Appendix G. Virtue Memorandum, Interim Guidelines (03/06/97)

• Author: Charles M. Miller/Daniel Brown/Marcine Anne Seid
• Profession: Founding partner of the Miller Law Offices, Studio City, California/Partner in Fragomen, Del Rey, Bernsen & Loewy LLP's Washington, D.C./Principal attorney of the Seid Law Group, Palo Alto, California
• Pages: 371-392

Appendix G 371

MEMORANDUM

HQIRT 50/5.12

Subject: Interim Guidelines: Section 274A(b)(6) of the Immigration & Nationality Act Added by

Section 411 of the Illegal Immigration Reform & Immigrant Responsibility Act of 1996.

Date: March 6, 1997

To: Management Team From: Office of Programs

Regional Directors

District Directors

Chief Patrol Agents

Officers in Charge

Regional Counsels

District Counsels

Section 411 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA),

signed into law on September 30, 1996, significantly changed enforcement of the verification

requirements of section 274A(b) of the Immigration and Nationality Act (Act). The provisions of section

411 of IIRAIRA took effect upon the signing of the bill; implementing regulations are currently being

drafted. Until implementing regulations are in place, the following interim guidelines shall apply to INS

field officers and INS attorneys assigned to employer sanctions cases.

A. SECTION 411 OF IIRAIRA: THE GOOD FAITH COMPLIANCE PROVISION

1. Summary of the Good Faith Compliance Provision

The Good Faith Compliance Provision of section 411 of IIRAIRA amends section 274A(b) of the

Immigration and Nationality Act (Act) by adding a new paragraph: section 274A(b)(6). The language of

this section applies to failures occurring on or after September 30, 1996. See IIRAIRA Section 411(b).

Under section 274A(b)(6)(A) of the Act, a person or entity is considered to have complied with a

requirement of section 274A(b) of the Act notwithstanding a technical or procedural failure to meet such

requirement where the person or entity made a good faith attempt to comply with the requirement. There

are two exceptions to the applicability of section 274A(b)(6)(A) of the Act. These are stated in sections

274A(b)(6)(B)and (C) of the Act. First, a person or entity will not be considered to have complied with

the requirement in question if the INS or another enforcement agency has explained to the person or

entity the basis for the failure, and the person or entity has been provided a period of not less than ten

business days beginning after the date of the explanation within which to correct the failure, and the

person or entity has not corrected the failure within such period. Second, a person or entity will not be

considered to have complied with the requirement in question if the person or entity is engaging in a

pattern or practice of violations of the knowing hire or continuing to employ provisions of sections

274A(a)(1)(A) or 274A(a)(2) of the Act.

372 Appendix G

2. Applicability of Secti on 274A(b)(6) of the Act: Ge neral Overview of Procedures

Section 274A(b)(6) o f the Act applies to cases arising from I-9 inspections conducted on or after

September 30, 1996.1 This requires that technical or procedural failures to meet a requirement of section

274A(b) of the Act discovered during an I-9 inspection conducted on or after September 30, 1996 not be

included in a NIF unless and until certain notification procedures are followed.

It is within the discretion of the Supervisory INS officer to decide whether the NIF will include technical

or procedural failures.2 If the Supervisory INS officer decides to include these technical or procedural

failures in the NIF, issuance of the NIF must be deferred until the employer is given notice of the failures

and at least ten business days to correct the failures consistent with this guidance. After review of the

corrected failures, the NIF should include any knowing hire/continuing to employ counts, verification

counts and uncorrected technical or procedural failures.

If the Supervisory INS officer decides not to include technical or procedural failures in the NIF, a NIF

excluding these failures can be issued without the necessity of providing the employer with notice of the

failures and a correction period. However, in cases where the NIF will not include technical or procedural

failures, the Supervisory INS officer may decide that notification to the employer of the technical or

procedural failures is nevertheless appropriate. If an employer has been specifically notified by the INS3

of the technical or procedural failures and provided an opportunity to correct the failures, yet commits the

same type of failure in the future, the employer will be found not to have made a good faith attempt to

comply with the verification requirement related to that type of failure at a reinspection. In such a case,

the employer cannot benefit from section 274A(b)(6) of the Act with respect to that type of failure.

In cases where no unauthorized aliens are found at a worksite and only failures to meet the verification

requirements of section 274A(b) of the Act are discovered, INS policy encourages that a Warning Notice

be issued in lieu of a NIF.

3. Meaning of Ter ms

a. Substantive Verification Failures4

Section 274A(b)(6) of the Act is applicable only to those verification failures that are designated as

“technical or procedural.” It has been determined that verification failures that are NOT “technical or

procedural” include the following:

Failure of the person or entity to:

(A) prepare or present the Form I-9;

(B) in Section One of the Form I-9:

1 Special consideration must be given to timeliness failure. See section 4 of part A for a discussion of these timeliness failures.

2 This decision is to be based upon the severity and frequency of the failures, resources, etc.

3 Under this interim guidance only, a Warning Notice regarding verification violations issued by the Department of Labor does

not constitute notice of technical or procedural failures for purposes of section 274A(b)(6) of the Act.

4 For a checklist of substantive verification failures, see Appendix A.