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

Continuing employment

(A)

Prohibition on continued employment of unauthorized aliens

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

Prohibition on consideration of previous unauthorized status

Nothing in this section may be construed to prohibit the employment of an individual who is authorized for employment in the United States if such individual was previously an unauthorized alien.(3)

Use of labor through contract

For purposes of this section, any employer that uses a contract, subcontract, or exchange to obtain the labor of an alien in the United States while knowing that the alien is an unauthorized alien with respect to performing such labor shall be considered to have hired the alien for employment in the United States in violation of paragraph (1)(A).(4)

Use of State employment agency documentation

For purposes of paragraphs (1)(B), (5), and (6), an employer shall be deemed to have complied with the requirements under subsection (c) with respect to the hiring of an individual who was referred for such employment by a State employment agency (as defined by the Secretary) if the employer has and retains (for the period and in the manner described in subsection (c)(3)) appropriate documentation of such referral by such agency, certifying that such agency has complied with the procedures described in subsection (c) with respect to the individual’s referral. An employer that relies on a State agency’s certification of compliance with subsection (c) under this paragraph may utilize and retain the State agency’s certification of compliance with the procedures described in subsection (d), if any, in the manner provided under this paragraph.(5)

Good faith defense

(A)

Defense

An employer, person, or entity that hires, employs, recruits, or refers individuals for employment in the United States, or is otherwise obligated to comply with the requirements under this section and establishes good faith compliance with the requirements under paragraphs (1) through (4) of subsection (c) and subsection (d)—(i)has established an affirmative defense that the employer, person, or entity has not violated paragraph (1)(A) with respect to hiring and employing; and(ii)has established compliance with its obligations under subparagraph (A) and (B) of paragraph (1) and subsection (c) unless the Secretary demonstrates by clear and convincing evidence that the employer had knowledge that an individuals hired, employed, recruited, or referred by the employer, person, or entity is an unauthorized alien.(B)

Exception for certain employers

An employer who is not required to participate in the System or who is participating in the System on a voluntary basis pursuant to subsection (d)(2)(J) has established an affirmative defense under subparagraph (A) and need not demonstrate compliance with the requirements under subsection (d).(6)

Good faith compliance

(A)

In general

Except as otherwise provided in this subsection, an employer, person, or entity is considered to have complied with a requirement under this subsection notwithstanding a technical or procedural failure to meet such requirement if there was a good faith attempt to comply with the requirement.(B)

Exception if failure to correct after notice

Subparagraph (A) shall not apply if—(i)the failure is not de minimis;(ii)the Secretary has explained to the employer, person, or entity the basis for the failure and why it is not de minimis;(iii)the employer, person, or entity has been provided a period of not less than 30 days (beginning after the date of the explanation) to correct the failure; and(iv)the employer, person, or entity has not corrected the failure voluntarily within such period.(C)

Exception for pattern or practice violators

Subparagraph (A) shall not apply to an employer, person, or entity that has engaged or is engaging in a pattern or practice of violations of paragraph (1)(A) or (2).(7)

Presumption

After the date on which an employer is required to participate in the System under subsection (d), the employer is presumed to have acted with knowledge for purposes of paragraph (1)(A) if the employer hires, employs, recruits, or refers an employee for a fee and fails to make an inquiry to verify the employment authorization status of the employee through the System.(8)

Continued application of workforce and labor protection remedies despite unauthorized employment

(A)

In general

Subject only to subparagraph (B), all rights and remedies provided under any Federal, State, or local law relating to workplace rights, including back pay, are available to an employee despite—(i)the employee’s status as an unauthorized alien during or after the period of employment; or(ii)the employer’s or employee’s failure to comply with the requirements of this section.(B)

Reinstatement

Reinstatement shall be available to individuals who—(i)are authorized to work in the United States at the time such relief is ordered or effectuated; or(ii)lost employment-authorized status due to the unlawful acts of the employer under this section.(b)

Definitions

In this section:(1)

Commissioner

The term Commissioner means the Commissioner of Social Security.(2)

Department

Except as otherwise provided, the term Department means the Department of Homeland Security.(3)

Employer

The term employer means any person or entity, including an agency or department of a Federal, State, or local government, an agent, or a System service provider acting on behalf of an employer, that hires, employs, recruits, or refers for a fee an individual for employment in the United States that is not casual, sporadic, irregular, or intermittent (as defined by the Secretary).(4)

Employment authorized status

The term employment authorized status means, with respect to an individual, that the individual is authorized to be employed in the United States under the immigration laws of the United States.(5)

Secretary

Except as otherwise specifically provided, the term Secretary means the Secretary of Homeland Security.(6)

System

The term System means the Employment Verification System established under subsection (d).(7)

Unauthorized alien

The term unauthorized alien means an alien who, with respect to employment in the United States at a particular time—(A)is not lawfully admitted for permanent residence; or(B)is not authorized to be employed under this Act or by the Secretary.(8)

Workplace rights

The term workplace rights means rights guaranteed under Federal, State, or local labor or employment laws, including laws concerning wages and hours, benefits and employment standards, labor relations, workplace health and safety, work-related injuries, nondiscrimination, and retaliation for exercising rights under such laws.(c)

Document verification requirements

Any employer hiring an individual for employment in the United States shall comply with the following requirements and the requirements under subsection (d) to verify that the individual has employment authorized status.(1)

Attestation after examination of documentation

(A)

In general

(i)

Examination by employer

An employer shall attest, under penalty of perjury on a form prescribed by the Secretary, that the employer has verified the identity and employment authorization status of the individual—(I)by examining—(aa)a document specified in subparagraph (C); or(bb)a document specified in subparagraph (D) and a document specified in subparagraph (E); and(II)by using an identity authentication mechanism described in clause (iii) or (iv) of subparagraph (F).(ii)

Publication of documents

The Secretary shall publish a picture of each document specified in subparagraphs (C) and (E) on the U.S. Citizenship and Immigration Services website.(B)

Requirements

(i)

Form

The form referred to in subparagraph (A)(i)—(I)shall be prescribed by the Secretary not later than 6 months after the date of the enactment of the E-Verify Act;(II)shall be available as—(aa)a paper form;(bb)a form that may be completed by an employer via telephone or video conference;(cc)an electronic form; or(dd)a form that is integrated electronically with the requirements under subparagraph (F) and subsection (d).(ii)

Attestation

Each such form shall require the employer to sign an attestation with a handwritten, electronic, or digital signature, according to standards prescribed by the Secretary.(iii)

Compliance

An employer has complied with the requirements under this paragraph with respect to examination of the documents included in subclauses (I) and (II) of subparagraph (A)(i) if—(I)the employer has, in good faith, followed applicable regulations and any written procedures or instructions provided by the Secretary; and(II)a reasonable person would conclude that the documentation is genuine and relates to the individual presenting such documentation.(C)

Documents establishing identity and employment authorized status

A document is specified in this subparagraph if the document is unexpired (unless the validity of the document is extended by law) and is one of the following:(i)A United States passport or passport card issued to an individual pursuant to the Secretary of State’s authority under the Act entitled An Act to regulate the issue and validity of passports, and for other purposes, approved July 3, 1926 (22 U.S.C. 211a).(ii)A document issued to an alien evidencing that the alien is lawfully admitted for permanent residence or another document issued to an individual evidencing the individual’s employment authorized status, as designated by the Secretary, if the document—(I)contains a photograph of the individual, or such other personal identifying information relating to the individual as the Secretary determines, by regulation, to be sufficient for the purposes of this subparagraph;(II)is evidence of employment authorized status; and(III)contains security features to make the document resistant to tampering, counterfeiting, and fraudulent use.(iii)An enhanced driver’s license or identification card issued to a national of the United States by a State, an outlying possession of the United States, or a federally recognized Indian tribe that—(I)meets the requirements under section 202 of the REAL ID Act of 2005 (division B of Public Law 109–13; 49 U.S.C. 30301 note); and(II)the Secretary has certified by notice published in the Federal Register and through appropriate notice directly to employers registered in the System 3 months prior to publication that such enhanced license or card is suitable for use under this subparagraph based upon the accuracy and security of the issuance process, security features on the document, and such other factors as the Secretary may prescribe.(iv)A passport issued by the appropriate authority of a foreign country accompanied by a Form I–94 or Form I–94A (or similar successor record), or other documentation as designated by the Secretary that specifies the individual’s status in the United States and the duration of such status if the proposed employment is not in conflict with any restriction or limitation specified on such form or documentation.(v)A passport issued by the Federated States of Micronesia or the Republic of the Marshall Islands with evidence of nonimmigrant admission to the United States under the Compact of Free Association between the United States and the Federated States of Micronesia or the Republic of the Marshall Islands.(D)

Documents establishing identity of individual

A document is specified in this subparagraph if the document is unexpired (unless the validity of the document is extended by law) and is one of the following:(i)A driver’s license or identity card that is not described in subparagraph (C)(iii) and is issued to an individual by a State or an outlying possession of the United States, a federally recognized Indian tribe, or an agency (including military) of the Federal Government if the driver’s license or identity card includes, at a minimum—(I)the individual’s photograph, name, date of birth, gender, and driver’s license or identification card number; and(II)security features to make the license or card resistant to tampering, counterfeiting, and fraudulent use.(ii)A voter registration card.(iii)A document that complies with the requirements under section 7209(b)(1) of the Intelligence Reform and Terrorism Prevention Act of 2004 (Public Law 108–458; 8 U.S.C. 1185 note).(iv)For individuals under 18 years of age who are unable to present a document listed in clause (i) or (ii), documentation of personal identity of such other type as the Secretary determines will provide a reliable means of identification, which may include an attestation as to the individual’s identity by a parent or legal guardian under penalty of perjury.(E)

Documents evidencing employment authorization

A document is specified in this subparagraph if the document is unexpired (unless the validity of the document is extended by law) and is one of the following:(i)A social security account number card issued by the Commissioner, other than a card which specifies on its face that the card is not valid to evidence employment authorized status or has other similar words of limitation.(ii)Any other documentation evidencing employment authorized status that the Secretary determines and publishes in the Federal Register and through appropriate notice directly to employers registered within the System to be acceptable for purposes of this subparagraph if such documentation, including any electronic security measures linked to such documentation, contains security features to make such documentation resistant to tampering, counterfeiting, and fraudulent use.(F)

Identity authentication mechanism

(i)

Definitions

In this subparagraph:(I)

Covered identity document

The term covered identity document means a valid—(aa)United States passport, passport card, or a document evidencing lawful permanent residence status or employment authorized status issued to an alien;(bb)enhanced driver’s license or identity card issued by a participating State or an outlying possession of the United States; or(cc)photograph and appropriate identifying information provided by the Secretary of State pursuant to the granting of a visa.(II)

Participating state

The term participating State means a State that has an agreement with the Secretary to provide the Secretary, for purposes of identity verification in the System, with photographs and appropriate identifying information maintained by the State.(ii)

Requirement for identity authentication

In addition to verifying the documents specified in subparagraph (C), (D), or (E), the System shall require each employer to verify the identity of each newly hired employee using the identity authentication mechanism described in clause (iii), or for an individual whose identity is not able to be verified using that mechanism, to use the additional security measures provided in clause (iv) after such measures become available. A failure of the System to verify the identity of an individual due to the use of an identity authentication mechanism shall result in a further action notice under subsection (d)(4)(C)(iii).(iii)

Photo tool

(I)

Use requirement

An employer that hires an individual who has presented a covered identity document to establish his or her identity and employment authorization under this subsection shall verify the identity of such individual using the photo tool described in subclause (II).(II)

Development requirement

The Secretary shall develop and maintain a photo tool that enables employers to match the photograph on a covered identity document provided to the employer to a photograph maintained by a U.S. Citizenship and Immigration Services database or other appropriate database.(III)

Individual queries

The photo tool capability shall be incorporated into the System and made available to employers not later than 1 year after the date on which regulations are published implementing subsection (d).(IV)

Limitations on use of information

Information and images acquired from State motor vehicle databases through the photo tool developed under this clause—(aa)may only be used for matching photographs to a covered identity document for the purposes of employment verification;(bb)shall not be collected or stored by the Federal Government; and(cc)may only be disseminated in response to an individual photo tool query.(iv)

Additional security measures

(I)

Use requirement

An employer seeking to hire an individual whose identity is not able to be verified using the photo tool described in clause (iii) because the employee did not present a covered document for employment eligibility verification purposes shall verify the identity of such individual using the additional security measures described in subclause (II).(II)

Development requirement

The Secretary shall develop, after publication in the Federal Register and an opportunity for public comment, specific and effective additional security measures to adequately verify the identity of an individual whose identity is not able to be verified using the photo tool described in clause (iii). Such additional security measures—(aa)shall be kept up-to-date with technological advances;(bb)shall provide a means of identity authentication in a manner that provides a high level of certainty as to the identity of such individual, using immigration and identifying information that may include review of identity documents or background screening verification techniques using publicly available information; and(cc)shall be incorporated into the System and made available to employers not later than 1 year after the date on which regulations are published implementing subsection (d).(III)

Comprehensive use

An employer may employ the additional security measures set forth in this clause with respect to all individuals the employer hires if the employer notifies the Secretary of such election at the time the employer registers for use of the System under subsection (d)(4)(A)(i) or anytime thereafter. An election under this subclause may be withdrawn 90 days after the employer notifies the Secretary of the employer’s intent to discontinue such election.(v)

Automated verification

The Secretary—(I)may establish a program, in addition to the identity authentication mechanism described in paragraph (F)(iii), in which the System automatically verifies information contained in a covered identity document issued by a participating State, which is presented under subparagraph (D)(i), including information needed to verify that the covered identity document matches the State’s records;(II)may not maintain information provided by a participating State in a database maintained by U.S. Citizenship and Immigration Services; and(III)may not use or disclose such information, except as authorized under this section.(G)

Authority to prohibit use of certain documents

If the Secretary determines, after publication in the Federal Register and an opportunity for public comment, that any document or class of documents specified in subparagraph (B), (C), or (D) does not reliably establish identity or that employment authorized status is being used fraudulently to an unacceptable degree, the Secretary—(i)may prohibit or restrict the use of such document or class of documents for purposes of this subsection; and(ii)shall directly notify all employers registered within the System of the prohibition through appropriate means.(H)

Authority to allow use of certain documents

If the Secretary has determined that another document or class of documents, such as a document issued by a federally recognized Indian tribe, may be used to reliably establish identity or employment authorized status, the Secretary—(i)may allow the use of that document or class of documents for purposes of this subsection after publication in the Federal Register and an opportunity for public comment;(ii)shall publish a description of any such document or class of documents on the U.S. Citizenship and Immigration Services website; and(iii)shall directly notify all employers registered within the System of the addition through appropriate means.(2)

Individual attestation of employment authorization

An individual, upon commencing employment with an employer, shall—(A)attest, under penalty of perjury, on the form prescribed by the Secretary, that the individual is—(i)a citizen of the United States;(ii)an alien lawfully admitted for permanent residence;(iii)an alien who has employment authorized status; or(iv)otherwise authorized by the Secretary to be hired for such employment;(B)provide such attestation by a handwritten, electronic, or digital signature; and(C)provide the individual’s social security account number to the Secretary, unless the individual has not yet been issued such a number, on such form as the Secretary may require.(3)

Retention of verification record

(A)

In general

After completing a form for an individual in accordance with paragraphs (1) and (2), the employer shall retain a version of such completed form and make such form available for inspection by the Secretary or the Immigrant and Employee Rights Section of the Civil Rights Division of the Department of Justice during the period beginning on the hiring date of the individual and ending on the later of—(i)the date that is 3 years after such hiring date; or(ii)the date that is 1 year after the date on which the individual’s employment with the employer is terminated.(B)

Requirement for electronic retention

The Secretary—(i)shall permit an employer to retain the form described in subparagraph (A) in electronic form; and(ii)shall permit an employer to retain such form in paper, microfiche, microfilm, portable document format, or other media.(4)

Copying of documentation and recordkeeping

The Secretary may promulgate regulations regarding—(A)copying documents and related information pertaining to employment verification presented by an individual under this subsection; and(B)retaining such information during a period not to exceed the required retention period set forth in paragraph (3).(5)

Penalties

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

Protection of civil rights

(A)

In general

Nothing in this section may be construed to diminish any rights otherwise protected by Federal law.(B)

Prohibition on discrimination

An employer shall use the procedures for document verification set forth in this paragraph for all employees without regard to race, color, religion, sex, national origin, or, unless specifically permitted in this section, to citizenship status.(7)

Receipts

The Secretary may authorize the use of receipts for replacement documents, and temporary evidence of employment authorization by an individual to meet a documentation requirement under this subsection on a temporary basis not to exceed 1 year, after which time the individual shall provide documentation sufficient to satisfy the documentation requirements under this subsection.(8)

No authorization of national identification cards

Nothing in this section may be construed to directly or indirectly authorize the issuance, use, or establishment of a national identification card.(d)

Employment verification system

(1)

In general

(A)

Establishment

The Secretary, in consultation with the Commissioner, shall establish the Employment Verification System.(B)

Monitoring

The Secretary shall create the necessary processes to monitor—(i)the functioning of the System, including the volume of the workflow, the speed of processing of queries, and the speed and accuracy of responses;(ii)the misuse of the System, including the prevention of fraud or identity theft;(iii)whether the use of the System results in wrongful adverse actions or discrimination based upon a prohibited factor against citizens or nationals of the United States or individuals who have employment authorized status; and(iv)the security, integrity, and privacy of the System.(C)

Procedures

The Secretary—(i)shall create processes to provide an individual with direct access to the individual’s case history in the System, including—(I)the identities of all persons or entities that have queried the individual through the System;(II)the date of each such query; and(III)the System response for each such query; and(ii)in consultation with the Commissioner, shall develop—(I)protocols to notify an individual, in a timely manner through the use of electronic correspondence or mail, that a query for the individual has been processed through the System; or(II)a process for the individual to submit additional queries to the System or notify the Secretary of potential identity fraud.(2)

Participation requirements

(A)

Federal government

Except as provided in subparagraph (B), all agencies and departments in the executive, legislative, or judicial branches of the Federal Government shall participate in the System beginning on the earlier of—(i)the date of the enactment of the E-Verify Act, to the extent required under section 402(e)(1) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (division C of Public Law 104–208; 8 U.S.C. 1324a) and as already implemented by each agency or department; or(ii)the date that is 90 days after the date of the enactment of the E-Verify Act.(B)

Federal contractors

Federal contractors shall participate in the System as provided in the final rule relating to employment eligibility verification published in the Federal Register on November 14, 2008 (73 Fed. Reg. 67,651), or any similar subsequent regulation, for which purpose references to E-Verify in the final rule shall be construed to apply to the System.(C)

Critical infrastructure

(i)

In general

Beginning on the date that is 1 year after the date on which regulations are published implementing this subsection, the Secretary may authorize or direct any employer, person, or entity responsible for granting access to, protecting, securing, operating, administering, or regulating part of the critical infrastructure (as defined in section 1016(e) of the Critical Infrastructure Protection Act of 2001 (42 U.S.C. 5195c(e))) to participate in the System to the extent the Secretary determines that such participation will assist in the protection of the critical infrastructure.(ii)

Notification to employers

The Secretary shall notify an employer required to participate in the System under this subparagraph not later than 90 days before the date on which the employer is required to participate.(D)

Employers with more than 10,000 employees

Not later than 1 year after regulations are published implementing this subsection, all employers with more than 10,000 employees shall participate in the System with respect to all newly hired employees and employees with expiring temporary employment authorization documents.(E)

Employers with more than 500 employees

Not later than 2 years after regulations are published implementing this subsection, all employers with more than 500 employees shall participate in the System with respect to all newly hired employees and employees with expiring temporary employment authorization documents.(F)

Employers with more than 20 employees

Not later than 3 years after regulations are published implementing this subsection, all employers with more than 20 employees shall participate in the System with respect to all newly hired employees and employees with expiring temporary employment authorization documents.(G)

Agricultural employment

Not later than 4 years after regulations are published implementing this subsection, employers of employees performing agricultural employment (as defined in section 218A) shall participate in the System with respect to all newly hired employees and employees with expiring temporary employment authorization documents. An agricultural employee shall not be counted for purposes of subparagraph (D), (E), or (F).(H)

All employers

Not later than 4 years after regulations are published implementing this subsection, all employers shall participate in the System with respect to all newly hired employees and employees with expiring temporary employment authorization documents.(I)

Tribal government employers

(i)

Rulemaking

In developing regulations to implement this subsection, the Secretary shall—(I)consider the effects of this section on federally recognized Indian tribes and tribal members; and(II)consult with the governments of federally recognized Indian tribes.(ii)

Required participation

Not later than 4 years after regulations are published implementing this subsection, all employers owned by, or entities of, the government of a federally recognized Indian tribe shall participate in the System with respect to all newly hired employees and employees with expiring temporary employment authorization documents.(J)

Immigration law violators

(i)

Orders finding violations

An order finding any employer to have violated this section or section 274C may, in the Secretary’s discretion, require the employer to participate in the System with respect to newly hired employees and employees with expiring temporary employment authorization documents, if such employer is not otherwise required to participate in the System under this section. The Secretary shall monitor such employer’s compliance with System procedures.(ii)

Pattern or practice of violations

The Secretary may require an employer that is required to participate in the System with respect to newly hired employees to participate in the System with respect to the employer’s current employees if the employer is determined by the Secretary or other appropriate authority to have engaged in a pattern or practice of violations of the immigration laws of the United States.(K)

Voluntary participation

The Secretary may permit any employer that is not required to participate in the System under this section to do so on a voluntary basis.(3)

Consequence of failure to participate

(A)

In general

Except as provided in subparagraph (B), the failure, other than a de minimis or inadvertent failure, of an employer that is required to participate in the System to comply with the requirements of the System with respect to an individual—(i)shall be treated as a violation of subsection (a)(1)(B) with respect to that individual; and(ii)creates a rebuttable presumption that the employer has violated paragraph (1)(A) or (2) of subsection (a).(B)

Exception

(i)

In general

Subparagraph (A) shall not apply in a criminal prosecution.(ii)

Use as evidence

Nothing in this paragraph may be construed to limit the use in the prosecution of a Federal crime, in a manner otherwise consistent with Federal criminal law and procedure, of evidence relating to the employer’s failure to comply with requirements of the System.(4)

Procedures for participants in the system

(A)

In general

An employer participating in the System shall register such participation with the Secretary and, when hiring any individual for employment in the United States, shall comply with the following:(i)

Registration of employers

The Secretary, through notice in the Federal Register, shall prescribe procedures that employers shall be required to follow to register with the System.(ii)

Updating information

The employer is responsible for providing notice of any change to the information required under subclauses (I), (II), and (III) of clause (v) before conducting any further inquiries within the System, or on such other schedule as the Secretary may prescribe.(iii)

Training

The Secretary shall require employers to undergo such training as the Secretary determines to be necessary to ensure proper use, protection of civil rights and civil liberties, privacy, integrity, and security of the System. To the extent practicable, such training shall be made available electronically on the U.S. Citizenship and Immigration Services website.(iv)

Notification to employees

The employer shall inform individuals hired for employment that the System—(I)will be used by the employer;(II)may be used for immigration enforcement purposes; and(III)may not be used to discriminate or to take adverse action against a national of the United States or an alien who has employment authorized status.(v)

Provision of additional information

The employer shall obtain from the individual (and the individual shall provide) and shall record in such manner as the Secretary may specify—(I)the individual’s social security account number;(II)if the individual does not attest to United States citizenship or status as a national of the United States under subsection (c)(2), such identification or authorization number established by the Department as the Secretary shall specify; and(III)such other information as the Secretary may require to determine the identity and employment authorization of an individual.(vi)

Presentation of documentation

The employer, and the individual whose identity and employment authorized status are being confirmed, shall fulfill the requirements under subsection (c).(B)

Seeking confirmation

(i)

In general

An employer shall use the System to confirm the identity and employment authorized status of any individual during—(I)the period beginning on the date on which the individual accepts an offer of employment and ending 3 business days after the date on which employment begins; or(II)such other reasonable period as the Secretary may prescribe.(ii)

Limitation

An employer may not make the starting date of an individual’s employment or training or any other term and condition of employment dependent on the receipt of a confirmation of identity and employment authorized status by the System.(iii)

Reverification

If an individual has a limited period of employment authorized status, the individual’s employer shall re-verify such status through the System not later than 3 business days after the last day of such period.(iv)

Other employment

For employers directed by the Secretary to participate in the System under paragraph (2)(C)(i) to protect critical infrastructure or otherwise specified circumstances in this section to verify their entire workforce, the System may be used for initial verification of an individual who was hired before the employer became subject to the System, and the employer shall initiate all required procedures on or before such date as the Secretary shall specify.(v)

Notification

(I)

In general

The Secretary shall provide, and the employer shall use, as part of the System, a method of notifying employers of a confirmation or nonconfirmation of an individual’s identity and employment authorized status, or a notice that further action is required to verify such identity or employment eligibility (referred to in this subsection as a further action notice).(II)

Procedures

The Secretary shall—(aa)directly notify the individual and the employer, by means of electronic correspondence, mail, text message, telephone, or other direct communication, of a nonconfirmation or further action notice;(bb)provide information about filing an administrative appeal under paragraph (6) and a filing for review before an administrative law judge under paragraph (7); and(cc)establish procedures to directly notify the individual and the employer of a confirmation.(III)

Implementation

The Secretary may provide for a phased-in implementation of the notification requirements under this clause, as appropriate. The notification system shall cover all inquiries not later than 1 year from the date of the enactment of the E-Verify Act.(C)

Confirmation or nonconfirmation

(i)

Initial response

(I)

In general

Except as provided in subclause (II), the System shall provide—(aa)a confirmation of an individual’s identity and employment authorized status or a further action notice at the time of the inquiry; and(bb)an appropriate code indicating such confirmation or such further action notice.(II)

Alternative deadline

If the System is unable to provide immediate confirmation or further action notice for technological reasons or due to unforeseen circumstances, the System shall provide a confirmation or further action notice not later than 3 business days after the initial inquiry.(ii)

Confirmation upon initial inquiry

If the employer receives an appropriate confirmation of an individual’s identity and employment authorized status under the System, the employer shall record the confirmation in such manner as the Secretary may specify.(iii)

Further action notice and later confirmation or nonconfirmation

(I)

Notification and acknowledgment that further action is required

Not later than 3 business days after an employer receives a further action notice of an individual’s identity or employment eligibility under the System, or during such other reasonable time as the Secretary may prescribe, the employer shall notify the individual for whom the confirmation is sought of the further action notice and any procedures specified by the Secretary for addressing such notice. The employer shall give the further action notice to the individual in writing and the employer shall acknowledge in the System under penalty of perjury that it provided the employee with the further action notice. The individual shall affirmatively acknowledge in writing, or in such other manner as the Secretary may specify, the receipt of the further action notice from the employer. If the individual refuses to acknowledge the receipt of the further action notice, or acknowledges in writing that the individual will not contest the further action notice under subclause (II), the employer shall notify the Secretary in such manner as the Secretary may specify.(II)

Contest

Not later than 10 business days after receiving notification of a further action notice under subclause (I), the individual shall contact the appropriate Federal agency and, if the Secretary so requires, appear in person for purposes of verifying the individual’s identity and employment eligibility. The Secretary, in consultation with the Commissioner and other appropriate Federal agencies, shall specify an available secondary verification procedure to confirm the validity of information provided and to provide a confirmation or nonconfirmation. Any procedures for reexamination shall not limit in any way an employee’s right to appeal a nonconfirmation.(III)

No contest

If the individual refuses to acknowledge receipt of the further action notice, acknowledges that the individual will not contest the further action notice as provided in subclause (I), or does not contact the appropriate Federal agency within the period specified in subclause (II), following expiration of the period specified in subclause (II), a nonconfirmation shall be issued. The employer shall record the nonconfirmation in such manner as the Secretary may specify and terminate the individual’s employment. An individual’s failure to contest a further action notice shall not be considered an admission of guilt with respect to any violation of this section or any provision of law.(IV)

Confirmation or nonconfirmation

Unless the period is extended in accordance with this subclause, the System shall provide a confirmation or nonconfirmation not later than 10 business days after the date on which the individual contests the further action notice under subclause (II). If the Secretary determines that good cause exists, after taking into account adverse impacts to the employer, and including time to permit the individual to obtain and provide needed evidence of identity or employment eligibility, the Secretary shall extend the period for providing confirmation or nonconfirmation for stated periods beyond 10 business days. When confirmation or nonconfirmation is provided, the confirmation system shall provide an appropriate code indicating such confirmation or nonconfirmation.(V)

Reexamination

Nothing in this section may be construed to prevent the Secretary from establishing procedures to reexamine a case where a confirmation or nonconfirmation has been provided if subsequently received information indicates that the confirmation or nonconfirmation may not have been correct. Any procedures for reexamination shall not limit in any way an employee’s right to appeal a nonconfirmation.(VI)

Employee protections

An employer may not terminate employment or take any other adverse action against an individual solely because of a failure of the individual to have identity and employment eligibility confirmed under this subsection until—(aa)a nonconfirmation has been issued;(bb)if the further action notice was contested, the period to timely file an administrative appeal has expired without an appeal or the contestation to the further action notice is withdrawn; or(cc)if an appeal before an administrative law judge under paragraph (7) has been filed, the nonconfirmation has been upheld or the appeal has been withdrawn or dismissed.(iv)

Notice of nonconfirmation

Not later than 3 business days after an employer receives a nonconfirmation, or during such other reasonable time as the Secretary may provide, the employer shall notify the individual who is the subject of the nonconfirmation, and provide information about filing an administrative appeal pursuant to paragraph (6) and a request for a hearing before an administrative law judge pursuant to paragraph (7). The employer shall give the nonconfirmation notice to the individual in writing and the employer shall acknowledge in the System under penalty of perjury that it provided the notice (or adequately attempted to provide notice, but was unable to do so despite reasonable efforts). The individual shall affirmatively acknowledge in writing, or in such other manner as the Secretary may prescribe, the receipt of the nonconfirmation notice from the employer. If the individual refuses or fails to acknowledge the receipt of the nonconfirmation notice, the employer shall notify the Secretary in such manner as the Secretary may prescribe.(D)

Consequences of nonconfirmation

(i)

Termination of continued employment

Except as provided in clause (iii), an employer that has received a nonconfirmation regarding an individual and has made reasonable efforts to notify the individual in accordance with subparagraph (C)(iv) shall terminate the employment of the individual upon the expiration of the time period specified in paragraph (7).(ii)

Continued employment after nonconfirmation

If the employer continues to employ an individual after receiving nonconfirmation and exhaustion of all appeals or expiration of all rights to appeal if not appealed, in violation of clause (i), a rebuttable presumption is created that the employer has violated paragraphs (1)(A) and (2) of subsection (a). Such presumption shall not apply in any prosecution under subsection (k)(1).(iii)

Effect of administrative appeal or review by administrative law judge

If an individual files an administrative appeal of the nonconfirmation within the time period specified in paragraph (6)(A), or files for review with an administrative law judge specified in paragraph (7)(A), the employer shall not terminate the individual’s employment under this subparagraph prior to the resolution of the administrative appeal unless the Secretary or the Commissioner terminates the stay under paragraph (6)(B) or (7)(B).(iv)

Weekly report

The Director of U.S. Citizenship and Immigration Services shall submit a weekly report to the Assistant Secretary for Immigration and Customs Enforcement that includes, for each individual who receives final nonconfirmation through the System—(I)the name of such individual;(II)his or her social security number or alien file number;(III)the name and contact information for his or her current employer; and(IV)any other critical information that the Assistant Secretary determines to be appropriate.(v)

Other referral

The Director of U.S. Citizenship and Immigration Services shall refer to the Assistant Secretary for Immigration and Customs Enforcement for appropriate action by the Assistant Secretary, or for referral by the Assistant Secretary to another law enforcement agency, as appropriate—(I)any case in which the Director believes that a social security number has been falsely or fraudulently used; and(II)any case in which a false or fraudulent document is used by an employee who has received a further action notice to resolve such notice.(E)

Obligation to respond to queries and additional information

(i)

In general

Employers shall comply with requests for information from the Secretary and the Immigrant and Employee Rights Section of the Civil Rights Division of the Department of Justice, including queries concerning current and former employees, within the time frame during which records are required to be maintained under this section regarding such former employees, if such information relates to the functioning of the System, the accuracy of the responses provided by the System, or any suspected misuse, discrimination, fraud, or identity theft in the use of the System. Failure to comply with a request under this clause constitutes a violation of subsection (a)(1)(B).(ii)

Action by individuals

(I)

In general

Individuals being verified through the System may be required to take further action to address questions identified by the Secretary or the Commissioner regarding the documents relied upon for purposes of subsection (c).(II)

Notification

Not later than 3 business days after the receipt of such questions regarding an individual, or during such other reasonable time as the Secretary may prescribe, the employer shall—(aa)notify the individual of any such requirement for further actions; and(bb)record the date and manner of such notification.(III)

Acknowledgment

The individual shall acknowledge the notification received from the employer under subclause (II) in writing, or in such other manner as the Secretary may prescribe.(iii)

Rulemaking

(I)

In general

The Secretary, in consultation with the Commissioner and the Attorney General, is authorized to issue regulations implementing, clarifying, and supplementing the requirements under this subparagraph—(aa)to facilitate the functioning, accuracy, and fairness of the System;(bb)to prevent misuse, discrimination, fraud, or identity theft in the use of the System; and(cc)to protect and maintain the confidentiality of information that could be used to locate or otherwise place at risk of harm victims of domestic violence, dating violence, sexual assault, stalking, and human trafficking, and of the applicant or beneficiary of any petition described in section 384(a)(2) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1367(a)(2)).(II)

Notice

The regulations issued under subclause (I) shall be—(aa)published in the Federal Register; and(bb)provided directly to all employers registered in the System.(F)

Designated agents

The Secretary shall establish a process—(i)for certifying, on an annual basis or at such times as the Secretary may prescribe, designated agents and other System service providers seeking access to the System to perform verification queries on behalf of employers, based upon training, usage, privacy, and security standards prescribed by the Secretary;(ii)for ensuring that designated agents and other System service providers are subject to monitoring to the same extent as direct access users; and(iii)for establishing standards for certification of electronic I–9 programs.(G)

Requirement to provide information

(i)

In general

No later than 3 months after the date of the enactment of the E-Verify Act, the Secretary, in consultation with the Secretary of Labor, the Secretary of Agriculture, the Commissioner, the Attorney General, the Equal Employment Opportunity Commission, and the Administrator of the Small Business Administration, shall commence a campaign to disseminate information respecting the procedures, rights, and remedies prescribed under this section.(ii)

Campaign requirements

The campaign authorized under clause (i)—(I)shall be aimed at increasing the knowledge of employers, employees, and the general public concerning employer and employee rights, responsibilities, and remedies under this section; and(II)shall be coordinated with the public education campaign conducted by U.S. Citizenship and Immigration Services.(iii)

Assessment

The Secretary shall assess the success of the campaign in achieving the goals of the campaign.(iv)

Authority to contract

In order to carry out and assess the campaign under this subparagraph, the Secretary may, to the extent deemed appropriate and subject to the availability of appropriations, contract with public and private organizations for outreach and assessment activities under the campaign.(v)

Authorization of appropriations

There are authorized to be appropriated, for each of the fiscal years 2020 through 2022, such sums as may be necessary to carry out this subparagraph.(H)

Authority to modify information requirements

Based on a regular review of the System and the document verification procedures to identify misuse or fraudulent use and to assess the security of the documents and processes used to establish identity or employment authorized status, the Secretary, in consultation with the Commissioner, after publication of notice in the Federal Register and an opportunity for public comment, may modify, if the Secretary determines that the modification is necessary to ensure that the System accurately and reliably determines the identity and employment authorized status of employees and maintains existing protections against misuse, discrimination, fraud, and identity theft—(i)the information that shall be presented to the employer by an individual;(ii)the information that shall be provided to the System by the employer; and(iii)the procedures that shall be followed by employers with respect to the process of verifying an individual through the System.(I)

Self-verification

Subject to appropriate safeguards to prevent misuse of the system, the Secretary, in consultation with the Commissioner, shall establish a secure self-verification procedure to permit an individual who seeks to verify the individual’s own employment eligibility to contact the appropriate agency and, in a timely manner, correct or update the information contained in the System.(5)

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

An employer shall not be liable to a job applicant, an employee, the Federal Government, or a State or local government, under Federal, State, or local criminal or civil law for any employment-related action taken with respect to a job applicant or employee in good faith reliance on information provided by the System.(6)

Administrative appeal

(A)

In general

An individual who is notified of a nonconfirmation may, not later than 10 business days after the date that such notice is received, file an administrative appeal of such nonconfirmation with the Commissioner if the notice is based on records maintained by the Commissioner, or in any other case, with the Secretary. An individual who does not timely contest a further action notice timely received by that individual for which the individual acknowledged receipt may not be granted a review under this paragraph.(B)

Administrative stay of nonconfirmation

The nonconfirmation shall be automatically stayed upon the timely filing of an administrative appeal, unless the nonconfirmation resulted after the individual acknowledged receipt of the further action notice but failed to contact the appropriate agency within the time provided. The stay shall remain in effect until the resolution of the appeal, unless the Secretary or the Commissioner terminates the stay based on a determination that the administrative appeal is frivolous or filed for purposes of delay.(C)

Review for error

The Secretary and the Commissioner shall develop procedures for resolving administrative appeals regarding nonconfirmations based upon the information that the individual has provided, including any additional evidence or argument that was not previously considered. Any such additional evidence or argument shall be filed within 10 business days of the date the appeal was originally filed. Appeals shall be resolved within 20 business days after the individual has submitted all evidence and arguments the individual wishes to submit, or has stated in writing that there is no additional evidence that the individual wishes to submit. The Secretary and the Commissioner may, on a case by case basis for good cause, extend the filing and submission period in order to ensure accurate resolution of an appeal before the Secretary or the Commissioner.(D)

Preponderance of evidence

Administrative appeal under this paragraph shall be limited to whether a nonconfirmation notice is supported by a preponderance of the evidence.(E)

Damages, fees, and costs

No money damages, fees, or costs may be awarded in the administrative appeal process under this paragraph.(7)

Review by administrative law judge

(A)

In general

Not later than 30 days after the date an individual receives a final determination on an administrative appeal under paragraph (6), the individual may obtain review of such determination by filing a complaint with a Department of Justice administrative law judge in accordance with this paragraph.(B)

Stay of nonconfirmation

The nonconfirmation related to such final determination shall be automatically stayed upon the timely filing of a complaint under this paragraph, and the stay shall remain in effect until the resolution of the complaint, unless the administrative law judge determines that the action is frivolous or filed for purposes of delay.(C)

Service

The respondent to complaint filed under this paragraph is either the Secretary or the Commissioner, but not both, depending upon who issued the administrative order under paragraph (6). In addition to serving the respondent, the plaintiff shall serve the Attorney General.(D)

Authority of administrative law judge

(i)

Rules of practice

The Secretary shall promulgate regulations regarding the rules of practice in appeals brought pursuant to this subsection.(ii)

Authority of administrative law judge

The administrative law judge shall have power to—(I)terminate a stay of a nonconfirmation under subparagraph (B) if the administrative law judge determines that the action is frivolous or filed for purposes of delay;(II)adduce evidence at a hearing;(III)compel by subpoena the attendance of witnesses and the production of evidence at any designated place or hearing;(IV)resolve claims of identity theft; and(V)enter, upon the pleadings and any evidence adduced at a hearing, a decision affirming or reversing the result of the agency, with or without remanding the cause for a rehearing.(iii)

Subpoena

In case of contumacy or refusal to obey a subpoena lawfully issued under this section and upon application of the administrative law judge, an appropriate district court of the United States may issue an order requiring compliance with such subpoena and any failure to obey such order may be punished by such court as a contempt of such court.(iv)

Training

An administrative law judge hearing cases shall have special training respecting employment authorized status verification.(E)

Order by administrative law judge

(i)

In general

The administrative law judge shall issue and cause to be served to the parties in the proceeding an order which may be appealed as provided in subparagraph (G).(ii)

Contents of order

Such an order shall uphold or reverse the final determination on the request for reconsideration and order lost wages and other appropriate remedies as provided in subparagraph (F).(F)

Compensation for error

(i)

In general

In cases in which the administrative law judge reverses the final determination of the Secretary or the Commissioner made under paragraph (6), and the administrative law judge finds that—(I)the nonconfirmation was due to gross negligence or intentional misconduct of the employer, the administrative law judge may order the employer to pay the individual lost wages, and reasonable costs and attorneys’ fees incurred during administrative and judicial review; or(II)such final determination was erroneous by reason of the negligence of the Secretary or the Commissioner, the administrative law judge may order the Secretary or the Commissioner to pay the individual lost wages, and reasonable costs and attorneys’ fees incurred during the administrative appeal and the administrative law judge review.(ii)

Calculation of lost wages

Lost wages shall be calculated based on the wage rate and work schedule that prevailed prior to termination. The individual shall be compensated for wages lost beginning on the first scheduled work day after employment was terminated and ending 120 days after completion of the administrative law judge’s review described in this paragraph or the day after the individual is reinstated or obtains employment elsewhere, whichever occurs first. If the individual obtains employment elsewhere at a lower wage rate, the individual shall be compensated for the difference in wages for the period ending 120 days after completion of the administrative law judge review process. No lost wages shall be awarded for any period of time during which the individual was not in employment authorized status.(iii)

Payment of compensation

Notwithstanding any other law, payment of compensation for lost wages, costs, and attorneys’ fees under this paragraph, or compromise settlements of the same, shall be made as provided by section 1304 of title 31, United States Code. Appropriations made available to the Secretary or the Commissioner, accounts provided for under section 286, and funds from the Federal Old-Age and Survivors Insurance Trust Fund or the Federal Disability Insurance Trust Fund shall not be available to pay such compensation.(G)

Appeal

No later than 45 days after the entry of such final order, any person adversely affected by such final order may seek review of such order in the United States Court of Appeals for the circuit in which the violation is alleged to have occurred or in which the employer resides or transacts business.(8)

Management of the system

(A)

In general

The Secretary is authorized to establish, manage, and modify the System, which shall—(i)respond to inquiries made by participating employers at any time through the internet, or such other means as the Secretary may designate, concerning an individual’s identity and whether the individual is in employment authorized status;(ii)maintain records of the inquiries that were made, of confirmations provided (or not provided), and of the codes provided to employers as evidence of their compliance with their obligations under the System; and(iii)provide information to, and require action by, employers and individuals using the System.(B)

Design and operation of system

The System shall be designed and operated—(i)to maximize its reliability and ease of use by employers consistent with protecting the privacy and security of the underlying information, and ensuring full notice of such use to employees;(ii)to maximize its ease of use by employees, including direct notification of its use, of results, and ability to challenge results;(iii)to respond accurately to all inquiries made by employers on whether individuals are authorized to be employed and to register any times when the system is unable to receive inquiries;(iv)to maintain appropriate administrative, technical, and physical safeguards to prevent unauthorized disclosure of personal information, misuse by employers and employees, and discrimination;(v)to require regularly scheduled refresher training of all users of the System to ensure compliance with all procedures;(vi)to allow for auditing of the use of the System to detect misuse, discrimination, fraud, and identity theft, to protect privacy and assess System accuracy, and to preserve the integrity and security of the information in all of the System, including—(I)to develop and use tools and processes to detect or prevent fraud and identity theft, such as multiple uses of the same identifying information or documents to fraudulently gain employment;(II)to develop and use tools and processes to detect and prevent misuse of the system by employers and employees;(III)to develop tools and processes to detect anomalies in the use of the system that may indicate potential fraud or misuse of the system; and(IV)to audit documents and information submitted by employees to employers, including authority to conduct interviews with employers and employees, and obtain information concerning employment from the employer;(vii)to confirm identity and employment authorization through verification and comparison of records as determined necessary by the Secretary;(viii)to confirm electronically the issuance of the employment authorization or identity document and—(I)if such photograph is available, to display the digital photograph that the issuer placed on the document so that the employer can compare the photograph displayed to the photograph on the document presented by the employee; or(II)if a photograph is not available from the issuer, to confirm the authenticity of the document using such additional security measures set forth in subsection (c)(1)(F)(iv);(ix)to employ specific and effective additional security measures set forth in subsection (c)(1)(F)(iv) to adequately verify the identity of an individual that are designed and operated—(I)to use state-of-the-art technology to determine to a high degree of accuracy whether an individual presenting biographic information is the individual with that true identity;(II)to retain under the control of the Secretary the use of all determinations communicated by the System, regardless of the entity operating the system pursuant to a contract or other agreement with a nongovernmental entity or entities to the extent helpful in acquiring the best technology to implement the additional security measures;(III)to be integrated with the System so that employment authorizations will be determined for all individuals identified as presenting their true identities through the databases maintained by the Commissioner of Social Security and the Secretary;(IV)to use tools and processes to detect and prevent further action notices and final nonconfirmations that are not correlated to fraud or identity theft;(V)to make risk-based assessments regarding the reliability of a claim of identity made by an individual presenting biographic information and to tailor the identity determination in accordance with those assessments;(VI)to permit queries to be presented to individuals subject to identity verification at the time their identities are being verified in a manner that permits rapid communication through the internet, mobile phone, and landline telephone connections to facilitate identity proofing;(VII)to generate queries that conform to the context of the identity verification process and the circumstances of the individual whose identity is being verified;(VIII)to use publicly available databases and databases under the jurisdiction of the Commissioner of Social Security, the Secretary, and the Secretary of State to formulate queries to be presented to individuals whose identities are being verified, as appropriate;(IX)to not retain data collected by the System within any database separate from the database in which the operating system is located and to limit access to the existing databases to a reference process that shields the operator of the System from acquiring possession of the data beyond the formulation of queries and verification of responses;(X)to not permit individuals or entities using the System to access any data related to the individuals whose identities are being verified beyond confirmations, further action notices, and final nonconfirmations of identity;(XI)to include, if feasible, a capability for permitting document or other inputs that can be offered to individuals and entities using the System and that may be used at the option of employees to facilitate identity verification, but would not be required of either employers or employees; and(XII)to the greatest extent possible, in accordance with the time frames specified in this section; and(x)to provide appropriate notification directly to employers registered with the System of all changes made by the Secretary or the Commissioner related to allowed and prohibited documents, and use of the System.(C)

Safeguards to the system

(i)

Requirement to develop

The Secretary, in consultation with the Commissioner and other appropriate Federal and State agencies, shall develop policies and procedures to ensure protection of the privacy and security of personally identifiable information and identifiers contained in the records accessed or maintained by the System. The Secretary, in consultation with the Commissioner and other appropriate Federal and State agencies, shall develop and deploy appropriate privacy and security training for the Federal and State employees accessing the records under the System.(ii)

Privacy audits

The Secretary, acting through the Chief Privacy Officer of the Department, shall conduct regular privacy audits of the policies and procedures established under clause (i) and the compliance of the Department with the limitations set forth in subsection (c)(1)(F)(iii)(IV), including any collection, use, dissemination, and maintenance of personally identifiable information and any associated information technology systems, as well as scope of requests for this information. The Chief Privacy Officer shall review the results of the audits and recommend to the Secretary any changes necessary to improve the privacy protections of the program.(iii)

Accuracy audits

(I)

In general

Not later than November 30 of each year, the Inspector General of the Department of Homeland Security shall submit a report to the Secretary, with a copy to the President of the Senate and the Speaker of the House of Representatives, that sets forth the error rate of the System for the previous fiscal year and the assessments required to be submitted by the Secretary under subparagraphs (A) and (B) of paragraph (10). The report shall describe in detail the methodology employed for purposes of the report, and shall make recommendations for how error rates may be reduced.(II)

Error rate defined

In this clause, the term error rate means the percentage determined by dividing—(aa)the number of employment authorized individuals who received further action notices, contested such notices, and were subsequently found to be employment authorized; by(bb)the number of System inquiries submitted for employment authorized individuals.(III)

Error rate determination

The audits required under this clause shall—(aa)determine the error rate for identity determinations pursuant to subsection (c)(1)(F) for individuals presenting their true identities in the same manner and applying the same standard as for employment authorization; and(bb)include recommendations, as provided in subclause (I), but no reduction in fines pursuant to subclause (IV)(IV)

Reduction of penalties for recordkeeping or verification practices following persistent system inaccuracies

Notwithstanding subsection (e)(4)(C)(i), in any calendar year following a report by the Inspector General under subclause (I) that the System had an error rate higher than 0.3 percent for the previous fiscal year, the civil penalty assessable by the Secretary or an administrative law judge under that subsection for each first-time violation by an employer who has not previously been penalized under this section may not exceed $1,000.(iv)

Records security program

Any person, including a private third party vendor, who retains document verification or System data pursuant to this section shall implement an effective records security program that—(I)ensures that only authorized personnel have access to document verification or System data; and(II)ensures that whenever such data is created, completed, updated, modified, altered, or corrected in electronic format, a secure record is created that establishes the date of access, the identity of the individual who accessed the electronic record, and the particular action taken.(v)

Records security program

In addition to the security measures described in clause (iv), a private third party vendor who retains document verification or System data pursuant to this section shall implement an effective records security program that—(I)provides for backup and recovery of any records maintained in electronic format to protect against information loss, such as power interruptions; and(II)ensures that employees are trained to minimize the risk of unauthorized or accidental alteration or erasure of such data in electronic format.(vi)

Authorized personnel defined

In this subparagraph, the term authorized personnel means anyone registered as a System user, or anyone with partial or full responsibility for completion of employment authorization verification or retention of data in connection with employment authorization verification on behalf of an employer.(D)

Available facilities and alternative accommodations

The Secretary shall make appropriate arrangements and develop standards to allow employers or employees, including remote hires, who are otherwise unable to access the System to use electronic and telephonic formats (including video conferencing, scanning technology, and other available technologies), Federal Government facilities, public facilities, or other available locations in order to use the System.(E)

Responsibilities of the secretary

(i)

In general

As part of the System, the Secretary shall maintain a reliable, secure method, which, operating through the System and within the time periods specified, compares the name, alien identification or authorization number, or other information as determined relevant by the Secretary, provided in an inquiry against such information maintained or accessed by the Secretary in order to confirm (or not confirm) the validity of the information provided, the correspondence of the name and number, whether the alien has employment authorized status (or, to the extent that the Secretary determines to be feasible and appropriate, whether the records available to the Secretary verify the identity or status of a national of the United States), and such other information as the Secretary may prescribe.(ii)

Photograph display

As part of the System, the Secretary shall establish a reliable, secure method, which, operating through the System, displays the digital photograph described in subparagraph (B)(viii)(I).(iii)

Timing of notices

The Secretary shall have authority to prescribe when a confirmation, nonconfirmation, or further action notice shall be issued.(iv)

Use of information

The Secretary shall perform regular audits under the System, as described in subparagraph (B)(vi) and shall use the information obtained from such audits, as well as any information obtained from the Commissioner pursuant to part E of title XI of the Social Security Act (42 U.S.C. 1301 et seq.), for the purposes of this section and to administer and enforce the immigration laws.(v)

Identity fraud protection

To prevent identity fraud, not later than 18 months after the date of the enactment of the E-Verify Act, the Secretary shall—(I)in consultation with the Commissioner, establish a program to provide a reliable, secure method for an individual to temporarily suspend or limit the use of the individual’s social security account number or other identifying information for verification by the System; and(II)for each individual being verified through the System—(aa)notify the individual that the individual has the option to limit the use of the individual’s social security account number or other identifying information for verification by the System; and(bb)provide instructions to the individuals for exercising the option referred to in item (aa).(vi)

Allowing parents to prevent theft of their child’s identity

The Secretary, in consultation with the Commissioner, shall establish a program that provides a reliable, secure method by which parents or legal guardians may suspend or limit the use of the social security account number or other identifying information of a minor under their care for the purposes of the System. The Secretary may implement the program on a limited pilot program basis before making it fully available to all individuals.(vii)

Protection from multiple use

The Secretary and the Commissioner shall establish a procedure for identifying and handling a situation in which a social security account number has been identified to be subject to unusual multiple use in the System or is otherwise suspected or determined to have been compromised by identity fraud. Such procedure shall include notifying the legitimate holder of the social security number at the appropriate time.(viii)

Monitoring and compliance unit

The Secretary shall establish or designate a monitoring and compliance unit to detect and reduce identity fraud and other misuse of the System.(ix)

Civil rights and civil liberties assessments

(I)

Requirement to conduct

The Secretary shall conduct regular civil rights and civil liberties assessments of the System, including participation by employers, other private entities, and Federal, State, and local government entities.(II)

Requirement to respond

Employers, other private entities, and Federal, State, and local entities shall timely respond to any request in connection with such an assessment.(III)

Assessment and recommendations

The Officer for Civil Rights and Civil Liberties of the Department shall review the results of each such assessment and recommend to the Secretary any changes necessary to improve the civil rights and civil liberties protections of the System.(F)

Grants to states

(i)

In general

The Secretary shall create and administer a grant program to help provide funding for States that grant—(I)the Secretary access to driver’s license information as needed to confirm that a driver’s license presented under subsection (c)(1)(D)(i) confirms the identity of the subject of the System check, and that a driver’s license matches the State’s records; and(II)such assistance as the Secretary may request in order to resolve further action notices or nonconfirmations relating to such information.(ii)

Construction with the driver’s privacy protection act of 1994

The provision of a photograph to the Secretary as described in clause (i) may not be construed as a violation of section 2721 of title 18, United States Code, and is a permissible use under subsection (b)(1) of that section.(iii)

Authorization of appropriations

There is authorized to be appropriated $500,000,000 to carry out this subparagraph.(G)

Responsibilities of the secretary of state

As part of the System, the Secretary of State shall provide to the Secretary access to passport and visa information as needed to confirm that a passport, passport card, or visa presented under subsection (c)(1)(C) confirms the identity of the subject of the System check, and that a passport, passport card, or visa photograph matches the Secretary of State’s records, and shall provide such assistance as the Secretary may request in order to resolve further action notices or nonconfirmations relating to such information.(H)

Updating information

The Commissioner, the Secretary, and the Secretary of State shall update their information in a manner that promotes maximum accuracy and shall provide a process for the prompt correction of erroneous information.(9)

Limitation on use of the system

Notwithstanding any other provision of law, no department, bureau, or other agency of the United States Government or any other entity may use, share, or transmit any information, database, or other records assembled under this subsection for any purpose other than for employment verification or to ensure secure, appropriate, and nondiscriminatory use of the System.(10)

Annual report and certification

Not later than 18 months after the promulgation of regulations to implement this subsection, and annually thereafter, the Secretary shall submit a report to Congress that includes the following:(A)An assessment, as submitted to the Secretary by the Inspector General of the Department of Homeland Security pursuant to paragraph (8)(C)(iii)(I), of the accuracy rates of further action notices and other System notices provided by employers to individuals who are authorized to be employed in the United States.(B)An assessment, as submitted to the Secretary by the Inspector General of the Department of Homeland Security pursuant to paragraph (8)(C)(iii)(I), of the accuracy rates of further action notices and other System notices provided directly (by the System) in a timely fashion to individuals who are not authorized to be employed in the United States.(C)An assessment of any challenges faced by small employers in using the System.(D)An assessment of the rate of employer noncompliance (in addition to failure to provide required notices in a timely fashion) in each of the following categories:(i)Taking adverse action based on a further action notice.(ii)Use of the System for nonemployees or other individuals before they are offered employment.(iii)Use of the System to reverify employment authorized status of current employees except if authorized to do so.(iv)Use of the System selectively, except in cases in which such use is authorized.(v)Use of the System to deny employment or post-employment benefits or otherwise interfere with labor rights.(vi)Requiring employees or applicants to use any self-verification feature or to provide self-verification results.(vii)Discouraging individuals who receive a further action notice from challenging the further action notice or appealing a determination made by the System.(E)An assessment of the rate of employee noncompliance in each of the following categories:(i)Obtaining employment when unauthorized with an employer complying with the System in good faith.(ii)Failure to provide required documents in a timely manner.(iii)Attempting to use fraudulent documents or documents not related to the individual.(iv)Misuse of the administrative appeal and judicial review process.(F)An assessment of the amount of time taken for—(i)the System to provide the confirmation or further action notice;(ii)individuals to contest further action notices;(iii)the System to provide a confirmation or nonconfirmation of a contested further action notice;(iv)individuals to file an administrative appeal of a nonconfirmation; and(v)resolving administrative appeals regarding nonconfirmations.(11)

Annual gao study and report

(A)

Requirement

The Comptroller General shall, for each year, undertake a study to evaluate the accuracy, efficiency, integrity, and impact of the System.(B)

Report

Not later than 18 months after the promulgation of regulations to implement this subsection, and yearly thereafter, the Comptroller General shall submit to Congress a report containing the findings of the study carried out under this paragraph. Each such report shall include, at a minimum, the following:(i)An assessment of System performance with respect to the rate at which individuals who are eligible for employment in the United States are correctly approved within the required periods, including a separate assessment of such rate for naturalized United States citizens, nationals of the United States, and aliens.(ii)An assessment of the privacy and confidentiality of the System and of the overall security of the System with respect to cybertheft and theft or misuse of private data.(iii)An assessment of whether the System is being implemented in a manner that is not discriminatory or used for retaliation against employees.(iv)An assessment of the most common causes for the erroneous issuance of nonconfirmations by the System and recommendations to correct such causes.(v)The recommendations of the Comptroller General regarding System improvements.(vi)An assessment of the frequency and magnitude of changes made to the System and the impact on the ability for employers to comply in good faith.(vii)An assessment of the direct and indirect costs incurred by employers in complying with the System, including costs associated with retaining potential employees through the administrative appeals process and receiving a nonconfirmation.(viii)An assessment of any backlogs or delays in the System providing the confirmation or further action notice and impacts to hiring by employers.(ix)An assessment of the effect of the identity authentication mechanism and any other security measures set forth in subsection (c)(1)(F)(iv) to verify identity incorporated into the System or otherwise used by employers on employees.(12)

Outreach and partnership

(A)

Outreach

The Secretary may conduct outreach and establish programs to assist employers in verifying employment authorization and preventing identity fraud.(B)

Partnership initiative

The Secretary may establish partnership initiatives between the Federal Government and private sector employers to foster cooperative relationships and to strengthen overall hiring practices.(e)

Compliance

(1)

Complaints and investigations

The Secretary shall establish procedures—(A)for individuals and entities to file complaints respecting potential violations of subsections (a) or (f)(1);(B)for the investigation of those complaints which the Secretary deems appropriate to investigate; and(C)for providing notification to the Immigrant and Employee Rights Section of the Civil Rights Division of the Department of Justice of potential violations of section 274B.(2)

Authority in investigations

In conducting investigations and proceedings under this subsection—(A)immigration officers shall have reasonable access to examine evidence of the employer being investigated;(B)immigration officers designated by the Secretary, and administrative law judges and other persons authorized to conduct proceedings under this section, may compel by subpoena the attendance of relevant witnesses and the production of relevant evidence at any designated place in an investigation or case under this subsection. In case of refusal to fully comply with a subpoena lawfully issued under this paragraph, the Secretary may request that the Attorney General apply in an appropriate district court of the United States for an order requiring compliance with the subpoena, and any failure to obey such order may be punished by the court as contempt. Failure to cooperate with the subpoena shall be subject to further penalties, including further fines and the voiding of any mitigation of penalties or termination of proceedings under paragraph (4)(E); and(C)the Secretary, in cooperation with the Commissioner and the Attorney General, and in consultation with other relevant agencies, shall establish a Joint Employment Fraud Task Force consisting of, at a minimum—(i)the System’s compliance personnel;(ii)immigration law enforcement officers;(iii)personnel of the Immigrant and Employee Rights Section of the Civil Rights Division of the Department of Justice;(iv)personnel of the Office for Civil Rights and Civil Liberties of the Department; and(v)personnel of Office of Inspector General of the Social Security Administration.(3)

Compliance procedures

(A)

Pre-penalty notice

If the Secretary has reasonable cause to believe that there has been a civil violation of this section in the previous 3 years, the Secretary shall issue to the employer concerned a written notice of the Department’s intention to issue a claim for a monetary or other penalty. Such pre-penalty notice shall—(i)describe the violation;(ii)specify the laws and regulations allegedly violated;(iii)disclose the material facts which establish the alleged violation;(iv)describe the penalty sought to be imposed; and(v)inform such employer that such employer shall have a reasonable opportunity to make representations as to why a monetary or other penalty should not be imposed.(B)

Employer’s response

Whenever any employer receives written pre-penalty notice of a fine or other penalty in accordance with subparagraph (A), the employer may, within 60 days from receipt of such notice, file with the Secretary its written response to the notice. The response may include any relevant evidence or proffer of evidence that the employer wishes to present with respect to whether the employer violated this section and whether, if so, the penalty should be mitigated, and shall be filed and considered in accordance with procedures to be established by the Secretary.(C)

Right to a hearing

Before issuance of an order imposing a penalty on any employer, person, or entity, the employer, person, or entity shall be entitled to a hearing before an administrative law judge, if requested within 60 days of the notice of penalty. The hearing shall be held at the nearest location practicable to the place where the employer, person, or entity resides or of the place where the alleged violation occurred.(D)

Issuance of orders

If no hearing is so requested, the Secretary’s imposition of the order shall constitute a final and unappealable order. If a hearing is requested and the administrative law judge determines, upon clear and convincing evidence received, that there was a violation, the administrative law judge shall issue the final determination with a written penalty claim. The penalty claim shall specify all charges in the information provided under clauses (i) through (iii) of subparagraph (A) and any mitigation of the penalty that the administrative law judge deems appropriate under paragraph (4)(E).(4)

Civil penalties

(A)

Hiring or continuing to employ unauthorized aliens

Any employer that violates any provision of subsection (a)(1)(A) or (a)(2) shall—(i)pay a civil penalty of not less than $3,500 and not more than $7,500 for each unauthorized alien with respect to which each violation of either subsection (a)(1)(A) or (a)(2) occurred;(ii)if the employer has previously been fined as a result of a previous enforcement action or previous violation under this paragraph, pay a civil penalty of not less than $5,000 and not more than $15,000 for each unauthorized alien with respect to which a violation of either subsection (a)(1)(A) or (a)(2) occurred; and(iii)if the employer has previously been fined more than once under this paragraph, pay a civil penalty of not less than $10,000 and not more than $25,000 for each unauthorized alien with respect to which a violation of either subsection (a)(1)(A) or (a)(2) occurred.(B)

Enhanced penalties

After the Secretary certifies to Congress that the System has been established, implemented, and made mandatory for use by all employers in the United States, the Secretary may establish an enhanced civil penalty for an employer who—(i)fails to query the System to verify the identify and work authorized status of an individual; and(ii)violates a Federal, State, or local law related to—(I)the payment of wages;(II)hours worked by employees; or(III)workplace health and safety.(C)

Recordkeeping or verification practices

Any employer that violates or fails to comply with any requirement under subsection (a)(1)(B), other than a minor or inadvertent failure, as determined by the Secretary, shall pay a civil penalty of—(i)not less than $500 and not more than $2,000 for each violation;(ii)if an employer has previously been fined under this paragraph, not less than $1,000 and not more than $4,000 for each violation; and(iii)if an employer has previously been fined more than once under this paragraph, not less than $2,000 and not more than $8,000 for each violation.(D)

Other penalties

The Secretary may impose additional penalties for violations, including cease and desist orders, specially designed compliance plans to prevent further violations, suspended fines to take effect in the event of a further violation, and in appropriate cases, the remedy provided by subsection (f)(2).(E)

Mitigation

The Secretary or, if an employer requests a hearing, the administrative law judge, is authorized, upon such terms and conditions as the Secretary or administrative law judge deems reasonable and just and in accordance with such procedures as the Secretary may establish or any procedures established governing the administrative law judge’s assessment of penalties, to reduce or mitigate penalties imposed upon employers, based upon factors including, the employer’s hiring volume, compliance history, good-faith implementation of a compliance program, the size and level of sophistication of the employer, and voluntary disclosure of violations of this subsection to the Secretary. The Secretary or administrative law judge shall not mitigate a penalty below the minimum penalty provided by this section, except that the Secretary may, in the case of an employer subject to penalty for recordkeeping or verification violations only who has not previously been penalized under this section, in the Secretary’s or administrative law judge’s discretion, mitigate the penalty below the statutory minimum or remit it entirely. In any case where a civil money penalty has been imposed on an employer under section 274B for an action or omission that is also a violation of this section, the Secretary or administrative law judge shall mitigate any civil money penalty under this section by the amount of the penalty imposed under section 274B.(F)

Effective date

The civil money penalty amounts and the enhanced penalties provided by subparagraphs (A), (B), and (C) of this paragraph and by subsection (f)(2) shall apply to violations of this section committed on or after the date that is 1 year after the date of the enactment of the E-Verify Act. For violations committed prior to such date of enactment, the civil money penalty amounts provided by regulations implementing this section as in effect the minute before such date of enactment with respect to knowing hiring or continuing employment, verification, or indemnity bond violations, as appropriate, shall apply.(5)

Order of internal review and certification of compliance

(A)

Employer compliance

If the Secretary has reasonable cause to believe that an employer has failed to comply with this section, the Secretary is authorized, at any time, to require that the employer certify that it is in compliance with this section, or has instituted a program to come into compliance.(B)

Employer certification

(i)

Requirement

Except as provided in subparagraph (C), not later than 60 days after receiving a notice from the Secretary requiring a certification under subparagraph (A), an official with responsibility for, and authority to bind the company on, all hiring and immigration compliance notices shall certify under penalty of perjury that the employer is in conformance with the requirements of paragraphs (1) through (4) of subsection (c), pertaining to document verification requirements, and with subsection (d), pertaining to the System (once the System is implemented with respect to that employer according to the requirements under subsection (d)(2)), and with any additional requirements that the Secretary may promulgate by regulation pursuant to subsection (c) or (d) or that the employer has instituted a program to come into compliance with these requirements.(ii)

Application

Clause (i) shall not apply until the date that the Secretary certifies to Congress that the System has been established, implemented, and made mandatory for use by all employers in the United States.(C)

Extension of deadline

At the request of the employer, the Secretary may extend the 60-day deadline for good cause.(D)

Standards or methods

The Secretary is authorized to publish in the Federal Register standards or methods for such certification, require specific recordkeeping practices with respect to such certifications, and audit the records thereof at any time. This authority shall not be construed to diminish or qualify any other penalty provided by this section.(6)

Requirements for review of a final determination

With respect to judicial review of a final determination or penalty order issued under paragraph (3)(D), the following requirements apply:(A)

Deadline

The petition for review must be filed no later than 30 days after the date of the final determination or penalty order issued under paragraph (3)(D).(B)

Venue and forms

The petition for review shall be filed with the court of appeals for the judicial circuit where the employer’s principal place of business was located when the final determination or penalty order was made. The record and briefs do not have to be printed. The court shall review the proceeding on a typewritten or electronically filed record and briefs.(C)

Service

The respondent is the Secretary. In addition to serving the respondent, the petitioner shall serve the Attorney General.(D)

Petitioner’s brief

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

Scope and standard for review

The court of appeals shall conduct a de novo review of the administrative record on which the final determination was based and any additional evidence that the Court finds was previously unavailable at the time of the administrative hearing.(F)

Exhaustion of administrative remedies

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

Enforcement of orders

If the final determination issued against the employer under this subsection is not subjected to review as provided in this paragraph, the Attorney General, upon request by the Secretary, may bring a civil action to enforce compliance with the final determination in any appropriate district court of the United States. The court, on a proper showing, shall issue a temporary restraining order or a preliminary or permanent injunction requiring that the employer comply with the final determination issued against that employer under this subsection. In any such civil action, the validity and appropriateness of the final determination shall not be subject to review.(7)

Creation of lien

If any employer liable for a fee or penalty under this section neglects or refuses to pay such liability after demand and fails to file a petition for review (if applicable) as provided in paragraph (6), the amount of the fee or penalty shall be a lien in favor of the United States on all property and rights to property, whether real or personal, belonging to such employer. If a petition for review is filed as provided in paragraph (6), the lien shall arise upon the entry of a final judgment by the court. The lien continues for 20 years or until the liability is satisfied, remitted, set aside, or terminated.(8)

Filing notice of lien

(A)

Place for filing

The notice of a lien referred to in paragraph (7) shall be filed as described in one of the following:(i)

Under state laws

(I)

Real property

In the case of real property, in 1 office within the State (or the county, or other governmental subdivision), as designated by the laws of such State, in which the property subject to the lien is situated.(II)

Personal property

In the case of personal property, whether tangible or intangible, in 1 office within the State (or the county, or other governmental subdivision), as designated by the laws of such State, in which the property subject to the lien is situated, except that State law merely conforming to or reenacting Federal law establishing a national filing system does not constitute a second office for filing as designated by the laws of such State.(ii)

With clerk of district court

In the office of the clerk of the United States district court for the judicial district in which the property subject to the lien is situated, whenever the State has not by law designated 1 office which meets the requirements of clause (i).(iii)

With recorder of deeds of the district of columbia

In the office of the Recorder of Deeds of the District of Columbia, if the property subject to the lien is situated in the District of Columbia.(B)

Situs of property subject to lien

For purposes of subparagraph (A), property shall be deemed to be situated as follows:(i)

Real property

In the case of real property, at its physical location.(ii)

Personal property

In the case of personal property, whether tangible or intangible, at the residence of the taxpayer at the time the notice of lien is filed.(C)

Determination of residence

For purposes of subparagraph (B)(ii), the residence of a corporation or partnership shall be deemed to be the place at which the principal executive office of the business is located, and the residence of a taxpayer whose residence is outside the United States shall be deemed to be in the District of Columbia.(D)

Effect of filing notice of lien

(i)

In general

Upon filing of a notice of lien in the manner described in this paragraph, the lien shall be valid against any purchaser, holder of a security interest, mechanic’s lien, or judgment lien creditor, except with respect to properties or transactions specified in subsection (b), (c), or (d) of section 6323 of the Internal Revenue Code of 1986 for which a notice of tax lien properly filed on the same date would not be valid.(ii)

Notice of lien

The notice of lien shall be considered a notice of lien for taxes payable to the United States for the purpose of any State or local law providing for the filing of a notice of a tax lien. A notice of lien that is registered, recorded, docketed, or indexed in accordance with the rules and requirements relating to judgments of the courts of the State where the notice of lien is registered, recorded, docketed, or indexed shall be considered for all purposes as the filing prescribed by this section.(iii)

Other provisions

Section 3201(e) of title 28, United States Code, shall apply to liens filed pursuant to this paragraph.(E)

Enforcement of a lien

A lien obtained through this paragraph shall be considered a debt as defined by section 3002 of title 28, United States Code, and enforceable pursuant to chapter 176 of such title.(9)

Attorney general adjudication

The Attorney General shall have jurisdiction to adjudicate administrative proceedings under this subsection. Such proceedings shall be conducted in accordance with section 554 of title 5, United States Code.(f)

Criminal and civil penalties and injunctions

(1)

Prohibition of indemnity bonds

It is unlawful for an employer, in the hiring of any individual, to require the individual to post a bond or security, to pay or agree to pay an amount, or otherwise to provide a financial guarantee or indemnity, against any potential liability arising under this section relating to such hiring of the individual.(2)

Civil penalty

Any employer who is determined, after notice and opportunity for mitigation of the monetary penalty under subsection (e), to have violated paragraph (1) shall be subject to a civil penalty of $10,000 for each violation and to an administrative order requiring the return of any amounts received in violation of such paragraph to the employee or, if the employee cannot be located, to the general fund of the Treasury.(g)

Government contracts

(1)

Contractors and recipients

Whenever an employer who is a Federal contractor (meaning an employer who holds a Federal contract, grant, or cooperative agreement, or reasonably may be expected to submit an offer for or be awarded a government contract) is determined by the Secretary to have violated this section on more than 3 occasions or is convicted of a crime under this section, the employer shall be considered for debarment from the receipt of Federal contracts, grants, or cooperative agreements in accordance with the procedures and standards and for the periods prescribed by the Federal Acquisition Regulation. However, any administrative determination of liability for civil penalty by the Secretary or the Attorney General shall not be reviewable in any debarment proceeding.(2)

Inadvertent violations

Inadvertent violations of recordkeeping or verification requirements, in the absence of any other violations of this section, shall not be a basis for determining that an employer is a repeat violator for purposes of this subsection.(3)

Other remedies available

Nothing in this subsection shall be construed to modify or limit any remedy available to any agency or official of the Federal Government for violation of any contractual requirement to participate in the System, as provided in the final rule relating to employment eligibility verification published in the Federal Register on November 14, 2008 (73 Fed. Reg. 67,651), or any similar subsequent regulation.(h)

Preemption

The provisions of this section preempt any State or local law, ordinance, policy, or rule, including any criminal or civil fine or penalty structure, relating to the hiring, continued employment, or status verification for employment eligibility purposes, of unauthorized aliens. A State, locality, municipality, or political subdivision may exercise its authority over business licensing and similar laws as a penalty for failure to use the System.(i)

Deposit of amounts received

Except as otherwise specified, civil penalties collected under this section shall be deposited by the Secretary into the Treasury as miscellaneous receipts.(j)

Challenges to validity of the system

(1)

In general

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

Deadlines for bringing actions

Any action instituted under this subsection must be filed no later than 180 days after the date the challenged section or regulation described in subparagraph (A) or (B) of paragraph (1) becomes effective. No court shall have jurisdiction to review any challenge described in subparagraph (B) after the time period specified in this subsection expires.(k)

Criminal penalties and injunctions for pattern or practice violations

(1)

Pattern and practice

Any employer who engages in a pattern or practice of knowing violations of subsection (a)(1)(A) or (a)(2) shall be fined under title 18, United States Code, no more than $10,000 for each unauthorized alien with respect to whom such violation occurs, imprisoned for not more than 2 years for the entire pattern or practice, or both.(2)

Term of imprisonment

The maximum term of imprisonment of a person convicted of any criminal offense under the United States Code shall be increased by 5 years if the offense is committed as part of a pattern or practice of violations of subsection (a)(1)(A) or (a)(2).(3)

Enjoining of pattern or practice violations

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

Criminal penalties for unlawful and abusive employment

(1)

In general

Any person who, during any 12-month period, knowingly employs or hires, employs, recruits, or refers for a fee for employment 10 or more individuals within the United States who are under the control and supervision of such person—(A)knowing that the individuals are unauthorized aliens; and(B)under conditions that violate section 5(a) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 654(a)) (relating to occupational safety and health), section 6 or 7 of the Fair Labor Standards Act of 1938 (29 U.S.C. 206 and 207) (relating to minimum wages and maximum hours of employment), section 3142 of title 40, United States Code (relating to required wages on construction contracts), or section 6703 or 6704 of title 41, United States Code (relating to required wages on service contracts),

shall be fined under title 18, United States Code, or imprisoned for not more than 10 years, or both.

(2)

Attempt and conspiracy

Any person who attempts or conspires to commit any offense under this section shall be punished in the same manner as a person who completes the offense.(m)

Limitation on adjustment of status

The Secretary may not adjust the status of aliens who have been granted registered provisional immigrant status, except for aliens granted blue card status as described in section 245D(b), unless the Secretary, after consultation with the Comptroller General of the United States, certifies in writing to the President and Congress that the Secretary has implemented the System, including the full incorporation of the photo tool and additional security measures, required by this section, and has required the use of the System by all employers to prevent unauthorized workers from obtaining employment in the United States.