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Statement of Need: To further improve the integrity of the employment eligibility verification process, and to ensure that the list of acceptable identity and employment authorization documents contain secure and fraud-resistant documents.

Summary of the Legal Basis: All employers and agricultural recruiters and referrers for a fee (collectively referred to as “employer(s)”) are required to verify the identity and employment authorization of each individual they hire for employment in the United States, regardless of the individual’s citizenship. (See Immigration and Nationality Act (INA) section 274A(a)(1)(B), 8 U.S.C. 1324a(a)(1)(B)). As part of the verification process, employers must complete Form I-9, Employment Eligibility Verification, retain the form for a statutorily-established period of time, and make the form available for inspection by certain government officials. (See INA section 274A(b), 8 U.S.C. 1324a(b); 8 CFR 274a.2). The documents designated as acceptable for the Form I-9 are divided among three lists: · List A—documents that establish both identity and employment authorization; · List B—documents that establish only identity; and · List C—documents that establish only employment authorization. (See INA sections 274A(b)(1)(B),(C) and (D), 8 U.S.C. 1324a(b)(1)(B),(C); 8 CFR 274a.2(B)(1)(v)(A), B) and (C)). Additionally, DHS possesses statutory authority to prohibit or place conditions on the use of documents establishing the employment authorization or identity of individuals for Form I-9 purposes if DHS finds, by regulation, that such documents do not reliably establish employment authorization or identity or are being used fraudulently to an unacceptable degree. (See INA section 274A(b)(1)(E), 8 U.S.C. 1324a(b)(1)(E)). The changes proposed in this rule are not required by statute or court order.

Alternatives: This proposed rule requests input from the public on what alternatives, if any, DHS should consider. The proposed rule also requests that any alternatives suggested should include the costs and benefits of those alternatives, as well as the effect on small entities.

Anticipated Costs and Benefits: There are significant unquantifiable benefits. The proposal provides details and specificity on acceptable identity and employment authorization documents, which are not present in the legislation or current regulations. Cost Analysis. The cost benefit analysis of this proposed rule will be provided to the Office of Management and Budget (OMB) and will be available for review in the public docket for this rulemaking at www.regulations.gov once this proposed rule is published in the Federal Register.

Risks: An employment eligibility verification system that relies on a wide range of documents may result in misapplication of the employment eligibility verification requirements. In addition, a complicated system may encourage fraud and result in individuals who are authorized to work in the United States being displaced by unauthorized individuals.