E-Verify System Act of 2018
This bill (1) directs the Department of Homeland Security to develop an electronic employment eligibility verification system modeled after E-Verify and phases in the mandatory use of such a system, (2) directs the Social Security Administration to begin work toward the issuance of fraud-resistant and tamper-resistant Social Security cards, and (3) establishes the Office of the Small Business and Employee Advocate to assist small businesses and individuals to comply with employment-related immigration laws.
[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 3386 Introduced in Senate (IS)]
<DOC>
115th CONGRESS
2d Session
S. 3386
To amend the Immigration and Nationality Act to provide for an
electronic employment verification system, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
August 23, 2018
Mrs. McCaskill (for herself and Ms. Heitkamp) introduced the following
bill; which was read twice and referred to the Committee on the
Judiciary
_______________________________________________________________________
A BILL
To amend the Immigration and Nationality Act to provide for an
electronic employment verification system, 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 ``E-Verify System Act of 2018''.
SEC. 2. UNLAWFUL EMPLOYMENT OF UNAUTHORIZED ALIENS.
(a) In General.--Section 274A of the Immigration and Nationality
Act (8 U.S.C. 1324a) is amended to read as follows:
``SEC. 274A. UNLAWFUL EMPLOYMENT OF ALIENS.
``(a) Making Employment of Unauthorized Aliens Unlawful.--
``(1) In general.--It is unlawful for an employer--
``(A) to hire, recruit, or refer for a fee an alien
for employment in the United States knowing that the
alien is an unauthorized alien with respect to such
employment; or
``(B) to hire, recruit, or refer for a fee for
employment in the United States an individual without
complying with the requirements under subsections (c)
and (d).
``(2) Continuing employment.--
``(A) Prohibition on continued employment of
unauthorized aliens.--It is unlawful for an employer,
after hiring an alien for employment, to continue to
employ the alien in the United States knowing that the
alien is (or has become) an unauthorized alien with
respect to such employment.
``(B) Prohibition on consideration of previous
unauthorized status.--Nothing in this section may be
construed to prohibit the employment of an individual
who is authorized for employment in the United States
if such individual was previously an unauthorized
alien.
``(3) Use of labor through contract.--For purposes of this
section, any employer that uses a contract, subcontract, or
exchange to obtain the labor of an alien in the United States
while knowing that the alien is an unauthorized alien with
respect to performing such labor shall be considered to have
hired the alien for employment in the United States in
violation of paragraph (1)(A).
``(4) Use of state employment agency documentation.--For
purposes of paragraphs (1)(B), (5), and (6), an employer shall
be deemed to have complied with the requirements under
subsection (c) with respect to the hiring of an individual who
was referred for such employment by a State employment agency
(as defined by the Secretary) if the employer has and retains
(for the period and in the manner described in subsection
(c)(3)) appropriate documentation of such referral by such
agency, certifying that such agency has complied with the
procedures described in subsection (c) with respect to the
individual's referral. An employer that relies on a State
agency's certification of compliance with subsection (c) under
this paragraph may utilize and retain the State agency's
certification of compliance with the procedures described in
subsection (d), if any, in the manner provided under this
paragraph.
``(5) Good faith defense.--
``(A) Defense.--An employer, person, or entity that
hires, employs, recruits, or refers individuals for
employment in the United States, or is otherwise
obligated to comply with the requirements under this
section and establishes good faith compliance with the
requirements under paragraphs (1) through (4) of
subsection (c) and subsection (d)--
``(i) has established an affirmative
defense that the employer, person, or entity
has not violated paragraph (1)(A) with respect
to hiring and employing; and
``(ii) has established compliance with its
obligations under subparagraph (A) and (B) of
paragraph (1) and subsection (c) unless the
Secretary demonstrates that the employer had
knowledge that an individual hired, employed,
recruited, or referred by the employer, person,
or entity is an unauthorized alien.
``(B) Exception for certain employers.--An employer
who is not required to participate in the System or who
is participating in the System on a voluntary basis
pursuant to subsection (d)(2)(J) has established an
affirmative defense under subparagraph (A) and need not
demonstrate compliance with the requirements under
subsection (d).
``(6) Good faith compliance.--
``(A) In general.--Except as otherwise provided in
this subsection, an employer, person, or entity is
considered to have complied with a requirement under
this subsection notwithstanding a technical or
procedural failure to meet such requirement if there
was a good faith attempt to comply with the
requirement.
``(B) Exception if failure to correct after
notice.--Subparagraph (A) shall not apply if--
``(i) the failure is not de minimis;
``(ii) the Secretary of Homeland Security
has explained to the employer, person, or
entity the basis for the failure and why it is
not de minimis;
``(iii) the employer, person, or entity has
been provided a period of not less than 30 days
(beginning after the date of the explanation)
to correct the failure; and
``(iv) the employer, person, or entity has
not corrected the failure voluntarily within
such period.
``(C) Exception for pattern or practice
violators.--Subparagraph (A) shall not apply to an
employer, person, or entity that has engaged or is
engaging in a pattern or practice of violations of
paragraph (1)(A) or (2).
``(7) Presumption.--After the date on which an employer is
required to participate in the System under subsection (d), the
employer is presumed to have acted with knowledge for purposes
of paragraph (1)(A) if the employer hires, employs, recruits,
or refers an employee for a fee and fails to make an inquiry to
verify the employment authorization status of the employee
through the System.
``(8) Continued application of workforce and labor
protection remedies despite unauthorized employment.--
``(A) In general.--Subject only to subparagraph
(B), all rights and remedies provided under any
Federal, State, or local law relating to workplace
rights, including but not limited to back pay, are
available to an employee despite--
``(i) the employee's status as an
unauthorized alien during or after the period
of employment; or
``(ii) the employer's or employee's failure
to comply with the requirements of this
section.
``(B) Reinstatement.--Reinstatement shall be
available to individuals who--
``(i) are authorized to work in the United
States at the time such relief is ordered or
effectuated; or
``(ii) lost employment-authorized status
due to the unlawful acts of the employer under
this section.
``(b) Definitions.--In this section:
``(1) Commissioner.--The term `Commissioner' means the
Commissioner of Social Security.
``(2) Department.--Except as otherwise provided, the term
`Department' means the Department of Homeland Security.
``(3) Employer.--The term `employer' means any person or
entity, including an agency or department of a Federal, State,
or local government, an agent, or a System service provider
acting on behalf of an employer, that hires, employs, recruits,
or refers for a fee an individual for employment in the United
States that is not casual, sporadic, irregular, or intermittent
(as defined by the Secretary).
``(4) Employment authorized status.--The term `employment
authorized status' means, with respect to an individual, that
the individual is authorized to be employed in the United
States under the immigration laws of the United States.
``(5) Secretary.--Except as otherwise specifically
provided, the term `Secretary' means the Secretary of Homeland
Security.
``(6) System.--The term `System' means the Employment
Verification System established under subsection (d).
``(7) Unauthorized alien.--The term `unauthorized alien'
means an alien who, with respect to employment in the United
States at a particular time--
``(A) is not lawfully admitted for permanent
residence; or
``(B) is not authorized to be employed under this
Act or by the Secretary.
``(8) Workplace rights.--The term `workplace rights' means
rights guaranteed under Federal, State, or local labor or
employment laws, including laws concerning wages and hours,
benefits and employment standards, labor relations, workplace
health and safety, work-related injuries, nondiscrimination,
and retaliation for exercising rights under such laws.
``(c) Document Verification Requirements.--Any employer hiring an
individual for employment in the United States shall comply with the
following requirements and the requirements under subsection (d) to
verify that the individual has employment authorized status.
``(1) Attestation after examination of documentation.--
``(A) In general.--
``(i) Examination by employer.--An employer
shall attest, under penalty of perjury on a
form prescribed by the Secretary, that the
employer has verified the identity and
employment authorization status of the
individual--
``(I) by examining--
``(aa) a document specified
in subparagraph (C); or
``(bb) a document specified
in subparagraph (D) and a
document specified in
subparagraph (E); and
``(II) by utilizing an identity
authentication mechanism described in
clause (iii) or (iv) of subparagraph
(F).
``(ii) Publication of documents.--The
Secretary shall publish a picture of each
document specified in subparagraphs (C) and (E)
on the U.S. Citizenship and Immigration
Services website.
``(B) Requirements.--
``(i) Form.--The form referred to in
subparagraph (A)(i)--
``(I) shall be prescribed by the
Secretary not later than 6 months after
the date of the enactment of the E-
Verify System Act of 2018; and
``(II) shall be available as--
``(aa) a paper form;
``(bb) a form that may be
completed by an employer via
telephone or video conference;
``(cc) an electronic form;
or
``(dd) a form that is
integrated electronically with
the requirements under
subsection (d).
``(ii) Attestation.--Each such form shall
require the employer to sign an attestation
with a handwritten, electronic, or digital pin
code signature, according to standards
prescribed by the Secretary.
``(iii) Compliance.--An employer has
complied with the requirements under this
paragraph with respect to examination of the
documents included in subclauses (I) and (II)
of subparagraph (A)(i) if--
``(I) the employer has, in good
faith, followed applicable regulations
and any written procedures or
instructions provided by the Secretary;
and
``(II) a reasonable person would
conclude that the documentation is
genuine and relates to the individual
presenting such documentation.
``(C) Documents establishing identity and
employment authorized status.--A document is specified
in this subparagraph if the document is unexpired
(unless the validity of the document is extended by
law) and is 1 of the following:
``(i) A United States passport or passport
card issued to an individual pursuant to the
Secretary of State's authority under the Act
entitled `An Act to regulate the issue and
validity of passports, and for other purposes',
approved July 3, 1926 (22 U.S.C. 211a).
``(ii) A document issued to an alien
evidencing that the alien is lawfully admitted
for permanent residence or another document
issued to an individual evidencing the
individual's employment authorized status, as
designated by the Secretary, if the document--
``(I) contains a photograph of the
individual, or such other personal
identifying information relating to the
individual as the Secretary determines,
by regulation, to be sufficient for the
purposes of this subparagraph;
``(II) is evidence of employment
authorized status; and
``(III) contains security features
to make the document resistant to
tampering, counterfeiting, and
fraudulent use.
``(iii) An enhanced driver's license or
identification card issued to a national of the
United States by a State, an outlying
possession of the United States, or a federally
recognized Indian tribe that--
``(I) meets the requirements under
section 202 of the REAL ID Act of 2005
(division B of Public Law 109-13; 49
U.S.C. 30301 note); and
``(II) the Secretary has certified
by notice published in the Federal
Register and through appropriate notice
directly to employers registered in the
System 3 months prior to publication
that such enhanced license or card is
suitable for use under this
subparagraph based upon the accuracy
and security of the issuance process,
security features on the document, and
such other factors as the Secretary may
prescribe.
``(iv) A passport issued by the appropriate
authority of a foreign country accompanied by a
Form I-94 or Form I-94A (or similar successor
record), or other documentation as designated
by the Secretary that specifies the
individual's status in the United States and
the duration of such status if the proposed
employment is not in conflict with any
restriction or limitation specified on such
form or documentation.
``(v) A passport issued by the Federated
States of Micronesia or the Republic of the
Marshall Islands with evidence of nonimmigrant
admission to the United States under the
Compact of Free Association between the United
States and the Federated States of Micronesia
or the Republic of the Marshall Islands.
``(D) Documents establishing identity of
individual.--A document is specified in this
subparagraph if the document is unexpired (unless the
validity of the document is extended by law) and is 1
of the following:
``(i) A driver's license or identity card
that is not described in subparagraph (C)(iii)
and is issued to an individual by a State or an
outlying possession of the United States, a
federally recognized Indian tribe, or an agency
(including military) of the Federal Government
if the driver's license or identity card
includes, at a minimum--
``(I) the individual's photograph,
name, date of birth, gender, and
driver's license or identification card
number; and
``(II) security features to make
the license or card resistant to
tampering, counterfeiting, and
fraudulent use.
``(ii) A voter registration card.
``(iii) A document that complies with the
requirements under section 7209(b)(1) of the
Intelligence Reform and Terrorism Prevention
Act of 2004 (Public Law 108-458; 8 U.S.C. 1185
note).
``(iv) For individuals under 18 years of
age who are unable to present a document listed
in clause (i) or (ii), documentation of
personal identity of such other type as the
Secretary determines will provide a reliable
means of identification, which may include an
attestation as to the individual's identity by
a parent or legal guardian under penalty of
perjury.
``(E) Documents evidencing employment
authorization.--A document is specified in this
subparagraph if the document is unexpired (unless the
validity of the document is extended by law) and is one
of the following:
``(i) A social security account number card
issued by the Commissioner, other than a card
which specifies on its face that the card is
not valid to evidence employment authorized
status or has other similar words of
limitation.
``(ii) Any other documentation evidencing
employment authorized status that the Secretary
determines and publishes in the Federal
Register and through appropriate notice
directly to employers registered within the
System to be acceptable for purposes of this
subparagraph if such documentation, including
any electronic security measures linked to such
documentation, contains security features to
make such documentation resistant to tampering,
counterfeiting, and fraudulent use.
``(F) Identity authentication mechanism.--
``(i) Definitions.--In this subparagraph:
``(I) Covered identity document.--
The term `covered identity document'
means a valid--
``(aa) United States
passport, passport card, or a
document evidencing lawful
permanent residence status or
employment authorized status
issued to an alien;
``(bb) enhanced driver's
license or identity card issued
by a participating State or an
outlying possession of the
United States; or
``(cc) photograph and
appropriate identifying
information provided by the
Secretary of State pursuant to
the granting of a visa.
``(II) Participating state.--The
term `participating State' means a
State that has an agreement with the
Secretary to provide the Secretary, for
purposes of identity verification in
the System, with photographs and
appropriate identifying information
maintained by the State.
``(ii) Requirement for identity
authentication.--In addition to verifying the
documents specified in subparagraph (C), (D),
or (E) and utilizing the System under
subsection (d), each employer shall use an
identity authentication mechanism described in
clause (iii) or provided in clause (iv) after
it becomes available to verify the identity of
each individual the employer seeks to hire.
``(iii) Photo tool.--
``(I) Use requirement.--An employer
hiring an individual who has a covered
identity document shall verify the
identity of such individual using the
photo tool described in subclause (II).
``(II) Development requirement.--
The Secretary shall develop and
maintain a photo tool that enables
employers to match the photo on a
covered identity document provided to
the employer to a photo maintained by a
U.S. Citizenship and Immigration
Services database.
``(iv) Additional security measures.--
``(I) Use requirement.--An employer
seeking to hire an individual whose
identity may not be verified using the
photo tool described in clause (iii)
shall verify the identity of such
individual using the additional
security measures described in
subclause (II).
``(II) Development requirement.--
The Secretary shall develop, after
publication in the Federal Register and
an opportunity for public comment,
specific and effective additional
security measures to adequately verify
the identity of an individual whose
identity may not be verified using the
photo tool described in clause (iii).
Such additional security measures--
``(aa) shall be kept up-to-
date with technological
advances; and
``(bb) shall provide a
means of identity
authentication in a manner that
provides a high level of
certainty as to the identity of
such individual, using
immigration and identifying
information that may include
review of identity documents or
background screening
verification techniques using
publicly available information.
``(G) Authority to prohibit use of certain
documents.--If the Secretary determines, after
publication in the Federal Register and an opportunity
for public comment, that any document or class of
documents specified in subparagraph (B), (C), or (D)
does not reliably establish identity or that employment
authorized status is being used fraudulently to an
unacceptable degree, the Secretary--
``(i) may prohibit or restrict the use of
such document or class of documents for
purposes of this subsection; and
``(ii) shall directly notify all employers
registered within the System of the prohibition
through appropriate means.
``(H) Authority to allow use of certain
documents.--If the Secretary has determined that
another document or class of documents, such as a
document issued by a federally recognized Indian tribe,
may be used to reliably establish identity or
employment authorized status, the Secretary--
``(i) may allow the use of that document or
class of documents for purposes of this
subsection after publication in the Federal
Register and an opportunity for public comment;
``(ii) shall publish a description of any
such document or class of documents on the U.S.
Citizenship and Immigration Services website;
and
``(iii) shall directly notify all employers
registered within the System of the addition
through appropriate means.
``(2) Individual attestation of employment authorization.--
An individual, upon commencing employment with an employer,
shall--
``(A) attest, under penalty of perjury, on the form
prescribed by the Secretary, that the individual is--
``(i) a citizen of the United States;
``(ii) an alien lawfully admitted for
permanent residence;
``(iii) an alien who has employment
authorized status; or
``(iv) otherwise authorized by the
Secretary to be hired for such employment;
``(B) provide such attestation by a handwritten,
electronic, or digital pin code signature; and
``(C) provide the individual's social security
account number to the Secretary, unless the individual
has not yet been issued such a number, on such form as
the Secretary may require.
``(3) Retention of verification record.--
``(A) In general.--After completing a form for an
individual in accordance with paragraphs (1) and (2),
the employer shall retain a version of such completed
form and make such form available for inspection by the
Secretary or the Immigrant and Employee Rights Section
for the Civil Rights Division of the Department of
Justice during the period beginning on the hiring date
of the individual and ending on the later of--
``(i) the date that is 3 years after such
hiring date; or
``(ii) the date that is 1 year after the
date on which the individual's employment with
the employer is terminated.
``(B) Requirement for electronic retention.--The
Secretary--
``(i) shall permit an employer to retain
the form described in subparagraph (A) in
electronic form; and
``(ii) shall permit an employer to retain
such form in paper, microfiche, microfilm,
portable document format, or other media.
``(4) Copying of documentation and recordkeeping.--The
Secretary may promulgate regulations regarding--
``(A) copying documents and related information
pertaining to employment verification presented by an
individual under this subsection; and
``(B) retaining such information during a period
not to exceed the required retention period set forth
in paragraph (3).
``(5) Penalties.--An employer that fails to comply with any
requirement under this subsection may be penalized under
subsection (e)(4)(B).
``(6) Protection of civil rights.--
``(A) In general.--Nothing in this section may be
construed to diminish any rights otherwise protected by
Federal law.
``(B) Prohibition on discrimination.--An employer
shall use the procedures for document verification set
forth in this paragraph for all employees without
regard to race, color, religion, sex, national origin,
or, unless specifically permitted in this section, to
citizenship status.
``(7) Receipts.--The Secretary may authorize the use of
receipts for replacement documents, and temporary evidence of
employment authorization by an individual to meet a
documentation requirement under this subsection on a temporary
basis not to exceed 1 year, after which time the individual
shall provide documentation sufficient to satisfy the
documentation requirements under this subsection.
``(8) No authorization of national identification cards.--
Nothing in this section may be construed to directly or
indirectly authorize the issuance, use, or establishment of a
national identification card.
``(d) Employment Verification System.--
``(1) In general.--
``(A) Establishment.--The Secretary, in
consultation with the Commissioner, shall establish the
Employment Verification System.
``(B) Monitoring.--The Secretary shall create the
necessary processes to monitor--
``(i) the functioning of the System,
including the volume of the workflow, the speed
of processing of queries, the speed and
accuracy of responses;
``(ii) the misuse of the System, including
the prevention of fraud or identity theft;
``(iii) whether the use of the System
results in wrongful adverse actions or
discrimination based upon a prohibited factor
against citizens or nationals of the United
States or individuals who have employment
authorized status; and
``(iv) the security, integrity, and privacy
of the System.
``(C) Procedures.--The Secretary--
``(i) shall create processes to provide an
individual with direct access to the
individual's case history in the System,
including--
``(I) the identities of all persons
or entities that have queried the
individual through the System;
``(II) the date of each such query;
and
``(III) the System response for
each such query; and
``(ii) in consultation with the
Commissioner, shall develop--
``(I) protocols to notify an
individual, in a timely manner through
the use of electronic correspondence or
mail, that a query for the individual
has been processed through the System;
or
``(II) a process for the individual
to submit additional queries to the
System or notify the Secretary of
potential identity fraud.
``(2) Participation requirements.--
``(A) Federal government.--Except as provided in
subparagraph (B), all agencies and departments in the
executive, legislative, or judicial branches of the
Federal Government shall participate in the System
beginning on the earlier of--
``(i) the date of the enactment of the E-
Verify System Act of 2018, to the extent
required under section 402(e)(1) of the Illegal
Immigration Reform and Immigrant Responsibility
Act of 1996 (division C of Public Law 104-208;
8 U.S.C. 1324a) and as already implemented by
each agency or department; or
``(ii) the date that is 90 days after the
date of the enactment of the E-Verify System
Act of 2018.
``(B) Federal contractors.--Federal contractors
shall participate in the System as provided in the
final rule relating to employment eligibility
verification published in the Federal Register on
November 14, 2008 (73 Fed. Reg. 67,651), or any similar
subsequent regulation, for which purpose references to
E-Verify in the final rule shall be construed to apply
to the System.
``(C) Critical infrastructure.--
``(i) In general.--Beginning on the date
that is 1 year after the date on which
regulations are published implementing this
subsection, the Secretary may authorize or
direct any employer, person, or entity
responsible for granting access to, protecting,
securing, operating, administering, or
regulating part of the critical infrastructure
(as defined in section 1016(e) of the Critical
Infrastructure Protection Act of 2001 (42
U.S.C. 5195c(e))) to participate in the System
to the extent the Secretary determines that
such participation will assist in the
protection of the critical infrastructure.
``(ii) Notification to employers.--The
Secretary shall notify an employer required to
participate in the System under this
subparagraph not later than 90 days before the
date on which the employer is required to
participate.
``(D) Employers with more than 5,000 employees.--
Not later than 2 years after regulations are published
implementing this subsection, all employers with more
than 5,000 employees shall participate in the System
with respect to all newly hired employees and employees
with expiring temporary employment authorization
documents.
``(E) Employers with more than 500 employees.--Not
later than 3 years after regulations are published
implementing this subsection, all employers with more
than 500 employees shall participate in the System with
respect to all newly hired employees and employees with
expiring temporary employment authorization documents.
``(F) Agricultural employment.--Not later than 4
years after regulations are published implementing this
subsection, employers of employees performing
agricultural employment shall participate in the System
with respect to all newly hired employees and employees
with expiring temporary employment authorization
documents. An agricultural employee shall not be
counted for purposes of subparagraph (D) or (E).
``(G) All employers.--Except as provided in
subparagraph (H), not later than 4 years after
regulations are published implementing this subsection,
all employers shall participate in the System with
respect to all newly hired employees and employees with
expiring temporary employment authorization documents.
``(H) Tribal government employers.--
``(i) Rulemaking.--In developing
regulations to implement this subsection, the
Secretary shall--
``(I) consider the effects of this
section on federally recognized Indian
tribes and tribal members; and
``(II) consult with the governments
of federally recognized Indian tribes.
``(ii) Required participation.--Not later
than 5 years after regulations are published
implementing this subsection, all employers
owned by, or entities of, the government of a
federally recognized Indian tribe shall
participate in the System with respect to all
newly hired employees and employees with
expiring temporary employment authorization
documents.
``(I) Immigration law violators.--
``(i) Orders finding violations.--An order
finding any employer to have violated this
section or section 274C may, in the Secretary's
discretion, require the employer to participate
in the System with respect to newly hired
employees and employees with expiring temporary
employment authorization documents, if such
employer is not otherwise required to
participate in the System under this section.
The Secretary shall monitor such employer's
compliance with System procedures.
``(ii) Pattern or practice of violations.--
The Secretary may require an employer that is
required to participate in the System with
respect to newly hired employees to participate
in the System with respect to the employer's
current employees if the employer is determined
by the Secretary or other appropriate authority
to have engaged in a pattern or practice of
violations of the immigration laws of the
United States.
``(J) Voluntary participation.--The Secretary may
permit any employer that is not required to participate
in the System under this section to do so on a
voluntary basis.
``(3) Consequence of failure to participate.--
``(A) In general.--Except as provided in
subparagraph (B), the failure, other than a de minimis
or inadvertent failure, of an employer that is required
to participate in the System to comply with the
requirements of the System with respect to an
individual--
``(i) shall be treated as a violation of
subsection (a)(1)(B) with respect to that
individual; and
``(ii) creates a rebuttable presumption
that the employer has violated paragraph (1)(A)
or (2) of subsection (a).
``(B) Exception.--
``(i) In general.--Subparagraph (A) shall
not apply in a criminal prosecution.
``(ii) Use as evidence.--Nothing in this
paragraph may be construed to limit the use in
the prosecution of a Federal crime, in a manner
otherwise consistent with Federal criminal law
and procedure, of evidence relating to the
employer's failure to comply with requirements
of the System.
``(4) Procedures for participants in the system.--
``(A) In general.--An employer participating in the
System shall register such participation with the
Secretary and, when hiring any individual for
employment in the United States, shall comply with the
following:
``(i) Registration of employers.--The
Secretary, through notice in the Federal
Register, shall prescribe procedures that
employers shall be required to follow to
register with the System.
``(ii) Updating information.--The employer
is responsible for providing notice of any
change to the information required under
subclauses (I), (II), and (III) of clause (v)
before conducting any further inquiries within
the System, or on such other schedule as the
Secretary may prescribe.
``(iii) Training.--The Secretary shall
require employers to undergo such training as
the Secretary determines to be necessary to
ensure proper use, protection of civil rights
and civil liberties, privacy, integrity, and
security of the System. To the extent
practicable, such training shall be made
available electronically on the U.S.
Citizenship and Immigration Services website.
``(iv) Notification to employees.--The
employer shall inform individuals hired for
employment that the System--
``(I) will be used by the employer;
``(II) may be used for immigration
enforcement purposes; and
``(III) may not be used to
discriminate or to take adverse action
against a national of the United States
or an alien who has employment
authorized status.
``(v) Provision of additional
information.--The employer shall obtain from
the individual (and the individual shall
provide) and shall record in such manner as the
Secretary may specify--
``(I) the individual's social
security account number;
``(II) if the individual does not
attest to United States citizenship or
status as a national of the United
States under subsection (c)(2), such
identification or authorization number
established by the Department as the
Secretary shall specify; and
``(III) such other information as
the Secretary may require to determine
the identity and employment
authorization of an individual.
``(vi) Presentation of documentation.--The
employer, and the individual whose identity and
employment authorized status are being
confirmed, shall fulfill the requirements under
subsection (c).
``(B) Seeking confirmation.--
``(i) In general.--An employer shall use
the System to confirm the identity and
employment authorized status of any individual
during--
``(I) the period beginning on the
date on which the individual accepts an
offer of employment and ending 3
business days after the date on which
employment begins; or
``(II) such other reasonable period
as the Secretary may prescribe.
``(ii) Limitation.--An employer may not
make the starting date of an individual's
employment or training or any other term and
condition of employment dependent on the
receipt of a confirmation of identity and
employment authorized status by the System.
``(iii) Reverification.--If an individual
has a limited period of employment authorized
status, the individual's employer shall
reverify such status through the System not
later than 3 business days after the last day
of such period.
``(iv) Other employment.--For employers
directed by the Secretary to participate in the
System under paragraph (2)(C)(i) to protect
critical infrastructure or otherwise specified
circumstances in this section to verify their
entire workforce, the System may be used for
initial verification of an individual who was
hired before the employer became subject to the
System, and the employer shall initiate all
required procedures on or before such date as
the Secretary shall specify.
``(v) Notification.--
``(I) In general.--The Secretary
shall provide, and the employer shall
utilize, as part of the System, a
method of notifying employers of a
confirmation or nonconfirmation of an
individual's identity and employment
authorized status, or a notice that
further action is required to verify
such identity or employment eligibility
(referred to in this subsection as a
`further action notice').
``(II) Procedures.--The Secretary
shall--
``(aa) directly notify the
individual and the employer, by
means of electronic
correspondence, mail, text
message, telephone, or other
direct communication, of a
nonconfirmation or further
action notice;
``(bb) provide information
about filing an administrative
appeal under paragraph (6) and
a filing for review before an
administrative law judge under
paragraph (7); and
``(cc) establish procedures
to directly notify the
individual and the employer of
a confirmation.
``(III) Implementation.--The
Secretary may provide for a phased-in
implementation of the notification
requirements under this clause, as
appropriate. The notification system
shall cover all inquiries not later
than 1 year from the date of the
enactment of the E-Verify System Act of
2018.
``(C) Confirmation or nonconfirmation.--
``(i) Initial response.--
``(I) In general.--Except as
provided in subclause (II), the System
shall provide--
``(aa) a confirmation of an
individual's identity and
employment authorized status or
a further action notice at the
time of the inquiry; and
``(bb) an appropriate code
indicating such confirmation or
such further action notice.
``(II) Alternative deadline.--If
the System is unable to provide
immediate confirmation or further
action notice for technological reasons
or due to unforeseen circumstances, the
System shall provide a confirmation or
further action notice not later than 3
business days after the initial
inquiry.
``(ii) Confirmation upon initial inquiry.--
If the employer receives an appropriate
confirmation of an individual's identity and
employment authorized status under the System,
the employer shall record the confirmation in
such manner as the Secretary may specify.
``(iii) Further action notice and later
confirmation or nonconfirmation.--
``(I) Notification and
acknowledgment that further action is
required.--Not later than 3 business
days after an employer receives a
further action notice of an
individual's identity or employment
eligibility under the System, or during
such other reasonable time as the
Secretary may prescribe, the employer
shall notify the individual for whom
the confirmation is sought of the
further action notice and any
procedures specified by the Secretary
for addressing such notice. The further
action notice shall be given to the
individual in writing and the employer
shall acknowledge in the System under
penalty of perjury that it provided the
employee with the further action
notice. The individual shall
affirmatively acknowledge in writing,
or in such other manner as the
Secretary may specify, the receipt of
the further action notice from the
employer. If the individual refuses to
acknowledge the receipt of the further
action notice, or acknowledges in
writing that the individual will not
contest the further action notice under
subclause (II), the employer shall
notify the Secretary in such manner as
the Secretary may specify.
``(II) Contest.--Not later than 10
business days after receiving
notification of a further action notice
under subclause (I), the individual
shall contact the appropriate Federal
agency and, if the Secretary so
requires, appear in person for purposes
of verifying the individual's identity
and employment eligibility. The
Secretary, in consultation with the
Commissioner and other appropriate
Federal agencies, shall specify an
available secondary verification
procedure to confirm the validity of
information provided and to provide a
confirmation or nonconfirmation. Any
procedures for reexamination shall not
limit in any way an employee's right to
appeal a nonconfirmation.
``(III) No contest.--If the
individual refuses to acknowledge
receipt of the further action notice,
acknowledges that the individual will
not contest the further action notice
as provided in subclause (I), or does
not contact the appropriate Federal
agency within the period specified in
subclause (II), following expiration of
the period specified in subclause (II),
a nonconfirmation shall be issued. The
employer shall record the
nonconfirmation in such manner as the
Secretary may specify and terminate the
individual's employment. An
individual's failure to contest a
further action notice shall not be
considered an admission of guilt with
respect to any violation of this
section or any provision of law.
``(IV) Confirmation or
nonconfirmation.--Unless the period is
extended in accordance with this
subclause, the System shall provide a
confirmation or nonconfirmation not
later than 10 business days after the
date on which the individual contests
the further action notice under
subclause (II). If the Secretary
determines that good cause exists,
after taking into account adverse
impacts to the employer, and including
time to permit the individual to obtain
and provide needed evidence of identity
or employment eligibility, the
Secretary shall extend the period for
providing confirmation or
nonconfirmation for stated periods
beyond 10 business days. When
confirmation or nonconfirmation is
provided, the confirmation system shall
provide an appropriate code indicating
such confirmation or nonconfirmation.
``(V) Reexamination.--Nothing in
this section shall prevent the
Secretary from establishing procedures
to reexamine a case where a
confirmation or nonconfirmation has
been provided if subsequently received
information indicates that the
confirmation or nonconfirmation may not
have been correct. Any procedures for
reexamination shall not limit in any
way an employee's right to appeal a
nonconfirmation.
``(VI) Employee protections.--An
employer may not terminate employment
or take any other adverse action
against an individual solely because of
a failure of the individual to have
identity and employment eligibility
confirmed under this subsection until--
``(aa) a nonconfirmation
has been issued;
``(bb) if the further
action notice was contested,
the period to timely file an
administrative appeal has
expired without an appeal or
the contestation to the further
action notice is withdrawn; or
``(cc) if an appeal before
an administrative law judge
under paragraph (7) has been
filed, the nonconfirmation has
been upheld or the appeal has
been withdrawn or dismissed.
``(iv) Notice of nonconfirmation.--Not
later than 3 business days after an employer
receives a nonconfirmation, or during such
other reasonable time as the Secretary may
provide, the employer shall notify the
individual who is the subject of the
nonconfirmation, and provide information about
filing an administrative appeal pursuant to
paragraph (6) and a request for a hearing
before an administrative law judge pursuant to
paragraph (7). The nonconfirmation notice shall
be given to the individual in writing and the
employer shall acknowledge in the System under
penalty of perjury that it provided the notice
(or adequately attempted to provide notice, but
was unable to do so despite reasonable
efforts). The individual shall affirmatively
acknowledge in writing, or in such other manner
as the Secretary may prescribe, the receipt of
the nonconfirmation notice from the employer.
If the individual refuses or fails to
acknowledge the receipt of the nonconfirmation
notice, the employer shall notify the Secretary
in such manner as the Secretary may prescribe.
``(D) Consequences of nonconfirmation.--
``(i) Termination of continued
employment.--Except as provided in clause
(iii), an employer that has received a
nonconfirmation regarding an individual and has
made reasonable efforts to notify the
individual in accordance with subparagraph
(C)(iv) shall terminate the employment of the
individual upon the expiration of the time
period specified in paragraph (7).
``(ii) Continued employment after
nonconfirmation.--If the employer continues to
employ an individual after receiving
nonconfirmation and exhaustion of all appeals
or expiration of all rights to appeal if not
appealed, in violation of clause (i), a
rebuttable presumption is created that the
employer has violated paragraphs (1)(A) and (2)
of subsection (a). Such presumption shall not
apply in any prosecution under subsection
(k)(1).
``(iii) Effect of administrative appeal or
review by administrative law judge.--If an
individual files an administrative appeal of
the nonconfirmation within the time period
specified in paragraph (6)(A), or files for
review with an administrative law judge
specified in paragraph (7)(A), the employer
shall not terminate the individual's employment
under this subparagraph prior to the resolution
of the administrative appeal unless the
Secretary or Commissioner terminates the stay
under paragraph (6)(B) or (7)(B).
``(iv) Weekly report.--The Director of U.S.
Citizenship and Immigration Services shall
submit a weekly report to the Assistant
Secretary for Immigration and Customs
Enforcement that includes, for each individual
who receives final nonconfirmation through the
System--
``(I) the name of such individual;
``(II) his or her social security
number or alien file number;
``(III) the name and contact
information for his or her current
employer; and
``(IV) any other critical
information that the Assistant
Secretary determines to be appropriate.
``(E) Obligation to respond to queries and
additional information.--
``(i) In general.--Employers shall comply
with requests for information from the
Secretary and the Immigration and Employee
Rights Section of the Civil Rights Division of
the Department of Justice, including queries
concerning current and former employees, within
the time frame during which records are
required to be maintained under this section
regarding such former employees, if such
information relates to the functioning of the
System, the accuracy of the responses provided
by the System, or any suspected misuse,
discrimination, fraud, or identity theft in the
use of the System. Failure to comply with a
request under this clause constitutes a
violation of subsection (a)(1)(B).
``(ii) Action by individuals.--
``(I) In general.--Individuals
being verified through the System may
be required to take further action to
address questions identified by the
Secretary or the Commissioner regarding
the documents relied upon for purposes
of subsection (c).
``(II) Notification.--Not later
than 3 business days after the receipt
of such questions regarding an
individual, or during such other
reasonable time as the Secretary may
prescribe, the employer shall--
``(aa) notify the
individual of any such
requirement for further
actions; and
``(bb) record the date and
manner of such notification.
``(III) Acknowledgment.--The
individual shall acknowledge the
notification received from the employer
under subclause (II) in writing, or in
such other manner as the Secretary may
prescribe.
``(iii) Rulemaking.--
``(I) In general.--The Secretary,
in consultation with the Commissioner
and the Attorney General, is authorized
to issue regulations implementing,
clarifying, and supplementing the
requirements under this subparagraph--
``(aa) to facilitate the
functioning, accuracy, and
fairness of the System;
``(bb) to prevent misuse,
discrimination, fraud, or
identity theft in the use of
the System; or
``(cc) to protect and
maintain the confidentiality of
information that could be used
to locate or otherwise place at
risk of harm victims of
domestic violence, dating
violence, sexual assault,
stalking, and human
trafficking, and of the
applicant or beneficiary of any
petition described in section
384(a)(2) of the Illegal
Immigration Reform and
Immigrant Responsibility Act of
1996 (8 U.S.C. 1367(a)(2)).
``(II) Notice.--The regulations
issued under subclause (I) shall be--
``(aa) published in the
Federal Register; and
``(bb) provided directly to
all employers registered in the
System.
``(F) Designated agents.--The Secretary shall
establish a process--
``(i) for certifying, on an annual basis or
at such times as the Secretary may prescribe,
designated agents and other System service
providers seeking access to the System to
perform verification queries on behalf of
employers, based upon training, usage, privacy,
and security standards prescribed by the
Secretary;
``(ii) for ensuring that designated agents
and other System service providers are subject
to monitoring to the same extent as direct
access users; and
``(iii) for establishing standards for
certification of electronic I-9 programs.
``(G) Requirement to provide information.--
``(i) In general.--No later than 3 months
after the date of the enactment of the E-Verify
System Act of 2018, the Secretary, in
consultation with the Secretary of Labor, the
Secretary of Agriculture, the Commissioner, the
Attorney General, the Equal Employment
Opportunity Commission, and the Administrator
of the Small Business Administration, shall
commence a campaign to disseminate information
respecting the procedures, rights, and remedies
prescribed under this section.
``(ii) Campaign requirements.--The campaign
authorized under clause (i)--
``(I) shall be aimed at increasing
the knowledge of employers, employees,
and the general public concerning
employer and employee rights,
responsibilities, and remedies under
this section; and
``(II) shall be coordinated with
the public education campaign conducted
by U.S. Citizenship and Immigration
Services.
``(iii) Assessment.--The Secretary shall
assess the success of the campaign in achieving
the goals of the campaign.
``(iv) Authority to contract.--In order to
carry out and assess the campaign under this
subparagraph, the Secretary may, to the extent
deemed appropriate and subject to the
availability of appropriations, contract with
public and private organizations for outreach
and assessment activities under the campaign.
``(v) Authorization of appropriations.--
There are authorized to be appropriated to
carry out this paragraph $40,000,000 for each
of the fiscal years 2019 through 2021.
``(H) Authority to modify information
requirements.--Based on a regular review of the System
and the document verification procedures to identify
misuse or fraudulent use and to assess the security of
the documents and processes used to establish identity
or employment authorized status, the Secretary, in
consultation with the Commissioner, after publication
of notice in the Federal Register and an opportunity
for public comment, may modify, if the Secretary
determines that the modification is necessary to ensure
that the System accurately and reliably determines the
identity and employment authorized status of employees
and maintain existing protections against misuse,
discrimination, fraud, and identity theft--
``(i) the information that shall be
presented to the employer by an individual;
``(ii) the information that shall be
provided to the System by the employer; and
``(iii) the procedures that shall be
followed by employers with respect to the
process of verifying an individual through the
System.
``(I) Self-verification.--Subject to appropriate
safeguards to prevent misuse of the system, the
Secretary, in consultation with the Commissioner, shall
establish a secure self-verification procedure to
permit an individual who seeks to verify the
individual's own employment eligibility to contact the
appropriate agency and, in a timely manner, correct or
update the information contained in the System.
``(5) Protection from liability for actions taken on the
basis of information provided by the system.--An employer shall
not be liable to a job applicant, an employee, the Federal
Government, or a State or local government, under Federal,
State, or local criminal or civil law for any employment-
related action taken with respect to a job applicant or
employee in good faith reliance on information provided by the
System.
``(6) Administrative appeal.--
``(A) In general.--An individual who is notified of
a nonconfirmation may, not later than 10 business days
after the date that such notice is received, file an
administrative appeal of such nonconfirmation with the
Commissioner if the notice is based on records
maintained by the Commissioner, or in any other case,
with the Secretary. An individual who did not timely
contest a further action notice timely received by that
individual for which the individual acknowledged
receipt may not be granted a review under this
paragraph.
``(B) Administrative stay of nonconfirmation.--The
nonconfirmation shall be automatically stayed upon the
timely filing of an administrative appeal, unless the
nonconfirmation resulted after the individual
acknowledged receipt of the further action notice but
failed to contact the appropriate agency within the
time provided. The stay shall remain in effect until
the resolution of the appeal, unless the Secretary or
the Commissioner terminates the stay based on a
determination that the administrative appeal is
frivolous or filed for purposes of delay.
``(C) Review for error.--The Secretary and the
Commissioner shall develop procedures for resolving
administrative appeals regarding nonconfirmations based
upon the information that the individual has provided,
including any additional evidence or argument that was
not previously considered. Any such additional evidence
or argument shall be filed within 10 business days of
the date the appeal was originally filed. Appeals shall
be resolved within 20 business days after the
individual has submitted all evidence and arguments the
individual wishes to submit, or has stated in writing
that there is no additional evidence that the
individual wishes to submit. The Secretary and the
Commissioner may, on a case by case basis for good
cause, extend the filing and submission period in order
to ensure accurate resolution of an appeal before the
Secretary or the Commissioner.
``(D) Preponderance of evidence.--Administrative
appeal under this paragraph shall be limited to whether
a nonconfirmation notice is supported by a
preponderance of the evidence.
``(E) Damages, fees, and costs.--No money damages,
fees or costs may be awarded in the administrative
appeal process under this paragraph.
``(7) Review by administrative law judge.--
``(A) In general.--Not later than 30 days after the
date an individual receives a final determination on an
administrative appeal under paragraph (6), the
individual may obtain review of such determination by
filing a complaint with a Department of Justice
administrative law judge in accordance with this
paragraph.
``(B) Stay of nonconfirmation.--The nonconfirmation
related to such final determination shall be
automatically stayed upon the timely filing of a
complaint under this paragraph, and the stay shall
remain in effect until the resolution of the complaint,
unless the administrative law judge determines that the
action is frivolous or filed for purposes of delay.
``(C) Service.--The respondent to complaint filed
under this paragraph is either the Secretary or the
Commissioner, but not both, depending upon who issued
the administrative order under paragraph (6). In
addition to serving the respondent, the plaintiff shall
serve the Attorney General.
``(D) Authority of administrative law judge.--
``(i) Rules of practice.--The Secretary
shall promulgate regulations regarding the
rules of practice in appeals brought pursuant
to this subsection.
``(ii) Authority of administrative law
judge.--The administrative law judge shall have
power to--
``(I) terminate a stay of a
nonconfirmation under subparagraph (B)
if the administrative law judge
determines that the action is frivolous
or filed for purposes of delay;
``(II) adduce evidence at a
hearing;
``(III) compel by subpoena the
attendance of witnesses and the
production of evidence at any
designated place or hearing;
``(IV) resolve claims of identity
theft; and
``(V) enter, upon the pleadings and
any evidence adduced at a hearing, a
decision affirming or reversing the
result of the agency, with or without
remanding the cause for a rehearing.
``(iii) Subpoena.--In case of contumacy or
refusal to obey a subpoena lawfully issued
under this section and upon application of the
administrative law judge, an appropriate
district court of the United States may issue
an order requiring compliance with such
subpoena and any failure to obey such order may
be punished by such court as a contempt of such
court.
``(iv) Training.--An administrative law
judge hearing cases shall have special training
respecting employment authorized status
verification.
``(E) Order by administrative law judge.--
``(i) In general.--The administrative law
judge shall issue and cause to be served to the
parties in the proceeding an order which may be
appealed as provided in subparagraph (G).
``(ii) Contents of order.--Such an order
shall uphold or reverse the final determination
on the request for reconsideration and order
lost wages and other appropriate remedies as
provided in subparagraph (F).
``(F) Compensation for error.--
``(i) In general.--In cases in which the
administrative law judge reverses the final
determination of the Secretary or the
Commissioner made under paragraph (6), and the
administrative law judge finds that--
``(I) the nonconfirmation was due
to gross negligence or intentional
misconduct of the employer, the
administrative law judge may order the
employer to pay the individual lost
wages, and reasonable costs and
attorneys' fees incurred during
administrative and judicial review; or
``(II) such final determination was
erroneous by reason of the negligence
of the Secretary or the Commissioner,
the administrative law judge may order
the Secretary or the Commissioner to
pay the individual lost wages, and
reasonable costs and attorneys' fees
incurred during the administrative
appeal and the administrative law judge
review.
``(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 120 days after completion
of the administrative law judge's review
described in this paragraph or the day after
the individual is reinstated or obtains
employment elsewhere, whichever occurs first.
If the individual obtains employment elsewhere
at a lower wage rate, the individual shall be
compensated for the difference in wages for the
period ending 120 days after completion of the
administrative law judge review process. No
lost wages shall be awarded for any period of
time during which the individual was not in
employment authorized status.
``(iii) Payment of compensation.--
Notwithstanding any other law, payment of
compensation for lost wages, costs, and
attorneys' fees under this paragraph, or
compromise settlements of the same, shall be
made as provided by section 1304 of title 31,
United States Code. Appropriations made
available to the Secretary or the Commissioner,
accounts provided for under section 286, and
funds from the Federal Old-Age and Survivors
Insurance Trust Fund or the Federal Disability
Insurance Trust Fund shall not be available to
pay such compensation.
``(G) Appeal.--No later than 45 days after the
entry of such final order, any person adversely
affected by such final order may seek review of such
order in the United States Court of Appeals for the
circuit in which the violation is alleged to have
occurred or in which the employer resides or transacts
business.
``(8) Management of the system.--
``(A) In general.--The Secretary is authorized to
establish, manage, and modify the System, which shall--
``(i) respond to inquiries made by
participating employers at any time through the
internet, or such other means as the Secretary
may designate, concerning an individual's
identity and whether the individual is in
employment authorized status;
``(ii) maintain records of the inquiries
that were made, of confirmations provided (or
not provided), and of the codes provided to
employers as evidence of their compliance with
their obligations under the System; and
``(iii) provide information to, and require
action by, employers and individuals using the
System.
``(B) Design and operation of system.--The System
shall be designed and operated--
``(i) to maximize its reliability and ease
of use by employers consistent with protecting
the privacy and security of the underlying
information, and ensuring full notice of such
use to employees;
``(ii) to maximize its ease of use by
employees, including direct notification of its
use, of results, and ability to challenge
results;
``(iii) to respond accurately to all
inquiries made by employers on whether
individuals are authorized to be employed and
to register any times when the system is unable
to receive inquiries;
``(iv) to maintain appropriate
administrative, technical, and physical
safeguards to prevent unauthorized disclosure
of personal information, misuse by employers
and employees, and discrimination;
``(v) to require regularly scheduled
refresher training of all users of the System
to ensure compliance with all procedures;
``(vi) to allow for auditing of the use of
the System to detect misuse, discrimination,
fraud, and identity theft, to protect privacy
and assess System accuracy, and to preserve the
integrity and security of the information in
all of the System, including--
``(I) to develop and use tools and
processes to detect or prevent fraud
and identity theft, such as multiple
uses of the same identifying
information or documents to
fraudulently gain employment;
``(II) to develop and use tools and
processes to detect and prevent misuse
of the system by employers and
employees;
``(III) to develop tools and
processes to detect anomalies in the
use of the system that may indicate
potential fraud or misuse of the
system; and
``(IV) to audit documents and
information submitted by employees to
employers, including authority to
conduct interviews with employers and
employees, and obtain information
concerning employment from the
employer;
``(vii) to confirm identity and employment
authorization through verification and
comparison of records as determined necessary
by the Secretary;
``(viii) to confirm electronically the
issuance of the employment authorization or
identity document and--
``(I) if such photograph is
available, to display the digital
photograph that the issuer placed on
the document so that the employer can
compare the photograph displayed to the
photograph on the document presented by
the employee; or
``(II) if a photograph is not
available from the issuer, to confirm
the authenticity of the document using
such alternative procedures as the
Secretary may specify; and
``(ix) to provide appropriate notification
directly to employers registered with the
System of all changes made by the Secretary or
the Commissioner related to allowed and
prohibited documents, and use of the System.
``(C) Safeguards to the system.--
``(i) Requirement to develop.--The
Secretary, in consultation with the
Commissioner and other appropriate Federal and
State agencies, shall develop policies and
procedures to ensure protection of the privacy
and security of personally identifiable
information and identifiers contained in the
records accessed or maintained by the System.
The Secretary, in consultation with the
Commissioner and other appropriate Federal and
State agencies, shall develop and deploy
appropriate privacy and security training for
the Federal and State employees accessing the
records under the System.
``(ii) Privacy audits.--The Secretary,
acting through the Chief Privacy Officer of the
Department, shall conduct regular privacy
audits of the policies and procedures
established under clause (i), including any
collection, use, dissemination, and maintenance
of personally identifiable information and any
associated information technology systems, as
well as scope of requests for this information.
The Chief Privacy Officer shall review the
results of the audits and recommend to the
Secretary any changes necessary to improve the
privacy protections of the program.
``(iii) Accuracy audits.--
``(I) In general.--Not later than
November 30 of each year, the Inspector
General of the Department of Homeland
Security shall submit a report to the
Secretary, with a copy to the President
of the Senate and the Speaker of the
House of Representatives, that sets
forth the error rate of the System for
the previous fiscal year and the
assessments required to be submitted by
the Secretary under subparagraphs (A)
and (B) of paragraph (10). The report
shall describe in detail the
methodology employed for purposes of
the report, and shall make
recommendations for how error rates may
be reduced.
``(II) Error rate defined.--In this
clause, the term `error rate' means the
percentage determined by dividing--
``(aa) the number of
employment authorized
individuals who received
further action notices,
contested such notices, and
were subsequently found to be
employment authorized; by
``(bb) the number of System
inquiries submitted for
employment authorized
individuals.
``(III) Reduction of penalties for
recordkeeping or verification practices
following persistent system
inaccuracies.--Notwithstanding
subsection (e)(4)(C)(i), in any
calendar year following a report by the
Inspector General under subclause (I)
that the System had an error rate
higher than 0.3 percent for the
previous fiscal year, the civil penalty
assessable by the Secretary or an
administrative law judge under that
subsection for each first-time
violation by an employer who has not
previously been penalized under this
section may not exceed $1,000.
``(iv) Records security program.--Any
person, including a private third party vendor,
who retains document verification or System
data pursuant to this section shall implement
an effective records security program that--
``(I) ensures that only authorized
personnel have access to document
verification or System data; and
``(II) ensures that whenever such
data is created, completed, updated,
modified, altered, or corrected in
electronic format, a secure and
permanent record is created that
establishes the date of access, the
identity of the individual who accessed
the electronic record, and the
particular action taken.
``(v) Records security program.--In
addition to the security measures described in
clause (iv), a private third party vendor who
retains document verification or System data
pursuant to this section shall implement an
effective records security program that--
``(I) provides for backup and
recovery of any records maintained in
electronic format to protect against
information loss, such as power
interruptions; and
``(II) ensures that employees are
trained to minimize the risk of
unauthorized or accidental alteration
or erasure of such data in electronic
format.
``(vi) Authorized personnel defined.--In
this subparagraph, the term `authorized
personnel' means anyone registered as a System
user, or anyone with partial or full
responsibility for completion of employment
authorization verification or retention of data
in connection with employment authorization
verification on behalf of an employer.
``(D) Available facilities and alternative
accommodations.--The Secretary shall make appropriate
arrangements and develop standards to allow employers
or employees, including remote hires, who are otherwise
unable to access the System to use electronic and
telephonic formats (including video conferencing,
scanning technology, and other available technologies),
Federal Government facilities, public facilities, or
other available locations in order to utilize the
System.
``(E) Responsibilities of the secretary.--
``(i) In general.--As part of the System,
the Secretary shall maintain a reliable, secure
method, which, operating through the System and
within the time periods specified, compares the
name, alien identification or authorization
number, or other information as determined
relevant by the Secretary, provided in an
inquiry against such information maintained or
accessed by the Secretary in order to confirm
(or not confirm) the validity of the
information provided, the correspondence of the
name and number, whether the alien has
employment authorized status (or, to the extent
that the Secretary determines to be feasible
and appropriate, whether the records available
to the Secretary verify the identity or status
of a national of the United States), and such
other information as the Secretary may
prescribe.
``(ii) Photograph display.--As part of the
System, the Secretary shall establish a
reliable, secure method, which, operating
through the System, displays the digital
photograph described in subparagraph
(B)(viii)(I).
``(iii) Timing of notices.--The Secretary
shall have authority to prescribe when a
confirmation, nonconfirmation, or further
action notice shall be issued.
``(iv) Use of information.--The Secretary
shall perform regular audits under the System,
as described in subparagraph (B)(vi) and shall
utilize the information obtained from such
audits, as well as any information obtained
from the Commissioner pursuant to part E of
title XI of the Social Security Act (42 U.S.C.
1301 et seq.), for the purposes of this section
and to administer and enforce the immigration
laws.
``(v) Identity fraud protection.--To
prevent identity fraud, not later than 18
months after the date of the enactment of the
E-Verify System Act of 2018, the Secretary
shall--
``(I) in consultation with the
Commissioner, establish a program to
provide a reliable, secure method for
an individual to temporarily suspend or
limit the use of the individual's
social security account number or other
identifying information for
verification by the System; and
``(II) for each individual being
verified through the System--
``(aa) notify the
individual that the individual
has the option to limit the use
of the individual's social
security account number or
other identifying information
for verification by the System;
and
``(bb) provide instructions
to the individuals for
exercising the option referred
to in item (aa).
``(vi) Allowing parents to prevent theft of
their child's identity.--The Secretary, in
consultation with the Commissioner, shall
establish a program that provides a reliable,
secure method by which parents or legal
guardians may suspend or limit the use of the
social security account number or other
identifying information of a minor under their
care for the purposes of the System. The
Secretary may implement the program on a
limited pilot program basis before making it
fully available to all individuals.
``(vii) Protection from multiple use.--The
Secretary and the Commissioner shall establish
a procedure for identifying and handling a
situation in which a social security account
number has been identified to be subject to
unusual multiple use in the System or is
otherwise suspected or determined to have been
compromised by identity fraud.
``(viii) Monitoring and compliance unit.--
The Secretary shall establish or designate a
monitoring and compliance unit to detect and
reduce identity fraud and other misuse of the
System.
``(ix) Civil rights and civil liberties
assessments.--
``(I) Requirement to conduct.--The
Secretary shall conduct regular civil
rights and civil liberties assessments
of the System, including participation
by employers, other private entities,
and Federal, State, and local
government entities.
``(II) Requirement to respond.--
Employers, other private entities, and
Federal, State, and local entities
shall timely respond to any request in
connection with such an assessment.
``(III) Assessment and
recommendations.--The Officer for Civil
Rights and Civil Liberties of the
Department shall review the results of
each such assessment and recommend to
the Secretary any changes necessary to
improve the civil rights and civil
liberties protections of the System.
``(F) Grants to states.--
``(i) In general.--The Secretary shall
create and administer a grant program to help
provide funding for States that grant--
``(I) the Secretary access to
driver's license information as needed
to confirm that a driver's license
presented under subsection (c)(1)(D)(i)
confirms the identity of the subject of
the System check, and that a driver's
license matches the State's records;
and
``(II) such assistance as the
Secretary may request in order to
resolve further action notices or
nonconfirmations relating to such
information.
``(ii) Construction with the driver's
privacy protection act of 1994.--The provision
of a photograph to the Secretary as described
in clause (i) may not be construed as a
violation of section 2721 of title 18, United
States Code, and is a permissible use under
subsection (b)(1) of that section.
``(iii) Authorization of appropriations.--
There is authorized to be appropriated to the
Secretary $250,000,000 to carry out this
subparagraph.
``(G) Responsibilities of the secretary of state.--
As part of the System, the Secretary of State shall
provide to the Secretary access to passport and visa
information as needed to confirm that a passport,
passport card, or visa presented under subsection
(c)(1)(C) confirms the identity of the subject of the
System check, and that a passport, passport card, or
visa photograph matches the Secretary of State's
records, and shall provide such assistance as the
Secretary may request in order to resolve further
action notices or nonconfirmations relating to such
information.
``(H) Updating information.--The Commissioner, the
Secretary, and the Secretary of State shall update
their information in a manner that promotes maximum
accuracy and shall provide a process for the prompt
correction of erroneous information.
``(9) Limitation on use of the system.--Notwithstanding any
other provision of law, nothing in this subsection may be
construed to permit or allow any department, bureau, or other
agency of the United States Government or any other entity to
utilize any information, database, or other records assembled
under this subsection for any purpose other than for employment
verification or to ensure secure, appropriate and
nondiscriminatory use of the System.
``(10) Annual report and certification.--Not later than 18
months after the promulgation of regulations to implement this
subsection, and annually thereafter, the Secretary shall submit
to Congress a report that includes the following:
``(A) An assessment, as submitted to the Secretary
by the Inspector General of the Department of Homeland
Security pursuant to paragraph (8)(C)(iii)(I), of the
accuracy rates of further action notices and other
System notices provided by employers to individuals who
are authorized to be employed in the United States.
``(B) An assessment, as submitted to the Secretary
by the Inspector General of the Department of Homeland
Security pursuant to paragraph (8)(C)(iii)(I), of the
accuracy rates of further action notices and other
System notices provided directly (by the System) in a
timely fashion to individuals who are not authorized to
be employed in the United States.
``(C) An assessment of any challenges faced by
small employers in utilizing the System.
``(D) An assessment of the rate of employer
noncompliance (in addition to failure to provide
required notices in a timely fashion) in each of the
following categories:
``(i) Taking adverse action based on a
further action notice.
``(ii) Use of the System for nonemployees
or other individuals before they are offered
employment.
``(iii) Use of the System to reverify
employment authorized status of current
employees except if authorized to do so.
``(iv) Use of the System selectively,
except in cases in which such use is
authorized.
``(v) Use of the System to deny employment
or post-employment benefits or otherwise
interfere with labor rights.
``(vi) Requiring employees or applicants to
use any self-verification feature or to provide
self-verification results.
``(vii) Discouraging individuals who
receive a further action notice from
challenging the further action notice or
appealing a determination made by the System.
``(E) An assessment of the rate of employee
noncompliance in each of the following categories:
``(i) Obtaining employment when
unauthorized with an employer complying with
the System in good faith.
``(ii) Failure to provide required
documents in a timely manner.
``(iii) Attempting to use fraudulent
documents or documents not related to the
individual.
``(iv) Misuse of the administrative appeal
and judicial review process.
``(F) An assessment of the amount of time taken
for--
``(i) the System to provide the
confirmation or further action notice;
``(ii) individuals to contest further
action notices;
``(iii) the System to provide a
confirmation or nonconfirmation of a contested
further action notice;
``(iv) individuals to file an
administrative appeal of a nonconfirmation; and
``(v) resolving administrative appeals
regarding nonconfirmations.
``(11) Annual gao study and report.--
``(A) Requirement.--The Comptroller General shall,
for each year, undertake a study to evaluate the
accuracy, efficiency, integrity, and impact of the
System.
``(B) Report.--Not later than 18 months after the
promulgation of regulations to implement this
subsection, and yearly thereafter, the Comptroller
General shall submit to Congress a report containing
the findings of the study carried out under this
paragraph. Each such report shall include, at a
minimum, the following:
``(i) An assessment of System performance
with respect to the rate at which individuals
who are eligible for employment in the United
States are correctly approved within the
required periods, including a separate
assessment of such rate for naturalized United
States citizens, nationals of the United
States, and aliens.
``(ii) An assessment of the privacy and
confidentiality of the System and of the
overall security of the System with respect to
cybertheft and theft or misuse of private data.
``(iii) An assessment of whether the System
is being implemented in a manner that is not
discriminatory or used for retaliation against
employees.
``(iv) An assessment of the most common
causes for the erroneous issuance of
nonconfirmations by the System and
recommendations to correct such causes.
``(v) The recommendations of the
Comptroller General regarding System
improvements.
``(vi) An assessment of the frequency and
magnitude of changes made to the System and the
impact on the ability for employers to comply
in good faith.
``(vii) An assessment of the direct and
indirect costs incurred by employers in
complying with the System, including costs
associated with retaining potential employees
through the administrative appeals process and
receiving a nonconfirmation.
``(viii) An assessment of any backlogs or
delays in the System providing the confirmation
or further action notice and impacts to hiring
by employers.
``(e) Compliance.--
``(1) Complaints and investigations.--The Secretary shall
establish procedures--
``(A) for individuals and entities to file
complaints respecting potential violations of
subsections (a) or (f)(1);
``(B) for the investigation of those complaints
which the Secretary deems appropriate to investigate;
and
``(C) for providing notification to the Immigration
and Employee Rights Section of the Civil Rights
Division of the Department of Justice of potential
violations of section 274B.
``(2) Authority in investigations.--In conducting
investigations and proceedings under this subsection--
``(A) immigration officers shall have reasonable
access to examine evidence of the employer being
investigated;
``(B) immigration officers designated by the
Secretary, and administrative law judges and other
persons authorized to conduct proceedings under this
section, may compel by subpoena the attendance of
relevant witnesses and the production of relevant
evidence at any designated place in an investigation or
case under this subsection. In case of refusal to fully
comply with a subpoena lawfully issued under this
paragraph, the Secretary may request that the Attorney
General apply in an appropriate district court of the
United States for an order requiring compliance with
the subpoena, and any failure to obey such order may be
punished by the court as contempt. Failure to cooperate
with the subpoena shall be subject to further
penalties, including further fines and the voiding of
any mitigation of penalties or termination of
proceedings under paragraph (4)(E); and
``(C) the Secretary, in cooperation with the
Commissioner and Attorney General, and in consultation
with other relevant agencies, shall establish a Joint
Employment Fraud Task Force consisting of, at a
minimum--
``(i) the System's compliance personnel;
``(ii) immigration law enforcement
officers;
``(iii) personnel of the Immigrant and
Employee Rights Section of the Civil Rights
Division of the Department of Justice;
``(iv) personnel of the Office for Civil
Rights and Civil Liberties of the Department;
and
``(v) personnel of Office of Inspector
General of the Social Security Administration.
``(3) Compliance procedures.--
``(A) Pre-penalty notice.--If the Secretary has
reasonable cause to believe that there has been a civil
violation of this section in the previous 3 years, the
Secretary shall issue to the employer concerned a
written notice of the Department's intention to issue a
claim for a monetary or other penalty. Such pre-penalty
notice shall--
``(i) describe the violation;
``(ii) specify the laws and regulations
allegedly violated;
``(iii) disclose the material facts which
establish the alleged violation;
``(iv) describe the penalty sought to be
imposed; and
``(v) inform such employer that such
employer shall have a reasonable opportunity to
make representations as to why a monetary or
other penalty should not be imposed.
``(B) Employer's response.--Whenever any employer
receives written pre-penalty notice of a fine or other
penalty in accordance with subparagraph (A), the
employer may, within 60 days from receipt of such
notice, file with the Secretary its written response to
the notice. The response may include any relevant
evidence or proffer of evidence that the employer
wishes to present with respect to whether the employer
violated this section and whether, if so, the penalty
should be mitigated, and shall be filed and considered
in accordance with procedures to be established by the
Secretary.
``(C) Right to a hearing.--Before issuance of an
order imposing a penalty on any employer, person, or
entity, the employer, person, or entity shall be
entitled to a hearing before an administrative law
judge, if requested within 60 days of the notice of
penalty. The hearing shall be held at the nearest
location practicable to the place where the employer,
person, or entity resides or of the place where the
alleged violation occurred.
``(D) Issuance of orders.--If no hearing is so
requested, the Secretary's imposition of the order
shall constitute a final and unappealable order. If a
hearing is requested and the administrative law judge
determines, upon clear and convincing evidence
received, that there was a violation, the
administrative law judge shall issue the final
determination with a written penalty claim. The penalty
claim shall specify all charges in the information
provided under clauses (i) through (iii) of
subparagraph (A) and any mitigation of the penalty that
the administrative law judge deems appropriate under
paragraph (4)(E).
``(4) Civil penalties.--
``(A) Hiring or continuing to employ unauthorized
aliens.--Any employer that violates any provision of
subsection (a)(1)(A) or (a)(2) shall--
``(i) pay a civil penalty of not less than
$3,500 and not more than $7,500 for each
unauthorized alien with respect to which each
violation of either subsection (a)(1)(A) or
(a)(2) occurred;
``(ii) if the employer has previously been
fined as a result of a previous enforcement
action or previous violation under this
paragraph, pay a civil penalty of not less than
$5,000 and not more than $15,000 for each
unauthorized alien with respect to which a
violation of either subsection (a)(1)(A) or
(a)(2) occurred; and
``(iii) if the employer has previously been
fined more than once under this paragraph, pay
a civil penalty of not less than $10,000 and
not more than $25,000 for each unauthorized
alien with respect to which a violation of
either subsection (a)(1)(A) or (a)(2) occurred.
``(B) Enhanced penalties.--After the Secretary
certifies to Congress that the System has been
established, implemented, and made mandatory for use by
all employers in the United States, the Secretary may
establish an enhanced civil penalty for an employer
who--
``(i) fails to query the System to verify
the identify and work authorized status of an
individual; and
``(ii) violates a Federal, State, or local
law related to--
``(I) the payment of wages;
``(II) hours worked by employees;
or
``(III) workplace health and
safety.
``(C) Recordkeeping or verification practices.--Any
employer that violates or fails to comply with any
requirement under subsection (a)(1)(B), other than a
minor or inadvertent failure, as determined by the
Secretary, shall pay a civil penalty of--
``(i) not less than $500 and not more than
$2,000 for each violation;
``(ii) if an employer has previously been
fined under this paragraph, not less than
$1,000 and not more than $4,000 for each
violation; and
``(iii) if an employer has previously been
fined more than once under this paragraph, not
less than $2,000 and not more than $8,000 for
each violation.
``(D) Other penalties.--The Secretary may impose
additional penalties for violations, including cease
and desist orders, specially designed compliance plans
to prevent further violations, suspended fines to take
effect in the event of a further violation, and in
appropriate cases, the remedy provided by paragraph
(f)(2).
``(E) Mitigation.--The Secretary or, if an employer
requests a hearing, the administrative law judge, is
authorized, upon such terms and conditions as the
Secretary or administrative law judge deems reasonable
and just and in accordance with such procedures as the
Secretary may establish or any procedures established
governing the administrative law judge's assessment of
penalties, to reduce or mitigate penalties imposed upon
employers, based upon factors including, the employer's
hiring volume, compliance history, good-faith
implementation of a compliance program, the size and
level of sophistication of the employer, and voluntary
disclosure of violations of this subsection to the
Secretary. The Secretary or administrative law judge
shall not mitigate a penalty below the minimum penalty
provided by this section, except that the Secretary
may, in the case of an employer subject to penalty for
recordkeeping or verification violations only who has
not previously been penalized under this section, in
the Secretary's or administrative law judge's
discretion, mitigate the penalty below the statutory
minimum or remit it entirely. In any case where a civil
money penalty has been imposed on an employer under
section 274B for an action or omission that is also a
violation of this section, the Secretary or
administrative law judge shall mitigate any civil money
penalty under this section by the amount of the penalty
imposed under section 274B.
``(F) Effective date.--The civil money penalty
amounts and the enhanced penalties provided by
subparagraphs (A), (B), and (C) of this paragraph and
by subsection (f)(2) shall apply to violations of this
section committed on or after the date that is 1 year
after the date of the enactment of the E-Verify System
Act of 2018. For violations committed prior to such
date of enactment, the civil money penalty amounts
provided by regulations implementing this section as in
effect the minute before such date of enactment with
respect to knowing hiring or continuing employment,
verification, or indemnity bond violations, as
appropriate, shall apply.
``(5) Order of internal review and certification of
compliance.--
``(A) Employer compliance.--If the Secretary has
reasonable cause to believe that an employer has failed
to comply with this section, the Secretary is
authorized, at any time, to require that the employer
certify that it is in compliance with this section, or
has instituted a program to come into compliance.
``(B) Employer certification.--
``(i) Requirement.--Except as provided in
subparagraph (C), not later than 60 days after
receiving a notice from the Secretary requiring
a certification under subparagraph (A), an
official with responsibility for, and authority
to bind the company on, all hiring and
immigration compliance notices shall certify
under penalty of perjury that the employer is
in conformance with the requirements of
paragraphs (1) through (4) of subsection (c),
pertaining to document verification
requirements, and with subsection (d),
pertaining to the System (once the System is
implemented with respect to that employer
according to the requirements under subsection
(d)(2)), and with any additional requirements
that the Secretary may promulgate by regulation
pursuant to subsection (c) or (d) or that the
employer has instituted a program to come into
compliance with these requirements.
``(ii) Application.--Clause (i) shall not
apply until the date that the Secretary
certifies to Congress that the System has been
established, implemented, and made mandatory
for use by all employers in the United States.
``(C) Extension of deadline.--At the request of the
employer, the Secretary may extend the 60-day deadline
for good cause.
``(D) Standards or methods.--The Secretary is
authorized to publish in the Federal Register standards
or methods for such certification, require specific
recordkeeping practices with respect to such
certifications, and audit the records thereof at any
time. This authority shall not be construed to diminish
or qualify any other penalty provided by this section.
``(6) Requirements for review of a final determination.--
With respect to judicial review of a final determination or
penalty order issued under paragraph (3)(D), the following
requirements apply:
``(A) Deadline.--The petition for review must be
filed no later than 30 days after the date of the final
determination or penalty order issued under paragraph
(3)(D).
``(B) Venue and forms.--The petition for review
shall be filed with the court of appeals for the
judicial circuit where the employer's principal place
of business was located when the final determination or
penalty order was made. The record and briefs do not
have to be printed. The court shall review the
proceeding on a typewritten or electronically filed
record and briefs.
``(C) Service.--The respondent is the Secretary. In
addition to serving the respondent, the petitioner
shall serve the Attorney General.
``(D) Petitioner's brief.--The petitioner shall
serve and file a brief in connection with a petition
for judicial review not later than 40 days after the
date on which the administrative record is available,
and may serve and file a reply brief not later than 14
days after service of the brief of the respondent, and
the court may not extend these deadlines, except for
good cause shown. If a petitioner fails to file a brief
within the time provided in this paragraph, the court
shall dismiss the appeal unless a manifest injustice
would result.
``(E) Scope and standard for review.--The court of
appeals shall conduct a de novo review of the
administrative record on which the final determination
was based and any additional evidence that the Court
finds was previously unavailable at the time of the
administrative hearing.
``(F) Exhaustion of administrative remedies.--A
court may review a final determination under paragraph
(3)(C) only if--
``(i) the petitioner has exhausted all
administrative remedies available to the
petitioner as of right, including any
administrative remedies established by
regulation, and
``(ii) another court has not decided the
validity of the order, unless the reviewing
court finds that the petition presents grounds
that could not have been presented in the prior
judicial proceeding or that the remedy provided
by the prior proceeding was inadequate or
ineffective to test the validity of the order.
``(G) Enforcement of orders.--If the final
determination issued against the employer under this
subsection is not subjected to review as provided in
this paragraph, the Attorney General, upon request by
the Secretary, may bring a civil action to enforce
compliance with the final determination in any
appropriate district court of the United States. The
court, on a proper showing, shall issue a temporary
restraining order or a preliminary or permanent
injunction requiring that the employer comply with the
final determination issued against that employer under
this subsection. In any such civil action, the validity
and appropriateness of the final determination shall
not be subject to review.
``(7) Creation of lien.--If any employer liable for a fee
or penalty under this section neglects or refuses to pay such
liability after demand and fails to file a petition for review
(if applicable) as provided in paragraph (6), the amount of the
fee or penalty shall be a lien in favor of the United States on
all property and rights to property, whether real or personal,
belonging to such employer. If a petition for review is filed
as provided in paragraph (6), the lien shall arise upon the
entry of a final judgment by the court. The lien continues for
20 years or until the liability is satisfied, remitted, set
aside, or terminated.
``(8) Filing notice of lien.--
``(A) Place for filing.--The notice of a lien
referred to in paragraph (7) shall be filed as
described in 1 of the following:
``(i) Under state laws.--
``(I) Real property.--In the case
of real property, in 1 office within
the State (or the county, or other
governmental subdivision), as
designated by the laws of such State,
in which the property subject to the
lien is situated.
``(II) Personal property.--In the
case of personal property, whether
tangible or intangible, in 1 office
within the State (or the county, or
other governmental subdivision), as
designated by the laws of such State,
in which the property subject to the
lien is situated, except that State law
merely conforming to or reenacting
Federal law establishing a national
filing system does not constitute a
second office for filing as designated
by the laws of such State.
``(ii) With clerk of district court.--In
the office of the clerk of the United States
district court for the judicial district in
which the property subject to the lien is
situated, whenever the State has not by law
designated 1 office which meets the
requirements of clause (i).
``(iii) With recorder of deeds of the
district of columbia.--In the office of the
Recorder of Deeds of the District of Columbia,
if the property subject to the lien is situated
in the District of Columbia.
``(B) Situs of property subject to lien.--For
purposes of subparagraph (A), property shall be deemed
to be situated as follows:
``(i) Real property.--In the case of real
property, at its physical location.
``(ii) Personal property.--In the case of
personal property, whether tangible or
intangible, at the residence of the taxpayer at
the time the notice of lien is filed.
``(C) Determination of residence.--For purposes of
subparagraph (B)(ii), the residence of a corporation or
partnership shall be deemed to be the place at which
the principal executive office of the business is
located, and the residence of a taxpayer whose
residence is outside the United States shall be deemed
to be in the District of Columbia.
``(D) Effect of filing notice of lien.--
``(i) In general.--Upon filing of a notice
of lien in the manner described in this
paragraph, the lien shall be valid against any
purchaser, holder of a security interest,
mechanic's lien, or judgment lien creditor,
except with respect to properties or
transactions specified in subsection (b), (c),
or (d) of section 6323 of the Internal Revenue
Code of 1986 for which a notice of tax lien
properly filed on the same date would not be
valid.
``(ii) Notice of lien.--The notice of lien
shall be considered a notice of lien for taxes
payable to the United States for the purpose of
any State or local law providing for the filing
of a notice of a tax lien. A notice of lien
that is registered, recorded, docketed, or
indexed in accordance with the rules and
requirements relating to judgments of the
courts of the State where the notice of lien is
registered, recorded, docketed, or indexed
shall be considered for all purposes as the
filing prescribed by this section.
``(iii) Other provisions.--The provisions
of section 3201(e) of title 28, United States
Code, shall apply to liens filed as prescribed
by this paragraph.
``(E) Enforcement of a lien.--A lien obtained
through this paragraph shall be considered a debt as
defined by section 3002 of title 28, United States Code
and enforceable pursuant to chapter 176 of such title.
``(9) Attorney general adjudication.--The Attorney General
shall have jurisdiction to adjudicate administrative
proceedings under this subsection. Such proceedings shall be
conducted in accordance with requirements of section 554 of
title 5, United States Code.
``(f) Criminal and Civil Penalties and Injunctions.--
``(1) Prohibition of indemnity bonds.--It is unlawful for
an employer, in the hiring of any individual, to require the
individual to post a bond or security, to pay or agree to pay
an amount, or otherwise to provide a financial guarantee or
indemnity, against any potential liability arising under this
section relating to such hiring of the individual.
``(2) Civil penalty.--Any employer who is determined, after
notice and opportunity for mitigation of the monetary penalty
under subsection (e), to have violated paragraph (1) shall be
subject to a civil penalty of $10,000 for each violation and to
an administrative order requiring the return of any amounts
received in violation of such paragraph to the employee or, if
the employee cannot be located, to the general fund of the
Treasury.
``(g) Government Contracts.--
``(1) Contractors and recipients.--Whenever an employer who
is a Federal contractor (meaning an employer who holds a
Federal contract, grant, or cooperative agreement, or
reasonably may be expected to submit an offer for or be awarded
a government contract) is determined by the Secretary to have
violated this section on more than 3 occasions or is convicted
of a crime under this section, the employer shall be considered
for debarment from the receipt of Federal contracts, grants, or
cooperative agreements in accordance with the procedures and
standards and for the periods prescribed by the Federal
Acquisition Regulation. However, any administrative
determination of liability for civil penalty by the Secretary
or the Attorney General shall not be reviewable in any
debarment proceeding.
``(2) Inadvertent violations.--Inadvertent violations of
recordkeeping or verification requirements, in the absence of
any other violations of this section, shall not be a basis for
determining that an employer is a repeat violator for purposes
of this subsection.
``(3) Other remedies available.--Nothing in this subsection
shall be construed to modify or limit any remedy available to
any agency or official of the Federal Government for violation
of any contractual requirement to participate in the System, as
provided in the final rule relating to employment eligibility
verification published in the Federal Register on November 14,
2008 (73 Fed. Reg. 67,651), or any similar subsequent
regulation.
``(h) Preemption.--The provisions of this section preempt any State
or local law, ordinance, policy, or rule, including any criminal or
civil fine or penalty structure, relating to the hiring, continued
employment, or status verification for employment eligibility purposes,
of unauthorized aliens. A State, locality, municipality, or political
subdivision may exercise its authority over business licensing and
similar laws as a penalty for failure to use the System.
``(i) Deposit of Amounts Received.--Except as otherwise specified,
civil penalties collected under this section shall be deposited by the
Secretary into the Treasury as miscellaneous receipts.
``(j) Challenges to Validity of the System.--
``(1) In general.--Any right, benefit, or claim not
otherwise waived or limited pursuant to this section is
available in an action instituted in the United States District
Court for the District of Columbia, but shall be limited to
determinations of--
``(A) whether this section, or any regulation
issued to implement this section, violates the
Constitution of the United States; or
``(B) whether such a regulation issued by or under
the authority of the Secretary to implement this
section, is contrary to applicable provisions of this
section or was issued in violation of chapter 5 of
title 5, United States Code.
``(2) Deadlines for bringing actions.--Any action
instituted under this subsection must be filed no later than
180 days after the date the challenged section or regulation
described in subparagraph (A) or (B) of paragraph (1) becomes
effective. No court shall have jurisdiction to review any
challenge described in subparagraph (B) after the time period
specified in this subsection expires.
``(k) Criminal Penalties and Injunctions for Pattern or Practice
Violations.--
``(1) Pattern and practice.--Any employer who engages in a
pattern or practice of knowing violations of subsection
(a)(1)(A) or (a)(2) shall be fined under title 18, United
States Code, no more than $10,000 for each unauthorized alien
with respect to whom such violation occurs, imprisoned for not
more than 2 years for the entire pattern or practice, or both.
``(2) Term of imprisonment.--The maximum term of
imprisonment of a person convicted of any criminal offense
under the United States Code shall be increased by 5 years if
the offense is committed as part of a pattern or practice of
violations of subsection (a)(1)(A) or (a)(2).
``(3) Enjoining of pattern or practice violations.--
Whenever the Secretary or the Attorney General has reasonable
cause to believe that an employer is engaged in a pattern or
practice of employment in violation of subsection (a)(1)(A) or
(a)(2), the Attorney General may bring a civil action in the
appropriate district court of the United States requesting such
relief, including a permanent or temporary injunction,
restraining order, or other order against the employer, as the
Secretary or Attorney General deems necessary.
``(l) Criminal Penalties for Unlawful and Abusive Employment.--
``(1) In general.--Any person who, during any 12-month
period, knowingly employs or hires, employs, recruits, or
refers for a fee for employment 10 or more individuals within
the United States who are under the control and supervision of
such person--
``(A) knowing that the individuals are unauthorized
aliens; and
``(B) under conditions that violate section 5(a) of
the Occupational Safety and Health Act of 1970 (29
U.S.C. 654(a) (relating to occupational safety and
health), section 6 or 7 of the Fair Labor Standards Act
of 1938 (29 U.S.C. 206 and 207) (relating to minimum
wages and maximum hours of employment), section 3142 of
title 40, United States Code, (relating to required
wages on construction contracts), or sections 6703 or
6704 of title 41, United States Code, (relating to
required wages on service contracts),
shall be fined under title 18, United States Code, or
imprisoned for not more than 10 years, or both.
``(2) Attempt and conspiracy.--Any person who attempts or
conspires to commit any offense under this section shall be
punished in the same manner as a person who completes the
offense.''.
(b) Report on Use of the System in the Agricultural Industry.--Not
later than 18 months after the date of the enactment of this Act, the
Secretary of Homeland Security, in consultation with the Secretary of
Agriculture, shall submit a report to Congress that assesses
implementation of the Employment Verification System established under
section 274A(d) of the Immigration and Nationality Act, as amended by
subsection (a), in the agricultural industry, including the use of such
System technology in agriculture industry hiring processes, user,
contractor, and third-party employer agent employment practices, timing
and logistics regarding employment verification and reverification
processes to meet agriculture industry practices, and identification of
potential challenges and modifications to meet the unique needs of the
agriculture industry. Such report shall review--
(1) the modality of access, training and outreach, customer
support, processes for further action notices and secondary
verifications for short-term workers, monitoring, and
compliance procedures for such System;
(2) the interaction of such System with the process to
admit nonimmigrant workers pursuant to section 218 or 218A of
the Immigration and Nationality Act (8 U.S.C. 1188 et seq.) and
with enforcement of the immigration laws; and
(3) the collaborative use of processes of other Federal and
State agencies that intersect with the agriculture industry.
(c) Report on Impact of the System on Employers.--Not later than 18
months after the date of the enactment of this Act, the Secretary of
Homeland Security shall submit to Congress a report that assesses--
(1) the implementation of the Employment Verification
System established under section 274A(d) of the Immigration and
Nationality Act, as amended by subsection (a), by employers;
(2) any adverse impact on the revenues, business processes,
or profitability of employers required to use such System; and
(3) the economic impact of such System on small businesses.
(d) Government Accountability Office Study of the Effects of
Document Requirements on Employment Authorized Persons and Employers.--
(1) Study.--The Comptroller General of the United States
shall carry out a study of--
(A) the effects of the documentary requirements of
section 274A of the Immigration and Nationality Act, as
amended by subsection (a), on employers, naturalized
United States citizens, nationals of the United States,
and individuals with employment authorized status; and
(B) the challenges such employers, citizens,
nationals, or individuals may face in obtaining the
documentation required under that section.
(2) Report.--Not later than 4 years after the date of the
enactment of this Act, the Comptroller General shall submit to
Congress a report containing the findings of the study carried
out under paragraph (1). Such report shall include, at a
minimum, the following:
(A) An assessment of available information
regarding the number of working age nationals of the
United States and individuals who have employment
authorized status who lack documents required for
employment by such section 274A.
(B) A description of the additional steps required
for individuals who have employment authorized status
and do not possess the documents required by such
section 274A to obtain such documents.
(C) A general assessment of the average financial
costs for individuals who have employment authorized
status who do not possess the documents required by
such section 274A to obtain such documents.
(D) A general assessment of the average financial
costs and challenges for employers who have been
required to participate in the Employment Verification
System established by subsection (d) of such section
274A.
(E) A description of the barriers to individuals
who have employment authorized status in obtaining the
documents required by such section 274A, including
barriers imposed by the executive branch of the
Government.
(F) Any particular challenges facing individuals
who have employment authorized status who are members
of a federally recognized Indian tribe in complying
with the provisions of such section 274A.
(e) Repeal of Pilot Programs and E-Verify and Transition
Procedures.--
(1) Repeal.--Sections 401, 402, 403, 404, and 405 of the
Illegal Immigration Reform and Immigrant Responsibility Act of
1996 (division C of Public Law 104-208; 8 U.S.C. 1324a note)
are repealed.
(2) Transition procedures.--
(A) Continuation of e-verify program.--
Notwithstanding the repeals made by paragraph (1), the
Secretary of Homeland Security shall continue to
operate the E-Verify Program as described in section
403 of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (division C of Public Law
104-208; 8 U.S.C. 1324a note), as in effect the minute
before the date of the enactment of this Act, until the
transition to the System described in section 274A(d)
of the Immigration and Nationality Act, as amended by
subsection (a), is determined by the Secretary to be
complete.
(B) Transition to the system.--Any employer who was
participating in the E-Verify Program described in
section 403 of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (division C of
Public Law 104-208; 8 U.S.C. 1324a note), as in effect
the minute before the date of the enactment of this
Act, shall participate in the System described in
section 274A(d) of the Immigration and Nationality Act,
as amended by subsection (a), to the same extent and in
the same manner that the employer participated in such
E-Verify Program.
(3) Construction.--The repeal made by paragraph (1) may not
be construed to limit the authority of the Secretary to allow
or continue to allow the participation in such System of
employers who have participated in such E-Verify Program, as in
effect on the minute before the date of the enactment of this
Act.
(f) Conforming Amendment.--Section 274(a) (8 U.S.C. 1324(a)) is
amended--
(1) by striking paragraph (3); and
(2) by redesignating paragraph (4) as paragraph (3).
SEC. 3. INCREASING SECURITY AND INTEGRITY OF SOCIAL SECURITY CARDS.
(a) Fraud-Resistant, Tamper-Resistant, Wear-Resistant, and Identity
Theft-Resistant Social Security Cards.--
(1) Issuance.--
(A) Preliminary work.--Not later than 180 days
after the date of the enactment of this Act, the
Commissioner of Social Security shall begin work to
administer and issue fraud-resistant, tamper-resistant,
wear-resistant, and identity theft-resistant social
security cards.
(B) Completion.--Not later than 5 years after the
date of the enactment of this Act, the Commissioner of
Social Security shall issue only social security cards
determined to be fraud-resistant, tamper-resistant,
wear-resistant, and identity theft-resistant.
(2) Amendment.--
(A) In general.--Section 205(c)(2)(G) of the Social
Security Act (42 U.S.C. 405(c)(2)(G)) is amended by
striking the second sentence and inserting the
following: ``The social security card shall be fraud-
resistant, tamper-resistant, wear-resistant, and
identity theft-resistant.''.
(B) Effective date.--The amendment made by
subparagraph (A) shall take effect on the date that is
5 years after the date of the enactment of this Act.
(3) Authorization of appropriations.--There is authorized
to be appropriated such sums as may be necessary to carry out
this section and the amendments made by this section.
(4) Emergency designation.--
(A) In general.--The amounts authorized to be
appropriated by this subsection are designated by
Congress as being for emergency requirements pursuant
to section 251(b)(2)(A)(i) of the Balanced Budget and
Emergency Deficit Control Act of 1985 (2 U.S.C.
901(b)(2)(A)(i)).
(B) Senate designation.--In the Senate, the amounts
authorized to be appropriated by this subsection are
designated as for emergency requirements pursuant to
section 4112(a) of H. Con. Res. 71 (115th Congress),
the concurrent resolution on the budget for fiscal year
2018.
(b) Multiple Cards.--Section 205(c)(2)(G) of the Social Security
Act (42 U.S.C. 405(c)(2)(G)), as amended by subsection (a)(2), is
amended--
(1) by inserting ``(i)'' after ``(G)''; and
(2) by adding at the end the following:
``(ii) The Commissioner of Social Security shall restrict the
issuance of multiple replacement social security cards to any
individual to 3 per year and 10 for the life of the individual, except
that the Commissioner may allow for reasonable exceptions from the
limits under this clause on a case-by-case basis in compelling
circumstances.''.
(c) Criminal Penalties.--
(1) Social security fraud.--
(A) In general.--Chapter 47 of title 18, United
States Code, is amended by inserting at the end the
following:
``Sec. 1041. Social security fraud
``Any person who--
``(1) knowingly possesses or uses a social security account
number or social security card knowing that the number or card
was obtained from the Commissioner of Social Security by means
of fraud or false statement;
``(2) knowingly and falsely represents a number to be the
social security account number assigned by the Commissioner of
Social Security to him or her or to another person, when such
number is known not to be the social security account number
assigned by the Commissioner of Social Security to him or her
or to such other person;
``(3) knowingly, and without lawful authority, buys, sells,
or possesses with intent to buy or sell a social security
account number or a social security card that is or purports to
be a number or card issued by the Commissioner of Social
Security;
``(4) knowingly alters, counterfeits, forges, or falsely
makes a social security account number or a social security
card;
``(5) knowingly uses, distributes, or transfers a social
security account number or a social security card knowing the
number or card to be intentionally altered, counterfeited,
forged, falsely made, or stolen; or
``(6) without lawful authority, knowingly produces or
acquires for any person a social security account number, a
social security card, or a number or card that purports to be a
social security account number or social security card,
shall be fined under this title, imprisoned not more than 5 years, or
both.''.
(B) Table of sections amendment.--The table of
sections for chapter 47 of title 18, United States
Code, is amended by adding after the item relating to
section 1040 the following:
``1041. Social security fraud.''.
(2) Information disclosure.--
(A) In general.--Notwithstanding any other
provision of law and subject to subparagraph (B), the
Commissioner of Social Security shall disclose for the
purpose of investigating a violation of section 1041 of
title 18, United States Code, or section 274A, 274B, or
274C of the Immigration and Nationality Act (8 U.S.C.
1324a, 1324b, and 1324c), after receiving a written
request from an officer in a supervisory position or
higher official of any Federal law enforcement agency,
the following records of the Social Security
Administration:
(i) Records concerning the identity,
address, location, or financial institution
accounts of the holder of a social security
account number or social security card.
(ii) Records concerning the application for
and issuance of a social security account
number or social security card.
(iii) Records concerning the existence or
nonexistence of a social security account
number or social security card.
(B) Limitation.--The Commissioner of Social
Security shall not disclose any tax return or tax
return information pursuant to subparagraph (A) except
as authorized by section 6103 of the Internal Revenue
Code of 1986.
SEC. 4. INCREASING SECURITY AND INTEGRITY OF IMMIGRATION DOCUMENTS.
Not later than 1 year after the date of the enactment of this Act,
the Secretary of Homeland Security shall submit a report to Congress on
the feasibility, advantages, and disadvantages of including, in
addition to a photograph, other biometric information on each
employment authorization document issued by the Department of Homeland
Security.
SEC. 5. RESPONSIBILITIES OF THE SOCIAL SECURITY ADMINISTRATION.
Title XI of the Social Security Act (42 U.S.C. 1301 et seq.) is
amended by adding at the end the following new part:
``Part E--Employment Verification
``responsibilities of the commissioner of social security
``Sec. 1186. (a) Confirmation of Employment Verification Data.--As
part of the employment verification system established by the Secretary
of Homeland Security under the provisions of section 274A of the
Immigration and Nationality Act (8 U.S.C. 1324a) (in this section
referred to as the `System'), the Commissioner of Social Security
shall, subject to the provisions of section 274A(d) of the Immigration
and Nationality Act (8 U.S.C. 1324a(d)), establish a reliable, secure
method that, operating through the System and within the time periods
specified in section 274A(d) of such Act--
``(1) compares the name, date of birth, social security
account number, and available citizenship information provided
in an inquiry against such information maintained by the
Commissioner in order to confirm (or not confirm) the validity
of the information provided regarding an individual whose
identity and employment eligibility must be confirmed;
``(2) determines the correspondence of the name, date of
birth, and number;
``(3) determines whether the name and number belong to an
individual who is deceased according to the records maintained
by the Commissioner;
``(4) determines whether an individual is a national of the
United States, as defined in section 101(a)(22) of the
Immigration and Nationality Act (8 U.S.C. 1101(a)(22)); and
``(5) determines whether the individual has presented a
social security account number that is not valid for
employment.
``(b) Prohibition.--The System shall not disclose or release social
security information to employers through the confirmation system
(other than such confirmation or nonconfirmation, information provided
by the employer to the System, or the reason for the issuance of a
further action notice).''.
SEC. 6. IMPROVED PROHIBITION ON DISCRIMINATION BASED ON NATIONAL ORIGIN
OR CITIZENSHIP STATUS.
(a) In General.--Section 274B(a) of the Immigration and Nationality
Act (8 U.S.C. 1324b(a)) is amended to read as follows:
``(a) Prohibition on Discrimination Based on National Origin or
Citizenship Status.--
``(1) Prohibition on discrimination generally.--It is an
unfair immigration-related employment practice for a person,
other entity, or employment agency, to discriminate against any
individual (other than an unauthorized alien defined in section
274A(b)) because of such individual's national origin or
citizenship status, with respect to the following:
``(A) The hiring of the individual for employment.
``(B) The verification of the individual's
eligibility to work in the United States.
``(C) The discharging of the individual from
employment.
``(2) Exceptions.--Paragraph (1) shall not apply to the
following:
``(A) A person, other entity, or employer that
employs 3 or fewer employees, except for an employment
agency.
``(B) A person's or entity's discrimination because
of an individual's national origin if the
discrimination with respect to that employer, person,
or entity and that individual is covered under section
703 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-
2), unless the discrimination is related to an
individual's verification of employment authorization.
``(C) Discrimination because of citizenship status
which--
``(i) is otherwise required in order to
comply with a provision of Federal, State, or
local law related to law enforcement;
``(ii) is required by Federal Government
contract; or
``(iii) the Secretary or Attorney General
determines to be essential for an employer to
do business with an agency or department of the
Federal Government or a State, local, or tribal
government.
``(3) Additional exception providing right to prefer
equally qualified citizens.--Notwithstanding any other
provision of this section, it is not an unfair immigration-
related employment practice for an employer (as defined in
section 274A(b)) to prefer to hire, recruit, or refer for a fee
an individual who is a citizen or national of the United States
over another individual who is an alien if the 2 individuals
are equally qualified.
``(4) Unfair immigration-related employment practices
relating to the system.--It is also an unfair immigration-
related employment practice for a person, other entity, or
employment agency--
``(A) to discharge or constructively discharge an
individual solely due to a further action notice issued
by the Employment Verification System created by
section 274A until the administrative appeal described
in section 274A(d)(6) is completed;
``(B) to use the System with regard to any person
for any purpose except as authorized by section
274A(d);
``(C) to use the System to reverify the employment
authorization of a current employee, including an
employee continuing in employment, other than
reverification upon expiration of employment
authorization, or as otherwise authorized under section
274A(d) or by regulation;
``(D) to use the System selectively for employees,
except where authorized by law;
``(E) to fail to provide to an individual any
notice required in section 274A(d) within the relevant
time period;
``(F) to use the System to deny workers' employment
or post-employment benefits;
``(G) to misuse the System to discriminate based on
national origin or citizenship status;
``(H) to require an employee or prospective
employee to use any self-verification feature of the
System or provide, as a condition of application or
employment, any self-verification results;
``(I) to use an immigration status verification
system, service, or method other than those described
in section 274A for purposes of verifying employment
eligibility; or
``(J) to grant access to document verification or
System data, to any individual or entity other than
personnel authorized to have such access, or to fail to
take reasonable safeguards to protect against
unauthorized loss, use, alteration, or destruction of
System data.
``(5) Prohibition of intimidation or retaliation.--It is
also an unfair immigration-related employment practice for a
person, other entity, or employment agency to intimidate,
threaten, coerce, or retaliate against any individual--
``(A) for the purpose of interfering with any right
or privilege secured under this section; or
``(B) because the individual intends to file or has
filed a charge or a complaint, testified, assisted, or
participated in any manner in an investigation,
proceeding, or hearing under this section.
``(6) Treatment of certain documentary practices as
employment practices.--A person's, other entity's, or
employment agency's request, for purposes of verifying
employment eligibility, for more or different documents than
are required under section 274A, or for specific documents, or
refusing to honor documents tendered that reasonably appear to
be genuine shall be treated as an unfair immigration-related
employment practice.
``(7) Prohibition of withholding employment records.--It is
an unfair immigration-related employment practice for an
employer that is required under Federal, State, or local law to
maintain records documenting employment, including dates or
hours of work and wages received, to fail to provide such
records to any employee upon request.
``(8) Professional, commercial, and business licenses.--An
individual who is authorized to be employed in the United
States may not be denied a professional, commercial, or
business license on the basis of his or her immigration status.
``(9) Employment agency defined.--In this section, the term
`employment agency' means any employer, person, or entity
regularly undertaking with or without compensation to procure
employees for an employer or to procure for employees
opportunities to work for an employer and includes an agent of
such employer, person, or entity.''.
(b) Referral by EEOC.--Section 274B(b) of the Immigration and
Nationality Act (8 U.S.C. 1324b(b)) is amended by adding at the end the
following:
``(3) Referral by eeoc.--The Equal Employment Opportunity
Commission shall refer all matters alleging immigration-related
unfair employment practices filed with the Commission,
including those alleging violations of paragraphs (1), (4),
(5), and (6) of subsection (a) to the Immigration and Employee
Rights Section of the Civil Rights Division of the Department
of Justice.''.
(c) Authorization of Appropriations.--Section 274B(l)(3) of the
Immigration and Nationality Act (8 U.S.C. 1324b(l)(3)) is amended by
striking the period at the end and inserting ``and an additional
$40,000,000 for each of fiscal years 2019 through 2021.''.
(d) Fines.--
(1) In general.--Section 274B(g)(2)(B) of the Immigration
and Nationality Act (8 U.S.C. 1324b(g)(2)(B)) is amended by
striking clause (iv) and inserting the following:
``(iv) to pay any applicable civil
penalties prescribed below, the amounts of
which may be adjusted periodically to account
for inflation as provided by law--
``(I) except as provided in
subclauses (II) through (IV), to pay a
civil penalty of not less than $2,000
and not more than $5,000 for each
individual subjected to an unfair
immigration-related employment
practice;
``(II) except as provided in
subclauses (III) and (IV), in the case
of an employer, person, or entity
previously subject to a single order
under this paragraph, to pay a civil
penalty of not less than $4,000 and not
more than $10,000 for each individual
subjected to an unfair immigration-
related employment practice;
``(III) except as provided in
subclause (IV), in the case of an
employer, person, or entity previously
subject to more than 1 order under this
paragraph, to pay a civil penalty of
not less than $8,000 and not more than
$25,000 for each individual subjected
to an unfair immigration-related
employment practice; and
``(IV) in the case of an unfair
immigration-related employment practice
described in paragraphs (4) through (7)
of subsection (a), to pay a civil
penalty of not less than $500 and not
more than $2,000 for each individual
subjected to an unfair immigration-
related employment practice.''.
(2) Effective date.--The amendment made by paragraph (1)
shall take effect on the date that is 1 year after the date of
the enactment of this Act and apply to violations occurring on
or after such date of enactment.
SEC. 7. RULEMAKING.
(a) Interim Final Regulations.--
(1) In general.--Not later than 1 year after the date of
the enactment of this Act--
(A) the Secretary of Homeland Security shall issue
regulations implementing sections 2 and 6 and the
amendments made by such sections (except for section
274A(d)(7) of the Immigration and Nationality Act); and
(B) the Attorney General shall issue regulations
implementing section 274A(d)(7) of the Immigration and
Nationality Act, as added by section 2, section 6, and
the amendments made by such sections.
(2) Effective date.--Regulations issued pursuant to
paragraph (1) shall be effective immediately on an interim
basis, but are subject to change and revision after public
notice and opportunity for a period for public comment.
(b) Final Regulations.--Within a reasonable time after publication
of the interim regulations under subsection (a), the Secretary of
Homeland Security, in consultation with the Commissioner of Social
Security and the Attorney General, shall publish final regulations
implementing this subtitle.
SEC. 8. OFFICE OF THE SMALL BUSINESS AND EMPLOYEE ADVOCATE.
(a) Establishment of Small Business and Employee Advocate.--The
Secretary of Homeland Security shall establish and maintain within U.S.
Citizenship and Immigration Services the Office of the Small Business
and Employee Advocate (in this section referred to as the ``Office'').
The purpose of the Office shall be to assist small businesses and
individuals in complying with the requirements of section 274A of the
Immigration and Nationality Act (8 U.S.C. 1324a), as amended by this
Act, including the resolution of conflicts arising in the course of
attempted compliance with such requirements.
(b) Functions.--The functions of the Office shall include, but not
be limited to, the following:
(1) Informing small businesses and individuals about the
verification practices required by section 274A of the
Immigration and Nationality Act, including, but not limited to,
the document verification requirements and the employment
verification system requirements under subsections (c) and (d)
of that section.
(2) Assisting small businesses and individuals in
addressing allegedly erroneous further action notices and
nonconfirmations issued under subsection (d) of section 274A of
the Immigration and Nationality Act.
(3) Informing small businesses and individuals of the
financial liabilities and criminal penalties that apply to
violations and failures to comply with the requirements of
section 274A of the Immigration and Nationality Act, including,
but not limited to, by issuing best practices for compliance
with that section.
(4) To the extent practicable, proposing changes to the
Secretary of Homeland Security in the administrative practices
of the employment verification system required under subsection
(d) of section 274A of the Immigration and Nationality Act to
mitigate the problems identified under paragraph (2).
(5) Making recommendations through the Secretary to
Congress for legislative action to mitigate such problems.
(c) Authority To Issue Assistance Order.--
(1) In general.--Upon application filed by a small business
or individual with the Office (in such form, manner, and at
such time as the Secretary of Homeland Security shall by
regulations prescribe), the Office may issue an assistance
order if--
(A) the Office determines the small business or
individual is suffering or about to suffer a
significant hardship as a result of the manner in which
the employment verification laws under subsections (c)
and (d) of section 274A of the Immigration and
Nationality Act are being administered by the
Secretary; or
(B) the small business or individual meets such
other requirements as are set forth in regulations
prescribed by the Secretary.
(2) Determination of hardship.--For purposes of paragraph
(1), a significant hardship shall include--
(A) an immediate threat of adverse action;
(B) a delay of more than 60 days in resolving
employment verification system problems;
(C) the incurring by the small business or
individual of significant costs if relief is not
granted; or
(D) irreparable injury to, or a long-term adverse
impact on, the small business or individual if relief
is not granted.
(3) Standards when administrative guidance not followed.--
In cases where a U.S. Citizenship and Immigration Services
employee is not following applicable published administrative
guidance, the Office shall construe the factors taken into
account in determining whether to issue an assistance order
under this subsection in the manner most favorable to the small
business or individual.
(4) Terms of assistance order.--The terms of an assistance
order under this subsection may require the Secretary within a
specified time period--
(A) to determine whether any employee is or is not
authorized to work in the United States; or
(B) to abate any penalty under section 274A of the
Immigration and Nationality Act that the Office
determines is arbitrary, capricious, or
disproportionate to the underlying offense.
(5) Authority to modify or rescind.--Any assistance order
issued by the Office under this subsection may be modified or
rescinded--
(A) only by the Office, the Director or Deputy
Director of U.S. Citizenship and Immigration Services,
or the Secretary or the Secretary's designee; and
(B) if rescinded by the Director or Deputy Director
of U.S. Citizenship and Immigration Services, only if a
written explanation of the reasons of such official for
the modification or rescission is provided to the
Office.
(6) Suspension of running of period of limitation.--The
running of any period of limitation with respect to an action
described in paragraph (4)(A) shall be suspended for--
(A) the period beginning on the date of the small
business or individual's application under paragraph
(1) and ending on the date of the Office's decision
with respect to such application; and
(B) any period specified by the Office in an
assistance order issued under this subsection pursuant
to such application.
(7) Independent action of office.--Nothing in this
subsection shall prevent the Office from taking any action in
the absence of an application under paragraph (1).
(d) Accessibility to the Public.--
(1) In person, online, and telephone assistance.--The
Office shall provide information and assistance specified in
subsection (b) in person at locations designated by the
Secretary of Homeland Security, online through an Internet
website of the Department available to the public, and by
telephone.
(2) Availability to all employers.--In making information
and assistance available, the Office shall prioritize the needs
of small businesses and individuals. However, the information
and assistance available through the Office shall be available
to any employer.
(e) Avoiding Duplication Through Coordination.--In the discharge of
the functions of the Office, the Secretary of Homeland Security shall
consult with the Secretary of Labor, the Secretary of Agriculture, the
Commissioner, the Attorney General, the Equal Employment Opportunity
Commission, and the Administrator of the Small Business Administration
in order to avoid duplication of efforts across the Federal Government.
(f) Definitions.--In this section:
(1) The term ``employer'' has the meaning given that term
in section 274A(b) of the Immigration and Nationality Act.
(2) The term ``small business'' means an employer with 49
or fewer employees.
(g) Authorization of Appropriations.--There is authorized to be
appropriated such sums as may be necessary to carry out the functions
of the Office.
<all>
Introduced in Senate
Read twice and referred to the Committee on the Judiciary.
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