Key Issue: E-Verify: Section by Section Summary
[Section 1: Short Title]
[Section 2: Employment Eligibility Verification Process]
[Section 3: Employment Eligibility Verification System]
[Section 4: Recruitment and Referral]
[Section 5: Good Faith Defense]
[Section 6: Preemption]
[Section 7: Repeal]
[Section 8: Penalties]
[Section 9: Protection of Social Security Administration Programs]
[Section 10: Fraud Prevention]
[Section 11: Biometric Employment Eligibility Verification Pilot Program]
Section 2: Employment Eligibility Verification Process
- Proof of Employment Eligibility and Identity: Requires that the employer attest, in an electronic or paper form, that they have verified the employment eligibility of the individual seeking employment by obtaining the individual’s Social Security Number (SSN) or immigrant identification number and examining acceptable documents presented by the individual to establish work eligibility and identity. Requires that the employer use E-Verify to check the work eligibility of the individual. Reduces the number of acceptable documents for proof of work eligibility and identity.
- Penalty: Creates a penalty for knowingly submitting to the employer a SSN that belongs to another person.
- Retention of Attestation Form: Requires that the employer retain a paper, microfiche or electronic copy of the attestation form for the later of three years or one year after the date of employment termination.
- Verification: Requires the employer to record the E-Verify verification code for employees when they receive a confirmation or final nonconfirmation of work authorization. Requires an employee who receives a tentative nonconfirmation to use the secondary verification process in place under E-Verify. States that an employer may terminate employment of individuals who receive a final nonconfirmation and if they do not terminate employment must notify DHS of the decision not to do so. Creates a rebuttable presumption of noncompliance if the employer doe not terminate employment after the individual receives a final nonconfirmation. Allows an employer to check the employment eligibility of a prospective employee between the date of the offer of a job and three days after the date of hire. Allows the employer to condition a job offer on an E-Verify confirmation.
- Phase-In: Phases-in mandatory E-Verify participation for new hires in six month increments beginning on the date six months after enactment, with businesses having more than 10,000 employees. Twelve months after enactment, businesses having 500 to 9,999 employees are required to use E-Verify, as are recruiters and referrers. Eighteen months after enactment, businesses having 20 to 499 employees must use E-Verify. And 24 months after enactment businesses having 1 to 19 employees must use E-Verify. Note that on the date of enactment, those employers who are currently required by federal law to use E-Verify (certain federal contractors, the Executive Branch, the Legislative Branch) will continue to be required to use E-Verify.
- Agriculture: Requires that employees performing “agricultural labor or services,” as defined in §101(a)(15)(H)(ii)(a), are subject to an E-Verify check within 36 months of the date of enactment. An employee engaged in seasonal agriculture employment is not considered a “new hire” for E-Verify purposes if they are returning to work for an employer that previously employed the individual.
- Transition: Retains the requirements of the Federal Acquisition Rule (FAR) as set out by Executive Order 13465.
- Reverification of Individuals with Limited Work Authorization: Requires employers to verify the work eligibility of individuals with work visas, etc. at some point within the three business days of the date on which the work authorization expires. Phases this requirement in according to the size of business, over a 24 month period.
- Previously Hired Individuals: Requires the work eligibility of a current employee to be verified if they 1) work for the Federal government, a State or local government, a critical infrastructure site, or on a Federal or State contract (clarifies that if an employee who falls into this category has already been checked by the current employer using E-Verify, then the employee does not have to be checked again); 2) submit a SSN that DHS determines has a pattern of unusual multiple use; or 3) submit information which results in the employer submitting a mismatched wage and tax statement. Allows employers to voluntarily verify the work authorization of their current workforce as long as it is done on a non-discriminatory basis.
- Transition: Allows an employer using, or who wants to use, the E-Verify pilot program to use the new system in lieu of the pilot program even if not yet required to use the new system.
- Limited Use of Information: Prohibits the information provided under the employment eligibility confirmation process from being used for any reason other than the enforcement of this bill and certain criminal provisions.
- Safe Harbor: Provides a safe harbor for employers who use the program in good faith, and through no fault of theirs, receive an incorrect eligibility confirmation information (except when the employer is engaging in a pattern or practice of violations).
- Possible Implementation Deadline Extension: Allows the DHS Secretary a one-time six month extension of the implementation deadlines if the Secretary certifies to Congress that the employment eligibility verification system will not be ready within six months of the date of enactment of the Legal Workforce Act.
Section 3: Employment Eligibility Verification System
- E-Verify Creation: Requires the DHS Secretary to create an employment eligibility verification system, (patterned on the current E-Verify pilot program) that is accessible by telephone and internet. The system must provide a confirmation or tentative nonconfirmation within three working days of the employer’s initial inquiry. The system must provide a secondary process in cases of a tentative nonconfirmation so that the employer receives a final confirmation or nonconfirmation within ten working days of the notice to the employee that there is a tentative nonconfirmation. Requires the system to include safeguards for privacy, against unlawful discriminatory practices and against unauthorized disclosure of personal information.
- Penalty: Creates a penalty for knowingly submitting to E-Verify a SSN that belongs to another person.
- No National Identification Card: Reiterates that this is not a national ID card.
- Updating Information: Requires that SSA and DHS update E-Verify database information in a prompt manner to promote maximum accuracy.
- DHS Secretary Authority: Allows the DHS Secretary to require certain entities associated with critical infrastructure to use E-Verify if the use will assist in the protection of the critical infrastructure.
- Remedies: Provides that if a work eligible individual claims that they were wrongly fired due to an incorrect E-Verify non-confirmation, they may seek remedies under the Federal Tort Claims Act. Prohibits class actions.
Section 4: Recruitment and Referral
- Requires union hiring halls, day labor sites and State workforce agencies to use E-Verify when recruiting or referring an individual for employment.
- Provides a safe harbor for employers who use E-Verify in good faith.
- Federal Preemption: Preempts State laws mandating E-Verify use for employment eligibility purposes. Retains the ability of States and localities to condition business licenses on the requirement that the employer use E-Verify in accordance with the requirements of this Act.
- Repeals Subtitle A of title IV of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.
- Penalties: Increases the civil and criminal penalties for employers who violate the laws prohibiting illegal hiring and employment.
- Debarrment: Allows DHS to bar a business from receiving federal contracts, grants or other cooperative agreements, if they repeatedly violate the requirements in this bill or if they are convicted of a crime under this bill. If the business has a contract, grant or agreement at the time then DHS and the Attorney General must consider the views of the agency with which the business has a contract, grant or agreement to determine whether the business should be debarred.
- State and Local Assistance: Creates an office within Immigration and Customs Enforcement (ICE), whose sole purpose is to respond to (within five business days of the complaint), and investigate, state and local governmental agency complaints about businesses hiring and/or employing illegal immigrants.
Section 9: Protection of Social Security Administration Programs
- DHS/SSA Reimbursement: Requires DHS to enter into an annual agreement with the Social Security Administration (SSA) to reimburse, in a timely manner, SSA for the costs SSA incurs in operating their part of E-Verify.
- Social Security Number “Lock”: In order to combat identity theft, requires DHS to “lock” a Social Security Number (SSN) that is subject to unusual multiple use so that if the owner attempts to get a job, they are alerted that the SSN may have been compromised.
- Social Security Number “Self Lock”: Requires DHS to allow individuals to “lock” their own SSN so that it cannot be used to verify work eligibility, in order to combat identity theft.
Section 11: Biometric Employment Eligibility Verification Pilot Program
- Requires DHS to create a pilot program that allows employers to use a biometric-based identification program for work eligibility check purposes.
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