NEW YORK STATE DEPARTMENT OF CIVIL SERVICE
State Personnel Management Manual
Advisory Memorandum # 97-07
TO: Department and Agency Personnel, Human Resource and Affirmative Action
FROM: Daniel E. Wall, Counsel
SUBJECT: The Immigration and Nationality Act: Verifying Employment Eligibility
THIS UPDATES STATE PERSONNEL MANAGEMENT MANUAL ADVISORY
MEMORANDUM #94-06, DATED OCTOBER 11, 1994, "THE IMMIGRATION AND NATIONALITY
ACT" LOCATED IN SECTIONS 1000 AND 1800.
NOTE ON BOTH COPIES OF THE 1994 MEMO THAT THIS MEMO MUST ALSO BE SEEN.
As stated in Advisory Memorandum #94-06, the Act requires employers to
verify the employment eligibility and identity of all new hires. The Illegal
Immigration Reform and Immigrant Responsibility Act of 1996, (IIRIRA)
Pub L. 104-208, amended the Immigration and Nationality Act by removing
certain documents from the list of documents acceptable for verifying
employment eligibility on the Employment Eligibility Verification Form
(Form I-9). The Immigration and Naturalization Service (INS) issued an
interim rule, effective September 30, 1997, (62 FR 51001), to implement
the amendments. However, the INS exercised its discretion under the Act
to designate specifc documents as acceptable, to retain some of the documents
eliminated by IIRIRA.
The rule deletes the following documents from "List A" on the
I-9. These documents are no longer acceptable for verifying identity and
- Certificate of US Citizenship, INS Form N-560 or N-561, and
- Certificate of Naturalization, INS Form N-550 or N-570.
Under the amended regulations, the following documents, so long as they
appear to relate to the individual presenting the document, are acceptable
as "List A" documents to evidence both identity and employment
- A United States passport (unexpired or expired);
- An Alien Registration Receipt Card or Permanent Resident Card (Form
- A foreign passport with a Temporary I-551 stamp;
- An Employment Authorization Document (EAD) issued by INS which
contains a photograph (Form I-766, Form I-688, or Form I-6888; and,
in the case of a nonimmigrant alien authorized to work for a specific
employer incident to status, a 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.
There is no change with respect to either the "List B" documents
or "List C' documents at this time. INS has advised that additional
changes will be made within the next six months as a result of a document
reduction initiative. Recognizing that these changes are being implemented
with little advance public notice, and without any changes to the existing
Form I-9 and the Handbook for Employers (Form M-274). INS has advised
that it will not seek monetary civil penalties against employers who
accept the documents removed by the interim rule.
Since a revised Form I-9 has not yet been promulgated, employers are
to use the current version of the Form I-9 (edition 11/21/91), to complete
the verification process. You may, however, want to note on the Form which
of the documents are no longer acceptable.
The rule also amends the regulations governing the use of receipts,(
8 C.F.R. section 274a.2(b)(1)(vi)). The current regulations permit individuals
to present a receipt showing that they have applied for a replacement
document if the individual is unable to provide a required document(s)
at the time of hire. The individual must then present the required document(s)
within 90 days of the hire.
The interim rule provides that an employer must accept a receipt that
appears to be genuine on its face and relate to the individual presenting
it in lieu of the required document, unless the employer has actual or
constructive knowledge that the individual is not authorized to work.
A receipt is not acceptable for initial work authorization or an extension
of expiring work authorization. Receipts are acceptable in the following
- When an individual presents a receipt for the application for a
replacement document because the original document was lost, stolen
or damaged. The individual must present the replacement document within
90 days of hire or the date employment authorization expires.
- When an individual presents the anival portion of the Form I-94
that INS has marked with a temporary I-551 stamp and has affixed with
the alien's picture, which is designated as a receipt for Form I-551
for 180 days;
- When as individual presents the departure portion of Form I-94
containing a refugee admission stamp. The refugee is permitted to
present either an unrestricted Social Security card or a Form I-766
EAD at the end of the 90-day receipt period. If the refugee presents
a Social Security card, the refugee will also need to present a "List
B" document. If the refugee present a Form I-766 EAD, he or she
need not present another document.
Receipts are not acceptable where the individual is hired for less than
three business days.
If you have any questions concerning this information, you may contact
the Office of Counsel of the Department of Civil Service at (518) 457-6207.