…part 274a of chapter I of title 8 of the Code of Federal Regulations is amended.

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

(l)(1) The term knowing includes having actual or constructive knowledge. Constructive knowledge is knowledge that 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] 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; and
(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) An employee’s request that the employer file a labor certification or employment-based visa petition on [their] behalf;
(B) Written notice to the employer from the SSA reporting earnings on a Form W–2 that employees’ names and corresponding social security account numbers fail to match SSA records; or
(C) Written notice to the employer from the DHS that the immigration status document or employment authorization document presented or referenced by the employee in completing Form I–9 is assigned to another person, or that there is no agency record that the document has been assigned to any person.

(2)(i) An employer who receives written notice from the SSA as described in paragraph (l)(1)(iii)(B) of this section will be considered by the DHS to have taken reasonable steps—and receipt of the written notice will therefore not be used as evidence of constructive knowledge—if the employer takes the following actions:

(A) The employer must check its records to determine whether the discrepancy results from a typographical, transcription, or similar clerical error. If the employer determines that the discrepancy is due to such an error, the employer must correct the error and inform the SSA of the correct information (in accordance with the written notice’s instructions, if any). The employer must also verify with the SSA that the employee’s name and social security account number, as corrected, match SSA records. The employer should make a record of the manner, date, and time of such verification, and then store such record with the employee’s Form I–9(s) in accordance with 8 CFR 274a.2(b). The employer may update the employee’s form I–9 or complete a new Form I–9 (and retain the original Form I–9), but the employer should not perform a new form I–9 verification. The employer must complete these steps within thirty days of receiving the written notice.

(B) If the employer determines that the discrepancy is not due to an error in its own records, the employer must promptly request that the employee confirm that the name and social security account number in the employer’s records are correct. If the employee states that the employer’s records are incorrect, the employer must correct, inform, verify, and make a record as set forth in paragraph (l)(2)(i)(A) of this section. If the employee confirms that its records are correct, the employer must promptly request that the employee resolve the discrepancy with the SSA (in accordance with the written notice’s instructions, if any). The employer must advise the employee of the date that the employer received the written notice from the SSA and advise the employee to resolve the discrepancy with the SSA within ninety days of the date the employer received the written notice from the SSA.

(C) If the employer is unable to verify with the SSA within ninety days of receiving the written notice that the employee’s name and social security account number matches the SSA’s records, the employer must again verify the employee’s employment authorization and identity within an additional three days by following the verification procedure specified in paragraph (l)(2)(iii) of this section.

(ii) An employer who receives written notice from the DHS as described in paragraph (l)(1)(iii)(C) of this section will be considered by the DHS to have taken reasonable steps—and receipt of the written notice will therefore not be used as evidence of constructive knowledge—if the employer takes the following actions:

(A) The employer must contact the local DHS office (in accordance with the written notice’s instructions, if any) and attempt to resolve the question raised by the DHS about the immigration status document or employment authorization document. The employer must complete this step within thirty days of receiving the written notice.

(B) If the employer is unable to verify with the DHS within ninety days of receiving the written notice that the immigration status document or employment authorization document is assigned to the employee, the employer must again verify the employee’s employment authorization and identity within an additional 3 days 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 section 274a.2(a) and (b) of this part, except that—

(1) The employee must complete Section 1 (‘‘Employee Information and Verification’’) and the employer must complete Section 2 (‘‘Employer Review and Verification’’) of the new Form I–9 within ninety-three days of the employer’s receipt of the written notice referred to in paragraph (l)(1)(iii)(B) or (C) of this section;

(2) The employer must not accept any document referenced in any written notice described in paragraph (l)(1)(iii)(C) of this section, any document that contains a disputed social security account number or alien number referenced in any written notice described in paragraphs (l)(1)(iii)(B) or (l)(1)(iii)(C) of this section, or any receipt for an application for a replacement of such document, to establish employment authorization or identity or both; and

(3) The employee must present a document that contains a photograph in order to establish identity or both identity and employment authorization.

(B) The employer must retain the new Form I–9 with the prior Form(s) I–9 in accordance with 8 CFR 274a.2(b).

(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 written notice described in paragraph (l)(1)(iii) of this section and with respect to which the employer has received no verification as described in paragraphs (l)(2)(i)(C) or (l)(2)(ii)(B) of this section.

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