Electronic Employment Eligibility Verification and Illegal Immigration Control Act - Amends the Immigration and Nationality Act to direct the Secretary of Homeland Security to establish a toll-free telephone- or electronic media-based employment eligibility verification system.
Requires that such system: (1) provide verification or tentative non-verification of an individual's identity and employment eligibility within three days of an inquiry; and (2) provide, in the case of tentative non-verification, a secondary process for final verification or non-verification within 10 days.
Directs: (1) the Commissioner of Social Security to develop a process for comparing names and social security numbers against appropriate databases in response to employer inquiries; and (2) the Secretary to develop a process for comparing names and alien identification or authorization numbers and investigate uses of the same social security number that suggest fraud.
Limits verification system-related individual relief to procedures under the Federal Tort Claims Act. Prohibits class actions. Immunizes from civil or criminal liability a person or entity who takes action in good faith reliance on verification system information.
Sets forth employer verification requirements with respect to an affirmative defense to liability for employment of unauthorized workers, including revision of attestation and retention of verification form provisions.
Places limits on the collection and use of data from the verification system.
Expands the employment eligibility verification system to include: (1) previously hired individuals; and (2) recruitment and referral.
Provides for: (1) voluntary employer verification utilizing such system two years after enactment of this Act for previously hired individuals; (2) mandatory employer verification three years after enactment of this Act by federal, state, and local governments, and the military for employees not verified under such system working at federal, state or local government buildings, military bases, nuclear energy sites, weapons sites, airports, or critical infrastructure sites; and (3) mandatory employer verification six years after enactment of this Act for all employees not previously verified under such system.
Amends the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 to make employer participation in the basic pilot program mandatory two years after enactment of this Act.
Applies employment eligibility verification requirements to labor service agencies.
Revises civil and criminal penalty provisions.
Establishes in the Treasury the Employment Verification Compensation Fund.
Directs the Secretary to establish a publicly available contractor database.
Authorizes the Commissioner to carry out verification responsibilities under this Act, but only to the extent advance funds are provided by the Secretary to cover costs. Prohibits funds from the Federal Old-Age and Survivors Insurance Trust Fund or the Federal Disability Insurance Trust Fund from being used to carry out such responsibilities.
Sets forth specified reporting requirements by the Secretary and the Commissioner.
[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1096 Introduced in House (IH)]
111th CONGRESS
1st Session
H. R. 1096
To create an electronic employment eligibility verification system to
ensure that all workers in the United States are legally able to work,
and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
February 13, 2009
Mr. Marshall (for himself, Mr. DeFazio, Mr. Bartlett, Mr. Barrow, and
Mr. Taylor) introduced the following bill; which was referred to the
Committee on the Judiciary, and in addition to the Committees on Ways
and Means and Education and Labor, for a period to be subsequently
determined by the Speaker, in each case for consideration of such
provisions as fall within the jurisdiction of the committee concerned
_______________________________________________________________________
A BILL
To create an electronic employment eligibility verification system to
ensure that all workers in the United States are legally able to work,
and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Electronic Employment Eligibility
Verification and Illegal Immigration Control Act''.
SEC. 2. EMPLOYMENT ELIGIBILITY VERIFICATION SYSTEM.
(a) In General.--Section 274A(b) of the Immigration and Nationality
Act (8 U.S.C. 1324a(b)) is amended by adding at the end the following:
``(7) Employment eligibility verification system.--
``(A) In general.--The Secretary of Homeland
Security shall establish and administer a verification
system through which the Secretary (or a designee of
the Secretary)--
``(i) responds to inquiries made by persons
at any time through a toll-free telephone line
and other toll-free electronic media concerning
an individual's identity and whether the
individual is authorized to be employed; and
``(ii) maintains records of the inquiries
that were made, of verifications provided (or
not provided), and of the codes provided to
inquirers as evidence of their compliance with
their obligations under this section.
``(B) Design and operation of system.--The
verification system shall be designed and operated--
``(i) to maximize its reliability and ease
of use by persons and other entities consistent
with insulating and protecting the privacy and
security of the underlying information;
``(ii) to respond to all inquiries made by
such persons and entities on whether
individuals are authorized to be employed and
to register all times when such inquiries are
not received;
``(iii) with appropriate administrative,
technical, and physical safeguards to prevent
unauthorized disclosure of personal
information; and
``(iv) to have reasonable safeguards
against the system's resulting in unlawful
discriminatory practices based on national
origin or citizenship status, including--
``(I) the selective or unauthorized
use of the system to verify
eligibility;
``(II) the use of the system prior
to an offer of employment; or
``(III) the exclusion of certain
individuals from consideration for
employment as a result of a perceived
likelihood that additional verification
will be required, beyond what is
required for most job applicants.
``(C) Responsibilities of the commissioner of
social security.--As part of the verification system,
the Commissioner of Social Security, in consultation
with the Secretary of Homeland Security (and any
designee of the Secretary selected to establish and
administer the verification system), shall establish a
reliable, secure method, which, within the time periods
specified under subparagraphs (B) and (C) of paragraph
(3), compares the name and Social Security account
number provided in an inquiry against such information
maintained by the Commissioner in order to validate (or
not validate) the information provided regarding an
individual whose identity and employment eligibility
must be confirmed, the correspondence of the name and
number, and whether the individual has presented a
Social Security account number that is not valid for
employment. The Commissioner shall not disclose or
release Social Security information (other than such
verification or nonverification) except as provided for
in this section or section 205(c)(2)(I) of the Social
Security Act.
``(D) Responsibilities of the secretary of homeland
security.--
``(i) As part of the verification system,
the Secretary of Homeland Security (in
consultation with any designee of the Secretary
selected to establish and administer the
verification system), shall establish a
reliable, secure method, which, within the time
periods specified under subparagraphs (B) and
(C) of paragraph (3), compares the name and
alien identification or authorization number
which are provided in an inquiry against such
information maintained by the Secretary in
order to validate (or not validate) the
information provided, the correspondence of the
name and number, and whether the alien is
authorized to be employed in the United States.
``(ii) When a single employer has submitted
to the verification system pursuant to
subparagraphs (B) and (C) of paragraph (3) the
identical Social Security account number in
more than one instance, or when multiple
employers have submitted to the verification
system pursuant to such paragraph the identical
Social Security account number, in a manner
which indicates the possible fraudulent use of
that number, the Secretary of Homeland Security
shall conduct an investigation, within the time
periods specified in such subparagraphs, in
order to ensure that no fraudulent use of a
Social Security account number has taken place.
If the Secretary has selected a designee to
establish and administer the verification
system, the designee shall notify the Secretary
when a single employer has submitted to the
verification system pursuant to such
subparagraphs the identical Social Security
account number in more than one instance, or
when multiple employers have submitted to the
verification system pursuant to such paragraph
the identical Social Security account number,
in a manner which indicates the possible
fraudulent use of that number. The designee
shall also provide the Secretary with all
pertinent information, including the name and
address of the employer or employers who
submitted the relevant Social Security account
number, the relevant Social Security account
number submitted by the employer or employers,
and the relevant name and date of birth of the
employee submitted by the employer or
employers.
``(iii) The Secretary in consultation with
the Commissioner of Social Security, shall
establish procedures to permit an individual
who contests a tentative or final
nonverification notice, or seeks to verify the
individual's own employment, to contact the
appropriate agency and, in a timely manner,
correct or update the information used by the
system.
``(iv) The Secretary shall prescribe a
system to register employer participation prior
to the date the employer is required or
permitted to submit information with respect to
an employee.
``(E) Updating information.--The Commissioner of
Social Security and the Secretary of Homeland Security
shall update their information in a manner that
promotes the maximum accuracy and shall provide a
process for the prompt correction of erroneous
information, including instances in which it is brought
to their attention in the secondary verification
process described in paragraph (3)(C).
``(F) Federal tort claims act.--If an individual
alleges that the individual would not have been
dismissed from a job but for an error of the
verification mechanism, the individual may seek
compensation only through the mechanism of the Federal
Tort Claims Act, and injunctive relief to correct such
error. No class action may be brought under this
subparagraph.
``(G) Protection from liability for actions taken
on the basis of information.--No person or entity shall
be civilly or criminally liable for any action taken in
good faith reliance on information provided through the
employment eligibility verification mechanism
established under this paragraph.''.
(b) Repeal of Provision Relating to Evaluations and Changes in
Employment Verification.--Section 274A(d) of such Act (8 U.S.C.
1324a(d)) is repealed.
SEC. 3. EMPLOYMENT ELIGIBILITY VERIFICATION PROCESS.
Section 274A of the Immigration and Nationality Act (8 U.S.C.
1324a) is amended--
(1) in subsection (a)(3), by inserting ``(A)'' after
``Defense.--'', and by adding at the end the following:
``(B) Failure to seek and obtain verification.--In
the case of a person or entity in the United States
that hires, or continues to employ, an individual, or
recruits or refers an individual for employment, the
following requirements apply:
``(i) Failure to seek verification.--
``(I) In general.--If the person or
entity has not made an inquiry, under
the mechanism established under
subsection (b)(7), seeking verification
of the identity and work eligibility of
the individual, by not later than the
end of 3 working days (as specified by
the Secretary of Homeland Security)
after the date of the hiring, the date
specified in subsection (b)(8)(B) for
previously hired individuals, or before
the recruiting or referring commences,
the defense under subparagraph (A)
shall not be considered to apply with
respect to any employment, except as
provided in subclause (II).
``(II) Special rule for failure of
verification mechanism.--If such a
person or entity in good faith attempts
to make an inquiry in order to qualify
for the defense under subparagraph (A)
and the verification mechanism has
registered that not all inquiries were
responded to during the relevant time,
the person or entity can make an
inquiry until the end of the first
subsequent working day in which the
verification mechanism registers no
nonresponses and qualify for such
defense.
``(ii) Failure to obtain verification.--If
the person or entity has made the inquiry
described in clause (i)(I) but has not received
an appropriate verification of such identity
and work eligibility under such mechanism
within the time period specified under
subsection (b)(7)(B) after the time the
verification inquiry was received, the defense
under subparagraph (A) shall not be considered
to apply with respect to any employment after
the end of such time period.'';
(2) by amending subparagraph (A) of subsection (b)(1) to
read as follows:
``(A) In general.--The person or entity must
attest, under penalty of perjury and on a form
designated or established by the Secretary by
regulation, that it has verified that the individual is
not an unauthorized alien by--
``(i) obtaining from the individual the
individual's Social Security account number and
recording the number on the form (if the
individual claims to have been issued such a
number), and, if the individual does not attest
to United States citizenship under paragraph
(2), obtaining such identification or
authorization number established by the
Department of Homeland Security for the alien
as the Secretary of Homeland Security may
specify, and recording such number on the form;
and
``(ii)(I) examining a document described in
subparagraph (B); or
``(II) examining a document described in
subparagraph (C) and a document described in
subparagraph (D).
A person or entity has complied with the
requirement of this paragraph with respect to
examination of a document if the document
reasonably appears on its face to be genuine,
reasonably appears to pertain to the individual
whose identity and work eligibility is being
verified, and, if the document bears an
expiration date, that expiration date has not
elapsed. If an individual provides a document
(or combination of documents) that reasonably
appears on its face to be genuine, reasonably
appears to pertain to the individual whose
identity and work eligibility is being
verified, and is sufficient to meet the first
sentence of this paragraph, nothing in this
paragraph shall be construed as requiring the
person or entity to solicit the production of
any other document or as requiring the
individual to produce another document.'';
(3) in subsection (b)(1)(D)--
(A) in clause (i), by striking ``or such other
personal identification information relating to the
individual as the Attorney General finds, by
regulation, sufficient for purposes of this section'';
and
(B) in clause (ii), by inserting before the period
``and that contains a photograph of the individual'';
(4) in subsection (b)(2), by adding at the end the
following: ``The individual must also provide that individual's
Social Security account number (if the individual claims to
have been issued such a number), and, if the individual does
not attest to United States citizenship under this paragraph,
such identification or authorization number established by the
Department of Homeland Security for the alien as the Secretary
may specify.''; and
(5) by amending paragraph (3) of subsection (b) to read as
follows:
``(3) Retention of verification form and verification.--
``(A) In general.--After completion of such form in
accordance with paragraphs (1) and (2), the person or
entity must--
``(i) retain a paper, microfiche,
microfilm, or electronic version of the form
and make it available for inspection by
officers of the Department of Homeland
Security, the Special Counsel for Immigration-
Related Unfair Employment Practices, or the
Department of Labor during a period beginning
on the date of the hiring, recruiting, or
referral of the individual or the date of the
completion of verification of a previously
hired individual and ending--
``(I) in the case of the recruiting
or referral of an individual, 3 years
after the date of the recruiting or
referral;
``(II) in the case of the hiring of
an individual, the later of--
``(aa) 3 years after the
date of such hiring; or
``(bb) 1 year after the
date the individual's
employment is terminated; and
``(III) in the case of the
verification of a previously hired
individual, the later of--
``(aa) 3 years after the
date of the completion of
verification; or
``(bb) 1 year after the
date the individual's
employment is terminated;
``(ii) make an inquiry, as provided in
paragraph (7), using the verification system to
seek verification of the identity and
employment eligibility of an individual, by not
later than the end of 3 working days (as
specified by the Secretary of Homeland
Security) after the date of the hiring or in
the case of previously hired individuals, the
date specified in paragraph (8)(B), or before
the recruiting or referring commences; and
``(iii) not commence recruitment or
referral of the individual until the person or
entity receives verification under clause (i)
or (ii) of subparagraph (D).
``(B) Initial response.--The verification system
shall provide verification or a tentative
nonverification of an individual's identity and
employment eligibility within 3 working days of the
initial inquiry. If providing verification or tentative
nonverification, the verification system shall provide
an appropriate code indicating such verification or
such nonverification.
``(C) Secondary verification process in case of
tentative nonverification.--In cases of tentative
nonverification, the Secretary shall specify, in
consultation with the Commissioner of Social Security,
an available secondary verification process to confirm
the validity of information provided and to provide a
final verification or nonverification within 10 working
days after the date of the tentative nonverification.
When final verification or nonverification is provided,
the verification system shall provide an appropriate
code indicating such verification or nonverification.
``(D) Verification or nonverification.--
``(i) Verification upon initial inquiry.--
If an employer receives a verification notice
under subparagraph (B) for an individual, the
employer shall record, as described in
subparagraph (A)(i), the appropriate code
provided in such notice.
``(ii) Tentative nonverification.--If an
employer receives a tentative nonverification
notice under subparagraph (B) for an
individual, the employer shall inform such
individual of the issuance of such notice in
writing, on a form prescribed by the Secretary
not later than 3 days after receiving such
notice. Such individual shall acknowledge
receipt of such notice in writing as described
in paragraph (1)(A). If the individual refuses
to acknowledge receipt of notice, the
individual's employment must be terminated
immediately.
``(iii) No contest.--If the individual does
not contest the tentative nonverification
notice within 10 days of receiving notice from
the individual's employer, the notice shall
become final and the employer shall record, as
described in subparagraph (A)(i), the
appropriate code provided through the system to
indicate the individual did not contest the
tentative nonverification. An individual's
failure to contest a tentative nonverification
shall not be considered an admission of guilt
with respect to any violation of this Act or
any other provision of law.
``(iv) Contest.--If the individual contests
the tentative nonverification notice, the
individual shall submit appropriate information
to contest such notice under the procedures
established in subparagraph (E) not later than
10 days after receiving the notice from the
individual's employer.
``(v) Effective period of tentative
nonverification notice.--A tentative
nonverification notice shall remain in effect
until such notice becomes final under clause
(iii), or the earlier of--
``(I) a final verification notice
or final nonverification notice is
issued through the system; or
``(II) 10 working days after the
individual contests a tentative
nonverification under clause (iv).
``(vi) Additional authority.--The Secretary
shall have the authority to issue a final
verification notice for an individual. In such
a case, the Secretary shall determine the
individual's eligibility for employment in the
United States and record the results of such
determination in the system within 12 months.
``(vii) Effective period of final notice.--
A final verification notice issued under this
paragraph for an individual shall remain in
effect--
``(I) during any continuous period
of employment of such individual by
such employer, unless the Secretary
determines the final verification was
the result of identity fraud; or
``(II) in the case of an alien
authorized to be employed in the United
States for a temporary period, during
such period.
``(viii) Prohibition on termination.--An
employer may not terminate the employment of an
individual based on a tentative nonverification
notice until such notice becomes final under
clause (iii), an individual refuses to
acknowledge receipt of tentative
nonverification under clause (ii), or a final
nonverification notice is issued for the
individual by the System. Nothing in this
clause shall prohibit the termination of
employment for any other reason other than such
tentative nonverification.
``(ix) Recording of contest resolution.--
The employer shall record the appropriate code
that is provided through the system to indicate
a final verification notice or final
nonverification notice as described in
paragraph (1)(A).
``(x) Consequences of nonverification.--If
the employer has received a final
nonverification regarding an individual, the
employer shall terminate the employment,
recruitment, or referral of the individual.
Such employer shall provide to the Secretary
any information relating to the individual that
the Secretary determines would assist the
Secretary in enforcing or administering the
immigration laws. If the employer continues to
employ, recruit or refer the individual after
receiving final nonverification, a rebuttable
presumption is created that the employer has
violated subsections (a)(1)(A) and (a)(2). Such
presumption may not apply to a prosecution
under subsection (f)(1).
``(E) Administrative review.--
``(i) In general.--An individual who is
terminated from employment as a result of a
final nonverification notice may, not later
than 60 days after the date of such
termination, file an appeal of such notice.
``(ii) Procedures.--The Secretary and
Commissioner of Social Security shall develop
procedures to review appeals filed under clause
(i) and to make final determinations on such
appeals.
``(iii) Review for errors.--If a final
determination on an appeal filed under clause
(i) results in verification of an individual's
eligibility to work in the United States, the
administrative review process shall require the
Secretary to determine if the final
nonverification notice issued for the
individual was the result of--
``(I) an error or negligence on the
part of an employee or official
operating or responsible for the
System;
``(II) the decision rules,
processes, or procedures utilized by
the system; or
``(III) erroneous system
information that was not the result of
acts or omissions of the individual.
``(iv) Compensation for error.--
``(I) In general.--If the Secretary
makes a determination under clause
(iii) that the final nonverification
notice issued for an individual was not
caused by an act or omission of the
individual, the Secretary shall
compensate the individual for lost
wages.
``(II) Calculation of lost wages.--
Lost wages shall be calculated based on
the wage rate and work schedule that
prevailed prior to termination. The
individual shall be compensated for
wages lost beginning on the first
scheduled work day after employment was
terminated and ending 180 days after
completion of the administrative review
process described in this paragraph or
the day after the individual is
reinstated or obtains employment
elsewhere, whichever occurs first.
``(v) Limitation on compensation.--For
purposes of determining an individual's
compensation for the loss of employment, such
compensation shall not include any period in
which the individual was ineligible for
employment in the United States.
``(vi) Source of funds.--Compensation or
reimbursement provided under this paragraph
shall be provided from the Employment
Verification Compensation Fund established
under section 8 and shall not be provided from
appropriated funds.
``(F) Judicial review.--
``(i) In general.--After the Secretary
makes a final determination on an appeal filed
by an individual under the administrative
review process described in subparagraph (E),
the individual may obtain judicial review of
such determination by a civil action commenced
not later than 60 days after the date of such
decision, or such further time as the Secretary
may allow.
``(ii) Jurisdiction.--A civil action for
such judicial review shall be brought in the
district court of the United States for the
judicial district in which the plaintiff
resides, or has a principal place of business,
or, if the plaintiff does not reside or have a
principal place of business within any such
judicial district, in the District Court of the
United States for the District of Columbia.
``(iii) Answer.--As part of the Secretary's
answer to a complaint for such judicial review,
the Secretary shall file a certified copy of
the administrative record compiled during the
administrative review under subparagraph (E),
including the evidence upon which the findings
and decision complained of are based. The court
shall have power to enter, upon the pleadings
and transcript of the record, a judgment
affirming or reversing the result of that
administrative review, with or without
remanding the cause for a rehearing.
``(iv) Compensation for error.--
``(I) In general.--In cases in
which such judicial review reverses the
final determination of the Secretary
made under subparagraph (E), the court
shall compensate the individual for
lost wages.
``(II) Calculation of lost wages.--
Lost wages shall be calculated based on
the wage rate and work scheduled that
prevailed prior to termination. The
individual shall be compensated for
wages lost beginning on the first
scheduled work day after employment was
terminated and ending 180 days after
completion of the judicial review
described in this paragraph or the day
after the individual is reinstated or
obtains employment elsewhere, whichever
occurs first.
``(G) Limitation on use of the verification system
and any related systems.--Notwithstanding any other
provision of law, nothing in this paragraph shall be
construed to permit or allow any department, bureau, or
other agency of the United States Government to utilize
any information, database, or other records assembled
under this paragraph for any other purpose other than
as provided for.
``(H) Limitation on collection and use of data.--
``(i) Limitation on collection of data.--
``(I) In general.--The System shall
collect and maintain only the minimum
data necessary to facilitate the
successful operation of the System, and
in no case shall the data be other
than--
``(aa) information
necessary to register employers
under paragraph (7)(D)(iv);
``(bb) information
necessary to initiate and
respond to inquiries or
contests under subparagraph
(E);
``(cc) information
necessary to establish and
enforce compliance with
paragraph (7)(D)(iv) and
subparagraph (E);
``(dd) information
necessary to detect and prevent
employment related identity
fraud; and
``(ee) such other
information the Secretary
determines is necessary,
subject to a 180 day notice and
comment period in the Federal
Register.
``(II) Penalties.--Any officer,
employee, or contractor who willfully
and knowingly collects and maintains
data in the system other than data
described in clause (i) shall be guilty
of a misdemeanor and fined not more
than $1,000 for each violation.
``(ii) Limitation on use of data.--Whoever
willfully and knowingly accesses, discloses, or
uses any information obtained or maintained by
the system--
``(I) for the purpose of committing
identity fraud, or assisting another
person in committing identity fraud, as
defined in section 1028 of title 18,
United States Code;
``(II) for the purpose of
unlawfully obtaining employment in the
United States or unlawfully obtaining
employment in the United States for any
other person; or
``(III) for any purpose other than
as provided for under any provision of
law;
shall be guilty of a felony and upon conviction
shall be fined under title 18, United States
Code, or imprisoned for not less than 5 years,
or both.
``(iii) Exceptions.--Nothing in clauses (i)
or (ii) may be construed to limit the
collection, maintenance, or use of data by the
Commissioner of Internal Revenue or the
Commissioner of Social Security as provided by
law.''.
SEC. 4. EXPANSION OF EMPLOYMENT ELIGIBILITY VERIFICATION SYSTEM TO
PREVIOUSLY HIRED INDIVIDUALS AND RECRUITING AND
REFERRING.
(a) Application to Recruiting and Referring.--Section 274A of the
Immigration and Nationality Act (8 U.S.C. 1324a) is amended--
(1) in subsection (a)(1)(A), by striking ``for a fee'';
(2) in subsection (a)(1), by amending subparagraph (B) to
read as follows:
``(B) to hire, continue to employ, or to recruit or
refer for employment in the United States an individual
without complying with the requirements of subsection
(b).'';
(3) in subsection (a)(2), by striking ``after hiring an
alien for employment in accordance with paragraph (1),'' and
inserting ``after complying with paragraph (1),''; and
(4) in subsection (a)(3), as amended by section 3, is
further amended by striking ``hiring,'' and inserting ``hiring,
employing,'' each place it appears.
(b) Employment Eligibility Verification for Previously Hired
Individuals.--Section 274A(b) of such Act (8 U.S.C. 1324a(b)), as
amended by section 2(a), is further amended by adding at the end the
following:
``(8) Use of employment eligibility verification system for
previously hired individuals.--
``(A) On a voluntary basis.--Beginning on the date
that is 2 years after the date of the enactment of the
Electronic Employment Eligibility Verification and
Illegal Immigration Control Act and until the date
specified in subparagraph (B)(iii), a person or entity
may make an inquiry, as provided in paragraph (7),
using the verification system to seek verification of
the identity and employment eligibility of any
individual employed by the person or entity, as long as
it is done on a nondiscriminatory basis.
``(B) On a mandatory basis.--
``(i) A person or entity described in
clause (ii) must make an inquiry as provided in
paragraph (7), using the verification system to
seek verification of the identity and
employment eligibility of all individuals
employed by the person or entity who have not
been previously subject to an inquiry by the
person or entity by the date 3 years after the
date of enactment of the Electronic Employment
Eligibility Verification and Illegal
Immigration Control Act.
``(ii) A person or entity is described in
this clause if it is a Federal, State, or local
governmental body (including the Armed Forces
of the United States), or if it employs
individuals working in a location that is a
Federal, State, or local government building, a
military base, a nuclear energy site, a weapon
site, an airport, or that contains critical
infrastructure (as defined in section 1016(e)
of the Critical Infrastructure Protection Act
of 2001 (42 U.S.C. 5195c(e))), but only to the
extent of such individuals.
``(iii) All persons and entities other than
those described in clause (ii) must make an
inquiry, as provided in paragraph (7), using
the verification system to seek verification of
the identity and employment eligibility of all
individuals employed by the person or entity
who have not been previously subject to an
inquiry by the person or entity by the date 6
years after the date of enactment of the
Electronic Employment Eligibility Verification
and Illegal Immigration Control Act.''.
SEC. 5. BASIC PILOT PROGRAM.
Section 401(b) of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (8 U.S.C. 1324a note) is amended by striking
``at the end of the 11-year period beginning on the first day the pilot
program is in effect'' and inserting ``2 years after the enactment of
the Electronic Employment Eligibility Verification and Illegal
Immigration Control Act''.
SEC. 6. HIRING HALLS.
Section 274A(h) of the Immigration and Nationality Act (8 U.S.C.
1324a(h)) is amended by adding at the end the following:
``(4) Recruitment and referral.--As used in this section,
the term `refer' means the act of sending or directing a person
or transmitting documentation or information to another,
directly or indirectly, with the intent of obtaining employment
in the United States for such person. Generally, only persons
or entities referring for remuneration (whether on a retainer
or contingency basis) are included in the definition. However,
labor service agencies, whether public, private, for-profit, or
nonprofit, that refer, dispatch, or otherwise facilitate the
hiring of workers for any period of time by a third party are
included in the definition whether or not they receive
remuneration. As used in this section the term `recruit' means
the act of soliciting a person, directly or indirectly, and
referring the person to another with the intent of obtaining
employment for that person. Generally, only persons or entities
recruiting for remunerations (whether on a retainer or
contingency basis) are included in the definition. However,
labor service agencies, whether public, private, for-profit, or
nonprofit that refer, dispatch, or otherwise facilitate the
hiring of workers for any period of time by a third party are
included in the definition whether or not they receive
remuneration.''.
SEC. 7. PENALTIES.
Section 274A of the Immigration and Nationality Act (8 U.S.C.
1324a) is amended--
(1) in subsection (e)(4)--
(A) in subparagraph (A), in the matter before
clause (i), by inserting ``, subject to paragraphs (10)
through (12),'' after ``in an amount'';
(B) in subparagraph (A)(i), by striking ``not less
than $250 and not more than $2,000'' and inserting
``not less than $5,000 and not more than $15,000'';
(C) in subparagraph (A)(ii), by striking ``not less
than $2,000 and not more than $5,000'' and inserting
``not less than $10,000 and not more than $15,000'';
(D) in subparagraph (A)(iii), by striking ``not
less than $3,000 and not more than $10,000'' and
inserting ``not less than $25,000 and not more than
$40,000''; and
(E) by amending subparagraph (B) to read as
follows:
``(B) may require the person or entity to take such
other remedial action as is appropriate.'';
(2) in subsection (e)(5)--
(A) by inserting ``, subject to paragraphs (10)
through (12),'' after ``in an amount'';
(B) by striking ``$100'' and inserting ``$1,000'';
(C) by striking ``$1,000'' and inserting
``$25,000'';
(D) by striking ``the size of the business of the
employer being charged, the good faith of the
employer'' and inserting ``the good faith of the
employer being charged''; and
(E) by adding at the end the following sentence:
``Failure by a person or entity to utilize the
employment eligibility verification system as required
by law, or providing information to the system that the
person or entity knows or reasonably believes to be
false, shall be treated as a violation of subsection
(a)(1)(A).'';
(3) by adding at the end of subsection (e) the following
new paragraphs:
``(10) Mitigation of civil money penalties for smaller
employers.--In the case of imposition of a civil penalty under
paragraph (4)(A) with respect to a violation of subsection
(a)(1)(A) or (a)(2) for hiring or continuation of employment by
an employer and in the case of imposition of a civil penalty
under paragraph (5) for a violation of subsection (a)(1)(B) for
hiring by an employer, the dollar amounts otherwise specified
in the respective paragraph shall be reduced as follows:
``(A) In the case of an employer with an average of
fewer than 26 full-time equivalent employees (as
defined by the Secretary of Homeland Security), the
amounts shall be reduced by 60 percent.
``(B) In the case of an employer with an average of
at least 26, but fewer than 101, full-time equivalent
employees (as so defined), the amounts shall be reduced
by 40 percent.
``(C) In the case of an employer with an average of
at least 101, but fewer than 251, full-time equivalent
employees (as so defined), the amounts shall be reduced
by 20 percent.
The last sentence of paragraph (4) shall apply under this
paragraph in the same manner as it applies under such
paragraph.
``(11) Exemption from penalty for initial good faith
violation.--In the case of imposition of a civil penalty under
paragraph (4)(A) with respect to a violation of subsection
(a)(1)(A) or (a)(2) for hiring or continuation of employment or
recruitment or referral by person or entity and in the case of
imposition of a civil penalty under paragraph (5) for a
violation of subsection (a)(1)(B) for hiring or recruitment or
referral by a person or entity, the penalty otherwise imposed
shall be waived if the violator establishes that it was the
first such violation of such provision by the violator and the
violator acted in good faith.
``(12) Safe harbor for contractors.--A person or other
entity shall be liable for a penalty under paragraph (4)(A)
with respect to the violation of subsection (a)(1)(A),
(a)(1)(B), or (a)(2) with respect to the hiring or continuation
of employment of an unauthorized alien by a subcontractor of
that person or entity unless the person or entity verifies
through the employment eligibility verification system that all
subcontractor employees and entities participating in the
subcontracted employment are eligible for employment prior to
beginning employment for the contracting person or entity. A
contracting person or entity shall not be required to verify a
subcontractor if the contracting person or entity has
previously verified the employment eligibility of that
subcontractor. A contracting person or entity shall not be
required to verify the employment eligibility of a
subcontractor employee if the person or entity has previously
verified the subcontractor employee as a result of the
subcontractor employee's previous employment on behalf of the
person or entity as an employee of the subcontractor.'';
(4) by amending paragraph (1) of subsection (f) to read as
follows:
``(1) Criminal penalty.--Any person or entity which engages
in a pattern or practice of violations of subsection (a)(1) or
(2) shall be fined not more than $50,000 for each unauthorized
alien with respect to which such a violation occurs, imprisoned
for not less than 1 year, or both, notwithstanding the
provisions of any other Federal law relating to fine levels.'';
(5) in subsection (f)(2), by striking ``Attorney General''
each place it appears and inserting ``Secretary of Homeland
Security'';
(6) by redesignating subsection (h) as subsection (j);
(7) by inserting after subsection (g) the following:
``(h) Prohibition on Award of Government Contracts, Grants and
Agreements.--
``(1) Employers with no contracts, grants, or agreements.--
``(A) In general.--If an employer who does not hold
a Federal contract, grant, or cooperative agreement is
determined by the Secretary to be a repeat violator of
this section or is convicted of a crime under this
section, the employer shall be debarred from the
receipt of a Federal contract, grant, or cooperative
agreement for a period of 5 years. The Secretary or the
Attorney General shall advise the Administrator of
General Services of such a debarment, and the
Administrator of General Services shall list the
employer on the List of Parties Excluded from Federal
Procurement and Nonprocurement Programs for a period of
5 years.
``(B) Waiver.--The Administrator of General
Services, in consultation with the Secretary and the
Attorney General, may waive operation of this
subsection or may limit the duration or scope of the
debarment.
``(2) Employers with contracts, grants, or agreements.--An
employer who holds a Federal contract, grant, or cooperative
agreement and is determined by the Secretary to be a repeat
violator of this section or is convicted of a crime under this
section, shall be debarred from the receipt of new Federal
contracts, grants, or cooperative agreements for a period of 5
years.
``(i) Penalty for False Attestation by Employee.--An individual who
falsely represents that the individual is eligible for employment in
the United States in an attestation required by this shall, for each
such violation, be subject to a fine of not less than $5,000, a term of
imprisonment not to exceed 3 years, or both.''; and
(8) by inserting after subsection (j) (as so redesignated)
the following:
``(k) Special Criminal Penalties for Subcontractors and Labor
Brokers.--Any person or subcontracting entity which engages in a
pattern or practice of violations of subsection (a)(1)(A) or (a)(2)
shall be fined not less than $100,000 for each unauthorized alien with
respect to whom such a violation occurs, imprisoned for not less than 5
years for the entire pattern or practice, or both, notwithstanding the
provisions of any other law relating to fine levels.''.
SEC. 8. COMPENSATION FUND.
(a) Establishment.--There is established in the Treasury a separate
account to be known as the ``Employment Verification Compensation
Fund'' (in this section referred to as the ``Fund'').
(b) Transfers to the Fund.--There shall be deposited in the Fund
all fines and penalties collected under section 274A of the Immigration
and Nationality Act (8 U.S.C. 1324a).
(c) Expenditures.--Subject to appropriations Acts, amounts in the
Fund shall be available for compensation pursuant to subparagraphs (E)
and (F) of section 274A(b)(3) of the Immigration and Nationality Act (8
U.S.C. 1324a(b)(3)), as amended by section 3 of this Act.
SEC. 9. CONTRACTOR DATABASE AND AUDITS.
(a) Database.--The Department of Homeland Security shall create and
maintain a publicly available and accessible online database of
contracting and subcontracting individuals or entities which discloses
the number of employment eligibility violations and employment
eligibility verification rejections each contracting or subcontracting
individual or entity has received. The database shall also disclose the
total number of verification attempts each contracting or
subcontracting individual or entity has made.
(b) Audit.--The Department of Homeland Security shall audit and
investigate any contracting or subcontracting individual or entity
which has a 10% or greater employment verification rejection rate.
SEC. 10. REPORT ON SOCIAL SECURITY CARD-BASED EMPLOYMENT ELIGIBILITY
VERIFICATION.
(a) Report.--
(1) In general.--Not later than 9 months after the date of
the enactment of this Act, the Commissioner of Social Security,
in consultation with the Secretary of Treasury, the Secretary
of Homeland Security, and the Attorney General, shall submit a
report to Congress that includes an evaluation of the following
requirements and changes:
(A) A requirement that Social Security cards that
are made of a durable plastic or similar material and
that include an encrypted, machine-readable electronic
identification strip and a digital photograph of the
individual to whom the card is issued, be issued to
each individual (whether or not a United States
citizen) who--
(i) is authorized to be employed in the
United States;
(ii) is seeking employment in the United
States; and
(iii) files an application for such card,
whether as a replacement of an existing Social
Security card or as a card issued in connection
with the issuance of a new Social Security
account number.
(B) The creation of a unified database to be
maintained by the Department of Homeland Security and
comprised of data from the Social Security
Administration and the Department of Homeland Security
specifying the work authorization of individuals
(including both United States citizens and noncitizens)
for the purpose of conducting employment eligibility
verification.
(C) A requirement that all employers verify the
employment eligibility of all new hires using the
Social Security cards described in subparagraph (A) and
a phone, electronic card-reading, or other mechanism to
seek verification of employment eligibility through the
use of the unified database described in subparagraph
(B).
(2) Items included in report.--The report under paragraph
(1) shall include an evaluation of each of the following:
(A) Projected cost, including the cost to the
Federal Government, State and local governments, and
the private sector.
(B) Administrability.
(C) Potential effects on--
(i) employers;
(ii) employees, including employees who are
United States citizens as well as those that
are not citizens;
(iii) tax revenue; and
(iv) privacy.
(D) The extent to which employer and employee
compliance with immigration laws would be expected to
improve.
(E) Any other relevant information.
(3) Alternatives.--The report under paragraph (1) also
shall examine any alternatives to achieve the same goals as the
requirements and changes described in paragraph (1) but that
involve lesser cost, lesser burden on those affected, or
greater ease of administration.
(b) Inspector General Review.--Not later than 3 months after the
report is submitted under subsection (a), the Inspector General of the
Social Security Administration, in consultation with the Inspectors
General of the Department of Treasury, the Department of Homeland
Security, and the Department of Justice, shall send to the Congress an
evaluation of such report.
(c) Congressional Consideration.--Upon receipt of the Inspector
General's evaluation of the Commissioner of Social Security's report,
Congress shall consider legislation enacting a plan that best meets
both the objectives outlined in this section as well as ease and
feasibility of implementation based on the reports presented by the
Commissioner of Social Security and the Inspector General.
SEC. 11. EFFECTIVE DATE.
This Act and the amendments made by this Act shall take effect on
the date of enactment of this Act, except that the requirements of
persons and entities to comply with the employment eligibility
verification process shall take effect on the date that is 2 years
after such date.
SEC. 12. LIMITATION ON VERIFICATION RESPONSIBILITIES OF COMMISSIONER OF
SOCIAL SECURITY.
The Commissioner of Social Security is authorized to perform
activities with respect to carrying out the Commissioner's
responsibilities in this Act or the amendments made by this Act, but
only to the extent (except for the purpose of carrying out section 8)
the Secretary of Homeland Security has provided, in advance, funds to
cover the Commissioner's full costs in carrying out such
responsibilities. In no case shall funds from the Federal Old-Age and
Survivors Insurance Trust Fund or the Federal Disability Insurance
Trust Fund be used to carry out such responsibilities.
SEC. 13. REPORT ON IMPACT ON CONTRACTING AND SUBCONTRACTING INDIVIDUALS
AND ENTITIES.
Not later than 12 months after the date of the enactment of this
Act, the Secretary of Homeland Security shall submit a report to
Congress that determines whether the described employment eligibility
verification system permits contracting individuals and entities to
determine the eligibility of subcontracting individuals or entities
without unduly burdening contractors and without freeing subcontracting
individuals or entities to break employment laws.
SEC. 14. REPORT ON EMPLOYMENT ELIGIBILITY VERIFICATION SYSTEM.
Not later than 1 year after the implementation of the employment
eligibility verification system established under this Act, and 1 year
thereafter, the Secretary of Homeland Security shall submit to Congress
a report on the progress and problems associated with implementation of
the system, including information relating to the most efficient use of
the system by small businesses.
<all>
Introduced in House
Introduced in House
Referred to House Judiciary
Referred to the Committee on the Judiciary, and in addition to the Committees on Ways and Means, and Education and Labor, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to House Ways and Means
Referred to House Education and Labor
Referred to the Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law.
Referred to the Subcommittee on Workforce Protections.
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