph 
(l)(2)(i)(B) or (l)(2)(ii)(B) of this section.

    Dated: June 8, 2006.
Michael Chertoff,
Secretary.
 [FR Doc. E6-9303 Filed 6-13-06; 8:45 am]
BILLING CODE 4410-10-P