Unlawful employment of aliens

Section 274A of the Immigration and Nationality Act (8 U.S.C. 1324a) is amended to read as follows:

274A.

Unlawful employment of aliens

(a)

Making employment of unauthorized aliens unlawful

(1)

In general

It is unlawful for an employer— (A)to hire, or to recruit or refer for a fee, an alien for employment in the United States knowing or with reckless disregard that the alien is an unauthorized alien with respect to such employment; or (B)to hire, or to recruit or refer for a fee, for employment in the United States an individual without complying with the requirements under subsections (c) and (d). (2)

Continuing employment

It is unlawful for an employer, after hiring an alien for employment, to continue to employ the alien in the United States knowing or with reckless disregard that the alien is (or has become) an unauthorized alien with respect to such employment. (3)

Use of labor through contract

(A)

In general

For purposes of this section, an employer who uses a contract, subcontract, or exchange to obtain the labor of an alien in the United States knowing that the alien is an unauthorized alien (as defined in subsection (b)(3)) 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). (B)

Rulemaking

The Secretary may promulgate regulations— (i)to require, for purposes of ensuring compliance with the immigration laws of the United States, that an employer include in a written contract, subcontract, or exchange an effective and enforceable requirement that the contractor or subcontractor adhere to such immigration laws, including use of EEVS; (ii)to establish procedures by which an employer may obtain confirmation from the Secretary that the contractor or subcontractor has registered with EEVS and is utilizing EEVS to verify its employees; and (iii)to establish such other requirements for employers using contractors or subcontractors as the Secretary determines to be necessary to prevent knowing violations of this paragraph after rulemaking pursuant to section 553 of title 5, United States Code. (C)

Guidelines

The Secretary may issue guidelines to clarify and supplement the regulations issued pursuant to subparagraph (B)(iii) and broadly disseminate such guidelines, in coordination with the Private Sector Office of the Department of Homeland Security. (4)

Defense

(A)

In general

Subject to subparagraphs (B) through (D), an employer that establishes that it has complied in good faith with the requirements of paragraphs (1) through (4) of subsection (c), pertaining to document verification requirements, and subsection (d) has established an affirmative defense that the employer has not violated paragraph (1)(A) with respect to hiring, recruiting, or referral. (B)

Limited exception

A defense is established without a showing of compliance with subsection (d) until such time as the Secretary has required an employer to participate in EEVS or such participation is permitted on a voluntary basis pursuant to subsection (d). (C)

Additional requirements

The employer may not establish a defense unless the employer is in compliance with any additional requirements that the Secretary may promulgate by regulation pursuant to subsections (c), (d), and (k). (D)

Failure to comply with standards

An employer is presumed to have acted with knowledge or reckless disregard if the employer fails to comply with written standards, procedures or instructions issued by the Secretary. Such standards, procedures or instructions shall be objective and verifiable. (5)

Preemption

This section preempts any State or local law that— (A)requires the use of EEVS in a manner that— (i)conflicts with any Federal policy, procedure, or timetable; (ii)requires employers to verify whether or not an individual is authorized to work in the United States; or (iii)imposes a civil or criminal sanction (other than through licensing or other similar laws) on a person that employs, or recruits or refers for a fee for employment, any unauthorized alien; and (B)requires, as a condition of conducting, continuing, or expanding a business, a business entity— (i)provide, build, fund, or maintain a shelter, structure, or designated area at or near the place of business of the entity for use by— (I)any individual who is not an employee of the business entity who enters or seeks to enter the property of the entity for the purpose of seeking employment by the entity; or (II)any contractor, customer or other person over which the business entity has no authority; or (ii)carry out any other activity to facilitate the employment by others of— (I)any individual who is not an employee of the business entity who enters or seeks to enter the property of the entity for the purpose of seeking employment by the entity; or (II)any contractor, customer, or other person over which the business entity has no authority. (b)

Definitions

In this section: (1)

Critical infrastructure

The term critical infrastructure means agencies and departments of the United States, States, their suppliers or contractors, and any other employer whose employees have access as part of their jobs to a government building, military base, nuclear energy site, weapon site, airport, or seaport. (2)

Employer

(A)

In general

The term employer— (i)means any person or entity hiring, recruiting, or referring for a fee an individual for employment in the United States; and (ii)includes the Federal Government and State, local, and tribal governments. (B)

Franchised businesses

Franchised businesses that operate independently do not constitute a single employer solely on the basis of sharing a common brand. (3)

Unauthorized alien

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 the Secretary of Homeland Security under this Act. (c)

Document Verification Requirements

(1)

In general

Any employer hiring, recruiting, or referring for a fee an individual for employment in the United States shall take all reasonable steps to verify that the individual is authorized to work in the United States, including the requirements under this subsection and under subsection (d). (2)

Attestation after examination of documentation

(A)

In general

(i)

Requirement

The employer shall attest, under penalty of perjury and on a form prescribed by the Secretary, that the employer has verified the identity and work authorization status of the individual by examining— (I)a document described in subparagraph (B); or (II)a document described in subparagraph (C) and a document described in subparagraph (D). (ii)

Form of attestation

An attestation under clause (i) may be manifested by a handwritten or electronic signature. An employer has complied with the requirement of this paragraph with respect to examination of documentation if the employer has followed applicable regulations and any written procedures or instructions provided by the Secretary and if a reasonable person would conclude that the documentation is genuine and establishes the employee’s identity and authorization to work, taking into account any information provided to the employer by the Secretary, including photographs. (B)

Documents establishing both employment authorization and identity

A document described in this subparagraph is an individual’s— (i)United States passport, or passport card issued pursuant to the Secretary of State’s authority under the first section of the Act of July 3, 1926 (22 U.S.C. 211a); (ii)permanent resident card or other document issued by the Secretary or Secretary of State to aliens authorized to work in the United States, if the document— (I)contains a photograph of the individual, biometric data, such as fingerprints, or such other personal identifying information relating to the individual as the Secretary finds, by regulation, sufficient for the purposes of this subsection; (II)is evidence of authorization for employment in the United States; and (III)contains security features to make it resistant to tampering, counterfeiting, and fraudulent use; or (iii)social security card (other than a card that specifies on its face that the card is not valid for establishing employment authorization in the United States) that bears a photograph and meets the standards established under section 4 of the Worksite Enforcement Act of 2008, upon the recommendation of the Secretary of Homeland Security, in consultation with the Commissioner of Social Security. (C)

Documents establishing identity of individual

A document described in this subparagraph includes— (i)an individual’s driver’s license or identity card issued by a State, the Commonwealth of the Northern Mariana Islands, or an outlying possession of the United States, provided that the issuing State or entity has certified to the Secretary of Homeland Security that it is in compliance with the minimum standards required under section 202 of the REAL ID Act of 2005 (division B of Public Law 109–13; 49 U.S.C. 30301 note) and implementing regulations issued by the Secretary of Homeland Security once those requirements become effective; (ii)an individual’s driver’s license or identity card issued by a State, the Commonwealth of the Northern Mariana Islands, or an outlying possession of the United States which is not compliant under section 202 of the REAL ID Act of 2005 if— (I)the driver’s license or identity card contains the individual’s photograph as well as the individual’s name, date of birth, gender, height, eye color and address; (II)the card has been approved for this purpose by the Secretary in accordance with timetables and procedures established by the Secretary pursuant to subsection (c)(1)(F); and (III)the card is presented by the individual and examined by the employer in combination with a U.S. birth certificate, or a Certificate of Naturalization, or a Certificate of Citizenship, or such other documents as may be prescribed by the Secretary; (iii)for individuals under 16 years of age who are unable to present a document listed in clause (i) or (ii), documentation of personal identity of such other type as the Secretary finds provides a reliable means of identification, provided it contains security features to make it resistant to tampering, counterfeiting, and fraudulent use; or (iv)other documentation evidencing identity as identified by the Secretary in his discretion, with notice to the public provided in the Federal Register, to be acceptable for purposes of this section, provided that the document, including any electronic security measures linked to the document, contains security features that make the document as resistant to tampering, counterfeiting, and fraudulent use as a document described in clause (i) or subparagraph (B)(i) or (B)(ii). (D)

Documents evidencing employment authorization

The following documents shall be accepted as evidence of employment authorization: (i)A social security account number card issued by the Commissioner of Social Security (other than a card which specifies on its face that the card is not valid for employment in the United States). The Secretary, in consultation with the Commissioner of Social Security, may require by publication of a notice in the Federal Register that only a social security account number card described in section 4 of the Worksite Enforcement Act of 2008 be accepted for this purpose. (ii)Any other documentation evidencing authorization of employment in the United States which the Secretary declares, by publication in the Federal Register, to be acceptable for purposes of this section, provided that the document, including any electronic security measures linked to the document contains security features to make it resistant to tampering, counterfeiting, and fraudulent use. (E)

Authority to prohibit use of certain documents

If the Secretary determines that any document or class of documents 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 Secretary shall, with notice to the public provided in the Federal Register, prohibit or restrict the use of that document or class of documents for purposes of this subsection. (3)

Individual attestation of employment authorization

The individual shall attest, under penalty of perjury on the form prescribed by the Secretary, 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 Act or by the Secretary to be hired, recruited, or referred for such employment. Such attestation may be manifested by either a handwritten or electronic signature. (4)

Retention of verification form

After completing a form under paragraphs (1) and (2), the employer shall retain a paper, microfiche, microfilm, or electronic version of the form and make such version available for inspection by officers of the Department of Homeland Security (or persons designated by the Secretary), 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, 7 years after the date of the recruiting or referral; and (B)in the case of the hiring of an individual— (i)7 years after the date of such hiring; or (ii)2 years after the date the individual’s employment is terminated, whichever is earlier. (5)

Copying of documentation and recordkeeping required

(A)

In general

Notwithstanding any other provision of law, the employer shall copy all documents presented by an individual pursuant to this subsection and shall retain a paper, microfiche, microfilm, or electronic copy as prescribed in paragraph (4), but only (except as otherwise permitted under law) for the purposes of complying with the requirements of this subsection. Such copies shall reflect the signatures of the employer and the employee and the date of receipt. (B)

SSA records

The employer shall also maintain records of Social Security Administration correspondence regarding name and number mismatches or no-matches and the steps taken to resolve such issues. (C)

Resolution of identity

The employer shall maintain records of all actions and copies of any correspondence or action taken by the employer to clarify or resolve any issue that raises reasonable doubt as to the validity of the alien’s identity or work authorization. (D)

Other records

The employer shall maintain such records as prescribed in this subsection. The Secretary may prescribe the manner of recordkeeping and may require that additional records be kept or that additional documents be copied and maintained. The Secretary may require that these documents be transmitted electronically, and may develop automated capabilities to request such documents. (6)

Penalties

An employer that fails to comply with any requirement under this subsection shall be penalized under subsection (e)(4)(B). (7)

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. (8)

All employees

The employer shall use the procedures for document verification set forth in this paragraph for all employees without regard to national origin or citizenship status. (d)

Employment eligibility verification system

(1)

In general

The Secretary, in cooperation and consultation with the Secretary of State, the Commissioner of Social Security, and the States, shall implement and specify the procedures for EEVS. The participating employers shall timely register with EEVS and shall use EEVS in accordance with paragraph (5). (2)

Implementation schedule

(A)As of the date of enactment of this section, the Secretary, with notice to the public provided in the Federal Register, is authorized to require any employer or industry which the Secretary determines to be part of the critical infrastructure, a Federal contractor, or directly related to the national security or homeland security of the United States to participate in EEVS. This requirement may be applied to both newly hired and current employees. The Secretary shall notify employers not later than 30 days before such employers are required to participate in EEVS pursuant to this subparagraph. (B)Not later than 6 months after the date of the enactment of this section, the Secretary shall require additional employers or industries to participate in EEVS. This subparagraph shall apply to new employees hired, and current employees subject to reverification because of expiring work authorization documentation or expiration of immigration status, on or after the date on which the requirement takes effect. The Secretary, by notice in the Federal Register, shall designate these employers or industries, in the discretion of the Secretary, based upon risks to critical infrastructure, national security, immigration enforcement, or homeland security needs. (C)Not later than 18 months after the date of the enactment of this section, the Secretary shall require all employers to participate in EEVS with respect to newly hired employees and current employees subject to reverification because of expiring work authorization documentation or expiration of immigration status. (D)Not later than 3 years after the date of the enactment of this section, all employers shall participate in EEVS with respect to new employees, all employees whose identity and employment authorization have not been previously verified through EEVS. The Secretary may specify earlier dates for participation in EEVS, in the discretion of the Secretary, for some or all classes of employer or employee. (E)The Secretary shall create the necessary systems and processes to monitor the functioning of EEVS, including the volume of the workflow, the speed of processing of queries, and the speed and accuracy of responses. The Comptroller General of the United States shall audit these systems and processes not later than 9 months after the date of the enactment of this section and not later than 24 months after the date of the enactment of this section. The Comptroller General shall report the results of the audits conducted under this subparagraph to Congress. (3)

Participation in eevs

The Secretary may— (A)permit any employer that is not required to participate in EEVS to participate on a voluntary basis; and (B)require any employer that is required to participate in EEVS with respect to its newly hired employees also to do so with respect to its current workforce if the Secretary has reasonable cause to believe that the employer has engaged in any violation of the immigration laws. (4)

Consequence of failure to participate

If an employer fails to comply with the requirements of EEVS with respect to an individual— (A)such failure shall be treated as a violation of subsection (a)(1)(B) with respect to that individual; and (B)a rebuttable presumption is created that an employer has acted with knowledge or reckless disregard if the employer is shown by clear and convincing evidence to have materially failed to comply with written standards, procedures, or instructions issued by the Secretary, which shall be objective and verifiable. (5)

Procedures for participants in EEVS

(A)

In general

An employer participating in EEVS shall register in EEVS and conform to the procedures under this paragraph in the event of hiring, recruiting, or referring any individual for employment in the United States. (B)

Registration of employers

The Secretary of Homeland Security, through notice in the Federal Register, shall prescribe procedures that employers shall follow to register in EEVS. In prescribing these procedures, the Secretary may require employers to provide— (i)the name of the employer; (ii)the employer’s employment identification number; (iii)the address of the employer; (iv)the name, position, and social security number of the employees of the employer for whom EEVS is being accessed; and (v)such other information as the Secretary deems necessary to ensure proper use and security of EEVS. (C)

Training

The Secretary shall require employers to undergo such training as the Secretary determines to be necessary to ensure proper use and security of EEVS. Such training shall be made available electronically, if practicable. (D)

Provision of additional information

Each prospective employee shall provide to the employer, and the employer shall record in such manner as the Secretary may specify— (i)the prospective employee’s social security account number; (ii)if the prospective employee does not attest to being a national of the United States under subsection (c)(2), such identification or authorization number established by the Department of Homeland Security as the Secretary of Homeland Security shall specify; and (iii)such other information as the Secretary may require to determine the identity and work authorization of the prospective employee. (E)

Presentation of documentation

The employer and each prospective employee shall fulfill the requirements under subsection (c). (F)

Presentation of biometrics

Employers who are enrolled in the Voluntary Advanced Verification Program to Combat Identity Theft established under section 6 of the Worksite Enforcement Act of 2008 shall, in addition to documentary evidence of identity and work eligibility, electronically provide the fingerprints of the prospective employee to the Secretary of Homeland Security. (6)

Seeking confirmation

(A)

In general

The employer shall use EEVS to provide the Secretary of Homeland Security with all required information to obtain confirmation of the identity and employment eligibility of any employee before the date on which the individual is employed, recruited, or referred. An employer may not make the starting date of an individual’s employment contingent on the receipt of a confirmation of the identity and employment eligibility. (B)

Limited work authorization

For reverification of an employee with a limited period of work authorization, all required verification procedures shall be completed not later than the date the employee’s work authorization expires. (C)

Notification

The Secretary shall provide, and the employer shall utilize, as part of EEVS, a method of communicating notices and requests for information or action on the part of the employer with respect to expiring work authorization or status and other matters. The Secretary shall provide a method of notifying employers of a confirmation, nonconfirmation or a notice that further action is required (referred to in this subsection as the further action notice). The employer shall communicate to the prospective employee that is the subject of the verification all information provided to the employer by EEVS for communication to such prospective employee. (7)

Confirmation or nonconfirmation

(A)

Initial response

EEVS shall provide a confirmation, a nonconfirmation, or a further action notice of an prospective employee’s identity and employment eligibility at the time of the inquiry, unless for technological reasons or due to unforeseen circumstances, EEVS is unable to provide such confirmation or further action notice. In such situations, the system shall provide confirmation or further action notice not later than 2 business days after the initial inquiry. If providing confirmation or further action notice, EEVS shall provide an appropriate code indicating such confirmation or such further action notice. (B)

Confirmation upon initial inquiry

If the employer receives an appropriate confirmation of an prospective employee’s identity and work eligibility under EEVS, the employer shall record the confirmation in such manner as the Secretary may specify. (C)

Further action notice upon initial inquiry and secondary verification

(i)

Further action notice

If the employer receives a further action notice of a prospective employee’s identity or work eligibility under EEVS, the employer shall immediately inform the prospective employee of the further action notice and any procedures specified by the Secretary for addressing the further action notice. The employee shall acknowledge in writing the receipt of the further action notice from the employer. (ii)

Contest

Not later than 5 business days after the date on which a prospective employee is notified under this subparagraph, the employee shall contact the appropriate agency to contest the further action notice and, if required by the Secretary, appear in person at the appropriate Federal or State agency to verify the employee’s identity and employment authorization. The Secretary, in consultation with the Commissioner of Social Security and other appropriate Federal and State officials, shall specify an available secondary verification procedure to confirm the validity of information provided and to provide a final confirmation or nonconfirmation. An employee contesting a further action notice shall attest under penalty of perjury to the employee’s identity and employment authorization. (iii)

No contest

If the prospective employee does not contest the further action notice within the period specified in clause (ii), a final nonconfirmation shall be issued and the employer shall record the nonconfirmation in such manner as the Secretary may specify. (iv)

Finality

EEVS shall provide a final confirmation or nonconfirmation not later than 10 business days after a prospective employee contests the further action notice. If the employee is taking the steps required by the Secretary and the agency that the employee has contacted to resolve a further action notice, the Secretary shall extend the period of investigation until the secondary verification procedure allows the Secretary to provide a final confirmation or nonconfirmation. If the employee fails to take the steps required by the Secretary and the appropriate agency, a final nonconfirmation may be issued to that employee. (v)

Reexamination

Nothing in this section may be construed to prevent the Secretary from reexamining a case where a final confirmation has been provided if subsequently received information indicates that the individual may not be work authorized. (D)

Termination of employment

An employer may not terminate the employment of an individual solely because of the failure of the individual to have identity and work eligibility confirmed under this section until a nonconfirmation becomes final. When final confirmation or nonconfirmation is provided, the confirmation system shall provide an appropriate code indicating such confirmation or nonconfirmation. (8)

Consequences of nonconfirmation

(A)

Termination of continued employment

If the employer has received a final nonconfirmation regarding a prospective employee, the employer shall terminate employment, recruitment, or referral of the employee. (B)

Continued employment after final nonconfirmation

If the employer violates subparagraph (A), a rebuttable presumption is created that the employer has violated paragraphs (1)(A) and (2) of subsection (a). (C)

Exception

Subparagraph (B) shall not apply in any prosecution under section 274A(e)(1). (9)

Obligation to respond to queries and additional information

(A)

In general

Employers shall comply with requests from the Secretary through EEVS for information, including queries concerning current and former employees that relate to the functioning of EEVS, the accuracy of the responses provided by EEVS, and any suspected fraud or identity theft in the use of EEVS. Failure to comply with such a request is a violation of subsection (a)(1)(B). (B)

Further action

Individuals being verified through EEVS may be required to take further action to address irregularities identified in the documents relied upon for purposes of employment verification. The employer shall communicate to the individual any such requirement for further actions and shall record the date and manner of such communication. The individual shall acknowledge in writing the receipt of this communication from the employer. Failure to communicate such a requirement is a violation of subsection (a)(1)(B). (C)

Additional requirements

The Secretary, with notice to the public provided in the Federal Register, may implement, clarify, and supplement the requirements of this paragraph to facilitate the functioning of EEVS or to prevent fraud or identity theft in the use of EEVS. (10)

Impermissible use of EEVS

(A)An employer may not use EEVS to verify an individual before extending to the individual an offer of employment. (B)An employer may not require an individual to verify the individual’s employment eligibility through EEVS as a condition of extending to that individual an offer of employment. Nothing in this subparagraph may be construed to prevent an employer from encouraging an employee or a prospective employee from verifying the employee’s or a prospective employee’s employment eligibility before obtaining employment pursuant to paragraph (12). (C)An employer may not terminate an individual’s employment solely because that individual has been issued a further action notice. (D)An employer may not take the following actions solely because an individual has been issued a further action notice: (i)Reduce the salary, bonuses, or other compensation due to the employee. (ii)Suspend the employee without pay. (iii)Reduce the hours that the employee is required to work if such reduction is accompanied by a reduction in salary, bonuses, or other compensation due to the employee. An employer, with the agreement of an employee, may provide the employee with reasonable time off without pay in order to contest and resolve the further action notice received by the employee. (iv)Deny the employee the training necessary to perform the employment duties for which the employee has been hired. (E)An employer may not, in the course of utilizing the procedures for document verification set forth in subsection (c), require that a prospective employee present additional documents or different documents than those prescribed under that section. (F)The Secretary of Homeland Security shall develop the necessary policies and procedures to monitor the use of EEVS by employers and their compliance with the requirements set forth in this section. Employers shall comply with requests from the Secretary for information related to any monitoring, audit or investigation undertaken pursuant to this paragraph. (G)The Secretary of Homeland Security, in consultation with the Secretary of Labor, shall establish and maintain a process by which any employee (or any prospective employee who would otherwise have been hired) who has reason to believe that an employer has violated any of subparagraphs (A) through (E) may file a complaint against the employer. (H)Any employer found to have violated any of subparagraphs (A) through (E) shall pay a civil penalty in an amount not to exceed $10,000 for each violation. (I)This paragraph is not intended to, and does not, create any right, benefit, trust, or responsibility, whether substantive or procedural, enforceable at law or equity by a party against the United States, its departments, agencies, instrumentalities, entities, officers, employees, or agents, or any person, nor does it create any right of review in a judicial proceeding. (11)

Modification of requirements

If, based on a regular review of EEVS and the document verification procedures to identify fraudulent use and to assess the security of the documents being used to establish identity or employment authorization, the Secretary determines that modifications are necessary to ensure that EEVS accurately and reliably determines the work authorization of employees while providing protection against fraud and identity theft, the Secretary, in consultation with the Commissioner of Social Security and after publishing a notice the Federal Register, may modify— (A)the documents required to be presented to the employer; (B)the information required to be provided to EEVS by the employer; and (C)the procedures required to be followed by employers with respect to any aspect of EEVS. (12)

Secure self-verification procedures

Subject to appropriate safeguards to prevent misuse of EEVS, the Secretary, in consultation with the Commissioner of Social Security, shall establish secure procedures to permit an individual, seeking to verify the individual’s employment eligibility before obtaining or changing employment, to contact the appropriate agency and, in a timely manner, correct or update the information used by EEVS. (e)

Protection from liability for actions taken on the basis of information provided by EEVS

No employer participating in EEVS may be held liable under any law for any employment-related action taken with respect to the employee in good faith reliance on information provided through EEVS. (f)

Administrative review

(1)

Filing requirement

(A)

In general

An individual who receives a final nonconfirmation notice may, not later than 15 days after the date that such notice is received, file an administrative appeal of such final notice. An individual who did not timely contest a further action notice may not file an administrative appeal under this paragraph. Unless the Secretary of Homeland Security, in consultation with the Commissioner of Social Security, specifies otherwise, all administrative appeals shall be filed in accordance with this paragraph. (B)

Nationals of the United States

An individual claiming to be a national of the United States shall file the administrative appeal with the Commissioner. (C)

Aliens

An individual claiming to be an alien authorized to work in the United States shall file the administrative appeal with the Secretary. (2)

Review for error

The Secretary and the Commissioner shall each develop procedures for resolving administrative appeals regarding final nonconfirmations based upon the information that the individual has provided, including any additional evidence that was not previously considered. Appeals shall be resolved not later than 30 days after the individual submits all evidence relevant to the appeal. The Secretary and the Commissioner may, on a case by case basis for good cause, extend this period in order to ensure accurate resolution of the appeal. Administrative review under this subsection shall be limited to whether the final nonconfirmation notice is supported by the weight of the evidence. (3)

Administrative relief

Relief available under this subsection is limited to an administrative order upholding, reversing, modifying, amending, or setting aside the final nonconfirmation notice. (4)

Damages, fees and costs

Money damages, fees, or costs may not be awarded in the administrative review process, and no court shall have jurisdiction to award any damages, fees or costs relating to such administrative review under the Equal Access to Justice Act (Public Law 96–481) or under any other law. (g)

Judicial Review

(1)

Exclusive procedure

Notwithstanding any other provision of law, including sections 1361 and 1651 of title 28, United States Code, no court shall have jurisdiction to consider any claim against the United States, or any of its agencies, officers, or employees, challenging or otherwise relating to a final nonconfirmation notice or to EEVS, except as specifically provided under this subsection. (2)

Petition for review

(A)

In general

A petition for review of a denial of a final administrative order upholding a final nonconfirmation notice shall be filed with the United States Court of Appeals for the judicial circuit in which the petitioner resided when the final nonconfirmation notice was issued. (B)

Scope and standard for review

The court of appeals shall decide the petition only on the administrative record on which the final nonconfirmation order is based. The burden shall be on the petitioner to show that the administratively final nonconfirmation decision was arbitrary, capricious, not supported by substantial evidence, or otherwise not in accordance with law. Administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to reach a contrary conclusion. (3)

Exhaustion of administrative remedies

A court may review an administratively final order of a nonconfirmation notice only if the petitioner has exhausted all administrative remedies available to the petitioner as of right. (4)

Limit on injunctive relief

Regardless of the nature of the action or claim or of the identity of the party or parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions in this section. (h)

Management of employment eligibility verification system

(1)

In general

The Secretary shall establish, manage, and modify EEVS to— (A)respond to inquiries made by participating employers at any time through the Internet concerning an individual’s identity and whether the individual is authorized to be employed; (B)maintain records of the inquiries that were made, of confirmations provided (or not provided), and of the codes provided to employers as evidence of their compliance with their obligations under EEVS; and (C)provide information to, and request action by, employers and individuals using the system, including notifying employers of the expiration or other relevant change in an employee’s employment authorization, and directing an employer to convey to the employee a request to contact the appropriate Federal or State agency. (2)

Design and operation of system

EEVS shall be designed and operated— (A)to maximize its reliability and ease of use by employers consistent with insulating and protecting the privacy and security of the underlying information; (B)to respond accurately to all inquiries made by employers on whether individuals are authorized to be employed and to register any times when the system is unable to receive inquiries; (C)to maintain appropriate administrative, technical, and physical safeguards to prevent unauthorized disclosure of personal information; (D)to allow for auditing use of the system to detect fraud and identify theft, and to preserve the security of the information in EEVS, including— (i)the development and use of algorithms to detect potential identity theft, such as multiple uses of the same identifying information or documents; (ii)the development and use of algorithms to detect misuse of EEVS by employers and employees; (iii)the development of capabilities to detect anomalies in the use of EEVS that may indicate potential fraud or misuse of EEVS; and (iv)auditing documents and information submitted by potential employees to employers, including authority to conduct interviews with employers and employees; (E)to confirm identity and work authorization through verification of records maintained by the Secretary, other Federal departments, States, the Commonwealth of the Northern Mariana Islands, or an outlying possession of the United States, as determined necessary by the Secretary, including— (i)records maintained by the Social Security Administration as specified in paragraph (4), including photographs and any other biometric information as may be required; (ii)birth and death records maintained by vital statistics agencies of any State or other United States jurisdiction; (iii)passport and visa records, including photographs, maintained by the United States Department of State; and (iv)State driver’s license or identity card information, including photographs, maintained by the department of motor vehicles of a State; (F)to electronically confirm the issuance of the employment authorization or identity document and to display the digital photograph that the issuer placed on the document so that the employer can compare the photograph displayed to the photograph on the document presented by the employee; and (G)if in exceptional cases a photograph is not available from the issuer, to implement an alternative procedure, as specified by the Secretary, for confirming the authenticity of a document described in subparagraph (F). (3)

Rulemaking

The Secretary is authorized, with notice to the public provided in the Federal Register, to issue regulations concerning operational and technical aspects of EEVS and the efficiency, accuracy, and security of EEVS. (4)

Access to information

(A)Notwithstanding any other provision of law, the Secretary of Homeland Security shall have access to relevant records described in paragraph (2)(E), for the purposes of preventing identity theft and fraud in the use of EEVS and enforcing the provisions of this section governing employment verification. A State or other non-Federal jurisdiction that does not provide such access shall not be eligible for any grant or other program of financial assistance administered by the Secretary. (B)The Secretary, in consultation with the Commissioner of Social Security and other appropriate Federal and State officials, shall develop policies and procedures to ensure protection of the privacy and security of personally identifiable information and identifiers contained in the records accessed pursuant to this subsection and subsection (e)(5)(A). The Secretary, in consultation with the Commissioner and other appropriate Federal and State agencies, shall develop and deploy appropriate privacy and security training for the Federal and State employees accessing the records pursuant to this subsection and subsection (e)(5)(A). (C)The Chief Privacy Officer of the Department of Homeland Security shall conduct regular privacy audits of the policies and procedures established under subparagraph (B), including any collection, use, dissemination, and maintenance of personally identifiable information and any associated information technology systems, as well as scope of requests for this information. The Chief Privacy Officer shall review the results of the audits and recommend to the Secretary and the Privacy and Civil Liberties Oversight Board any changes necessary to improve the privacy protections of the program. (5)

Responsibilities of the secretary of homeland security

(A)As part of EEVS, the Secretary shall establish a reliable, secure method, that— (i)compares the name, alien identification or authorization number, or other relevant information provided in an inquiry against such information maintained or accessed by the Secretary in order to confirm (or not confirm) the validity of the information provided, the correspondence of the name and number, whether the alien is authorized to be employed in the United States (or, to the extent that the Secretary determines to be feasible and appropriate, whether the Secretary’s records verify United States citizenship), and such other information as the Secretary may prescribe; and (ii)displays the digital photograph described in paragraph (2)(F). (B)The Secretary shall have authority to prescribe when a confirmation, nonconfirmation or further action notice shall be issued. (C)The Secretary shall perform regular audits under EEVS in accordance with paragraph (2)(D) and shall utilize the information obtained from such audits and any information obtained from the Commissioner of Social Security pursuant to section 4 of the Worksite Enforcement Act of 2008, to improve immigration enforcement. (D)The Secretary shall make appropriate arrangements to allow employers who are otherwise unable to access EEVS to use Federal Government facilities or public facilities in order to utilize EEVS. (6)

Responsibilities of the secretary of state

As part of EEVS, the Secretary of State shall provide to the Secretary access to passport and visa information as needed to confirm that a passport or passport card presented under subsection (c)(1)(B) belongs to the subject of EEVS check, or that a passport or visa photograph matches an individual; (7)

Updating information

The Commissioner of Social Security, the Secretary of Homeland Security, and the Secretary of State shall update their information in a manner that promotes maximum accuracy and shall provide a process for the prompt correction of erroneous information. (i)

Limitation on use of EEVS

Notwithstanding any other provision of law, nothing in this section may be construed to permit any agency of the United States Government to utilize any information, database, or other records assembled under this section for any purpose other than for the enforcement and administration of the immigration laws, antiterrorism laws, or for enforcement of Federal criminal law related to the functions of EEVS, including prohibitions on forgery, fraud and identity theft. (j)

Unauthorized use or disclosure of information

Any employee of the Department of Homeland Security or another Federal or State agency who knowingly uses or discloses the information assembled under this subsection for a purpose other than the purpose authorized under this section shall pay a civil penalty for each such violation in an amount not less than $5,000 and not to exceed $50,000. (k)

Funds

In addition to any funds otherwise appropriated, the Secretary of Homeland Security may use funds made available under subsections (m) and (n) of section 286, for the maintenance and operation of EEVS, which shall be considered an immigration adjudication service for purposes of such subsections. (l)

Scope

The employer shall use the procedures for EEVS specified in this section for all employees without regard to national origin or citizenship status. (m)

Conforming amendment

Title IV of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note) is repealed. (n)

Compliance

(1)

Complaints and investigations

The Secretary of Homeland Security shall establish procedures— (A)for individuals and entities to file complaints respecting potential violations of subsection (a) or (f)(1); (B)for the investigation of those complaints which the Secretary determines should be investigated; and (C)for the investigation of such other violations of subsection (a) or (f)(1) as the Secretary determines to be appropriate. (2)

Authority in investigations

(A)

In general

In conducting investigations and hearings under this subsection— (i)immigration officers shall have reasonable access to examine evidence of any employer being investigated; and (ii)immigration officers designated by the Secretary may compel by subpoena the attendance of witnesses and the production of evidence at any designated place in an investigation or case under this subsection. (B)

Enforcement of subpoenas

In case of contumacy or refusal to obey a subpoena lawfully issued under this paragraph, the Secretary may request that the Attorney General apply in an appropriate district court of the United States for an order requiring compliance with such subpoena, and any failure to obey such order may be punished by such court as a contempt of such court. Failure to cooperate with such subpoena shall be subject to further penalties, including further fines and the voiding of any mitigation of penalties or termination of proceedings under paragraph (3)(B). (3)

Compliance procedures

(A)

Pre-penalty notice

If the Secretary has reasonable cause to believe that there has been a civil violation of this section and determines that further proceedings are warranted, the Secretary shall issue to the employer concerned a written notice of the Department’s intention to issue a claim for a monetary or other penalty. Such prepenalty notice shall— (i)describe the violation; (ii)specify the laws and regulations allegedly violated; (iii)disclose the material facts which establish the alleged violation; and (iv)inform such employer that he or she shall have a reasonable opportunity to make representations as to why a claim for a monetary or other penalty should not be imposed. (B)

Remission or mitigation of penalties

If any employer receives written prepenalty notice of a fine or other penalty in accordance with subparagraph (A), the employer may, not later than 15 days after receiving such notice, file with the Secretary a petition for the remission or mitigation of such fine or penalty, or a petition for termination of the proceedings. The petition may include any relevant evidence or proffer of evidence the employer wishes to present, and shall be filed and considered in accordance with procedures to be established by the Secretary. If the Secretary determines that such fine, penalty, or forfeiture was incurred erroneously, or that mitigating circumstances as to justify the remission or mitigation of such fine or penalty, the Secretary may remit or mitigate the same upon such terms and conditions as the Secretary considers reasonable and just, or order termination of any related proceedings. Such mitigating circumstances may include good faith compliance and participation in, or agreement to participate in, EEVS, if not otherwise required. This subparagraph shall not apply to an employer that has or is engaged in a pattern or practice of violating paragraph (1)(A), (1)(B), or (2) of subsection (a) or of any other requirement under this section. (C)

Penalty claim

After considering any evidence and representations offered by the employer pursuant to subparagraph (B), the Secretary shall determine whether there was a violation and promptly issue a written final determination setting forth the findings of fact and conclusions of law on which the determination is based. If the Secretary determines that there was a violation, the Secretary shall issue the final determination with a written penalty claim. The penalty claim shall specify all charges in the information provided under clauses (i) through (iii) of subparagraph (A) and any mitigation or remission of the penalty that the Secretary determines to be appropriate. (4)

Civil penalties

(A)

Hiring or continuing to employ unauthorized aliens

Any employer that violates any provision under paragraph (1)(A) or (2) of subsection (a)— (i)shall pay a civil penalty of $5,000 for each unauthorized alien with respect to which such violation occurred; (ii)if an employer has previously been fined under subsection (d)(4)(A), shall pay a civil penalty of $10,000 for each unauthorized alien with respect to which such violation occurred; (iii)if an employer has previously been fined more than once under subsection (d)(4)(A), shall pay a civil penalty of $25,000 for each unauthorized alien with respect to which such violation occurred in addition to any penalties previously assessed if the employer failed to comply with a previously issued and final order under this section; (iv)if an employer has previously been fined more than twice under subsection (d)(4)(A), shall pay a civil penalty of $75,000 for each alien with respect to which such violation occurred; and (v)shall, in addition to any penalties assessed under clauses (i) through (iv), be fined $75,000 for each violation if the employer failed to comply with a previously issued and final order under this section. (B)

Recordkeeping or verification practices

Any employer that violates or fails to comply with any requirement under subsection (b), (c), or (d)— (i)shall pay a civil penalty of $1,000 for each such violation; (ii)if an employer has previously been fined under subsection (d)(4)(B), shall pay a civil penalty of $2,000 for each such violation; (iii)if an employer has previously been fined more than once under subsection (d)(4)(B), shall pay a civil penalty of $5,000 for each such violation in addition to any penalties previously assessed if the employer failed to comply with a previously issued and final order under this section; (iv)if an employer has previously been fined more than twice under subsection (d)(4)(B), shall pay a civil penalty of $15,000 for each violation; and (v)shall, in addition to any penalties previously assessed, be fined $15,000 for each such violation if the employer failed to comply with a previously issued and final order under this section. (C)

Other penalties

The Secretary may impose additional penalties for violations, including cease and desist orders, specially designed compliance plans to prevent further violations, suspended fines to take effect in the event of a further violation, and in appropriate cases, the remedy provided by subsection (f)(2). All penalties in this section may be adjusted every 4 years to account for inflation as provided by law. (D)

Reduction or mitigation of penalties

The Secretary may reduce or mitigate penalties imposed upon employers, based upon factors including the employer’s hiring volume, compliance history, good-faith implementation of a compliance program, participation in a temporary worker program, and voluntary disclosure of violations of this subsection to the Secretary. (5)

Order of internal review and certification of compliance

If the Secretary has reasonable cause to believe that an employer has failed to comply with this section, the Secretary is authorized, at any time, to require that the employer certify that it is in compliance with this section, or has instituted a program to come into compliance. Not later than 60 days after receiving a notice from the Secretary requiring such a certification, the employer’s chief executive officer or similar official with responsibility for, and authority to bind the company on, all hiring and immigration compliance notices shall certify under penalty of perjury that the employer is in conformance with the requirements of paragraphs (1) through (4) of subsection (c), pertaining to document verification requirements, and with any additional requirements that the Secretary may promulgate by regulation pursuant to subsections (c) and (k), or that the employer has instituted a program to come into compliance with these requirements. At the request of the employer, the Secretary may extend the 60-day deadline for good cause. The Secretary may publish in the Federal Register standards or methods for such certification, require specific recordkeeping practices with respect to such certifications, and audit such records at any time. The authority granted under this paragraph may not be construed to diminish or qualify any other penalty provided under this section. (6)

Judicial review

(A)

In general

Notwithstanding any other provision of law, including sections 1361 and 1651 of title 28, United States Code, no court shall have jurisdiction to consider a final determination or penalty claim issued under paragraph (3)(C), except as specifically provided under this paragraph. Except as specifically provided in this paragraph, judicial review of a final determination under paragraph (4) shall be governed exclusively under chapter 158 of such title 28. The filing of a petition under this paragraph shall stay the Secretary’s determination until entry of judgment by the court. The Secretary may require that petitioner provide, prior to filing for review, security for payment of fines and penalties through bond or other guarantee of payment acceptable to the Secretary. (B)

Requirements for review of a final determination

With respect to judicial review of a final determination or penalty claim issued under paragraph (3)(C), the following requirements shall apply: (i)

Deadline

The petition for review shall be filed not later than 30 days after the date of the final determination or penalty claim issued under paragraph (3)(C). (ii)

Venue and forms

The petition for review shall be filed with the court of appeals for the judicial circuit wherein the employer resided when the final determination or penalty claim was issued. The record and briefs do not have to be printed. The court of appeals shall review the proceeding on a typewritten record and on typewritten briefs. (iii)

Service

The respondent is either the Secretary of Homeland Security or the Commissioner of Social Security, but not both, depending upon who issued (or affirmed) the final nonconfirmation notice. In addition to serving the respondent, the petitioner must also serve the Attorney General. (iv)

Petitioner’s brief

The petitioner shall serve and file a brief in connection with a petition for judicial review not later than 40 days after the date on which the administrative record is available, and may serve and file a reply brief not later than 14 days after service of the brief of the respondent, and the court may not extend these deadlines, except for good cause shown. If a petitioner fails to file a brief within the time provided in this paragraph, the court shall dismiss the appeal unless a manifest injustice would result. (v)

Scope and standard for review

The court of appeals shall decide the petition only on the administrative record on which the final determination is based. The burden shall be on the petitioner to show that the final determination was arbitrary, capricious, not supported by substantial evidence, or otherwise not in accordance with law. Administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary. (C)

Exhaustion of administrative remedies

A court may review a final determination under paragraph (3)(C) only if— (i)the petitioner has exhausted all administrative remedies available to the petitioner as of right; and (ii)another court has not decided the validity of the order, unless the reviewing court finds that the petition presents grounds that could not have been presented in the prior judicial proceeding or that the remedy provided by the prior proceeding was inadequate or ineffective to test the validity of the order. (D)

Limit on injunctive relief

Regardless of the nature of the action or claim or of the identity of the party or parties bringing the action, no court, except for the Supreme Court, shall have jurisdiction or authority to enjoin or restrain the operation of the provisions in this section, other than with respect to the application of such provisions to an individual petitioner. (7)

Enforcement of orders

If an employer fails to comply with a final determination issued against such employer under this subsection, and the final determination is not subject to review under paragraph (6), the Attorney General may file suit to enforce compliance with the final determination in any appropriate district court of the United States. In any such suit, the validity and appropriateness of the final determination shall not be subject to review. (8)

Liens

(A)

Creation of lien

If any employer is held liable for a fee or penalty under this section, neglects or refuses to pay such liability, and fails to file a petition for review under paragraph (6), such liability is a lien in favor of the United States on all property and rights to property of such person as if the liability of such person were a liability for a tax assessed under the Internal Revenue Code of 1986. If a petition for review is filed under paragraph (6), the lien shall arise upon the entry of a final judgment by the court and shall continue for 20 years or until the liability is satisfied, remitted, set aside, or terminated. (B)

Effect of filing notice of lien

Upon filing a notice of lien in the manner in which a notice of tax lien would be filed under paragraphs (1) and (2) of section 6323(f) of the Internal Revenue Code of 1986, the lien shall be valid against any purchaser, holder of a security interest, mechanic’s lien or judgment lien creditor, except with respect to properties or transactions specified in subsection (b), (c), or (d) of such section 6323 for which a notice of tax lien properly filed on the same date would not be valid. The notice of lien shall be considered a notice of lien for taxes payable to the United States for the purpose of any State or local law providing for the filing of a notice of a tax lien. A notice of lien that is registered, recorded, docketed, or indexed in accordance with the rules and requirements relating to judgments of the courts of the State where the notice of lien is registered, recorded, docketed, or indexed shall be considered for all purposes as the filing prescribed by this section. The provisions of section 3201(e) of title 28, United States Code, shall apply to liens filed under this section. (C)

Enforcement of a lien

A lien obtained through this process shall be considered a debt (as defined in section 3002 of title 28, United States Code) and enforceable pursuant to subchapter C of chapter 176 of title 28, United States Code (commonly known as the Federal Debt Collection Procedures Act). (o)

Criminal penalties and injunctions for pattern or practice violations

(1)

Criminal penalty

Any employer that engages in a pattern or practice of knowing violations of paragraph (1)(A) or (2) of subsection (a) shall be fined not more than $75,000 for each unauthorized alien with respect to whom such a violation occurs, imprisoned for not more than 6 months for the entire pattern or practice, or both. (2)

Enjoining of pattern or practice violations

If the Secretary of Homeland Security or the Attorney General has reasonable cause to believe that an employer is engaged in a pattern or practice of employment, recruitment, or referral in violation of paragraph (1)(A) or (2) of subsection (a), the Attorney General may bring a civil action in the appropriate district court of the United States requesting such relief, including a permanent or temporary injunction, restraining order, or other order against the employer, as the Secretary determines to be necessary. (p)

Prohibition of indemnity bonds

(1)

Prohibition

It is unlawful for an employer, 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

If the Secretary determines, after notice and opportunity for mitigation of the monetary penalty under subsection (d), that an employer has violated paragraph (1), the employer shall be subject to a civil penalty of $10,000 for each violation and to an administrative order requiring the return of any amounts received in violation of such paragraph to the employee or, if the employee cannot be located, to the general fund of the Treasury. (q)

Government contracts

(1)

Employers

(A)

In general

If the Secretary determines that an employer who does not hold Federal contracts, grants, or cooperative agreements is a repeat violator of this section or is convicted of a crime under this section, the employer shall be subject to debarment from the receipt of Federal contracts, grants, or cooperative agreements for a period not to exceed 2 years in accordance with the procedures and standards prescribed by the Federal Acquisition Regulations. (B)

Notification; listing

The Secretary or the Attorney General shall notify the Administrator of General Services of any such debarment, and the Administrator of General Services shall list the employer on the List of Parties Excluded from Federal Procurement and Nonprocurement Programs for the period of the debarment. (C)

Waiver; limitation

The Administrator of General Services, in consultation with the Secretary and Attorney General, may waive operation of this subsection or may limit the duration or scope of the debarment. (D)

Rulemaking

The Secretary shall promulgate a regulation, in accordance with the requirements under section 553 of title 5, United States Code, that defines the term repeat violator for purposes of this subsection. (2)

Contractors and recipients

(A)

In general

If the Secretary determines that an employer who holds Federal contracts, grants, or cooperative agreements is a repeat violator of this section or is convicted of a crime under this section, the employer shall be subject to debarment from the receipt of Federal contracts, grants, or cooperative agreements for a period not to exceed 2 years in accordance with the procedures and standards prescribed by the Federal Acquisition Regulations. (B)

Notification

Before such debarment, the Secretary, in cooperation with the Administrator of General Services, shall notify all agencies holding contracts, grants, or cooperative agreements with the employer of the proceedings to debar the employer from the receipt of new Federal contracts, grants, or cooperative agreements for a period not to exceed 2 years. (C)

Waiver; limitation

After consideration of the views of agencies holding contracts, grants or cooperative agreements with the employer, the Secretary may, instead of debarring the employer from receiving new Federal contracts, grants, or cooperative agreements for a period not to exceed 2 years, waive operation of this subsection, limit the duration or scope of the proposed debarment, or may refer to an appropriate lead agency the decision of whether to seek debarment of the employer, for what duration, and under what scope in accordance with the procedures and standards prescribed by the Federal Acquisition Regulation. (D)

Review

Any proposed debarment predicated on an administrative determination of liability for civil penalty by the Secretary or the Attorney General shall not be reviewable in any debarment proceeding. (3)

Suspension

Indictments for violations of this section or adequate evidence of actions that could form the basis for debarment under this subsection shall be considered a cause for suspension under the procedures and standards for suspension prescribed by the Federal Acquisition Regulation. (4)

Inadvertent violations

Inadvertent violations of recordkeeping or verification requirements, in the absence of any other violations of this section, shall not be a basis for determining that an employer is a repeat violator for purposes of this subsection. (r)

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 Secretary 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. (s)

Deposit of amounts received

Except as otherwise specified, civil penalties collected under this section shall be deposited by the Secretary into the general fund of the Treasury. (t)

No match notice

(1)

In general

For the purpose of this subsection, a no match notice is written notice from the Social Security Administration to an employer reporting earnings on a Form W–2 that employees’ names or corresponding social security account numbers fail to match SSA records. The Secretary, in consultation with the Commissioner of Social Security, is authorized to establish by regulation requirements for verifying the identity and work authorization of employees who are the subject of no-match notices. (2)

Rulemaking

The Secretary shall establish, by regulation, a reasonable period during which an employer shall allow an employee who is subject to a no match notice to resolve the no match notice with no adverse employment consequences to the employee. The Secretary may establish, by regulation, penalties for noncompliance. (u)

Challenges to validity

(1)

In general

Any right, benefit, or claim not otherwise waived or limited under this section is available in an action instituted in the United States District Court for the District of Columbia. Such action shall be limited to determinations of— (A)whether this section, or any regulation issued to implement this section, violates the Constitution of the United States; or (B)whether such a regulation issued by or under the authority of the Secretary to implement this section, is contrary to applicable provisions of this section or was issued in violation of chapter 5 of title 5, United States Code. (2)

Deadlines for bringing actions

Any action instituted under this paragraph shall be filed not later than 90 days after the date the challenged section or regulation described in subparagraph (A) or (B) of paragraph (1) is first implemented. (3)

Class actions

The court may not certify a class under Rule 23 of the Federal Rules of Civil Procedure in any action under this section. (4)

Rule of construction

In determining whether the Secretary’s interpretation regarding any provision of this section is contrary to law, a court shall accord to such interpretation the maximum deference permissible under the Constitution. (5)

No attorneys’ fees

Notwithstanding any other provision of law, the court shall not award fees or other expenses to any person or entity based upon any action relating to this section that is brought under this subsection. (v)

Notification of expiration of admission

Notwithstanding any other provision of this Act, an employer or educational institution shall notify an alien in writing of the expiration of the alien’s period of authorized admission not later than 14 days before such eligibility expires.