Unlawful employment of aliens

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

(a)

Making Employment of Unauthorized Aliens Unlawful

(1)

In general

It is unlawful for an employer— (A)to hire an alien for employment in the United States knowing or with reckless disregard that the alien is an unauthorized alien (as defined in subsection (b)(1)) with respect to such employment; or (B)to hire for employment in the United States an individual without complying with the requirements of 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

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)(1)) 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). (A)By regulation, the Secretary may require, for purposes of ensuring compliance with the immigration laws, that an employer include in a written contract, subcontract, or exchange an effective and enforceable requirement that the contractor or subcontractor adhere to the immigration laws of the United States, including use of EEVS. (B)The Secretary may establish procedures by which an employer may obtain confirmation from the Secretary that the contractor or subcontractor has registered with the EEVS and is utilizing the EEVS to verify its employees. (C)The Secretary may establish such other requirements for employers using contractors or subcontractors as the Secretary deems necessary to prevent knowing violations of this paragraph. (4)

Application to federal government

For purposes of this section, the term employer includes entities in any branch of the Federal Government. (5)

Defense

An employer that establishes that it has complied in good faith with the requirements of subsections (c)(1) through (c)(4), 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 such hiring, recruiting, or referral, however— (A)until such time as the Secretary has required an employer to participate in the EEVS or such participation is permitted on a voluntary basis pursuant to subsection (d), a defense is established without a showing of compliance with subsection (d); and (B)to establish a defense, the employer must also be in compliance with any additional requirements that the Secretary may promulgate by regulation pursuant to subsections (c), (d), and (k). (6)

Failure to comply

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. (b)

Definitions

(1)

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 the Secretary. (2)

Definition of employer

For purposes of this section, the term employer means any person or entity hiring, recruiting, or referring an individual for employment in the United States. (c)

Document Verification Requirements

Any employer hiring, recruiting, or referring 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 of subsection (d) and the following paragraphs: (1)

Attestation after examination of documentation

(A)

In general

The employer must attest, under penalty of perjury and on a form prescribed by the Secretary, that it 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).

Such attestation 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 22 U.S.C. 211a; or (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. (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 with 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, and (II)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, or (iii)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. (D)

Special Rule for Minors

Notwithstanding subparagraphs (B) and (C), a minor who is under the age of 18 and who is unable to produce an identity document described in clause (i) through (ii) of subparagraph (B) or clause (i) through (iii) of subparagraph (C) is exempt from producing such a document if— (i)a parent or legal guardian of the minor completes a form prescribed by the Secretary, and in the space for the minor's signature, the parent or legal guardian writes the words, minor under age 18; (ii)a parent or legal guardian of the minor completes a form prescribed by the Secretary, the Preparer/Translator certification; and (iii)the employer of the minor writes in a form prescribed by the Secretary, in the space after the words Document Identification # the words, minor under age 18. (E)

Special Rule for Individuals with Disabilities

Notwithstanding subparagraphs (B) and (C), an individual with a disability (as defined in section 3 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12102)) who is unable to produce an identity document described in clause (i) through (ii) of subparagraph (B) or clause (i) through (iii) of subparagraph (C), and who is being placed into employment by a nonprofit organization or association or as part of a rehabilitation program, and an individual who demonstrates mental retardation whether or not the individual participates in an employment placement program through a nonprofit organization or association or as part of a rehabilitation program, is exempt from producing such a document if— (i)a parent or legal guardian of the individual, or a representative from the nonprofit organization, association, or rehabilitation program placing the individual into a position of employment completes a form prescribed by the Secretary, and in the space for the covered individual's signature, writes the words, special placement; (ii)a parent or legal guardian of the individual or the program representative, completes a form prescribed by the Secretary, the Preparer/Translator certification; and (iii)the employer of the covered individual writes in a form prescribed by the Secretary, in the space after the words Document Identification # the words, special placement. (F)

Documents evidencing employment authorization

The following documents may 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); or (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. (G)

Authority to prohibit use of certain documents

If the Secretary finds 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. (2)

Individual attestation of employment authorization

The individual must 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 hand-written or electronic signature. (3)

Retention of verification form

After completion of such form in accordance with paragraphs (1) and (2), the employer must retain a paper, microfiche, microfilm, or electronic version of the form and make it available for inspection by officers of the Department of Homeland Security (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, five years after the date of the recruiting or referral; and (B)in the case of the hiring of an individual— (i)five years after the date of such hiring; or (ii)two years after the date the individual’s employment is terminated, whichever is earlier. (4)

Copying of documentation and recordkeeping required

(A)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 (3), 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, as well as the date of receipt. (B)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)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)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. (5)

Penalties

An employer that fails to comply with any requirement of this subsection shall be penalized under subsection (e)(4)(B). (6)

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. (7)

Nondiscrimination

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 basic pilot program established under section 403(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (division C of Public Law 104–208; 8 U.S.C. 1324a note) is hereby renamed as the Employment Eligibility Verification System or EEVS (and is referred to in this section as such). (2)

Extension of program

The Secretary of Homeland Security shall provide for the implementation of EEVS throughout the United States on a timely basis, consistent with the implementation of paragraph (3) and such System shall continue in operation permanently and shall not terminate. (3)

Implementation schedule

(A)

Priority employers

Not later than 1 year after the date of enactment of this section, the Secretary in his discretion, 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 the EEVS. This requirement may be applied to both newly hired and current employees. The Secretary shall notify employers subject to this subparagraph 60 days prior to required EEVS compliance. (B)

Large employers

Not later than 2 years after the date of enactment of this Act of 2007 the Secretary shall require an employer with 5,000 or more employees in the United States to participate in the System, with respect to all employees hired by the employer after the date the Secretary requires such participation. (C)

Midsized employers

Not later than 3 years after the date of enactment of this Act, the Secretary shall require an employer with less than 5,000 employees and 1,000 or more employees in the United States to participate in the System, with respect to all employees hired by the employer after the date the Secretary requires such participation. (D)

Small employers

Not later than 4 years after the date of the enactment of this Act of 2007, the Secretary shall require all employers with less than 1,000 employees in the United States to participate in the System, with respect to all employees hired by the employer after the date the Secretary requires such participation. (E)

All employees

No later than 5 years after the date of enactment of this section, all employers shall participate in the EEVS with respect to new employees and all employees whose identity and employment authorization have not been previously verified through EEVS. The Secretary may specify earlier dates for participation in the EEVS in his discretion for some or all classes of employer or employee, provided that the Secretary provides notification to employees and prints notification in the Federal Register 60 days prior to required compliance with EEVS. (F)The Secretary shall create the necessary systems and processes to monitor the functioning of the EEVS, including the volume of the workflow, the speed of processing of queries, and the speed and accuracy of responses. These systems and processes shall be audited by the Government Accountability Office 9 months after the date of enactment of this section and 24 months after the date of enactment of this section. The Government Accountability Office shall report the results of the audits to Congress. (4)

Participation in EEVS

The Secretary has the following discretionary authority to require or to permit participation in the EEVS— (A)to permit any employer that is not required to participate in the EEVS to do so on a voluntary basis; and (B)to require any employer that is required to participate in the 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. (5)

Consequence of failure to participate

If an employer is required under this subsection to participate in the EEVS 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 subsection (a)(1)(B) of this section with respect to that individual, and (B)a rebuttable presumption is created that the employer has violated subsection (a)(1)(A) or (a)(2) of this section.

Subparagraph (B) shall not apply in any prosecution under subsection 274A(f)(1).

(6)

Procedures for participants in the EEVS

(A)

In general

An employer participating in the EEVS must register in the EEVS and conform to the following procedures in the event of hiring, recruiting, or referring any individual for employment in the United States: (i)

Registration of employers

The Secretary, through notice in the Federal Register, shall prescribe procedures that employers must follow to register in the EEVS. In prescribing these procedures, the Secretary shall have authority to require employers to provide: (I)employer’s name; (II)employer’s Employment Identification Number (EIN); (III)company address; (IV)name, position and Social Security number of the employer’s employees accessing the EEVS; and (V)such other information as the Secretary deems necessary to ensure proper use and security of the EEVS.

The Secretary shall require employers to undergo such training as the Secretary deems necessary to ensure proper use and security of the EEVS. To the extent practicable, such training shall be made available electronically.

(ii)

Provision of additional information

The employer shall obtain from the individual (and the individual shall provide) and shall record in such manner as the Secretary may specify— (I)an individual’s Social Security account number, (II)if the individual does not attest to United States nationality under subsection (c)(2) of this section, 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 an employee. (iii)

Presentation of documentation

The employer, and the individual whose identity and employment eligibility are being confirmed, shall fulfill the requirements of subsection (c) of this section. (B)

Seeking confirmation

(i)The employer shall use the EEVS to provide to the Secretary all required information in order to obtain confirmation of the identity and employment eligibility of any individual no earlier than the date of hire and no later than on the first day of employment (or recruitment or referral, as the case may be). An employer may not, however, make the starting date of an individual’s employment contingent on the receipt of a confirmation of the identity and employment eligibility. (ii)For reverification of an employee with a limited period of work authorization, all required verification procedures must be complete on the date the employee’s work authorization expires. (iii)For initial verification of an employee hired before the employer is subject to the employment eligibility verification system, all required procedures must be complete on such date as the Secretary shall specify in accordance with subparagraph (d)(2)(E). (iv)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. Additionally, the Secretary shall provide a method of notifying employers of a confirmation, nonconfirmation or a notice that further action is required (further action notice). The employer shall communicate to the individual that is the subject of the verification all information provided to the employer by the EEVS for communication to the individual in a timely manner. (C)

Confirmation or nonconfirmation

(i)

Initial response

The verification system shall provide a confirmation, a nonconfirmation, or a further action notice of an individual’s identity and employment eligibility at the time of the inquiry, unless for technological reasons or due to unforeseen circumstances, the EEVS is unable to provide such confirmation or further action notice. In such situations, the system shall provide confirmation or further action notice within 3 business days of the initial inquiry. If providing confirmation or further action notice, the EEVS shall provide an appropriate code indicating such confirmation or such further action notice. (ii)

Confirmation upon initial inquiry

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

Further action notice upon initial inquiry and secondary verification

(I)

Further action notice

If the employer receives a further action notice of an individual’s identity or work eligibility under the EEVS, the employer shall inform the individual without delay for whom the confirmation is sought of the further action notice and any procedures specified by the Secretary for addressing the further action notice. The employee must acknowledge in writing the receipt of the further action notice from the employer. (II)

Contest

Within ten business days from the date of notification to the employee, the employee must contact the appropriate agency to contest the further action notice and, if the Secretary so requires, appear in person at the appropriate Federal or State agency for purposes of verifying the individual’s identity and employment authorization. The Secretary, in consultation with the Commissioner of Social Security and other appropriate Federal and State agencies, shall specify an available secondary verification procedure to confirm the validity of information provided and to provide a final confirmation or nonconfirmation. An individual contesting a further action notice must attest under penalty of perjury to his identity and employment authorization. (III)

No contest

If the individual does not contest the further action notice within the period specified in subparagraph (5)(C)(iii)(II), a final nonconfirmation shall issue. The employer shall then record the nonconfirmation in such manner as the Secretary may specify. (IV)

Finality

The EEVS shall provide a final confirmation or nonconfirmation within 10 business days from the date of the employee’s contesting of the further action notice. As long as 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)

Re-examination

Nothing in this section shall 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. (VI)

Termination

In no case shall an employer terminate employment of an individual solely because of a failure of the individual to have identity and work eligibility confirmed under this section until a nonconfirmation becomes final and the period to timely file an administrative appeal has passed, and in the case where an administrative appeal has been denied, the period to timely file a petition for judicial review has passed. When final confirmation or nonconfirmation is provided, the confirmation system shall provide an appropriate code indicating such confirmation or nonconfirmation. An individual’s failure to contest a further action notice shall not be considered an admission of guilt with respect to any violation of this section or any provision of law. (D)

Consequences of nonconfirmation

(i)

Termination of continued employment

If the employer has received a final nonconfirmation regarding an individual, the employer shall terminate employment (or recruitment or referral) of the individual, unless the individual files an administrative appeal of a final nonconfirmation notice under paragraph (7) within the time period prescribed in that paragraph and the Secretary or the Commissioner stays the final nonconfirmation notice pending the resolution of the administrative appeal. (ii)

Continued employment after final nonconfirmation

If the employer continues to employ (or to recruit or refer) an individual after receiving final nonconfirmation (unless the individual filed an administrative appeal of a final nonconfirmation notice under paragraph (7) within the time period prescribed in that paragraph and the Secretary of the Commissioner stayed the final nonconfirmation notice pending the resolution of the administrative appeal), a rebuttable presumption is created that the employer has violated subsections (a)(1)(A) and (a)(2) of this section. The previous sentence shall not apply in any prosecution under subsection (f)(1) of this section. (E)

Obligation to respond to queries and additional information

(i)Employers are required to comply with requests from the Secretary through EEVS for information, including queries concerning current and former employees that relate to the functioning of the EEVS, the accuracy of the responses provided by the EEVS, and any suspected fraud or identity theft in the use of the EEVS. Failure to comply with such a request is a violation of section (a)(1)(B). (ii)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 must acknowledge in writing the receipt of this communication from the employer. Failure to communicate such a requirement is a violation of section (a)(1)(B). (iii)The Secretary is authorized, with notice to the public provided in the Federal Register, to implement, clarify, and supplement the requirements of this paragraph in order to facilitate the functioning of the EEVS or to prevent fraud or identity theft in the use of the EEVS. (F)

Impermissible use of the EEVS

(i)An employer may not use the EEVS to verify an individual prior to extending to the individual an offer of employment. (ii)An employer may not require an individual to verify the individual’s own employment eligibility through the EEVS as a condition of extending to that individual an offer of employment. Nothing in this paragraph shall be construed to prevent an employer from encouraging an employee or a prospective employee from verifying the employee’s or a prospective employee’s own employment eligibility prior to obtaining employment pursuant to paragraph (5)(H). (iii)An employer may not terminate an individual’s employment solely because that individual has been issued a further action notice. (iv)An employer may not take the following actions solely because an individual has been issued a further action notice: (I)reduce 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, except that, with the agreement of the employee, an employer may provide an employee with reasonable time off without pay in order to contest and resolve the further action notice received by the employee; and (IV)deny the employee the training necessary to perform the employment duties for which the employee has been hired. (v)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 subsection. (vi)The Secretary of Homeland Security shall develop the necessary policies and procedures to monitor employers’ use of the EEVS and their compliance with the requirements set forth in this section. Employers are required to comply with requests from the Secretary for information related to any monitoring, audit or investigation undertaken pursuant to this subparagraph. (vii)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 subparagraphs (i)–(v) may file a complaint against the employer. (viii)Any employer found to have violated subparagraphs (i)–(v) shall pay a civil penalty of up to $10,000 for each violation. (ix)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. (x)No later than 3 months after the date of enactment of this section, the Secretary of Homeland Security, in cooperation with the Secretary of Labor and the Administrator of the Small Business Administration, shall conduct a campaign to disseminate information respecting the rights and remedies prescribed under this section. Such campaign shall be aimed at increasing the knowledge of employers, employees, and the general public concerning employer and employee rights, responsibilities and remedies under this section. (I)In order to carry out the campaign under this paragraph, the Secretary of Homeland Security may, to the extent deemed appropriate and subject to the availability of appropriations, contract with public and private organizations for outreach activities under the campaign. (II)There are authorized to be appropriated to carry out this paragraph $40,000,000 for each fiscal year 2007 through 2009. (G)Based on a regular review of the 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 in consultation with the Commissioner of Social Security may modify by Notice published in the Federal Register the documents that must be presented to the employer, the information that must be provided to EEVS by the employer, and the procedures that must be followed by employers with respect to any aspect of the EEVS if the Secretary in his discretion concludes that the modification is necessary to ensure that EEVS accurately and reliably determines the work authorization of employees while providing protection against fraud and identity theft. (H)Subject to appropriate safeguards to prevent misuse of the system, the Secretary in consultation with the Commissioner of Social Security, shall establish secure procedures to permit an individual who seeks to verify the individual’s own employment eligibility prior to obtaining or changing employment, to contact the appropriate agency and, in a timely manner, correct or update the information used by the EEVS. (7)

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

No employer participating in the EEVS shall be liable under any law for any employment-related action taken with respect to the employee in good faith reliance on information provided through the confirmation system. (8)

Administrative review

(A)

In general

An individual who receives a final nonconfirmation notice may, not later than 30 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 avail himself of this paragraph. Unless the Secretary of Homeland Security, in consultation with the Commissioner of Social Security, specifies otherwise, all administrative appeals shall be filed as follows: (i)

Nationals of the United States

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

Aliens

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

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 within 30 days after the individual has submitted 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 an appeal before him. Administrative review under this paragraph (7) shall be limited to whether the final nonconfirmation notice is supported by the weight of the evidence. (C)

Administrative relief

The relief available under this paragraph (7) is limited to an administrative order upholding, reversing, modifying, amending, or setting aside the final nonconfirmation notice. The Secretary or the Commissioner shall stay the final nonconfirmation notice pending the resolution of the administrative appeal unless the Secretary or the Commissioner determines that the administrative appeal is frivolous, unlikely to succeed on the merits, or filed for purposes of delay and terminates the stay. (D)

Damages, fees and costs

No money damages, fees or costs may 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 or any other law. (9)

Judicial Review

(A)

Exclusive procedure

Notwithstanding any other provision of law (statutory or nonstatutory) including sections 1361 and 1651 of title 28, 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 the EEVS, except as specifically provided by this paragraph. Judicial review of a final nonconfirmation notice is governed only by chapter 158 of title 28, except as provided below. (B)

Requirements for review of a final nonconfirmation notice

With respect to review of a final nonconfirmation notice under subsection (a), the following requirements apply: (i)

Deadline

The petition for review must be filed no later than 30 days after the date of the completion of the administrative appeal. (ii)

Venue and forms

The petition for review shall be filed with the United States Court of Appeals for the judicial circuit wherein the petitioner resided when the final nonconfirmation notice 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. The court of appeals may set an expedited briefing schedule. (v)

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 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 conclude to the contrary. (vi)

Stay

The court of appeals shall stay the final nonconfirmation notice pending its decision on the petition for review unless the court determines that the petition for review is frivolous, unlikely to succeed on the merits, or filed for purposes of delay. (C)

Exhaustion of administrative remedies

A court may review a final nonconfirmation order only if— (i)the petitioner has exhausted all administrative remedies available to the alien 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 (other than 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. (10)

Management of employment eligibility verification system

(A)

In general

The Secretary shall manage and modify the EEVS in order to— (i)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; (ii)maintain records of the inquiries that were made, of confirmations provided (or not provided), and of the codes provided to employers as evidence of their compliance with their obligations under the EEVS; and (iii)provide information to, and request action by, employers and individuals using the system, including notifying employers in advance 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. (B)

Operation of system

The EEVS shall be operated— (i)to maximize its reliability and ease of use by employers consistent with insulating and protecting the privacy and security of the underlying information; (ii)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; (iii)to maintain appropriate administrative, technical, and physical safeguards to prevent unauthorized disclosure of personal information; (iv)to allow for auditing use of the system to detect fraud and identify theft, and to preserve the security of the information in all of the system, including but not limited to the following: (I)to develop and use algorithms to detect potential identity theft, such as multiple uses of the same identifying information or documents; (II)to develop and use algorithms to detect misuse of the system by employers and employees; (III)to develop capabilities to detect anomalies in the use of the system that may indicate potential fraud or misuse of the system; and (IV)to audit documents and information submitted by potential employees to employers, including authority to conduct interviews with employers and employees; (v)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 (D); (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 State department of motor vehicles; and (vi)to confirm electronically 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. If in exceptional cases a photograph is not available from the issuer, the Secretary shall specify a temporary alternative procedure for confirming the authenticity of the document. (C)

Operational and technical regulations

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

Access to information

(i)Notwithstanding any other provision of law, the Secretary of Homeland Security shall have access to relevant records described at paragraph (9)(B)(v), for the purposes of preventing identity theft and fraud in the use of the EEVS and enforcing the provisions of this section governing employment verification. (ii)The Secretary, in consultation with the Commissioner of Social Security and other appropriate Federal and State agencies, shall develop policies and procedures to ensure protection of the privacy and security of personally identifiable information and identifiers contained in the records accessed pursuant to this paragraph and subparagraph (d)(5)(E)(i). 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 paragraph and subparagraph (d)(5)(E)(i). (iii)The Chief Privacy Officer of the Department of Homeland Security shall conduct regular privacy audits of the policies and procedures established under subparagraph (9)(D)(ii), 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. (E)

Responsibilities of the secretary of homeland security

(i)As part of the EEVS, the Secretary shall maintain a reliable, secure method, which, operating through the EEVS and within the time periods specified, 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. (ii)As part of the EEVS, the Secretary shall establish a reliable, secure method, which, operating through the EEVS, displays the digital photograph described in paragraph (d)(9)(B)(vi). (iii)The Secretary shall have authority to prescribe when a confirmation, nonconfirmation or further action notice shall be issued. (iv)The Secretary shall perform regular audits under the EEVS, as described in paragraph (d)(9)(B)(iv) of this section and shall utilize the information obtained from such audits, as well as any information obtained from the Commissioner of Social Security pursuant to section 4 of this Act, for the purposes of this Act and of immigration enforcement in general. (v)The Secretary shall make appropriate arrangements to allow employers who are otherwise unable to access the EEVS to use Federal Government facilities or public facilities in order to utilize the EEVS. (vi)The Secretary shall authorize certain entities to serve as liaisons between the electronic verification system and employers who wish to outsource submission of employment eligibility verification queries for newly hired or current employees. The Secretary shall establish regulations modeled on the E-Verify Designated Agent program in place at the Department as of 2007. Designated agents shall register with the Department and sign a Memorandum of Understanding as determined by the Secretary. Additionally designated agents shall sign the determined Memorandum of Understanding with each employer who has designated the agent to perform verification services on their behalf. The Secretary may authorize regulations ensuring proper conduct and oversight of designated agents as appropriate. The Secretary shall make available to employers information on how to identify and enter into an agreement with a designated agent to arrange for such an agent to perform verification services on their behalf. (F)

Responsibilities of the secretary of state

As part of the 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 section (c)(1)(B) belongs to the subject of the EEVS check, or that a passport or visa photograph matches an individual. (G)

Updating information

The Commissioner of Social Security and the Secretaries of Homeland Security and State shall update their information in a manner that promotes maximum accuracy and shall provide a process for the prompt correction of erroneous information. (11)

Limitation on use of the employment eligibility verification system

Notwithstanding any other provision of law, nothing in this subsection shall be construed to permit or allow any department, bureau, or other agency of the United States Government to utilize any information, database, or other records assembled under this subsection for any purpose other than for the enforcement and administration of the immigration laws, anti-terrorism laws, or for enforcement of Federal criminal law related to the functions of the EEVS, including prohibitions on forgery, fraud and identity theft. (12)

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 one authorized under this section shall pay a civil penalty of $5,000–$50,000 for each violation. (13)

Conforming amendment

Public Law 104–208, div. C, title IV, subtitle A, sections 402–405 are repealed, provided that nothing in this subsection shall be construed to limit the authority of the Secretary to allow or continue to allow the participation of Basic Pilot employers in the EEVS established by this subsection. (14)

Funds

In addition to any appropriated funds, the Secretary is authorized to use funds provided in sections 286 (m) and (n), for the maintenance and operation of the EEVS. EEVS shall be considered an immigration adjudication service for purposes of sections 286 (m) and (n). (15)

Non-discrimination

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

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 (g)(1); (B)for the investigation of those complaints which the Secretary deems it appropriate to investigate; and (C)for the investigation of such other violations of subsection (a) or (g)(1) as the Secretary determines to be appropriate. (2)

Authority in investigations

In conducting investigations and hearings under this subsection— (A)immigration officers shall have reasonable access to examine evidence of any employer being investigated; and (B)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. 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 thereof. Failure to cooperate with such subpoena shall be subject to further penalties, including but not limited to further fines and the voiding of any mitigation of penalties or termination of proceedings under subsection (e)(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 or the requirements of this section, including but not limited to subsections (b), (c), (d), and (k), 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 pre-penalty notice shall— (i)describe the violation; (ii)specify the laws and regulations allegedly violated; (iii)disclose the material facts which establish the alleged violation; 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

Whenever any employer receives written pre-penalty notice of a fine or other penalty in accordance with subparagraph (A), the employer may file, within 15 days from receipt of such notice, 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 finds that such fine, penalty, or forfeiture was incurred erroneously, or finds the existence of such 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 deems reasonable and just, or order termination of any proceedings relating thereto. Such mitigating circumstances may include, but need not be limited to, good faith compliance and participation in, or agreement to participate in, the EEVS, if not otherwise required. This subparagraph shall not apply to an employer that has or is engaged in a pattern or practice of violations of subsection (a)(1)(A), (a)(1)(B), or (a)(2) or of any other requirements of this section. (C)

Penalty claim

After considering evidence and representations, if any, 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 deems appropriate. (4)

Civil penalties

(A)

Hiring and continued employment of unauthorized aliens

Any employer that violates any provision of subsection (a)(1)(A) or (a)(2) shall— (i)pay a civil penalty of not less than $550 and not more than $4,400 for each unauthorized alien with respect to which each violation of either subsection (a)(1)(A) or (a)(2) occurred; (ii)if an employer has previously been fined under subsection (e)(4)(A), pay a civil penalty of not less than $4,400 and not more than $11,000 for each unauthorized alien with respect to which a violation of either subsection (a)(1)(A) or (a)(2) occurred; (iii)if an employer has previously been fined more than once under subsection (e)(4), pay a civil penalty of not less than $6,600 and not more than $22,000 for each unauthorized alien with respect to which a violation of either subsection has occurred. This penalty shall apply, in addition to any penalties previously assessed, to employers who fail 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 (e)(4)(A), pay a civil penalty of “$10,000 for each alien with respect to which a violation of either subsection (a)(1) or (a)(2) occurred; and (v)in addition to any penalties previously assessed, an employer who fails to comply with a previously issued and final order under this section shall be fined $25,000 for each violation. (B)

Recordkeeping or verification practices

Any employer that violates or fails to comply with any requirement of subsection (b), (c), and (d), shall pay a civil penalty as follows: (i)Pay a civil penalty of $1,000 for each violation. (ii)If an employer has previously been fined under subsection (e)(4)(B), pay a civil penalty of $2,000 for each violation. (iii)If an employer has previously been fined more than once under subsection (e)(4), pay a civil penalty of $5,000 for each violation. This penalty shall apply, in addition to any penalties previously assessed, to employers who fail 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 (e)(4)(B), pay a civil penalty of $15,000 for each violation. (v)In addition to any penalties previously assessed, an employer who fails to comply with a previously issued and final order under this section shall be fined $15,000 for each violation. (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 paragraph (g)(2). All penalties in this section may be adjusted every four years to account for inflation as provided by law. (D)

Penalty reduction and mitigation

The Secretary is authorized to reduce or mitigate penalties imposed upon employers, based upon factors including, but not limited to, 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. Within 60 days of 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 subsections (c)(1) through (c)(4), pertaining to document verification requirements, and with subsection (d), pertaining to the EEVS (once that system is implemented according to the requirements of (d)(1)), and with any additional requirements that the Secretary may promulgate by regulation pursuant to subsections (c), (d), 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 is authorized to publish in the Federal Register standards or methods for such certification, require specific recordkeeping practices with respect to such certifications, and audit the records thereof at any time. This authority shall not be construed to diminish or qualify any other penalty provided by this section. (6)

Judicial review

(A)

In general

Notwithstanding any other provision of law (statutory or nonstatutory) including sections 1361 and 1651 of title 28, no court shall have jurisdiction to consider a final determination or penalty claim issued under subparagraph (3)(C), except as specifically provided by this paragraph. Judicial review of a final determination under paragraph (e)(4) is governed only by chapter 158 of title 28, except as specifically provided below. The filing of a petition as provided in this paragraph shall stay the Secretary’s determination until entry of judgment by the court. The Secretary is authorized to 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 subparagraph (3)(C), the following requirements apply: (i)

Deadline

The petition for review must be filed no later than 30 days after the date of the final determination or penalty claim issued under subparagraph (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

Petitioner’s brief

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 subparagraph (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

Enforcement of orders

If an employer fails to comply with a final determination issued against that employer under this subsection, and the final determination is not subject to review as provided in 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 liable for a fee or penalty under this section neglects or refuses to pay such liability and fails to file a petition for review (if applicable) as provided in paragraph 6 of this subsection, 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 as provided in paragraph 6 of this subsection, the lien (if any) shall arise upon the entry of a final judgment by the court. The lien continues for 20 years or until the liability is satisfied, remitted, set aside, or is terminated. (B)

Effect of filing notice of lien

Upon filing of a notice of lien in the manner in which a notice of tax lien would be filed under section 6323(f) (1) and (2) 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 section 6323 of the Internal Revenue Code of 1986 for which a notice of tax lien properly filed on the same date would not be valid. 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 chapter 176 of title 28 shall apply to liens filed as prescribed by this section. (C)

Enforcement of a lien

A lien obtained through this process shall be considered a debt as defined by 28 U.S.C. 3002 and enforceable pursuant to the Federal Debt Collection Procedures Act. (f)

Criminal Penalties and Injunctions for Pattern or Practice Violations

(1)

Criminal penalty

Any employer which engages in a pattern or practice of knowing violations of subsection (a)(1)(A) or (a)(2) 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 six months for the entire pattern or practice, or both. (2)

Enjoining of pattern or practice violations

Whenever the Secretary or the Attorney General has reasonable cause to believe that an employer is engaged in a pattern or practice of employment, 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 deems necessary. (g)

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

Any employer which is determined, after notice and opportunity for mitigation of the monetary penalty under subsection (e), to have violated paragraph (1) of this subsection 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. (h)

Government Contracts

(1)

Employers

Whenever an employer who does not hold Federal contracts, grants, or cooperative agreements is determined by the Secretary to be a repeat violator of this section or is convicted of a crime under this section, the employer shall be subject to debarment from the receipt of Federal contracts, grants, or cooperative agreements for a period of up to two years in accordance with the procedures and standards prescribed by the Federal Acquisition Regulations. The Secretary or the Attorney General shall advise 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. 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. (2)

Contractors and recipients

Whenever an employer who holds Federal contracts, grants, or cooperative agreements is determined by the Secretary to be a repeat violator of this section or is convicted of a crime under this section, the employer shall be subject to debarment from the receipt of Federal contracts, grants, or cooperative agreements for a period of up to two years in accordance with the procedures and standards prescribed by the Federal Acquisition Regulations. Prior to debarring the employer, the Secretary, in cooperation with the Administrator of General Services, shall advise 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 of up to two years. After consideration of the views of agencies holding contracts, grants or cooperative agreements with the employer, the Secretary may, in lieu of proceedings to debar the employer from the receipt of new Federal contracts, grants, or cooperative agreements for a period of up to two 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. However, 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 violation

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. (i)

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 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. (2)

Preemption

The provisions of this section preempt any State or local law that requires the use of the EEVS in a fashion that conflicts with Federal policies, procedures or timetables, or that imposes 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. (j)

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. (k)

No Match Notice

(1)

In general

For the purpose of this subsection, a no match notice is written notice from the Social Security Administration (SSA) 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 the Social Security Administration, 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)

Notification of employee

An employee subject to a no-match notice shall also be issued a no-match notice, within 5 days of the employer, which shall explain— (A)that the no-match notice has been issued to employer; (B)that the no-match notice does not represent a binding decision on employment status; (C)that the employee has the right to resolve the no-match notice within the period of time designated by (k)(2); and (D)that the employee is protected from adverse employment consequences during the period of time designated by (k)(2). (3)

Time period for resolution

The Secretary shall establish by regulation a reasonable period of time during which an employer must allow an employee who is subject to a no-match notice to resolve the no-match notice with no adverse employment consequences. The period of time shall be extended in such cases where an employee has sought resolution of the no-match notice, at an office of the Social Security Administration or other appropriate entity, during the designated period of time but final resolution or non-resolution of the no-match noticed has yet to be determined by the office or entity in question. The period of time shall be extended until such time as the pending final resolution or non-resolution of the no-match notice is determined, provided that the employee has acted in good faith cooperation with the office or entity in question. (4)

Continued employment in case of unresolved no-match

The Secretary shall establish by regulation a procedure for verifying employer compliance with any provision of subsection (a)(2) in the case of unresolved no-match notices. (5)

Challenges to validity

(A)

In general

Any right, benefit, or claim not otherwise waived or limited pursuant to this section is available in an action instituted in the United States District Court for the District of Columbia, but shall be limited to determinations of— (i)whether this section, or any regulation issued to implement this section, violates the Constitution of the United States; or (ii)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 title 5, chapter 5, United States Code. (B)

Deadlines for bringing actions

Any action instituted under this paragraph must be filed no later than 90 days after the date the challenged section or regulation described in clause (i) or (ii) of subparagraph (A) is first implemented. (C)

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. (D)

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. (E)

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 title brought pursuant to this subsection.