From the U.S. Code Online via GPO Access
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[Laws in effect as of January 20, 2004]
[Document not affected by Public Laws enacted between
January 20, 2004 and December 23, 2004]
[CITE: 8USC1324a]
TITLE 8--ALIENS AND NATIONALITY
CHAPTER 12--IMMIGRATION AND NATIONALITY
SUBCHAPTER II--IMMIGRATION
Part VIII--General Penalty Provisions
Sec. 1324a. Unlawful employment of aliens
(a) Making employment of unauthorized aliens unlawful
(1) In general
It is unlawful for a person or other entity--
(A) to hire, or to recruit or refer for a fee, for
employment in the United States an alien knowing the alien is an
unauthorized alien (as defined in subsection (h)(3) of this
section) with respect to such employment, or
(B)(i) to hire for employment in the United States an
individual without complying with the requirements of subsection
(b) of this section or (ii) if the person or entity is an
agricultural association, agricultural employer, or farm labor
contractor (as defined in section 1802 of title 29), to hire, or
to recruit or refer for a fee, for employment in the United
States an individual without complying with the requirements of
subsection (b) of this section.
(2) Continuing employment
It is unlawful for a person or other entity, after hiring an
alien for employment in accordance with paragraph (1), to continue
to employ the alien in the United States knowing the alien is (or
has become) an unauthorized alien with respect to such employment.
(3) Defense
A person or entity that establishes that it has complied in good
faith with the requirements of subsection (b) of this section with
respect to the hiring, recruiting, or referral for employment of an
alien in the United States has established an affirmative defense
that the person or entity has not violated paragraph (1)(A) with
respect to such hiring, recruiting, or referral.
(4) Use of labor through contract
For purposes of this section, a person or other entity who uses
a contract, subcontract, or exchange, entered into, renegotiated, or
extended after November 6, 1986, to obtain the labor of an alien in
the United States knowing that the alien is an unauthorized alien
(as defined in subsection (h)(3) of this section) 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).
(5) Use of State employment agency documentation
For purposes of paragraphs (1)(B) and (3), a person or entity
shall be deemed to have complied with the requirements of subsection
(b) of this section with respect to the hiring of an individual who
was referred for such employment by a State employment agency (as
defined by the Attorney General), if the person or entity has and
retains (for the period and in the manner described in subsection
(b)(3) of this section) appropriate documentation of such referral
by that agency, which documentation certifies that the agency has
complied with the procedures specified in subsection (b) of this
section with respect to the individual's referral.
(6) Treatment of documentation for certain employees
(A) In general
For purposes of this section, if--
(i) an individual is a member of a collective-bargaining
unit and is employed, under a collective bargaining
agreement entered into between one or more employee
organizations and an association of two or more employers,
by an employer that is a member of such association, and
(ii) within the period specified in subparagraph (B),
another employer that is a member of the association (or an
agent of such association on behalf of the employer) has
complied with the requirements of subsection (b) of this
section with respect to the employment of the individual,
the subsequent employer shall be deemed to have complied with
the requirements of subsection (b) of this section with respect
to the hiring of the employee and shall not be liable for civil
penalties described in subsection (e)(5) of this section.
(B) Period
The period described in this subparagraph is 3 years, or, if
less, the period of time that the individual is authorized to be
employed in the United States.
(C) Liability
(i) In general
If any employer that is a member of an association hires
for employment in the United States an individual and relies
upon the provisions of subparagraph (A) to comply with the
requirements of subsection (b) of this section and the
individual is an alien not authorized to work in the United
States, then for the purposes of paragraph (1)(A), subject
to clause (ii), the employer shall be presumed to have known
at the time of hiring or afterward that the individual was
an alien not authorized to work in the United States.
(ii) Rebuttal of presumption
The presumption established by clause (i) may be
rebutted by the employer only through the presentation of
clear and convincing evidence that the employer did not know
(and could not reasonably have known) that the individual at
the time of hiring or afterward was an alien not authorized
to work in the United States.
(iii) Exception
Clause (i) shall not apply in any prosecution under
subsection (f)(1) of this section.
(7) Application to Federal Government
For purposes of this section, the term ``entity'' includes an
entity in any branch of the Federal Government.
(b) Employment verification system
The requirements referred to in paragraphs (1)(B) and (3) of
subsection (a) of this section are, in the case of a person or other
entity hiring, recruiting, or referring an individual for employment in
the United States, the requirements specified in the following three
paragraphs:
(1) Attestation after examination of documentation
(A) In general
The person or entity must attest, under penalty of perjury
and on a form designated or established by the Attorney General
by regulation, that it has verified that the individual is not
an unauthorized alien by examining--
(i) a document described in subparagraph (B), or
(ii) a document described in subparagraph (C) and a
document described in subparagraph (D).
Such attestation may be manifested by either a hand-written or
an electronic signature. A person or entity has complied with
the requirement of this paragraph with respect to examination of
a document if the document reasonably appears on its face to be
genuine. If an individual provides a document or combination of
documents that reasonably appears on its face to be genuine and
that is sufficient to meet the requirements of the first
sentence of this paragraph, nothing in this paragraph shall be
construed as requiring the person or entity to solicit the
production of any other document or as requiring the individual
to produce such another document.
(B) Documents establishing both employment authorization and
identity
A document described in this subparagraph is an
individual's--
(i) United States passport; \1\
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\1\ So in original. Probably should be followed by ``or''.
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(ii) resident alien card, alien registration card, or
other document designated by the Attorney General, if the
document--
(I) contains a photograph of the individual and such
other personal identifying information relating to the
individual as the Attorney General finds, by regulation,
sufficient for purposes of this subsection,
(II) is evidence of authorization of employment in
the United States, and
(III) contains security features to make it
resistant to tampering, counterfeiting, and fraudulent
use.
(C) Documents evidencing employment authorization
A document described in this subparagraph is an
individual's--
(i) social security account number card (other than such
a card which specifies on the face that the issuance of the
card does not authorize employment in the United States); or
(ii) other documentation evidencing authorization of
employment in the United States which the Attorney General
finds, by regulation, to be acceptable for purposes of this
section.
(D) Documents establishing identity of individual
A document described in this subparagraph is an
individual's--
(i) driver's license or similar document issued for the
purpose of identification by a State, if it contains a
photograph of the individual or such other personal
identifying information relating to the individual as the
Attorney General finds, by regulation, sufficient for
purposes of this section; or
(ii) in the case of individuals under 16 years of age or
in a State which does not provide for issuance of an
identification document (other than a driver's license)
referred to in clause (i), documentation of personal
identity of such other type as the Attorney General finds,
by regulation, provides a reliable means of identification.
(E) Authority to prohibit use of certain documents
If the Attorney General finds, by regulation, that any
document described in subparagraph (B), (C), or (D) as
establishing employment authorization or identity does not
reliably establish such authorization or identity or is being
used fraudulently to an unacceptable degree, the Attorney
General may prohibit or place conditions on its use for purposes
of this subsection.
(2) Individual attestation of employment authorization
The individual must attest, under penalty of perjury on the form
designated or established for purposes of paragraph (1), that the
individual is a citizen or national of the United States, an alien
lawfully admitted for permanent residence, or an alien who is
authorized under this chapter or by the Attorney General to be
hired, recruited, or referred for such employment. Such attestation
may be manifested by either a hand-written or an electronic
signature.
(3) Retention of verification form
After completion of such form in accordance with paragraphs (1)
and (2), the person or entity must retain a paper, microfiche,
microfilm, or electronic version of the form and make it available
for inspection by officers of the Service, the Special Counsel for
Immigration-Related Unfair Employment Practices, or the Department
of Labor during a period beginning on the date of the hiring,
recruiting, or referral of the individual and ending--
(A) in the case of the recruiting or referral for a fee
(without hiring) of an individual, three years after the date of
the recruiting or referral, and
(B) in the case of the hiring of an individual--
(i) three years after the date of such hiring, or
(ii) one year after the date the individual's employment
is terminated,
whichever is later.
(4) Copying of documentation permitted
Notwithstanding any other provision of law, the person or entity
may copy a document presented by an individual pursuant to this
subsection and may retain the copy, but only (except as otherwise
permitted under law) for the purpose of complying with the
requirements of this subsection.
(5) Limitation on use of attestation form
A form designated or established by the Attorney General under
this subsection and any information contained in or appended to such
form, may not be used for purposes other than for enforcement of
this chapter and sections 1001, 1028, 1546, and 1621 of title 18.
(6) Good faith compliance
(A) In general
Except as provided in subparagraphs (B) and (C), a person or
entity is considered to have complied with a requirement of 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 Service (or another enforcement agency) has
explained to the person or entity the basis for the failure,
(ii) the person or entity has been provided a period of
not less than 10 business days (beginning after the date of
the explanation) within which to correct the failure, and
(iii) the 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 a person or entity that
has or is engaging in a pattern or practice of violations of
subsection (a)(1)(A) or (a)(2) of this section.
(c) No authorization of national identification cards
Nothing in this section shall be construed to authorize, directly or
indirectly, the issuance or use of national identification cards or the
establishment of a national identification card.
(d) Evaluation and changes in employment verification system
(1) Presidential monitoring and improvements in system
(A) Monitoring
The President shall provide for the monitoring and
evaluation of the degree to which the employment verification
system established under subsection (b) of this section provides
a secure system to determine employment eligibility in the
United States and shall examine the suitability of existing
Federal and State identification systems for use for this
purpose.
(B) Improvements to establish secure system
To the extent that the system established under subsection
(b) of this section is found not to be a secure system to
determine employment eligibility in the United States, the
President shall, subject to paragraph (3) and taking into
account the results of any demonstration projects conducted
under paragraph (4), implement such changes in (including
additions to) the requirements of subsection (b) of this section
as may be necessary to establish a secure system to determine
employment eligibility in the United States. Such changes in the
system may be implemented only if the changes conform to the
requirements of paragraph (2).
(2) Restrictions on changes in system
Any change the President proposes to implement under paragraph
(1) in the verification system must be designed in a manner so the
verification system, as so changed, meets the following
requirements:
(A) Reliable determination of identity
The system must be capable of reliably determining whether--
(i) a person with the identity claimed by an employee or
prospective employee is eligible to work, and
(ii) the employee or prospective employee is claiming
the identity of another individual.
(B) Using of counterfeit-resistant documents
If the system requires that a document be presented to or
examined by an employer, the document must be in a form which is
resistant to counterfeiting and tampering.
(C) Limited use of system
Any personal information utilized by the system may not be
made available to Government agencies, employers, and other
persons except to the extent necessary to verify that an
individual is not an unauthorized alien.
(D) Privacy of information
The system must protect the privacy and security of personal
information and identifiers utilized in the system.
(E) Limited denial of verification
A verification that an employee or prospective employee is
eligible to be employed in the United States may not be withheld
or revoked under the system for any reason other than that the
employee or prospective employee is an unauthorized alien.
(F) Limited use for law enforcement purposes
The system may not be used for law enforcement purposes,
other than for enforcement of this chapter or sections 1001,
1028, 1546, and 1621 of title 18.
(G) Restriction on use of new documents
If the system requires individuals to present a new card or
other document (designed specifically for use for this purpose)
at the time of hiring, recruitment, or referral, then such
document may not be required to be presented for any purpose
other than under this chapter (or enforcement of sections 1001,
1028, 1546, and 1621 of title 18) nor to be carried on one's
person.
(3) Notice to Congress before implementing changes
(A) In general
The President may not implement any change under paragraph
(1) unless at least--
(i) 60 days,
(ii) one year, in the case of a major change described
in subparagraph (D)(iii), or
(iii) two years, in the case of a major change described
in clause (i) or (ii) of subparagraph (D),
before the date of implementation of the change, the President
has prepared and transmitted to the Committee on the Judiciary
of the House of Representatives and to the Committee on the
Judiciary of the Senate a written report setting forth the
proposed change. If the President proposes to make any change
regarding social security account number cards, the President
shall transmit to the Committee on Ways and Means of the House
of Representatives and to the Committee on Finance of the Senate
a written report setting forth the proposed change. The
President promptly shall cause to have printed in the Federal
Register the substance of any major change (described in
subparagraph (D)) proposed and reported to Congress.
(B) Contents of report
In any report under subparagraph (A) the President shall
include recommendations for the establishment of civil and
criminal sanctions for unauthorized use or disclosure of the
information or identifiers contained in such system.
(C) Congressional review of major changes
(i) Hearings and review
The Committees on the Judiciary of the House of
Representatives and of the Senate shall cause to have
printed in the Congressional Record the substance of any
major change described in subparagraph (D), shall hold
hearings respecting the feasibility and desirability of
implementing such a change, and, within the two year period
before implementation, shall report to their respective
Houses findings on whether or not such a change should be
implemented.
(ii) Congressional action
No major change may be implemented unless the Congress
specifically provides, in an appropriations or other Act,
for funds for implementation of the change.
(D) Major changes defined
As used in this paragraph, the term ``major change'' means a
change which would--
(i) require an individual to present a new card or other
document (designed specifically for use for this purpose) at
the time of hiring, recruitment, or referral,
(ii) provide for a telephone verification system under
which an employer, recruiter, or referrer must transmit to a
Federal official information concerning the immigration
status of prospective employees and the official transmits
to the person, and the person must record, a verification
code, or
(iii) require any change in any card used for accounting
purposes under the Social Security Act [42 U.S.C. 301 et
seq.], including any change requiring that the only social
security account number cards which may be presented in
order to comply with subsection (b)(1)(C)(i) of this section
are such cards as are in a counterfeit-resistant form
consistent with the second sentence of section 205(c)(2)(D)
of the Social Security Act [42 U.S.C. 405(c)(2)(D)].
(E) General revenue funding of social security card changes
Any costs incurred in developing and implementing any change
described in subparagraph (D)(iii) for purposes of this
subsection shall not be paid for out of any trust fund
established under the Social Security Act [42 U.S.C. 301 et
seq.].
(4) Demonstration projects
(A) Authority
The President may undertake demonstration projects
(consistent with paragraph (2)) of different changes in the
requirements of subsection (b) of this section. No such project
may extend over a period of longer than five years.
(B) Reports on projects
The President shall report to the Congress on the results of
demonstration projects conducted under this paragraph.
(e) Compliance
(1) Complaints and investigations
The Attorney General shall establish procedures--
(A) for individuals and entities to file written, signed
complaints respecting potential violations of subsection (a) or
(g)(1) of this section,
(B) for the investigation of those complaints which, on
their face, have a substantial probability of validity,
(C) for the investigation of such other violations of
subsection (a) or (g)(1) of this section as the Attorney General
determines to be appropriate, and
(D) for the designation in the Service of a unit which has,
as its primary duty, the prosecution of cases of violations of
subsection (a) or (g)(1) of this section under this subsection.
(2) Authority in investigations
In conducting investigations and hearings under this
subsection--
(A) immigration officers and administrative law judges shall
have reasonable access to examine evidence of any person or
entity being investigated,
(B) administrative law judges, may, if necessary, compel by
subpoena the attendance of witnesses and the production of
evidence at any designated place or hearing, and
(C) immigration officers designated by the Commissioner may
compel by subpoena the attendance of witnesses and the
production of evidence at any designated place prior to the
filing of a complaint in a case under paragraph (2).
In case of contumacy or refusal to obey a subpoena lawfully issued
under this paragraph and upon application of the Attorney General,
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 thereof.
(3) Hearing
(A) In general
Before imposing an order described in paragraph (4), (5), or
(6) against a person or entity under this subsection for a
violation of subsection (a) or (g)(1) of this section, the
Attorney General shall provide the person or entity with notice
and, upon request made within a reasonable time (of not less
than 30 days, as established by the Attorney General) of the
date of the notice, a hearing respecting the violation.
(B) Conduct of hearing
Any hearing so requested shall be conducted before an
administrative law judge. The hearing shall be conducted in
accordance with the requirements of section 554 of title 5. The
hearing shall be held at the nearest practicable place to the
place where the person or entity resides or of the place where
the alleged violation occurred. If no hearing is so requested,
the Attorney General's imposition of the order shall constitute
a final and unappealable order.
(C) Issuance of orders
If the administrative law judge determines, upon the
preponderance of the evidence received, that a person or entity
named in the complaint has violated subsection (a) or (g)(1) of
this section, the administrative law judge shall state his
findings of fact and issue and cause to be served on such person
or entity an order described in paragraph (4), (5), or (6).
(4) Cease and desist order with civil money penalty for
hiring, recruiting, and referral violations
With respect to a violation of subsection (a)(1)(A) or (a)(2) of
this section, the order under this subsection--
(A) shall require the person or entity to cease and desist
from such violations and to pay a civil penalty in an amount
of--
(i) not less than $250 and not more than $2,000 for each
unauthorized alien with respect to whom a violation of
either such subsection occurred,
(ii) not less than $2,000 and not more than $5,000 for
each such alien in the case of a person or entity previously
subject to one order under this paragraph, or
(iii) not less than $3,000 and not more than $10,000 for
each such alien in the case of a person or entity previously
subject to more than one order under this paragraph; and
(B) may require the person or entity--
(i) to comply with the requirements of subsection (b) of
this section (or subsection (d) of this section if
applicable) with respect to individuals hired (or recruited
or referred for employment for a fee) during a period of up
to three years, and
(ii) to take such other remedial action as is
appropriate.
In applying this subsection in the case of a person or entity
composed of distinct, physically separate subdivisions each of
which provides separately for the hiring, recruiting, or
referring for employment, without reference to the practices of,
and not under the control of or common control with, another
subdivision, each such subdivision shall be considered a
separate person or entity.
(5) Order for civil money penalty for paperwork violations
With respect to a violation of subsection (a)(1)(B) of this
section, the order under this subsection shall require the person or
entity to pay a civil penalty in an amount of not less than $100 and
not more than $1,000 for each individual with respect to whom such
violation occurred. In determining the amount of the penalty, due
consideration shall be given to the size of the business of the
employer being charged, the good faith of the employer, the
seriousness of the violation, whether or not the individual was an
unauthorized alien, and the history of previous violations.
(6) Order for prohibited indemnity bonds
With respect to a violation of subsection (g)(1) of this
section, the order under this subsection may provide for the remedy
described in subsection (g)(2) of this section.
(7) Administrative appellate review
The decision and order of an administrative law judge shall
become the final agency decision and order of the Attorney General
unless either (A) within 30 days, an official delegated by
regulation to exercise review authority over the decision and order
modifies or vacates the decision and order, or (B) within 30 days of
the date of such a modification or vacation (or within 60 days of
the date of decision and order of an administrative law judge if not
so modified or vacated) the decision and order is referred to the
Attorney General pursuant to regulations, in which case the decision
and order of the Attorney General shall become the final agency
decision and order under this subsection. The Attorney General may
not delegate the Attorney General's authority under this paragraph
to any entity which has review authority over immigration-related
matters.
(8) Judicial review
A person or entity adversely affected by a final order
respecting an assessment may, within 45 days after the date the
final order is issued, file a petition in the Court of Appeals for
the appropriate circuit for review of the order.
(9) Enforcement of orders
If a person or entity fails to comply with a final order issued
under this subsection against the person or entity, the Attorney
General shall file a suit to seek compliance with the order in any
appropriate district court of the United States. In any such suit,
the validity and appropriateness of the final order shall not be
subject to review.
(f) Criminal penalties and injunctions for pattern or practice
violations
(1) Criminal penalty
Any person or entity which engages in a pattern or practice of
violations of subsection (a)(1)(A) or (a)(2) of this section shall
be fined not more than $3,000 for each unauthorized alien with
respect to whom such a violation occurs, imprisoned for not more
than six months for the entire pattern or practice, or both,
notwithstanding the provisions of any other Federal law relating to
fine levels.
(2) Enjoining of pattern or practice violations
Whenever the Attorney General has reasonable cause to believe
that a person or entity is engaged in a pattern or practice of
employment, recruitment, or referral in violation of paragraph
(1)(A) or (2) of subsection (a) of this section, 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 person or entity, as the Attorney General deems necessary.
(g) Prohibition of indemnity bonds
(1) Prohibition
It is unlawful for a person or other entity, in the hiring,
recruiting, or referring for employment 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, recruiting, or referring of the
individual.
(2) Civil penalty
Any person or entity which is determined, after notice and
opportunity for an administrative hearing under subsection (e) of
this section, to have violated paragraph (1) shall be subject to a
civil penalty of $1,000 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.
(h) Miscellaneous provisions
(1) Documentation
In providing documentation or endorsement of authorization of
aliens (other than aliens lawfully admitted for permanent residence)
authorized to be employed in the United States, the Attorney General
shall provide that any limitations with respect to the period or
type of employment or employer shall be conspicuously stated on the
documentation or endorsement.
(2) Preemption
The provisions of this section preempt any State or local law
imposing civil or criminal sanctions (other than through licensing
and similar laws) upon those who employ, or recruit or refer for a
fee for employment, unauthorized aliens.
(3) Definition of unauthorized alien
As used in this section, the term ``unauthorized alien'' means,
with respect to the employment of an alien at a particular time,
that the alien is not at that time either (A) an alien lawfully
admitted for permanent residence, or (B) authorized to be so
employed by this chapter or by the Attorney General.
(June 27, 1952, ch. 477, title II, ch. 8, Sec. 274A, as added Pub. L.
99-603, title I, Sec. 101(a)(1), Nov. 6, 1986, 100 Stat. 3360; amended
Pub. L. 100-525, Sec. 2(a)(1), Oct. 24, 1988, 102 Stat. 2609; Pub. L.
101-649, title V, Secs. 521(a), 538(a), Nov. 29, 1990, 104 Stat. 5053,
5056; Pub. L. 102-232, title III, Secs. 306(b)(2), 309(b)(11), Dec. 12,
1991, 105 Stat. 1752, 1759; Pub. L. 103-416, title II, Secs. 213,
219(z)(4), Oct. 25, 1994, 108 Stat. 4314, 4318; Pub. L. 104-208, div. C,
title III, Sec. 379(a), title IV, Secs. 411(a), 412(a)-(d), 416, Sept.
30, 1996, 110 Stat. 3009-649, 3009-666 to 3009-669; Pub. L. 108-390,
Sec. 1(a), Oct. 30, 2004, 118 Stat. 2242.)
References in Text
The Social Security Act, referred to in subsec. (d)(3)(D)(iii), (E),
is act Aug. 14, 1935, ch. 531, 49 Stat. 620, as amended, which is
classified generally to chapter 7 (Sec. 301 et seq.) of Title 42, The
Public Health and Welfare. For complete classification of this Act to
the Code, see section 1305 of Title 42 and Tables.
Amendments
2004--Subsec. (b)(1)(A). Pub. L. 108-390, Sec. 1(a)(1), inserted
``Such attestation may be manifested by either a hand-written or an
electronic signature.'' before ``A person or entity has complied'' in
concluding provisions.
Subsec. (b)(2). Pub. L. 108-390, Sec. 1(a)(2), inserted at end
``Such attestation may be manifested by either a hand-written or an
electronic signature.''
Subsec. (b)(3). Pub. L. 108-390, Sec. 1(a)(3), inserted ``a paper,
microfiche, microfilm, or electronic version of'' after ``must retain''
in introductory provisions.
1996--Subsec. (a)(6). Pub. L. 104-208, Sec. 412(b), added par. (6).
Subsec. (a)(7). Pub. L. 104-208, Sec. 412(d), added par. (7).
Subsec. (b)(1)(B). Pub. L. 104-208, Sec. 412(a)(1)(A), (B),
redesignated cl. (v) as (ii), substituted ``, alien registration card,
or other document designated by the Attorney General, if the document''
for ``or other alien registration card, if the card'' in introductory
provisions of that cl., and struck out former cls. (ii) to (iv) which
read as follows:
``(ii) certificate of United States citizenship;
``(iii) certificate of naturalization;
``(iv) unexpired foreign passport, if the passport has an
appropriate, unexpired endorsement of the Attorney General authorizing
the individual's employment in the United States; or''.
Subsec. (b)(1)(B)(ii). Pub. L. 104-208, Sec. 412(a)(1)(C), in subcl.
(I), substituted ``and'' for ``or'' before ``such other personal'' and
struck out ``and'' at end, in subcl. (II), substituted ``, and'' for the
period at end, and added subcl. (III).
Subsec. (b)(1)(C). Pub. L. 104-208, Sec. 412(a)(2), inserted ``or''
at end of cl. (i), redesignated cl. (iii) as (ii), and struck out former
cl. (ii) which read as follows: ``certificate of birth in the United
States or establishing United States nationality at birth, which
certificate the Attorney General finds, by regulation, to be acceptable
for purposes of this section; or''.
Subsec. (b)(1)(E). Pub. L. 104-208, Sec. 412(a)(3), added subpar.
(E).
Subsec. (b)(6). Pub. L. 104-208, Sec. 411(a), added par. (6).
Subsec. (e)(2)(C). Pub. L. 104-208, Sec. 416, added subpar. (C).
Subsec. (e)(7). Pub. L. 104-208, Sec. 379(a)(2), substituted ``the
final agency decision and order under this subsection'' for ``a final
order under this subsection''.
Pub. L. 104-208, Sec. 379(a)(1), substituted ``unless either (A)
within 30 days, an official delegated by regulation to exercise review
authority over the decision and order modifies or vacates the decision
and order, or (B) within 30 days of the date of such a modification or
vacation (or within 60 days of the date of decision and order of an
administrative law judge if not so modified or vacated) the decision and
order is referred to the Attorney General pursuant to regulations'' for
``unless, within 30 days, the Attorney General modifies or vacates the
decision and order''.
Subsecs. (i) to (n). Pub. L. 104-208, Sec. 412(c), struck out
subsec. (i) which provided effective dates for implementation of this
section, subsec. (j) which required General Accounting Office reports on
implementation of this section, subsec. (k) which established a
taskforce to review reports, subsec. (l) which provided a termination
date for employer sanctions under this section upon finding of
widespread discrimination in implementing this section, and subsecs. (m)
and (n) which provided for expedited procedures in House of
Representatives and Senate for considering resolutions to approve
findings in the reports.
1994--Subsec. (b)(3). Pub. L. 103-416, Sec. 219(z)(4), made
technical correction to Pub. L. 102-232, Sec. 306(b)(2). See 1991
Amendment note below.
Subsec. (d)(4)(A). Pub. L. 103-416, Sec. 213, substituted ``five''
for ``three'' in second sentence.
1991--Subsec. (b)(1)(D)(ii). Pub. L. 102-232, Sec. 309(b)(11),
substituted ``clause (i)'' for ``clause (ii)''.
Subsec. (b)(3). Pub. L. 102-232, Sec. 306(b)(2), as amended by Pub.
L. 103-416, Sec. 219(z)(4), made technical correction to Pub. L. 101-
649, Sec. 538(a). See 1990 Amendment note below.
1990--Subsec. (a)(1). Pub. L. 101-649, Sec. 521(a), struck out ``to
hire, or to recruit or refer for a fee, for employment in the United
States'' after ``or other entity'' in introductory provisions, inserted
``to hire, or to recruit or refer for a fee, for employment in the
United States'' after ``(A)'' in subpar. (A), and inserted ``(i) to hire
for employment in the United States an individual without complying with
the requirements of subsection (b) of this section or (ii) if the person
or entity is an agricultural association, agricultural employer, or farm
labor contractor (as defined in section 1802 of title 29), to hire, or
to recruit or refer for a fee, for employment in the United States''
after ``(B)'' in subpar. (B).
Subsec. (b)(3). Pub. L. 101-649, Sec. 538(a), as amended by Pub. L.
102-232, Sec. 306(b)(2), as amended by Pub. L. 103-416, Sec. 219(z)(4),
inserted ``, the Special Counsel for Immigration-Related Unfair
Employment Practices,'' after ``officers of the Service''.
1988--Subsec. (b)(1)(A). Pub. L. 100-525, Sec. 2(a)(1)(A),
substituted ``the first sentence of this paragraph'' for ``such
sentence'' and ``such another document'' for ``such a document''.
Subsec. (d)(3)(D). Pub. L. 100-525, Sec. 2(a)(1)(B), in heading
substituted ``defined'' for ``requiring two years notice and
congressional review''.
Subsec. (e)(1). Pub. L. 100-525, Sec. 2(a)(1)(C)(i), inserted
reference to subsec. (g)(1) in three places.
Subsec. (e)(3). Pub. L. 100-525, Sec. 2(a)(1)(C)(i), (ii), inserted
reference to subsec. (g)(1) in two places and reference to par. (6) in
two places.
Subsec. (e)(4)(A)(ii), (iii). Pub. L. 100-525, Sec. 2(a)(1)(D),
substituted ``paragraph'' for ``subparagraph''.
Subsec. (e)(6) to (9). Pub. L. 100-525, Sec. 2(a)(1)(C)(iii), (iv),
added par. (6) and redesignated former pars. (6) to (8) as (7) to (9),
respectively.
Subsec. (g)(2). Pub. L. 100-525, Sec. 2(a)(1)(E), inserted reference
to subsec. (e) of this section.
Subsec. (i)(3)(B)(iii). Pub. L. 100-525, Sec. 2(a)(1)(F),
substituted ``an order'' for ``a order'' and ``subsection (a)(1)(A) of
this section'' for ``paragraph (1)(A)''.
Subsec. (j)(1). Pub. L. 100-525, Sec. 2(a)(1)(G), made technical
amendment to provision of original act which was translated as
``November 6, 1986,'' and struck out ``of the United States'' after
``Comptroller General''.
Subsec. (j)(2). Pub. L. 100-525, Sec. 2(a)(1)(H), substituted ``this
section'' for ``that section''.
Effective Date of 2004 Amendment
Pub. L. 108-390, Sec. 1(b), Oct. 30, 2004, 118 Stat. 2242, provided
that: ``The amendments made by subsection (a) [amending this section]
shall take effect on the earlier of--
``(1) the date on which final regulations implementing such
amendments take effect; or
``(2) 180 days after the date of the enactment of this Act [Oct.
30, 2004].''
Effective Date of 1996 Amendment
Section 379(b) of div. C of Pub. L. 104-208 provided that: ``The
amendments made by subsection (a) [amending this section and section
1324c of this title] shall apply to orders issued on or after the date
of the enactment of this Act [Sept. 30, 1996].''
Section 411(b) of div. C of Pub. L. 104-208 provided that: ``The
amendment made by subsection (a) [amending this section] shall apply to
failures occurring on or after the date of the enactment of this Act
[Sept. 30, 1996].''
Section 412(e) of div. C of Pub. L. 104-208, as amended by Pub. L.
105-54, Sec. 3(a), Oct. 6, 1997, 111 Stat. 1175; Pub. L. 108-156,
Sec. 3(d), Dec. 3, 2003, 117 Stat. 1945, provided that:
``(1) The amendments made by subsection (a) [amending this section]
shall apply with respect to hiring (or recruitment or referral)
occurring on or after such date (not later than 18 months after the date
of the enactment of this Act [Sept. 30, 1996]) as the Secretary of
Homeland Security shall designate.
``(2) The amendment made by subsection (b) [amending this section]
shall apply to individuals hired on or after 60 days after the date of
the enactment of this Act.
``(3) The amendment made by subsection (c) [amending this section]
shall take effect on the date of the enactment of this Act.
``(4) The amendment made by subsection (d) [amending this section]
applies to hiring occurring before, on, or after the date of the
enactment of this Act, but no penalty shall be imposed under subsection
(e) or (f) of section 274A of the Immigration and Nationality Act
[subsecs. (e) and (f) of this section] for such hiring occurring before
such date.''
[Section 3(b) of Pub. L. 105-54 provided that: ``The amendment made
by subsection (a) [amending section 412(e) of div. C of Pub. L. 104-208,
set out above] shall take effect as if included in the enactment of the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996
[div. C of Pub. L. 104-208].'']
Effective Date of 1994 Amendment
Section 219(z) of Pub. L. 103-416 provided that the amendment made
by subsec. (z)(4) of that section is effective as if included in the
Miscellaneous and Technical Immigration and Naturalization Amendments of
1991, Pub. L. 102-232.
Effective Date of 1991 Amendment
Amendment by section 306(b)(2) of Pub. L. 102-232 effective as if
included in the enactment of the Immigration Act of 1990, Pub. L. 101-
649, see section 310(1) of Pub. L. 102-232, set out as a note under
section 1101 of this title.
Effective Date of 1990 Amendment
Section 521(b) of Pub. L. 101-649 provided that: ``The amendments
made by subsection (a) [amending this section] shall apply to recruiting
and referring occurring on or after the date of the enactment of this
Act [Nov. 29, 1990].''
Section 538(b) of Pub. L. 101-649 provided that: ``The amendment
made by subsection (a) [amending this section] shall take effect on the
date of the enactment of this Act [Nov. 29, 1990].''
Effective Date of 1988 Amendment
Amendment by Pub. L. 100-525 effective as if included in enactment
of Immigration Reform and Control Act of 1986, Pub. L. 99-603, see
section 2(s) of Pub. L. 100-525, set out as a note under section 1101 of
this title.
Date of Enactment of This Section for Aliens Employed Under Section 8704
of Title 46, Shipping
Date of enactment of this section with respect to aliens deemed
employed under section 8704 of Title 46, Shipping, as the date 180 days
after Jan. 11, 1988, see section 5(f)(3) of Pub. L. 100-239, set out as
a Construction note under section 8704 of Title 46.
Abolition of Immigration and Naturalization Service and Transfer of
Functions
For abolition of Immigration and Naturalization Service, transfer of
functions, and treatment of related references, see note set out under
section 1551 of this title.
Delegation of Authority
Memorandum of President of the United States, Feb. 10, 1992, 57 F.R.
24345, provided:
Memorandum for the Secretary of Health and Human Services
Section 205(c)(2)(F) of the Social Security Act (section
405(c)(2)(F) of title 42 of the United States Code) directs the
Secretary of Health and Human Services to issue Social Security number
cards to individuals who are assigned Social Security numbers.
By the authority vested in me as President by the Constitution and
the laws of the United States of America, including section
274A(d)(3)(A) of the Immigration and Nationality Act (the ``Act'')
(section 1324a(d)(3)(A) of title 8 of the United States Code) and
section 301 of title 3 of the United States Code, and in order to
provide for the delegation of certain functions under the Act [8 U.S.C.
1101 et seq.], I hereby:
(1) Authorize you to prepare and transmit, to the Committee on the
Judiciary and the Committee on Ways and Means of the House of
Representatives and to the Committee on the Judiciary and the Committee
on Finance of the Senate, a written report regarding the substance of
any proposed change in Social Security number cards, to the extent
required by section 274A(d)(3)(A) of the Act, and
(2) Authorize you to cause to have printed in the Federal Register
the substance of any change in the Social Security number card so
proposed and reported to the designated congressional committees, to the
extent required by section 274A(d)(3)(A) of the Act.
The authority delegated by this memorandum may be further
redelegated within the Department of Health and Human Services.
You are hereby authorized and directed to publish this memorandum in
the Federal Register.
George Bush.
Authority of President under subsec. (d)(4) of this section to
undertake demonstration projects of different changes in requirements of
employment verification system delegated to Attorney General by section
2 of Ex. Ord. No. 12781, Nov. 20, 1991, 56 F.R. 59203, set out as a note
under section 301 of Title 3, The President.
Pilot Programs for Employment Eligibility Confirmation
Pub. L. 104-208, div. C, title IV, subtitle A, Sept. 30, 1996, 110
Stat. 3009-655, as amended by Pub. L. 107-128, Sec. 2, Jan. 16, 2002,
115 Stat. 2407; Pub. L. 108-156, Secs. 2, 3, Dec. 3, 2003, 117 Stat.
1944, provided that:
``SEC. 401. ESTABLISHMENT OF PROGRAMS.
``(a) In General.--The Secretary of Homeland Security shall conduct
3 pilot programs of employment eligibility confirmation under this
subtitle.
``(b) Implementation Deadline; Termination.--The Secretary of
Homeland Security shall implement the pilot programs in a manner that
permits persons and other entities to have elections under section 402
of this division made and in effect no later than 1 year after the date
of the enactment of this Act [Sept. 30, 1996]. Unless the Congress
otherwise provides, the Secretary of Homeland Security shall terminate a
pilot program at the end of the 11-year period beginning on the first
day the pilot program is in effect.
``(c) Scope of Operation of Pilot Programs.--The Secretary of
Homeland Security shall provide for the operation--
``(1) of the basic pilot program (described in section 403(a) of
this division) in, at a minimum, 5 of the 7 States with the highest
estimated population of aliens who are not lawfully present in the
United States, and the Secretary of Homeland Security shall expand
the operation of the program to all 50 States not later than
December 1, 2004;
``(2) of the citizen attestation pilot program (described in
section 403(b) of this division) in at least 5 States (or, if fewer,
all of the States) that meet the condition described in section
403(b)(2)(A) of this division; and
``(3) of the machine-readable-document pilot program (described
in section 403(c) of this division) in at least 5 States (or, if
fewer, all of the States) that meet the condition described in
section 403(c)(2) of this division.
``(d) References in Subtitle.--In this subtitle--
``(1) Pilot program references.--The terms `program' or `pilot
program' refer to any of the 3 pilot programs provided for under
this subtitle.
``(2) Confirmation system.--The term `confirmation system' means
the confirmation system established under section 404 of this
division.
``(3) References to section 274a.--Any reference in this
subtitle to section 274A (or a subdivision of such section) is
deemed a reference to such section (or subdivision thereof) of the
Immigration and Nationality Act [8 U.S.C. 1324a].
``(4) I-9 or similar form.--The term `I-9 or similar form' means
the form used for purposes of section 274A(b)(1)(A) or such other
form as the Secretary of Homeland Security determines to be
appropriate.
``(5) Limited application to recruiters and referrers.--Any
reference to recruitment or referral (or a recruiter or referrer) in
relation to employment is deemed a reference only to such
recruitment or referral (or recruiter or referrer) that is subject
to section 274A(a)(1)(B)(ii).
``(6) United states citizenship.--The term `United States
citizenship' includes United States nationality.
``(7) State.--The term `State' has the meaning given such term
in section 101(a)(36) of the Immigration and Nationality Act [8
U.S.C. 1101(a)(36)].
``SEC. 402. VOLUNTARY ELECTION TO PARTICIPATE IN A PILOT PROGRAM.
``(a) Voluntary Election.--Subject to subsection (c)(3)(B), any
person or other entity that conducts any hiring (or recruitment or
referral) in a State in which a pilot program is operating may elect to
participate in that pilot program. Except as specifically provided in
subsection (e), the Secretary of Homeland Security may not require any
person or other entity to participate in a pilot program.
``(b) Benefit of Rebuttable Presumption.--
``(1) In general.--If a person or other entity is participating
in a pilot program and obtains confirmation of identity and
employment eligibility in compliance with the terms and conditions
of the program with respect to the hiring (or recruitment or
referral) of an individual for employment in the United States, the
person or entity has established a rebuttable presumption that the
person or entity has not violated section 274A(a)(1)(A) with respect
to such hiring (or such recruitment or referral).
``(2) Construction.--Paragraph (1) shall not be construed as
preventing a person or other entity that has an election in effect
under subsection (a) from establishing an affirmative defense under
section 274A(a)(3) if the person or entity complies with the
requirements of section 274A(a)(1)(B) but fails to obtain
confirmation under paragraph (1).
``(c) General Terms of Elections.--
``(1) In general.--An election under subsection (a) shall be in
such form and manner, under such terms and conditions, and shall
take effect, as the Secretary of Homeland Security shall specify.
The Secretary of Homeland Security may not impose any fee as a
condition of making an election or participating in a pilot program.
``(2) Scope of election.--
``(A) In general.--Subject to paragraph (3), any electing
person or other entity may provide that the election under
subsection (a) shall apply (during the period in which the
election is in effect)--
``(i) to all its hiring (and all recruitment or
referral) in the State (or States) in which the pilot
program is operating, or
``(ii) to its hiring (or recruitment or referral) in one
or more pilot program States or one or more places of hiring
(or recruitment or referral, as the case may be) in the
pilot program States.
``(B) Application of programs in non-pilot program states.--
In addition, the Secretary of Homeland Security may permit a
person or entity electing the citizen attestation pilot
program(described in 403(b) of this division) or the machine-
readable-document pilot program (described in section 403(c) of
this division) to provide that the election applies to its
hiring (or recruitment or referral) in one or more States or
places of hiring (or recruitment or referral) in which the pilot
program is not otherwise operating but only if such States meet
the requirements of 403(b)(2)(A) and 403(c)(2) of this division,
respectively.
``(3) Termination of elections.--The Secretary of Homeland
Security may terminate an election by a person or other entity under
this section because the person or entity has substantially failed
to comply with its obligations under the pilot program. A person or
other entity may terminate an election in such form and manner as
the Secretary of Homeland Security shall specify.
``(d) Consultation, Education, and Publicity.--
``(1) Consultation.--The Secretary of Homeland Security shall
closely consult with representatives of employers (and recruiters
and referrers) in the development and implementation of the pilot
programs, including the education of employers (and recruiters and
referrers) about such programs.
``(2) Publicity.--The Secretary of Homeland Security shall
widely publicize the election process and pilot programs, including
the voluntary nature of the pilot programs and the advantages to
employers (and recruiters and referrers) of making an election under
this section.
``(3) Assistance through district offices.--The Secretary of
Homeland Security shall designate one or more individuals in each
District office of the Immigration and Naturalization Service for a
Service District in which a pilot program is being implemented--
``(A) to inform persons and other entities that seek
information about pilot programs of the voluntary nature of such
programs, and
``(B) to assist persons and other entities in electing and
participating in any pilot programs in effect in the District,
in complying with the requirements of section 274A, and in
facilitating confirmation of the identity and employment
eligibility of individuals consistent with such section.
``(e) Select Entities Required to Participate in a Pilot Program.--
``(1) Federal government.--
``(A) Executive departments.--
``(i) In general.--Each Department of the Federal
Government shall elect to participate in a pilot program and
shall comply with the terms and conditions of such an
election.
``(ii) Election.--Subject to clause (iii), the Secretary
of each such Department--
``(I) shall elect the pilot program (or programs) in which the
Department shall participate, and
``(II) may limit the election to hiring occurring in certain
States (or geographic areas) covered by the program (or
programs) and in specified divisions within the
Department, so long as all hiring by such divisions and
in such locations is covered.
``(iii) Role of secretary of homeland security.--The
Secretary of Homeland Security shall assist and coordinate
elections under this subparagraph in such manner as assures
that--
``(I) a significant portion of the total hiring within each
Department within States covered by a pilot program is
covered under such a program, and
``(II) there is significant participation by the Federal
Executive branch in each of the pilot programs.
``(B) Legislative branch.--Each Member of Congress, each
officer of Congress, and the head of each agency of the
legislative branch, that conducts hiring in a State in which a
pilot program is operating shall elect to participate in a pilot
program, may specify which pilot program or programs (if there
is more than one) in which the Member, officer, or agency will
participate, and shall comply with the terms and conditions of
such an election.
``(2) Application to certain violators.--An order under section
274A(e)(4) or section 274B(g) of the Immigration and Nationality Act
[8 U.S.C. 1324a(e)(4), 1324b(g)] may require the subject of the
order to participate in, and comply with the terms of, a pilot
program with respect to the subject's hiring (or recruitment or
referral) of individuals in a State covered by such a program.
``(3) Consequence of failure to participate.--If a person or
other entity is required under this subsection to participate in a
pilot program and fails to comply with the requirements of such
program with respect to an individual--
``(A) such failure shall be treated as a violation of
section 274A(a)(1)(B) with respect to that individual, and
``(B) a rebuttable presumption is created that the person or
entity has violated section 274A(a)(1)(A).
Subparagraph (B) shall not apply in any prosecution under section
274A(f)(1).
``(f) Construction.--This subtitle shall not affect the authority of
the Secretary of Homeland Security under any other law (including
section 274A(d)(4)) to conduct demonstration projects in relation to
section 274A.
``SEC. 403. PROCEDURES FOR PARTICIPANTS IN PILOT PROGRAMS.
``(a) Basic Pilot Program.--A person or other entity that elects to
participate in the basic pilot program described in this subsection
agrees to conform to the following procedures in the case of the hiring
(or recruitment or referral) for employment in the United States of each
individual covered by the election:
``(1) Provision of additional information.--The person or entity
shall obtain from the individual (and the individual shall provide)
and shall record on the I-9 or similar form--
``(A) the individual's social security account number, if
the individual has been issued such a number, and
``(B) if the individual does not attest to United States
citizenship under section 274A(b)(2), such identification or
authorization number established by the Immigration and
Naturalization Service for the alien as the Secretary of
Homeland Security shall specify,
and shall retain the original form and make it available for
inspection for the period and in the manner required of I-9 forms
under section 274A(b)(3).
``(2) Presentation of documentation.--
``(A) In general.--The person or other entity, and the
individual whose identity and employment eligibility are being
confirmed, shall, subject to subparagraph (B), fulfill the
requirements of section 274A(b) with the following
modifications:
``(i) A document referred to in section
274A(b)(1)(B)(ii) (as redesignated by section 412(a) of this
division) must be designated by the Secretary of Homeland
Security as suitable for the purpose of identification in a
pilot program.
``(ii) A document referred to in section 274A(b)(1)(D)
must contain a photograph of the individual.
``(iii) The person or other entity has complied with the
requirements of section 274A(b)(1) with respect to
examination of a document if the document reasonably appears
on its face to be genuine and it reasonably appears to
pertain to the individual whose identity and work
eligibility is being confirmed.
``(B) Limitation of requirement to examine documentation.--
If the Secretary of Homeland Security finds that a pilot program
would reliably determine with respect to an individual whether--
``(i) the person with the identity claimed by the
individual is authorized to work in the United States, and
``(ii) the individual is claiming the identity of
another person,
if a person or entity could fulfill the requirement to examine
documentation contained in subparagraph (A) of section
274A(b)(1) by examining a document specified in either
subparagraph (B) or (D) of such section, the Secretary of
Homeland Security may provide that, for purposes of such
requirement, only such a document need be examined. In such
case, any reference in section 274A(b)(1)(A) to a verification
that an individual is not an unauthorized alien shall be deemed
to be a verification of the individual's identity.
``(3) Seeking confirmation.--
``(A) In general.--The person or other entity shall make an
inquiry, as provided in section 404(a)(1) of this division,
using the confirmation system to seek confirmation of the
identity and employment eligibility of an individual, by not
later than the end of 3 working days (as specified by the
Secretary of Homeland Security) after the date of the hiring (or
recruitment or referral, as the case may be).
``(B) Extension of time period.--If the person or other
entity in good faith attempts to make an inquiry during such 3
working days and the confirmation system has registered that not
all inquiries were received during such time, the person or
entity can make an inquiry in the first subsequent working day
in which the confirmation system registers that it has received
all inquiries. If the confirmation system cannot receive
inquiries at all times during a day, the person or entity merely
has to assert that the entity attempted to make the inquiry on
that day for the previous sentence to apply to such an inquiry,
and does not have to provide any additional proof concerning
such inquiry.
``(4) Confirmation or nonconfirmation.--
``(A) Confirmation upon initial inquiry.--If the person or
other entity receives an appropriate confirmation of an
individual's identity and work eligibility under the
confirmation system within the time period specified under
section 404(b) of this division, the person or entity shall
record on the I-9 or similar form an appropriate code that is
provided under the system and that indicates a final
confirmation of such identity and work eligibility of the
individual.
``(B) Nonconfirmation upon initial inquiry and secondary
verification.--
``(i) Nonconfirmation.--If the person or other entity
receives a tentative nonconfirmation of an individual's
identity or work eligibility under the confirmation system
within the time period specified under 404(b) of this
division, the person or entity shall so inform the
individual for whom the confirmation is sought.
``(ii) No contest.--If the individual does not contest
the nonconfirmation within the time period specified in
section 404(c) of this division, the nonconfirmation shall
be considered final. The person or entity shall then record
on the I-9 or similar form an appropriate code which has
been provided under the system to indicate a tentative
nonconfirmation.
``(iii) Contest.--If the individual does contest the
nonconfirmation, the individual shall utilize the process
for secondary verification provided under section 404(c) of
this division. The nonconfirmation will remain tentative
until a final confirmation or nonconfirmation is provided by
the confirmation system within the time period specified in
such section. In no case shall an employer terminate
employment of an individual because of a failure of the
individual to have identity and work eligibility confirmed
under this section until a nonconfirmation becomes final.
Nothing in this clause shall apply to a termination of
employment for any reason other than because of such a
failure.
``(iv) Recording of conclusion on form.--If a final
confirmation or nonconfirmation is provided by the
confirmation system under section 404(c) of this division
regarding an individual, the person or entity shall record
on the I-9 or similar form an appropriate code that is
provided under the system and that indicates a confirmation
or nonconfirmation of identity and work eligibility of the
individual.
``(C) Consequences of nonconfirmation.--
``(i) Termination or notification of continued
employment.--If the person or other entity has received a
final nonconfirmation regarding an individual under
subparagraph (B), the person or entity may terminate
employment (or recruitment or referral) of the individual.
If the person or entity does not terminate employment (or
recruitment or referral) of the individual, the person or
entity shall notify the Secretary of Homeland Security of
such fact through the confirmation system or in such other
manner as the Secretary of Homeland Security may specify.
``(ii) Failure to notify.--If the person or entity fails
to provide notice with respect to an individual as required
under clause (i), the failure is deemed to constitute a
violation of section 274A(a)(1)(B) with respect to that
individual and the applicable civil monetary penalty under
section 274A(e)(5) shall be (notwithstanding the amounts
specified in such section) no less than $500 and no more
than $1,000 for each individual with respect to whom such
violation occurred.
``(iii) Continued employment after final
nonconfirmation.--If the person or other entity continues to
employ (or to recruit or refer) an individual after
receiving final nonconfirmation, a rebuttable presumption is
created that the person or entity has violated section
274A(a)(1)(A). The previous sentence shall not apply in any
prosecution under section 274A(f)(1).
``(b) Citizen Attestation Pilot Program.--
``(1) In general.--Except as provided in paragraphs (3) through
(5), the procedures applicable under the citizen attestation pilot
program under this subsection shall be the same procedures as those
under the basic pilot program under subsection (a).
``(2) Restrictions.--
``(A) State document requirement to participate in pilot
program.--The Secretary of Homeland Security may not provide for
the operation of the citizen attestation pilot program in a
State unless each driver's license or similar identification
document described in section 274A(b)(1)(D)(i) issued by the
State--
``(i) contains a photograph of the individual involved,
and
``(ii) has been determined by the Secretary of Homeland
Security to have security features, and to have been issued
through application and issuance procedures, which make such
document sufficiently resistant to counterfeiting,
tampering, and fraudulent use that it is a reliable means of
identification for purposes of this section.
``(B) Authorization to limit employer participation.--The
Secretary of Homeland Security may restrict the number of
persons or other entities that may elect to participate in the
citizen attestation pilot program under this subsection as the
Secretary of Homeland Security determines to be necessary to
produce a representative sample of employers and to reduce the
potential impact of fraud.
``(3) No confirmation required for certain individuals attesting
to u.s. citizenship.--In the case of a person or other entity hiring
(or recruiting or referring) an individual under the citizen
attestation pilot program, if the individual attests to United
States citizenship (under penalty of perjury on an I-9 or similar
form which form states on its face the criminal and other penalties
provided under law for a false representation of United States
citizenship)--
``(A) the person or entity may fulfill the requirement to
examine documentation contained in subparagraph (A) of section
274A(b)(1) by examining a document specified in either
subparagraph (B)(i) or (D) of such section; and
``(B) the person or other entity is not required to comply
with respect to such individual with the procedures described in
paragraphs (3) and (4) of subsection (a), but only if the person
or entity retains the form and makes it available for inspection
in the same manner as in the case of an I-9 form under section
274A(b)(3).
``(4) Waiver of document presentation requirement in certain
cases.--
``(A) In general.--In the case of a person or entity that
elects, in a manner specified by the Secretary of Homeland
Security consistent with subparagraph (B), to participate in the
pilot program under this paragraph, if an individual being hired
(or recruited or referred) attests (in the manner described in
paragraph (3)) to United States citizenship and the person or
entity retains the form on which the attestation is made and
makes it available for inspection in the same manner as in the
case of an I-9 form under section 274A(b)(3), the person or
entity is not required to comply with the procedures described
in section 274A(b).
``(B) Restriction.--The Secretary of Homeland Security shall
restrict the election under this paragraph to no more than 1,000
employers and, to the extent practicable, shall select among
employers seeking to make such election in a manner that
provides for such an election by a representative sample of
employers.
``(5) Nonreviewable determinations.--The determinations of the
Secretary of Homeland Security under paragraphs (2) and (4) are
within the discretion of the Secretary of Homeland Security and are
not subject to judicial or administrative review.
``(c) Machine-Readable-Document Pilot Program.--
``(1) In general.--Except as provided in paragraph (3), the
procedures applicable under the machine-readable-document pilot
program under this subsection shall be the same procedures as those
under the basic pilot program under subsection (a).
``(2) State document requirement to participate in pilot
program.--The Secretary of Homeland Security may not provide for the
operation of the machine-readable-document pilot program in a State
unless driver's licenses and similar identification documents
described in section 274A(b)(1)(D)(i) issued by the State include a
machine-readable social security account number.
``(3) Use of machine-readable documents.--If the individual
whose identity and employment eligibility must be confirmed presents
to the person or entity hiring (or recruiting or referring) the
individual a license or other document described in paragraph (2)
that includes a machine-readable social security account number, the
person or entity must make an inquiry through the confirmation
system by using a machine-readable feature of such document. If the
individual does not attest to United States citizenship under
section 274A(b)(2), the individual's identification or authorization
number described in subsection (a)(1)(B) shall be provided as part
of the inquiry.
``(d) Protection From Liability for Actions Taken on the Basis of
Information Provided by the Confirmation System.--No person or entity
participating in a pilot program shall be civilly or criminally liable
under any law for any action taken in good faith reliance on information
provided through the confirmation system.
``SEC. 404. EMPLOYMENT ELIGIBILITY CONFIRMATION SYSTEM.
``(a) In General.--The Secretary of Homeland Security shall
establish a pilot program confirmation system through which the
Secretary of Homeland Security (or a designee of the Secretary of
Homeland Security, which may be a nongovernmental entity)--
``(1) responds to inquiries made by electing persons and other
entities (including those made by the transmittal of data from
machine-readable documents under the machine-readable pilot program)
at any time through a toll-free telephone line or other toll-free
electronic media concerning an individual's identity and whether the
individual is authorized to be employed, and
``(2) maintains records of the inquiries that were made, of
confirmations provided (or not provided), and of the codes provided
to inquirers as evidence of their compliance with their obligations
under the pilot programs.
To the extent practicable, the Secretary of Homeland Security shall seek
to establish such a system using one or more nongovernmental entities.
``(b) Initial Response.--The confirmation system shall provide
confirmation or a tentative nonconfirmation of an individual's identity
and employment eligibility within 3 working days of the initial inquiry.
If providing confirmation or tentative nonconfirmation, the confirmation
system shall provide an appropriate code indicating such confirmation or
such nonconfirmation.
``(c) Secondary Verification Process in Case of Tentative
Nonconfirmation.--In cases of tentative nonconfirmation, the Secretary
of Homeland Security shall specify, in consultation with the
Commissioner of Social Security and the Commissioner of the Immigration
and Naturalization Service, an available secondary verification process
to confirm the validity of information provided and to provide a final
confirmation or nonconfirmation within 10 working days after the date of
the tentative nonconfirmation. When final confirmation or
nonconfirmation is provided, the confirmation system shall provide an
appropriate code indicating such confirmation or nonconfirmation.
``(d) Design and Operation of System.--The confirmation system shall
be designed and operated--
``(1) to maximize its reliability and ease of use by persons and
other entities making elections under section 402(a) of this
division consistent with insulating and protecting the privacy and
security of the underlying information;
``(2) to respond to all inquiries made by such persons and
entities on whether individuals are authorized to be employed and to
register all times when such inquiries are not received;
``(3) with appropriate administrative, technical, and physical
safeguards to prevent unauthorized disclosure of personal
information; and
``(4) to have reasonable safeguards against the system's
resulting in unlawful discriminatory practices based on national
origin or citizenship status, including--
``(A) the selective or unauthorized use of the system to
verify eligibility;
``(B) the use of the system prior to an offer of employment;
or
``(C) the exclusion of certain individuals from
consideration for employment as a result of a perceived
likelihood that additional verification will be required, beyond
what is required for most job applicants.
``(e) Responsibilities of the Commissioner of Social Security.--As
part of the confirmation system, the Commissioner of Social Security, in
consultation with the entity responsible for administration of the
system, shall establish a reliable, secure method, which, within the
time periods specified under subsections (b) and (c), compares the name
and social security account number 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,
the correspondence of the name and number, and whether the individual
has presented a social security account number that is not valid for
employment. The Commissioner shall not disclose or release social
security information (other than such confirmation or nonconfirmation).
``(f) Responsibilities of the Commissioner of the Immigration and
Naturalization Service.--As part of the confirmation system, the
Commissioner of the Immigration and Naturalization Service, in
consultation with the entity responsible for administration of the
system, shall establish a reliable, secure method, which, within the
time periods specified under subsections (b) and (c), compares the name
and alien identification or authorization number described in section
403(a)(1)(B) of this division which are provided in an inquiry against
such information maintained by the Commissioner in order to confirm (or
not confirm) the validity of the information provided, the
correspondence of the name and number, and whether the alien is
authorized to be employed in the United States.
``(g) Updating Information.--The Commissioners of Social Security
and the Immigration and Naturalization Service shall update their
information in a manner that promotes the maximum accuracy and shall
provide a process for the prompt correction of erroneous information,
including instances in which it is brought to their attention in the
secondary verification process described in subsection (c).
``(h) Limitation on Use of the Confirmation System and Any Related
Systems.--
``(1) In general.--Notwithstanding any other provision of law,
nothing in this subtitle shall be construed to permit or allow any
department, bureau, or other agency of the United States Government
to utilize any information, data base, or other records assembled
under this subtitle for any other purpose other than as provided for
under a pilot program.
``(2) No national identification card.--Nothing in this subtitle
shall be construed to authorize, directly or indirectly, the
issuance or use of national identification cards or the
establishment of a national identification card.
``SEC. 405. REPORTS.
``(a) In General.--The Secretary of Homeland Security shall submit
to the Committees on the Judiciary of the House of Representatives and
of the Senate reports on the pilot programs within 3 months after the
end of the third and fourth years in which the programs are in effect.
Such reports shall--
``(1) assess the degree of fraudulent attesting of United States
citizenship,
``(2) include recommendations on whether or not the pilot
programs should be continued or modified, and
``(3) assess the benefits of the pilot programs to employers and
the degree to which they assist in the enforcement of section 274A.
``(b) Report on Expansion.--Not later than June 1, 2004, the
Secretary of Homeland Security shall submit to the Committees on the
Judiciary of the House of Representatives and the Senate a report--
``(1) evaluating whether the problems identified by the report
submitted under subsection (a) have been substantially resolved; and
``(2) describing what actions the Secretary of Homeland Security
shall take before undertaking the expansion of the basic pilot
program to all 50 States in accordance with section 401(c)(1), in
order to resolve any outstanding problems raised in the report filed
under subsection (a).''
[Pub. L. 107-128, Sec. 3, Jan. 16, 2002, 115 Stat. 2407, provided
that: ``The amendment made by this Act [amending section 401(b) of Pub.
L. 104-208, set out above] shall take effect on the date of the
enactment of this Act [Jan. 16, 2002].'']
Report on Additional Authority or Resources Needed for Enforcement of
Employer Sanctions Provisions
Pub. L. 104-208, div. C, title IV, Sec. 413(a), Sept. 30, 1996, 110
Stat. 3009-668, as amended by Pub. L. 108-156, Sec. 3(d), Dec. 3, 2003,
117 Stat. 1945, provided that not later than 1 year after Sept. 30,
1996, the Secretary of Homeland Security was to submit to the Committees
on the Judiciary of the House of Representatives and of the Senate a
report on any additional authority or resources needed by the
Immigration and Naturalization Service in order to enforce section 1324a
of this title, or by Federal agencies in order to carry out Ex. Ord. No.
12989, set out below, and to expand the restrictions in such order to
cover agricultural subsidies, grants, job training programs, and other
Federally subsidized assistance programs.
Pilot Projects for Secure Documents
Pub. L. 101-238, Sec. 5, Dec. 18, 1989, 103 Stat. 2104, provided
that:
``(a) Consultation.--Before June 1, 1991, the Attorney General shall
consult with State governments on any proper State initiative to improve
the security of State or local documents which would satisfy the
requirements of section 274A(b)(1) of the Immigration and Nationality
Act (8 U.S.C. 1324a). The result of such consultations shall be
reported, before September 1, 1991, to the Committees on the Judiciary
of the Senate and House of Representatives of the United States.
``(b) Assistance for State Initiatives.--After such consultation
described in subsection (a), the Attorney General shall make grants to,
and enter into contracts with (to such extent or in such amounts as are
provided in an appropriation Act), the State of California and at least
2 other States with large immigrant populations to promote any State
initiatives to improve the security of State or local documents which
would satisfy the requirements of section 274A(b)(1) of the Immigration
and Nationality Act [8 U.S.C. 1324a(b)(1)].
``(c) Authorization of Appropriations.--There are authorized to be
appropriated to the Attorney General $10,000,000 for fiscal year 1992 to
carry out subsection (b).
``(d) Report Required.--The Attorney General shall report to the
Committees on the Judiciary of the Senate and House of Representatives
not later than August 1, 1993, on the security of State or local
documents which would satisfy the requirements of section 274A(b)(1) of
the Immigration and Nationality Act (8 U.S.C. 1324a), and any
improvements in such documents that have occurred as a result of this
section.''
Interim Regulations
Section 101(a)(2) of Pub. L. 99-603 provided that: ``The Attorney
General shall, not later than the first day of the seventh month
beginning after the date of the enactment of this Act [Nov. 6, 1986],
first issue, on an interim or other basis, such regulations as may be
necessary in order to implement this section [enacting this section,
amending sections 1802, 1813, 1816, and 1851 of Title 29, Labor, and
enacting provisions set out as notes under this section, section 1802 of
Title 29, and section 405 of Title 42, The Public Health and Welfare].''
Grandfather Provision for Current Employees
Section 101(a)(3) of Pub. L. 99-603 provided that:
``(A) Section 274A(a)(1) of the Immigration and Nationality Act [8
U.S.C. 1324a(a)(1)] shall not apply to the hiring, or recruiting or
referring of an individual for employment which has occurred before the
date of the enactment of this Act [Nov. 6, 1986].
``(B) Section 274A(a)(2) of the Immigration and Nationality Act
shall not apply to continuing employment of an alien who was hired
before the date of the enactment of this Act.''
Study of Use of Telephone Verification System for Determining Employment
Eligibility of Aliens
Section 101(d) of Pub. L. 99-603 provided that:
``(1) The Attorney General, in consultation with the Secretary of
Labor and the Secretary of Health and Human Services, shall conduct a
study for use by the Department of Justice in determining employment
eligibility of aliens in the United States. Such study shall concentrate
on those data bases that are currently available to the Federal
Government which through the use of a telephone and computation
capability could be used to verify instantly the employment eligibility
status of job applicants who are aliens.
``(2) Such study shall be conducted in conjunction with any existing
Federal program which is designed for the purpose of providing
information on the resident or employment status of aliens for
employers. The study shall include an analysis of costs and benefits
which shows the differences in costs and efficiency of having the
Federal Government or a contractor perform this service. Such
comparisons should include reference to such technical capabilities as
processing techniques and time, verification techniques and time, back
up safeguards, and audit trail performance.
``(3) Such study shall also concentrate on methods of phone
verification which demonstrate the best safety and service standards,
the least burden for the employer, the best capability for effective
enforcement, and procedures which are within the boundaries of the
Privacy Act of 1974 [5 U.S.C. 552a, 552a note].
``(4) Such study shall be conducted within twelve months of the date
of enactment of this Act [Nov. 6, 1986].
``(5) The Attorney General shall prepare and transmit to the
Congress a report--
``(A) not later than six months after the date of enactment of
this Act, describing the status of such study; and
``(B) not later than twelve months after such date, setting
forth the findings of such study.''
Feasibility Study of Social Security Number Validation System
Section 101(e) of Pub. L. 99-603 provided that: ``The Secretary of
Health and Human Services, acting through the Social Security
Administration and in cooperation with the Attorney General and the
Secretary of Labor, shall conduct a study of the feasibility and costs
of establishing a social security number validation system to assist in
carrying out the purposes of section 274A of the Immigration and
Nationality Act [8 U.S.C. 1324a], and of the privacy concerns that would
be raised by the establishment of such a system. The Secretary shall
submit to the Committees on Ways and Means and Judiciary of the House of
Representatives and to the Committees on Finance and Judiciary of the
Senate, within 2 years after the date of the enactment of this Act [Nov.
6, 1986], a full and complete report on the results of the study
together with such recommendations as may be appropriate.''
Reports on Unauthorized Alien Employment
Section 402 of Pub. L. 99-603 provided that: ``The President shall
transmit to Congress annual reports on the implementation of section
274A of the Immigration and Nationality Act [8 U.S.C. 1324a] (relating
to unlawful employment of aliens) during the first three years after its
implementation. Each report shall include--
``(1) an analysis of the adequacy of the employment verification
system provided under subsection (b) of that section;
``(2) a description of the status of the development and
implementation of changes in that system under subsection (d) of
that section, including the results of any demonstration projects
conducted under paragraph (4) of such subsection; and
``(3) an analysis of the impact of the enforcement of that
section on--
``(A) the employment, wages, and working conditions of
United States workers and on the economy of the United States,
``(B) the number of aliens entering the United States
illegally or who fail to maintain legal status after entry, and
``(C) the violation of terms and conditions of nonimmigrant
visas by foreign visitors.''
[Functions of President under section 402 of Pub. L. 99-603
delegated to Secretary of Homeland Security, except functions in section
402(3)(A) which were delegated to Secretary of Labor, by sections 1(b)
and 2(a) of Ex. Ord. No. 12789, Feb. 10, 1992, 57 F.R. 5225, as amended,
set out as a note under section 1364 of this title.]
Ex. Ord. No. 12989. Economy and Efficiency in Government Procurement
Through Compliance With Certain Immigration and Nationality Act
Provisions
Ex. Ord. No. 12989, Feb. 13, 1996, 61 F.R. 6091, as amended by Ex.
Ord. No. 13286, Sec. 19, Feb. 28, 2003, 68 F.R. 10623, provided:
This order is designed to promote economy and efficiency in
Government procurement. Stability and dependability are important
elements of economy and efficiency. A contractor whose work force is
less stable will be less likely to produce goods and services
economically and efficiently than a contractor whose work force is more
stable. It remains the policy of this Administration to enforce the
immigration laws to the fullest extent, including the detection and
deportation of illegal aliens. In these circumstances, contractors
cannot rely on the continuing availability and service of illegal
aliens, and contractors that choose to employ unauthorized aliens
inevitably will have a less stable and less dependable work force than
contractors that do not employ such persons. Because of this
Administration's vigorous enforcement policy, contractors that employ
unauthorized alien workers are necessarily less stable and dependable
procurement sources than contractors that do not hire such persons. I
find, therefore, that adherence to the general policy of not contracting
with providers that knowingly employ unauthorized alien workers will
promote economy and efficiency in Federal procurement.
NOW, THEREFORE, to ensure the economical and efficient
administration and completion of Federal Government contracts, and by
the authority vested in me as President by the Constitution and the laws
of the United States of America, including 40 U.S.C. 486(a) [now 40
U.S.C. 121(a)] and 3 U.S.C. 301, it is hereby ordered as follows:
Section 1. (a) It is the policy of the executive branch in procuring
goods and services that, to ensure the economical and efficient
administration and completion of Federal Government contracts,
contracting agencies should not contract with employers that have not
complied with section 274A(a)(1)(A) and 274A(a)(2) of the Immigration
and Nationality Act (8 U.S.C. 1324a(a)(1)(A), 1324a(a)(2)) (the ``INA
employment provisions'') prohibiting the unlawful employment of aliens.
All discretion under this Executive order shall be exercised consistent
with this policy.
(b) It remains the policy of this Administration to fully and
aggressively enforce the antidiscrimination provisions of the
Immigration and Nationality Act [8 U.S.C. 1101 et seq.] to the fullest
extent. Nothing in this order relieves employers from their obligation
to avoid unfair immigration-related employment practices as required by
the antidiscrimination provisions of section 1324(b) [274B] of the INA
(8 U.S.C. 1324b) and all other antidiscrimination requirements of
applicable law, including the requirements of 8 U.S.C. 1324b(a)(6)
concerning the treatment of certain documentary practices as unfair
immigration-related employment practices.
Sec. 2. Contractor, as used in this Executive order, shall have the
same meaning as defined in subpart 9.4 of the Federal Acquisition
Regulation.
Sec. 3. Using the procedures established pursuant to 8 U.S.C.
1324a(e): (a) the Secretary of Homeland Security may investigate to
determine whether a contractor or an organizational unit thereof is not
in compliance with the INA employment provisions;
(b) the Secretary of Homeland Security shall receive and may
investigate complaints by employees of any entity covered under section
3(a) of this order where such complaints allege noncompliance with the
INA employment provisions; and
(c) the Attorney General shall hold such hearings as are required
under 8 U.S.C. 1324a(e) to determine whether an entity covered under
section 3(a) is not in compliance with the INA employment provisions.
Sec. 4. (a) Whenever the Secretary of Homeland Security or the
Attorney General determines that a contractor or an organizational unit
thereof is not in compliance with the INA employment provisions, the
Secretary of Homeland Security or the Attorney General shall transmit
that determination to the appropriate contracting agency and such other
Federal agencies as the Secretary of Homeland Security or the Attorney
General may determine. Upon receipt of such determination from the
Secretary of Homeland Security or the Attorney General, the head of the
appropriate contracting agency shall consider the contractor or an
organizational unit thereof for debarment as well as for such other
action as may be appropriate in accordance with the procedures and
standards prescribed by the Federal Acquisition Regulation.
(b) The head of the contracting agency may debar the contractor or
an organizational unit thereof based on the determination of the
Secretary of Homeland Security or the Attorney General that it is not in
compliance with the INA employment provisions. Such determination shall
not be reviewable in the debarment proceedings.
(c) The scope of the debarment generally should be limited to those
organizational units of a Federal contractor that the Secretary of
Homeland Security or the Attorney General finds are not in compliance
with the INA employment provisions.
(d) The period of the debarment shall be for 1 year and may be
extended for additional periods of 1 year if, using the procedures
established pursuant to 8 U.S.C. 1324a(e), the Secretary of Homeland
Security or the Attorney General determines that the organizational unit
of the Federal contractor continues to be in violation of the INA
employment provisions.
(e) The Administrator of General Services shall list a debarred
contractor or an organizational unit thereof on the List of Parties
Excluded from Federal Procurement and Nonprocurement Programs and the
contractor or an organizational unit thereof shall be ineligible to
participate in any procurement or nonprocurement activities.
Sec. 5. (a) The Secretary of Homeland Security and Attorney General
shall be responsible for the administration and enforcement of this
order, except for the debarment procedures. The Secretary of Homeland
Security and Attorney General may adopt such additional rules and
regulations and issue such orders as may be deemed necessary and
appropriate to carry out their respective responsibilities under this
order. If the Secretary of Homeland Security or the Attorney General
proposes to issue rules, regulations, or orders that affect the
contracting departments and agencies, the Secretary of Homeland Security
or the Attorney General shall consult with the Secretary of Defense, the
Secretary of Labor, the Administrator of General Services, the
Administrator of the National Aeronautics and Space Administration, the
Administrator for Federal Procurement Policy, and such other agencies as
may be appropriate.
(b) The Secretary of Defense, the Administrator of General Services,
and the Administrator of the National Aeronautics and Space
Administration shall amend the Federal Acquisition Regulation to the
extent necessary and appropriate to implement the debarment
responsibility and other related responsibilities assigned to heads of
contracting departments and agencies under this order.
Sec. 6. Each contracting department and agency shall cooperate with
and provide such information and assistance to the Secretary of Homeland
Security and the Attorney General as may be required in the performance
of their respective functions under this order.
Sec. 7. The Secretary of Homeland Security, the Attorney General,
the Secretary of Defense, the Administrator of General Services, the
Administrator of the National Aeronautics and Space Administration, and
the heads of contracting departments and agencies may delegate any of
their functions or duties under this order to any officer or employee of
their respective agencies.
Sec. 8. This order shall be implemented in a manner intended to
least burden the procurement process. This order neither authorizes nor
requires any additional certification provision, clause, or requirement
to be included in any contract or contract solicitation.
Sec. 9. This order is not intended, and should not be construed, to
create any right or benefit, substantive or procedural, enforceable at
law by a party against the United States, its agencies, its officers, or
its employees. This order is not intended, however, to preclude judicial
review of final agency decisions in accordance with the Administrative
Procedure Act, 5 U.S.C. 701 et seq.