October 15, 2012 VIA ELECTRONIC FILING

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1 R A N D E L K. J O H N S O N S E N I O R V I C E P R E S I D E N T L A B O R, I M M I G R A T I O N, & E M P L O Y E E B E N E F I T S C H A M B E R O F C O M M E R C E O F T H E U N I T E D S T A T E S O F A M E R I C A H S T R E E T, N. W. W A S H I N G T O N, D. C A M Y M. N I C E E X E C U T I V E D I R E C T O R I M M I G R A T I O N P O L I C Y VIA ELECTRONIC FILING Office of Information and Regulatory Affairs Office of Management and Budget USCIS Desk Officer Washington, DC Re: Form I-9, Employment Eligibility Verification 77 Fed. Reg (September 14, 2012) OMB Control Number Docket Number USCIS Information Collection Under Review Dear Sir or Madam: We are writing in response to the request for comment concerning the proposal by U.S. Citizenship and Immigration Services (hereafter USCIS ) to revise the Form I-9, the Employment Eligibility Verification form. The U.S. Chamber of Commerce ( Chamber ) is the world s largest business federation. Members of the Chamber transact business throughout the United States, in every state and geographic region in the country. The Chamber represents 300,000 direct members and also represents the interests of more than three million companies and trade and professional organizations of every size, in every industry sector, and from every state, through our federation of state and local chambers. Overview Congress has mandated, since the Immigration Reform and Control Act of 1986, that employers play a critical role in our national immigration policy by verifying the employment eligibility of new employees through completion of an I-9 employment eligibility verification process. The Form I-9 must be completed any time any employer in the United States hires a new employee. In addition, the Form I-9 must be completed to rehire certain individuals or to reverify the continuing work authorization of certain employees. Annually, approximately 50 million new hires are made on average by U.S. employers. These new hires are distributed among both large employers and small and medium enterprises. According to the latest U.S. Economic Census, there are about 6.05 million businesses in the country. Immigration and

2 Page 2 of 7 Customs Enforcement (ICE), a sister agency to USCIS within DHS, is responsible for enforcing compliance with the I-9 obligation and creating a cultural of compliance. Employers can be, and are, fined if they do not complete the I-9 correctly, regardless of whether ICE shows that employers have hired an alien unauthorized for employment. We recognize that USCIS has a difficult task before it to transition any significant changes to a form used so frequently by so many different types of users. As confirmed by the latest U.S. Economic Census: 98% of all businesses in America have 100 or fewer employees, but these businesses account for about 35% of the workforce. Only 1% of businesses in America are very large entities employing 10,000 or more staff in the U.S., yet these account for over 27% of the U.S. workforce. Another 1% of American businesses employ over 100 but less than 10,000 staff, representing 37% of the American workforce. While 61% of firms engaged in business across the country have four or less employees, these businesses represent only 5% of the workforce. The distribution of employers obligated to complete Form I-9 would suggest that USCIS should be particularly sensitive to developing procedures and a communications strategy responsive to the needs of small and medium enterprises. However, the corresponding allocation of employees across the business community highlights the importance to USCIS in fostering an employment verification process that is effective for large and very large businesses. USCIS, therefore, is faced with a difficult task in its attempt to develop, communicate, and implement the I-9 obligation across the business community. We certainly applaud USCIS for making a concerted effort to review and respond to the 5,833 comments filed in response to the agency s proposed I-9 form revisions. The agency has made several changes requested by commenters and in other situations explained why requested changes cannot or should not be made. OMB, however, must ensure that changes to the Form I-9 are precisely drawn, communications regarding such form revisions are accurate, complete and timely, and implementation of a rollout of a new form is prudent and well thought-out. The Form I-9 is completed millions of times annually, acts as a linchpin in our nation s immigration system, and creates important employer obligations with attendant compliance risks. Timeline for New Form I-9 Implementation We believe that making even cosmetic changes to a form is significant, by changing it to a two page form with six pages of instructions from a one page form with two pages of instructions (especially a form that has been a one-pager for 25 years). Our members have explained to us that transitioning to a new I-9 form involves four steps: 1. Assess. The business needs to assess the changes made by the form and identify what the real changes are and which changes are important or notable.

3 Page 3 of 7 2. Develop training content. The business must develop a training program for its staff responsible for I-9 completion (even if it is just a single person responsible, someone must develop materials to ensure proper completion of the new form). 3. Deliver training. The business must provide training to staff responsible for I-9 completion. 4. Follow-up. The business must provide a means for follow-up to, for and with staff responsible for I-9 completion to address questions or issues that emerge after implementation within the employer s particular operations. In light of these challenges, as well as the fact that those employers that use private vendors to provide electronic I-9s will face additional time constraints, the Chamber asked for a six month advance notice timeline to implement any new I-9 in our May 2012 comment, and we renew our request now. In addition, many of our members have asked that no new I-9 be rolled out in the last quarter of a calendar year, given many end-of-year processes that make changes to orientation and onboarding of new staff particularly difficult during this period. USCIS has failed to commit to any timeline for transitioning to a new Form I-9, and it is not clear the agency has appropriately weighed the impact to the business community in this regard. Integration of Automated I-94 Admission Number with New Form I-9 It is the Chamber s view that USCIS has not carefully redesigned the form with regard to the interface with the I-94 admission number, and has not provided sufficient detail about the I-9 interaction with the new electronic I-94 or the rollout of a new I-9 form. We believe that OMB should put a halt to the implementation of a new Form I-9 until USCIS is able to provide notice and clarity to the business community regarding how, exactly, the new electronic I-94 admission number will interface with a revised I-9 employment verification form. While USCIS states in its responses to the public comments that no changes to the Form I-9 will be needed once a paper I-94 Card is no longer issued (see p. 12, Appendix to Form I-9, Supporting Statement Collection Number , posted on regulations.gov on August 28, 2012), the agency has provided no explanation as to why or how this could be correct or how the revised form text on use of the I-94 admission number anticipates the many permutations of when an I-94 admission number is issued, received and used. Currently, the paper I-94 Arrival-Departure Card controls the status and work authorization confirmation for all lawful nonimmigrant workers in the United States. This pool of lawful temporary workers would include likely over 1 million individuals in E-1, E-2, F-1, H-1B, H-2A, H-2B, H-3, J-1, L-1A, L-1B, L-2, O-1, P-1, Q-1, R-1, and TN status, among others, many of whom are not only permitted to work but are required to work in order to maintain status. As best we can tell, and we have no official confirmation of this interpretation, it sounds like the current expectation is that Customs and Border Protection (CBP), another sister agency within DHS, will issue an Interim Final Rule at some unknown point in time quite soon after which the paper I-94 Card will no longer be issued by CBP and instead each nonimmigrant will

4 Page 4 of 7 be automatically issued an electronic I-94 admission number retained in CBP s data bases. Under this plan, an individual nonimmigrant worker who requires the admission number will be provided instructions as to where on CBP s website the individual can go to print out an I-94 admission record on a self-serve basis. However, the I-94 admission number will continue to be required in order to complete the I-9 employment verification process, obtain a bank account, apply for a U.S. social security number, request a driver s license from the state of residence, and often to obtain insurance, a mortgage, and other daily activities in the U.S. where official confirmation of status is needed. If this is indeed the interagency plan for transitioning to automatic I-94 issuance, the proposed text on the revised I-9 form published August 2012 still needs further editing. The proposed I-9 form instructs that If you received your Form I-94 when traveling to the United States (emphasis added) the employee will include her passport number and passport issuing country. This is nonsensical because the alien nonimmigrant will not receive anything, and instead may choose to obtain, on a self-service basis, a print out from CBP s website at a later date. The form s proposed instructions do not clarify because the instructions say that if you were issued this Form I-94 when you entered the United States (emphasis) you should also provide your passport data. The very plan we understand is going to be implemented will not include issuance of any form at the time of entry. It might be desirable in the world of an electronic admission number to consider removal of the requirement of the I-94 Card or Form I-94 from the I-9 employment verification process. In this construct, verification of class of admission and period of authorized stay would be completed solely through cross referencing the alien nonimmigrant s passport data (passport number and country of issuance). Of course, if the I-94 Card or Form I-94 is going to be eliminated, USCIS must go through full notice and comment rulemaking since the agency s regulations (8 CFR 274a) refer to the Form I-94 as being required on Form I-9. The Chamber is not advocating for the elimination of the I-94 Card and instead we are simply pushing for a careful analysis of all the options and a reasoned transition plan. The form text and instructions regarding admission number in the I-9 process as currently crafted will cause much confusion for both employers and employees, unnecessarily place burdens on employers, and must be revisited. We request that the revised I-9 not be implemented until the transition to an electronic admission number is worked out with input from the impacted public. In addition to the difficulties regarding the interplay between the I-9 and the I-94, which is our primary concern, the Chamber does not believe USCIS has sufficiently developed the revised Form I-9 in the following ways: 1. Employee Contact Information The address and phone number of the employee are both optional but the form instructions even after the August 2012 revisions following public comment continue to be unclear. The revised form instructions state to the employee: Provide your address and telephone number, if available (emphasis added). This is inconsistent with establishing that provision of an and phone contact is optional. Instead, the form

5 Page 5 of 7 instructions state that any time an employee has an address and phone number available it should be provided. Employees, however, may not want to provide such information, even if it is available. In publishing the proposed form, USCIS stated that the new optional data fields for address and phone number were being added to allow DHS to contact an employee following a Form I-9 inspection or concerning his or her E-Verify case. (see p. 5, Supporting Statement Employment Eligibility Verification (Form I-9) Collection Number , posted to regulations.gov to accompany the March 27, 2012 initially proposed form). Access to this information does not appear limited to USCIS, and ICE would have access to this information as part of its worksite inspection responsibilities, even though USCIS only explains the E-Verify follow-up in its instructions to the public. Given that USCIS has stated that the phone an contact information can be used during an investigation or audit and not used solely by USCIS, the instructions should be changed to read Address and Telephone Number (Optional): You may provide your address and telephone number. DHS may contact you, such as when your employer participates in E-Verify and it is necessary to advise you of a potential mismatch of the information provided to E-Verify and how to contest a potential mismatch. You may write N/A if you choose not to provide this information. 2. Testing USCIS has not engaged in the type of testing that would better gauge whether and which changes are sufficiently clear, especially regarding the interplay with the Form I-94. OIRA Administrator Cass Sunstein s August 9, 2012 memorandum to executive agencies entitled Testing and Simplifying Federal Forms made clear that agencies should engage in advance testing of information collections, including federal forms, in order (1) to ensure that they are not unnecessarily complex, burdensome or confusing, (2) to obtain the best available information about the likely burdens on members of the public (including small businesses), and (3) to identify ways to reduce the burdens and to increase simplification and ease of comprehension. For the proposed information collection on the revised I-9 form, USCIS could obtain valuable information from a focus group of employers who have experience with the existing form. In particular, employers may be able to provide useful estimates of the actual time required to review different types of documents presented by different groups of typical employees. Surveys of employers of different sizes would also be a source of information for key items used in the USCIS burden calculations. In addition, USCIS could establish a pilot test of the proposed form using a randomly selected group of employers who would be asked to re-do their current I-9s already completed using the new form and to record and

6 Page 6 of 7 report their time to do so. The pilot approach would also provide an opportunity for feedback on clarity and complexity issues. While the August 9, 2012 memorandum is unique in terms of explicitly describing the objectives and means of an information collection testing program, its guidance follows a long-standing expectation that in all regulatory activities (of which information collection under the Paperwork Reduction Act is an element) agencies should base their estimates of public burdens and costs on evidence rather than baseless conjecture and speculation. 3. Smart I-9 Based on feedback from our members, we contend that completion of the form as revised will be much more time consuming for many employers than the total 35 minutes estimated by the Department, especially for the small or medium enterprises that make up 98% of the businesses obligated to complete the I-9 (and a similar percentage of Chamber membership). Given this Administration s focus on small businesses in I-9 worksite audits by ICE, it seems mysterious that USCIS would double the length of the employment verification form, changing it for the first time from a one page document to a two page document and more than doubling the length and complexity of the instructions, without simultaneously issuing its electronic, fillable I-9 that would greatly reduce the possibility of paperwork errors. We renew our request for USCIS to put into operation the agency-provided smart I-9 that will reduce technical errors. The agency has been working on providing a fillable, electronic I-9 wizard and had previously stated that this smart I-9 would be available FY12. The agency has provided no explanation as to why the smart I-9 is not ready, why a new paper form is being issued without the smart I-9, or when the smart I-9 will be available. Conclusion We are not convinced that USCIS has completed the full analysis necessary to ensure that a revised Form I-9 is properly crafted and transitioned. USCIS should move forward with what it views as the critical work to revise the Form I-9 only after ensuring it understands the impact to the regulated community and makes corresponding changes to the Form I-9. We ask that OMB require USCIS to further revise the Form I-9 and again seek public comment on its next version, after consideration of the above commentary.

7 Page 7 of 7 Thank you for your consideration of our concerns. Sincerely, Randel K. Johnson Senior Vice President Labor, Immigration and Employee Benefits Amy M. Nice Executive Director Immigration Policy Cc: U.S. Citizenship and Immigration Services, The Honorable Alejandro N. Mayorkas U.S. Citizenship and Immigration Services, Verification Division