ILLEGAL IMMIGRATION REFORM AND IMMIGRANT RESPONSIBILITY ACT OF 1996
Public Law 104–208, as amended
ILLEGAL IMMIGRATION REFORM AND IMMIGRANT RESPONSIBILITY ACT OF 1996
208
112–176
Statute Compilation
United States House of Representatives
Office of the Legislative Counsel
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Illegal Immigration Reform and Immigrant Responsibility Act of 1996
Economic Growth and Regulatory Paperwork Reduction Act of 1996
13677
104
1996-09-30
ILLEGAL IMMIGRATION REFORM AND IMMIGRANT RESPONSIBILITY ACT OF 1996
[division C of Public Law 104–208]
[As Amended Through P.L. 112–176, Enacted September 28, 2012]
[Currency: This publication is a compilation of the text of division C of Public Law 104–208. It was last amended by the public law listed in the As Amended Through note above and below at the bottom of each page of the pdf version and reflects current law through the date of the enactment of the public law listed at https://www.govinfo.gov/app/collection/comps/]
[Note: While this publication does not represent an official version of any Federal statute, substantial efforts have been made to ensure the accuracy of its contents. The official version of Federal law is found in the United States Statutes at Large and in the United States Code. The legal effect to be given to the Statutes at Large and the United States Code is established by statute (1 U.S.C. 112, 204).]
DIVISION C—

ILLEGAL IMMIGRATION REFORM AND IMMIGRANT RESPONSIBILITY ACT OF 1996
SEC. 1.

SHORT TITLE OF DIVISION; AMENDMENTS TO IMMIGRATION AND NATIONALITY ACT; APPLICATION OF DEFINITIONS OF SUCH ACT; TABLE OF CONTENTS OF DIVISION; SEVERABILITY.
(a)

Short Title.—
This division may be cited as the “Illegal Immigration Reform and Immigrant Responsibility Act of 1996”.
(b)

Amendments to Immigration and Nationality Act.—
Except as otherwise specifically provided—
(1)
whenever in this division an amendment or repeal is expressed as the amendment or repeal of a section or other provision, the reference shall be considered to be made to that section or provision in the Immigration and Nationality Act; and
(2)
amendments to a section or other provision are to such section or other provision before any amendment made to such section or other provision elsewhere in this division.
(c)

Application of Certain Definitions.—
Except as otherwise provided in this division, for purposes of titles I and VI of this division, the terms “alien”, “Attorney General”, “border crossing identification card”, “entry”, “immigrant”, “immigrant visa”, “lawfully admitted for permanent residence”, “national”, “naturalization”, “refugee”, “State”, and “United States” shall have the meaning given such terms in section 101(a) of the Immigration and Nationality Act.
(d)

Table of Contents of Division.—
The table of contents of this division is as follows:
Sec. 1.
Short title of division; amendments to Immigration and Nationality Act; application of definitions of such Act; table of contents of division; severability.
* * * * * * *
TITLE IV—
ENFORCEMENT OF RESTRICTIONS AGAINST EMPLOYMENT
Subtitle A—
Pilot Programs for Employment Eligibility Confirmation
Sec. 401.
Establishment of programs.
Sec. 402.
Voluntary election to participate in a pilot program.
Sec. 403.
Procedures for participants in pilot programs.
Sec. 404.
Employment eligibility confirmation system.
Sec. 405.
Reports.
* * * * * * *
(e)

Severability.—
If any provision of this division or the application of such provision to any person or circumstances is held to be unconstitutional, the remainder of this division and the application of the provisions of this division to any person or circumstance shall not be affected thereby.
* * * * * * *
TITLE I—

IMPROVEMENTS TO BORDER CONTROL, FACILITATION OF LEGAL ENTRY, AND INTERIOR ENFORCEMENT
Subtitle A—

Improved Enforcement at the Border
* * * * * * *
SEC. 102.
[8 U.S.C. 1103 note]
IMPROVEMENT OF BARRIERS AT
BORDER.
(a)

In General.—
The Secretary of Homeland Security shall take such actions as may be necessary to install additional physical barriers and roads (including the removal of obstacles to detection of illegal entrants) in the vicinity of the United States border to deter illegal crossings in areas of high illegal entry into the United States.
(b)

Construction of Fencing and Road Improvements Along the Border.—
(1)

Additional fencing along southwest border.—
(A)

Reinforced fencing.—
In carrying out subsection (a), the Secretary of Homeland Security shall construct reinforced fencing along not less than 700 miles of the southwest border where fencing would be most practical and effective and provide for the installation of additional physical barriers, roads, lighting, cameras, and sensors to gain operational control of the southwest border.
(B)

Priority areas.—
In carrying out this section, the Secretary of Homeland Security shall—
(i)
identify the 370 miles, or other mileage determined by the Secretary, whose authority to determine other mileage shall expire on December 31, 2008, along the southwest border where fencing would be most practical and effective in deterring smugglers and aliens attempting to gain illegal entry into the United States; and
(ii)
not later than December 31, 2008, complete construction of reinforced fencing along the miles identified under clause (i).
(C)

Consultation.—
(i)

In general.—
In carrying out this section, the Secretary of Homeland Security shall consult with the Secretary of the Interior, the Secretary of Agriculture, States, local governments, Indian tribes, and property owners in the United States to minimize the impact on the environment, culture, commerce, and quality of life for the communities and residents located near the sites at which such fencing is to be constructed.
(ii)

Savings provision.—
Nothing in this subparagraph may be construed to—
(I)
create or negate any right of action for a State, local government, or other person or entity affected by this subsection; or
(II)
affect the eminent domain laws of the United States or of any State.
(D)

Limitation on requirements.—
Notwithstanding subparagraph (A), nothing in this paragraph shall require the Secretary of Homeland Security to install fencing, physical barriers, roads, lighting, cameras, and sensors in a particular location along an international border of the United States, if the Secretary determines that the use or placement of such resources is not the most appropriate means to achieve and maintain operational control over the international border at such location.
(2)

Prompt acquisition of necessary easements.—
The Attorney General, acting under the authority conferred in section 103(b) of the Immigration and Nationality Act (as inserted by subsection (d)), shall promptly acquire such easements as may be necessary to carry out this subsection and shall commence construction of fences immediately following such acquisition (or conclusion of portions thereof).
(3)

Safety features.—
The Attorney General, while constructing the additional fencing under this subsection, shall incorporate such safety features into the design of the fence system as are necessary to ensure the well-being of border patrol agents deployed within or in near proximity to the system.
(4)

Authorization of appropriations.—
There are authorized to be appropriated such sums as may be necessary to carry out this subsection. Amounts appropriated under this paragraph are authorized to remain available until expended.
(c)

Waiver.—
(1)

In general.—
Notwithstanding any other provision of law, the Secretary of Homeland Security shall have the authority to waive all legal requirements such Secretary, in such Secretary’s sole discretion, determines necessary to ensure expeditious construction of the barriers and roads under this section. Any such decision by the Secretary shall be effective upon being published in the Federal Register.
(2)

Federal court review.—
(A)

In general.—
The district courts of the United States shall have exclusive jurisdiction to hear all causes or claims arising from any action undertaken, or any decision made, by the Secretary of Homeland Security pursuant to paragraph (1). A cause of action or claim may only be brought alleging a violation of the Constitution of the United States. The court shall not have jurisdiction to hear any claim not specified in this subparagraph.
(B)

Time for filing of complaint.—
Any cause or claim brought pursuant to subparagraph (A) shall be filed not later than 60 days after the date of the action or decision made by the Secretary of Homeland Security. A claim shall be barred unless it is filed within the time specified.
(C)

Ability to seek appellate review.—
An interlocutory or final judgment, decree, or order of the district court may be reviewed only upon petition for a writ of certiorari to the Supreme Court of the United States.
[(d)
Omitted—Amends another Act.]
* * * * * * *
TITLE III—

INSPECTION, APPREHENSION, DETENTION, ADJUDICATION, AND REMOVAL OF INADMISSIBLE AND DEPORTABLE ALIENS
Subtitle A—

Revision of Procedures for Removal of Aliens
* * * * * * *
SEC. 309.

EFFECTIVE DATES; TRANSITION.
(a)

In General.—
Except as provided in this section and sections 303(b)(2), 306(c), 308(d)(2)(D), or 308(d)(5) of this division, this subtitle and the amendments made by this subtitle shall take effect on the first day of the first month beginning more than 180 days after the date of the enactment of this Act (in this title referred to as the “title III–A effective date”).
(b)

Promulgation of Regulations.—
The Attorney General shall first promulgate regulations to carry out this subtitle by not later than 30 days before the title III–A effective date.
(c)

Transition for Certain Aliens.—
(1)

General rule that new rules do not apply.—
Subject to the succeeding provisions of this subsection, in the case of an alien who is in exclusion or deportation proceedings before the title III–A effective date—
(A)
the amendments made by this subtitle shall not apply, and
(B)
the proceedings (including judicial review thereof) shall continue to be conducted without regard to such amendments.
(2)

Attorney general option to elect to apply new procedures.—
In a case described in paragraph (1) in which an evidentiary hearing under section 236 or 242 and 242B of the Immigration and Nationality Act has not commenced as of the title III–A effective date, the Attorney General may elect to proceed under chapter 4 of title II of such Act (as amended by this subtitle). The Attorney General shall provide notice of such election to the alien involved not later than 30 days before the date any evidentiary hearing is commenced. If the Attorney General makes such election, the notice of hearing provided to the alien under section 235 or 242(a) of such Act shall be valid as if provided under section 239 of such Act (as amended by this subtitle) to confer jurisdiction on the immigration judge.
(3)

Attorney general option to terminate and reinitiate proceedings.—
In the case described in paragraph (1), the Attorney General may elect to terminate proceedings in which there has not been a final administrative decision and to reinitiate proceedings under chapter 4 of title II the Immigration and Nationality Act (as amended by this subtitle). Any determination in the terminated proceeding shall not be binding in the reinitiated proceeding.
(4)

Transitional changes in judicial review.—
In the case in which a final order of exclusion or deportation is entered more than 30 days after the date of the enactment of this Act [Sept. 30, 1996], notwithstanding any provision of section 106 of the Immigration and Nationality Act [former 8 U.S.C. 1105a] (as in effect as of the date of the enactment of this Act) to the contrary—
(A)
in the case of judicial review of a final order of exclusion, subsection (b) of such section shall not apply and the action for judicial review shall be governed by the provisions of subsections (a) and (c) of such in the same manner as they apply to judicial review of orders of deportation;
(B)
a court may not order the taking of additional evidence under section 2347(c) of title 28, United States Code;
(C)
the petition for judicial review must be filed not later than 30 days after the date of the final order of exclusion or deportation;
(D)
the petition for review shall be filed with the court of appeals for the judicial circuit in which the administrative proceedings before the special inquiry officer or immigration judge were completed;
(E)
there shall be no appeal of any discretionary decision under section 212(c), 212(h), 212(i), 244, or 245 of the Immigration and Nationality Act (as in effect as of the date of the enactment of this Act);
(F)
service of the petition for review shall not stay the deportation of an alien pending the court's decision on the petition, unless the court orders otherwise; and
(G)
there shall be no appeal permitted in the case of an alien who is inadmissible or deportable by reason of having committed a criminal offense covered in section 212(a)(2) or section 241(a)(2)(A)(iii), (B), (C), or (D) of the Immigration and Nationality Act (as in effect as of the date of the enactment of this Act), or any offense covered by section 241(a)(2)(A)(ii) of such Act (as in effect on such date) for which both predicate offenses are, without regard to their date of commission, otherwise covered by section 241(a)(2)(A)(i) of such Act (as so in effect).
(5)

Transitional rules with regard to suspension of deportation.—
(A)

In general.—
Subject to subparagraphs (B) and (C), paragraphs (1) and (2) of section 240A(d) of the Immigration and Nationality Act (relating to continuous residence or physical presence) shall apply to orders to show cause (including those referred to in section 242B(a)(1) of the Immigration and Nationality Act, as in effect before the title III–A effective date), issued before, on, or after the date of the enactment of this Act.
(B)

Exception for certain orders.—
In any case in which the Attorney General elects to terminate and reinitiate proceedings in accordance with paragraph (3) of this subsection, paragraphs (1) and (2) of section 240A(d) of the Immigration and Nationality Act shall not apply to an order to show cause issued before April 1, 1997.
(C)

Special rule for certain aliens granted temporary protection from deportation and for battered spouses and children.—
(i)

In general.—
For purposes of calculating the period of continuous physical presence under section 244(a) of the Immigration and Nationality Act (as in effect before the title III–A effective date) or section 240A of such Act (as in effect after the title III–A effective date), subparagraph (A) of this paragraph and paragraphs (1) and (2) of section 240A(d) of the Immigration and Nationality Act shall not apply in the case of an alien, regardless of whether the alien is in exclusion or deportation proceedings before the title III–A effective date, who has not been convicted at any time of an aggravated felony (as defined in section 101(a) of the Immigration and Nationality Act) and—
(I)
was not apprehended after December 19, 1990, at the time of entry, and is—
- (aa)
a Salvadoran national who first entered the United States on or before September 19, 1990, and who registered for benefits pursuant to the settlement agreement in American Baptist Churches, et al. v. Thornburgh (ABC), 760 F. Supp. 796 (N.D. Cal. 1991) on or before October 31, 1991, or applied for temporary protected status on or before October 31, 1991; or
- (bb)
a Guatemalan national who first entered the United States on or before October 1, 1990, and who registered for benefits pursuant to such settlement agreement on or before December 31, 1991;
(II)
is a Guatemalan or Salvadoran national who filed an application for asylum with the Immigration and Naturalization Service on or before April 1, 1990;
(III)
is the spouse or child (as defined in section 101(b)(1) of the Immigration and Nationality Act) of an individual, at the time a decision is rendered to suspend the deportation, or cancel the removal, of such individual, if the individual has been determined to be described in this clause (excluding this subclause and subclause (IV));
(IV)
is the unmarried son or daughter of an alien parent, at the time a decision is rendered to suspend the deportation, or cancel the removal, of such alien parent, if—
- (aa)
the alien parent has been determined to be described in this clause (excluding this subclause and subclause (III)); and
- (bb)
in the case of a son or daughter who is 21 years of age or older at the time such decision is rendered, the son or daughter entered the United States on or before October 1, 1990;
(V)
is an alien who entered the United States on or before December 31, 1990, who filed an application for asylum on or before December 31, 1991, and who, at the time of filing such application, was a national of the Soviet Union, Russia, any republic of the former Soviet Union, Latvia, Estonia, Lithuania, Poland, Czechoslovakia, Romania, Hungary, Bulgaria, Albania, East Germany, Yugoslavia, or any state of the former Yugoslavia; or
(VI)
is an alien who was issued an order to show cause or was in deportation proceedings before April 1, 1997, and who applied for suspension of deportation under section 244(a)(3) of the Immigration and Nationality Act (as in effect before the date of the enactment of this Act ); or
(VII)
- (aa)
was the spouse or child of an alien described in subclause (I), (II), or (V)—
(AA)
at the time at which a decision is rendered to suspend the deportation or cancel the removal of the alien;
(BB)
at the time at which the alien filed an application for suspension of deportation or cancellation of removal; or
(CC)
at the time at which the alien registered for benefits under the settlement agreement in American Baptist Churches, et. al. v. Thornburgh (ABC), applied for temporary protected status, or applied for asylum; and
- (bb)
the spouse, child, or child of the spouse has been battered or subjected to extreme cruelty by the alien described in subclause (I), (II), or (V).
(ii)

Limitation on judicial review.—
Limitation on judicial review.-A determination by the Attorney General as to whether an alien satisfies the requirements of clause (i) is final and shall not be subject to review by any court. Nothing in the preceding sentence shall be construed as limiting the application of section 242(a)(2)(B) of the Immigration and Nationality Act (as in effect after the title III–A effective date) to other eligibility determinations pertaining to discretionary relief under this Act.
(iii)

Consideration of petitions.—
In acting on a petition filed under subclause (VII) of clause (i) the provisions set forth in section 204(a)(1)(H) shall apply.
(iv)

Residence with spouse or parent not required.—
For purposes of the application of clause (i)(VII), a spouse or child shall not be required to demonstrate that he or she is residing with the spouse or parent in the United States.
(6)

Transition for certain family unity aliens.—
The Attorney General may waive the application of section 212(a)(9) of the Immigration and Nationality Act, as inserted by section 301(b)(1) of this division, in the case of an alien who is provided benefits under the provisions of section 301 of the Immigration Act of 1990 (relating to family unity).
(7)

Limitation on suspension of deportation.—
After April 1, 1997, the Attorney General may not suspend the deportation and adjust the status under section 244 of the Immigration and Nationality Act (as in effect before the title III–A effective date) of any alien in any fiscal year, except in accordance with section 240A(e) of such Act. The previous sentence shall apply regardless of when an alien applied for such suspension and adjustment.
(d)

Transitional References.—
For purposes of carrying out the Immigration and Nationality Act [8 U.S.C. 1101 et seq.], as amended by this subtitle—
(1)
any reference in section 212(a)(1)(A) of such Act [8 U.S.C. 1182(a)(1)(A)] to the term 'inadmissible' is deemed to include a reference to the term “excludable”, and
(2)
any reference in law to an order of removal shall be deemed to include a reference to an order of exclusion and deportation or an order of deportation.
(e)

Transition.—
No period of time before the date of the enactment of this Act shall be included in the period of 1 year described in section 212(a)(6)(B)(i) of the Immigration and Nationality Act (as amended by section 301(c) of this division).
(f)

Special Rule for Cancellation of Removal.—
(1)

In general.—
Subject to the provisions of the Immigration and Nationality Act (as in effect after the title III–A effective date), other than subsections (b)(1), (d)(1), and (e) of section 240A of such Act (but including section 242(a)(2)(B) of such Act), the Attorney General may, under section 240A of such Act, cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence, an alien who is inadmissible or deportable from the United States, if the alien applies for such relief, the alien is described in subsection (c)(5)(C)(i) of this section, and—
(A)
the alien—
(i)
is not inadmissible or deportable under paragraph (2) or (3) of section 212(a) or paragraph (2), (3), or (4) of section 237(a) of the Immigration and Nationality Act and is not an alien described in section 241(b)(3)(B)(i) of such Act;
(ii)
has been physically present in the United States for a continuous period of not less than 7 years immediately preceding the date of such application;
(iii)
has been a person of good moral character during such period; and
(iv)
establishes that removal would result in extreme hardship to the alien or to the alien's spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence; or
(B)
the alien—
(i)
is inadmissible or deportable under section 212(a)(2), 237(a)(2) (other than 237(a)(2)(A)(iii)), or 237(a)(3) of the Immigration and Nationality Act;
(ii)
is not an alien described in section 241(b)(3)(B)(i) or 101(a)(43) of such Act;
(iii)
has been physically present in the United States for a continuous period of not less than 10 years immediately following the commission of an act, or the assumption of a status, constituting a ground for removal;
(iv)
has been a person of good moral character during such period; and
(v)
establishes that removal would result in exceptional and extremely unusual hardship to the alien or to the alien's spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.
(2)

Treatment of certain breaks in presence.—
Section 240A(d)(2) shall apply for purposes of calculating any period of continuous physical presence under this subsection, except that the reference to subsection (b)(1) in such section shall be considered to be a reference to paragraph (1) of this section
(g)

Motions To Reopen Deportation or Removal Proceedings.—
Notwithstanding any limitation imposed by law on motions to reopen removal or deportation proceedings (except limitations premised on an alien's conviction of an aggravated felony (as defined in section 101(a) of the Immigration and Nationality Act)), any alien who has become eligible for cancellation of removal or suspension of deportation as a result of the amendments made by section 203 of the Nicaraguan Adjustment and Central American Relief Act may file one motion to reopen removal or deportation proceedings to apply for cancellation of removal or suspension of deportation. The Attorney General shall designate a specific time period in which all such motions to reopen are required to be filed. The period shall begin not later than 60 days after the date of the enactment of the Nicaraguan Adjustment and Central American Relief Act and shall extend for a period not to exceed 240 days.
(h)

Relief and Motions to Reopen.—
(1)

Relief.—
An alien described in subsection (c)(5)(C)(i) who is otherwise eligible for—
(A)
suspension of deportation pursuant to section 244(a) of the Immigration and Nationality Act, as in effect before the title III–A effective date; or
(B)
cancellation of removal, pursuant to section 240A(b) of the Immigration and Nationality Act and subsection (f) of this section;
shall not be barred from applying for such relief by operation of section 241(a)(5) of the Immigration and Nationality Act, as in effect after the title III–A effective dat
(2)

Additional motion to reopen permitted.—
Notwithstanding any limitation imposed by law on motions to reopen removal or deportation proceedings (except limitations premised on an alien's conviction of an aggravated felony (as defined by section 101(a) of the Immigration and Nationality Act)), any alien who is described in subsection (c)(5)(C)(i) and who has become eligible for cancellation of removal or suspension of deportation as a result of the enactment of paragraph (1) may file one motion to reopen removal or deportation proceedings in order to apply for cancellation of removal or suspension of deportation. The scope of any proceeding reopened on this basis shall be limited to a determination of the alien's eligibility for cancellation of removal or suspension of deportation. The Attorney General shall designate a specific time period in which all such motions to reopen are required to be filed. The period shall begin not later than 60 days after the date of the enactment of this subsection and shall extend for a period not to exceed 240 days.
(3)

Construction.—
Nothing in this subsection shall preclude an alien from filing a motion to reopen pursuant to section 240(b)(5)(C)(ii) of the Immigration and Nationality Act, or section 242B(c)(3)(B) of such Act (as in effect before the title III–A effective date).
* * * * * * *
TITLE IV—

ENFORCEMENT OF RESTRICTIONS AGAINST EMPLOYMENT
Subtitle A—

Pilot Programs for Employment Eligibility Confirmation
SEC. 401.
[8 U.S.C. 1324a note]

ESTABLISHMENT OF PROGRAMS.
(a)

In General.—
The Secretary of Homeland Security shall conduct 3 pilot programs of employment eligibility confirmation under this subtitle.
(b)

Implementation Deadline; Termination.—
The Secretary of Homeland Security shall implement the pilot programs in a manner that permits persons and other entities to have elections under section 402 of this division made and in effect no later than 1 year after the date of the enactment of this Act. Unless the Congress otherwise provides, the Secretary of Homeland Security shall terminate a pilot program on September 30, 2015.1
^1
Section 539 of division F of Public Law 115–31 provides: Section 401(b) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note) shall be applied by substituting ‘‘September 30, 2017’’ for “September 30, 2015”.
(c)

Scope of Operation of Pilot Programs.—
The Secretary of Homeland Security shall provide for the operation—
(1)
of the E-Verify Program (described in section 403(a) of this division) in, at a minimum, 5 of the 7 States with the highest estimated population of aliens who are not lawfully present in the United States, and the Secretary of Homeland Security shall expand the operation of the program to all 50 States not later than December 1, 2004;
(2)
of the citizen attestation pilot program (described in section 403(b) of this division) in at least 5 States (or, if fewer, all of the States) that meet the condition described in section 403(b)(2)(A) of this division; and
(3)
of the machine-readable-document pilot program (described in section 403(c) of this division) in at least 5 States (or, if fewer, all of the States) that meet the condition described in section 403(c)(2) of this division.
(d)

References in Subtitle.—
In this subtitle—
(1)

Pilot program references.—
The terms “program” or “pilot program” refer to any of the 3 pilot programs provided for under this subtitle.
(2)

Confirmation system.—
The term “confirmation system” means the confirmation system established under section 404 of this division.
(3)

References to section 274a.—
Any reference in this subtitle to section 274A (or a subdivision of such section) is deemed a reference to such section (or subdivision thereof) of the Immigration and Nationality Act.
(4)

I–9 or similar form.—
The term “I–9 or similar form” means the form used for purposes of section 274A(b)(1)(A) or such other form as the Secretary of Homeland Security determines to be appropriate.
(5)

Limited application to recruiters and referrers.—
Any reference to recruitment or referral (or a recruiter or referrer) in relation to employment is deemed a reference only to such recruitment or referral (or recruiter or referrer) that is subject to section 274A(a)(1)(B)(ii).
(6)

United states citizenship.—
The term “United States citizenship” includes United States nationality.
(7)

State.—
The term “State” has the meaning given such term in section 101(a)(36) of the Immigration and Nationality Act.
SEC. 402.
[8 U.S.C. 1324a note]

VOLUNTARY ELECTION TO PARTICIPATE IN A PILOT PROGRAM.
(a)

Voluntary Election.—
Subject to subsection (c)(3)(B), any person or other entity that conducts any hiring (or recruitment or referral) in a State in which a pilot program is operating may elect to participate in that pilot program. Except as specifically provided in subsection (e), the Secretary of Homeland Security may not require any person or other entity to participate in a pilot program.
(b)

Benefit of Rebuttable Presumption.—
(1)

In general.—
If a person or other entity is participating in a pilot program and obtains confirmation of identity and employment eligibility in compliance with the terms and conditions of the program with respect to the hiring (or recruitment or referral) of an individual for employment in the United States, the person or entity has established a rebuttable presumption that the person or entity has not violated section 274A(a)(1)(A) with respect to such hiring (or such recruitment or referral).
(2)

Construction.—
Paragraph (1) shall not be construed as preventing a person or other entity that has an election in effect under subsection (a) from establishing an affirmative defense under section 274A(a)(3) if the person or entity complies with the requirements of section 274A(a)(1)(B) but fails to obtain confirmation under paragraph (1).
(c)

General Terms of Elections.—
(1)

In general.—
An election under subsection (a) shall be in such form and manner, under such terms and conditions, and shall take effect, as the Secretary of Homeland Security shall specify. The Secretary of Homeland Security may not impose any fee as a condition of making an election or participating in a pilot program.
(2)

Scope of election.—
(A)

In general.—
Subject to paragraph (3), any electing person or other entity may provide that the election under subsection (a) shall apply (during the period in which the election is in effect)—
(i)
to all its hiring (and all recruitment or referral) in the State (or States) in which the pilot program is operating, or
(ii)
to its hiring (or recruitment or referral) in one or more pilot program States or one or more places of hiring (or recruitment or referral, as the case may be) in the pilot program States.
(B)

Application of programs in non-pilot program states.—
In addition, the Secretary of Homeland Security may permit a person or entity electing the citizen attestation pilot program (described in 403(b) of this division) or the machine-readable-document pilot program (described in section 403(c) of this division) to provide that the election applies to its hiring (or recruitment or referral) in one or more States or places of hiring (or recruitment or referral) in which the pilot program is not otherwise operating but only if such States meet the requirements of 403(b)(2)(A) and 403(c)(2) of this division, respectively.
(3)

Termination of elections.—
The Secretary of Homeland Security may terminate an election by a person or other entity under this section because the person or entity has substantially failed to comply with its obligations under the pilot program. A person or other entity may terminate an election in such form and manner as the Secretary of Homeland Security shall specify.
(d)

Consultation, Education, and Publicity.—
(1)

Consultation.—
The Secretary of Homeland Security shall closely consult with representatives of employers (and recruiters and referrers) in the development and implementation of the pilot programs, including the education of employers (and recruiters and referrers) about such programs.
(2)

Publicity.—
The Secretary of Homeland Security shall widely publicize the election process and pilot programs, including the voluntary nature of the pilot programs and the advantages to employers (and recruiters and referrers) of making an election under this section.
(3)

Assistance through district offices.—
The Secretary of Homeland Security shall designate one or more individuals in each District office of the Immigration and Naturalization Service for a Service District in which a pilot program is being implemented—
(A)
to inform persons and other entities that seek information about pilot programs of the voluntary nature of such programs, and
(B)
to assist persons and other entities in electing and participating in any pilot programs in effect in the District, in complying with the requirements of section 274A, and in facilitating confirmation of the identity and employment eligibility of individuals consistent with such section.
(e)

Select Entities Required to Participate in a Pilot Program.—
(1)

Federal government.—
(A)

Executive departments.—
(i)

In general.—
Each Department of the Federal Government shall elect to participate in a pilot program and shall comply with the terms and conditions of such an election.
(ii)

Election.—
Subject to clause (iii), the Secretary of each such Department—
(I)
shall elect the pilot program (or programs) in which the Department shall participate, and
(II)
may limit the election to hiring occurring in certain States (or geographic areas) covered by the program (or programs) and in specified divisions within the Department, so long as all hiring by such divisions and in such locations is covered.
(iii)

Role of attorney general.—
The Secretary of Homeland Security shall assist and coordinate elections under this subparagraph in such manner as assures that—
(I)
a significant portion of the total hiring within each Department within States covered by a pilot program is covered under such a program, and
(II)
there is significant participation by the Federal Executive branch in each of the pilot programs.
(B)

Legislative branch.—
Each Member of Congress, each officer of Congress, and the head of each agency of the legislative branch, that conducts hiring in a State in which a pilot program is operating shall elect to participate in a pilot program, may specify which pilot program or programs (if there is more than one) in which the Member, officer, or agency will participate, and shall comply with the terms and conditions of such an election.
(2)

Application to certain violators.—
An order under section 274A(e)(4) or section 274B(g) of the Immigration and Nationality Act may require the subject of the order to participate in, and comply with the terms of, a pilot program with respect to the subject's hiring (or recruitment or referral) of individuals in a State covered by such a program.
(3)

Consequence of failure to participate.—
If a person or other entity is required under this subsection to participate in a pilot program and fails to comply with the requirements of such program with respect to an individual—
(A)
such failure shall be treated as a violation of section 274A(a)(1)(B) with respect to that individual, and
(B)
a rebuttable presumption is created that the person or entity has violated section 274A(a)(1)(A).
Subparagraph (B) shall not apply in any prosecution under section 274A(f)(1).
(f)

Construction.—
This subtitle shall not affect the authority of the Secretary of Homeland Security under any other law (including section 274A(d)(4)) to conduct demonstration projects in relation to section 274A.
SEC. 403.
[8 U.S.C. 1324a note]

PROCEDURES FOR PARTICIPANTS IN PILOT PROGRAMS.
(a)

E-Verify Program.—
A person or other entity that elects to participate in the E-Verify Program described in this subsection agrees to conform to the following procedures in the case of the hiring (or recruitment or referral) for employment in the United States of each individual covered by the election:
(1)

Provision of additional information.—
The person or entity shall obtain from the individual (and the individual shall provide) and shall record on the I–9 or similar form—
(A)
the individual's social security account number, if the individual has been issued such a number, and
(B)
if the individual does not attest to United States citizenship under section 274A(b)(2), such identification or authorization number established by the Immigration and Naturalization Service for the alien as the Secretary of Homeland Security shall specify,
and shall retain the original form and make it available for inspection for the period and in the manner required of I–9 forms under section 274A(b)(3).
(2)

Presentation of documentation.—
(A)

In general.—
The person or other entity, and the individual whose identity and employment eligibility are being confirmed, shall, subject to subparagraph (B), fulfill the requirements of section 274A(b) with the following modifications:
(i)
A document referred to in section 274A(b)(1)(B)(ii) (as redesignated by section 412(a) of this division) must be designated by the Secretary of Homeland Security as suitable for the purpose of identification in a pilot program.
(ii)
A document referred to in section 274A(b)(1)(D) must contain a photograph of the individual.
(iii)
The person or other entity has complied with the requirements of section 274A(b)(1) with respect to examination of a document if the document reasonably appears on its face to be genuine and it reasonably appears to pertain to the individual whose identity and work eligibility is being confirmed.
(B)

Limitation of requirement to examine documentation.—
If the Secretary of Homeland Security finds that a pilot program would reliably determine with respect to an individual whether—
(i)
the person with the identity claimed by the individual is authorized to work in the United States, and
(ii)
the individual is claiming the identity of another person,
if a person or entity could fulfill the requirement to examine documentation contained in subparagraph (A) of section 274A(b)(1) by examining a document specified in either subparagraph (B) or (D) of such section, the Secretary of Homeland Security may provide that, for purposes of such requirement, only such a document need be examined. In such case, any reference in section 274A(b)(1)(A) to a verification that an individual is not an unauthorized alien shall be deemed to be a verification of the individual's identity.
(3)

Seeking confirmation.—
(A)

In general.—
The person or other entity shall make an inquiry, as provided in section 404(a)(1) of this division, using the confirmation system to seek confirmation of the identity and employment eligibility of an individual, by not later than the end of 3 working days (as specified by the Secretary of Homeland Security) after the date of the hiring (or recruitment or referral, as the case may be).
(B)

Extension of time period.—
If the person or other entity in good faith attempts to make an inquiry during such 3 working days and the confirmation system has registered that not all inquiries were received during such time, the person or entity can make an inquiry in the first subsequent working day in which the confirmation system registers that it has received all inquiries. If the confirmation system cannot receive inquiries at all times during a day, the person or entity merely has to assert that the entity attempted to make the inquiry on that day for the previous sentence to apply to such an inquiry, and does not have to provide any additional proof concerning such inquiry.
(4)

Confirmation or nonconfirmation.—
(A)

Confirmation upon initial inquiry.—
If the person or other entity receives an appropriate confirmation of an individual's identity and work eligibility under the confirmation system within the time period specified under section 404(b) of this division, the person or entity shall record on the I–9 or similar form an appropriate code that is provided under the system and that indicates a final confirmation of such identity and work eligibility of the individual.
(B)

Nonconfirmation upon initial inquiry and secondary verification.—
(i)

Nonconfirmation.—
If the person or other entity receives a tentative nonconfirmation of an individual's identity or work eligibility under the confirmation system within the time period specified under 404(b) of this division, the person or entity shall so inform the individual for whom the confirmation is sought.
(ii)

No contest.—
If the individual does not contest the nonconfirmation within the time period specified in section 404(c) of this division, the nonconfirmation shall be considered final. The person or entity shall then record on the I–9 or similar form an appropriate code which has been provided under the system to indicate a tentative nonconfirmation.
(iii)

Contest.—
If the individual does contest the nonconfirmation, the individual shall utilize the process for secondary verification provided under section 404(c) of this division. The nonconfirmation will remain tentative until a final confirmation or nonconfirmation is provided by the confirmation system within the time period specified in such section. In no case shall an employer terminate employment of an individual because of a failure of the individual to have identity and work eligibility confirmed under this section until a nonconfirmation becomes final. Nothing in this clause shall apply to a termination of employment for any reason other than because of such a failure.
(iv)

Recording of conclusion on form.—
If a final confirmation or nonconfirmation is provided by the confirmation system under section 404(c) of this division regarding an individual, the person or entity shall record on the I–9 or similar form an appropriate code that is provided under the system and that indicates a confirmation or nonconfirmation of identity and work eligibility of the individual.
(C)

Consequences of nonconfirmation.—
(i)

Termination or notification of continued employment.—
If the person or other entity has received a final nonconfirmation regarding an individual under subparagraph (B), the person or entity may terminate employment (or recruitment or referral) of the individual. If the person or entity does not terminate employment (or recruitment or referral) of the individual, the person or entity shall notify the Secretary of Homeland Security of such fact through the confirmation system or in such other manner as the Secretary of Homeland Security may specify.
(ii)

Failure to notify.—
If the person or entity fails to provide notice with respect to an individual as required under clause (i), the failure is deemed to constitute a violation of section 274A(a)(1)(B) with respect to that individual and the applicable civil monetary penalty under section 274A(e)(5) shall be (notwithstanding the amounts specified in such section) no less than $500 and no more than $1,000 for each individual with respect to whom such violation occurred.
(iii)

Continued employment after final nonconfirmation.—
If the person or other entity continues to employ (or to recruit or refer) an individual after receiving final nonconfirmation, a rebuttable presumption is created that the person or entity has violated section 274A(a)(1)(A). The previous sentence shall not apply in any prosecution under section 274A(f)(1).
(b)

Citizen Attestation Pilot Program.—
(1)

In general.—
Except as provided in paragraphs (3) through (5), the procedures applicable under the citizen attestation pilot program under this subsection shall be the same procedures as those under the E-Verify Program under subsection (a).
(2)

Restrictions.—
(A)

State document requirement to participate in pilot program.—
The Secretary of Homeland Security may not provide for the operation of the citizen attestation pilot program in a State unless each driver's license or similar identification document described in section 274A(b)(1)(D)(i) issued by the State—
(i)
contains a photograph of the individual involved, and
(ii)
has been determined by the Secretary of Homeland Security to have security features, and to have been issued through application and issuance procedures, which make such document sufficiently resistant to counterfeiting, tampering, and fraudulent use that it is a reliable means of identification for purposes of this section.
(B)

Authorization to limit employer participation.—
The Secretary of Homeland Security may restrict the number of persons or other entities that may elect to participate in the citizen attestation pilot program under this subsection as the Secretary of Homeland Security determines to be necessary to produce a representative sample of employers and to reduce the potential impact of fraud.
(3)

No confirmation required for certain individuals attesting to u.s. citizenship.—
In the case of a person or other entity hiring (or recruiting or referring) an individual under the citizen attestation pilot program, if the individual attests to United States citizenship (under penalty of perjury on an I–9 or similar form which form states on its face the criminal and other penalties provided under law for a false representation of United States citizenship)—
(A)
the person or entity may fulfill the requirement to examine documentation contained in subparagraph (A) of section 274A(b)(1) by examining a document specified in either subparagraph (B)(i) or (D) of such section; and
(B)
the person or other entity is not required to comply with respect to such individual with the procedures described in paragraphs (3) and (4) of subsection (a), but only if the person or entity retains the form and makes it available for inspection in the same manner as in the case of an I–9 form under section 274A(b)(3).
(4)

Waiver of document presentation requirement in certain cases.—
(A)

In general.—
In the case of a person or entity that elects, in a manner specified by the Secretary of Homeland Security consistent with subparagraph (B), to participate in the pilot program under this paragraph, if an individual being hired (or recruited or referred) attests (in the manner described in paragraph (3)) to United States citizenship and the person or entity retains the form on which the attestation is made and makes it available for inspection in the same manner as in the case of an I–9 form under section 274A(b)(3), the person or entity is not required to comply with the procedures described in section 274A(b).
(B)

Restriction.—
The Secretary of Homeland Security shall restrict the election under this paragraph to no more than 1,000 employers and, to the extent practicable, shall select among employers seeking to make such election in a manner that provides for such an election by a representative sample of employers.
(5)

Nonreviewable determinations.—
The determinations of the Secretary of Homeland Security under paragraphs (2) and (4) are within the discretion of the Secretary of Homeland Security and are not subject to judicial or administrative review.
(c)

Machine-Readable-Document Pilot Program.—
(1)

In general.—
Except as provided in paragraph (3), the procedures applicable under the machine-readable-document pilot program under this subsection shall be the same procedures as those under the E-Verify Program under subsection (a).
(2)

State document requirement to participate in pilot program.—
The Secretary of Homeland Security may not provide for the operation of the machine-readable-document pilot program in a State unless driver's licenses and similar identification documents described in section 274A(b)(1)(D)(i) issued by the State include a machine-readable social security account number.
(3)

Use of machine-readable documents.—
If the individual whose identity and employment eligibility must be confirmed presents to the person or entity hiring (or recruiting or referring) the individual a license or other document described in paragraph (2) that includes a machine-readable social security account number, the person or entity must make an inquiry through the confirmation system by using a machine-readable feature of such document. If the individual does not attest to United States citizenship under section 274A(b)(2), the individual's identification or authorization number described in subsection (a)(1)(B) shall be provided as part of the inquiry.
(d)

Protection From Liability for Actions Taken on the Basis of Information Provided by the Confirmation System.—
No person or entity participating in a pilot program shall be civilly or criminally liable under any law for any action taken in good faith reliance on information provided through the confirmation system.
SEC. 404.
[8 U.S.C. 1324a note]

EMPLOYMENT ELIGIBILITY CONFIRMATION SYSTEM.
(a)

In General.—
The Secretary of Homeland Security shall establish a pilot program confirmation system through which the Secretary of Homeland Security (or a designee of the Secretary of Homeland Security, which may be a nongovernmental entity)—
(1)
responds to inquiries made by electing persons and other entities (including those made by the transmittal of data from machine-readable documents under the machine-readable pilot program) at any time through a toll-free telephone line or other toll-free electronic media concerning an individual's identity and whether the individual is authorized to be employed, and
(2)
maintains records of the inquiries that were made, of confirmations provided (or not provided), and of the codes provided to inquirers as evidence of their compliance with their obligations under the pilot programs.
To the extent practicable, the Secretary of Homeland Security shall seek to establish such a system using one or more nongovernmental entities.
(b)

Initial Response.—
The confirmation system shall provide confirmation or a tentative nonconfirmation of an individual's identity and employment eligibility within 3 working days of the initial inquiry. If providing confirmation or tentative nonconfirmation, the confirmation system shall provide an appropriate code indicating such confirmation or such nonconfirmation.
(c)

Secondary Verification Process in Case of Tentative Nonconfirmation.—
In cases of tentative nonconfirmation, the Secretary of Homeland Security shall specify, in consultation with the Commissioner of Social Security and the Commissioner of the Immigration and Naturalization Service, an available secondary verification process to confirm the validity of information provided and to provide a final confirmation or nonconfirmation within 10 working days after the date of the tentative nonconfirmation. When final confirmation or nonconfirmation is provided, the confirmation system shall provide an appropriate code indicating such confirmation or nonconfirmation.
(d)

Design and Operation of System.—
The confirmation system shall be designed and operated—
(1)
to maximize its reliability and ease of use by persons and other entities making elections under section 402(a) of this division consistent with insulating and protecting the privacy and security of the underlying information;
(2)
to respond to all inquiries made by such persons and entities on whether individuals are authorized to be employed and to register all times when such inquiries are not received;
(3)
with appropriate administrative, technical, and physical safeguards to prevent unauthorized disclosure of personal information; and
(4)
to have reasonable safeguards against the system's resulting in unlawful discriminatory practices based on national origin or citizenship status, including—
(A)
the selective or unauthorized use of the system to verify eligibility;
(B)
the use of the system prior to an offer of employment; or
(C)
the exclusion of certain individuals from consideration for employment as a result of a perceived likelihood that additional verification will be required, beyond what is required for most job applicants.
(e)

Responsibilities of the Commissioner of Social Security.—
As part of the confirmation system, the Commissioner of Social Security, in consultation with the entity responsible for administration of the system, shall establish a reliable, secure method, which, within the time periods specified under subsections (b) and (c), compares the name and social security account number provided in an inquiry against such information maintained by the Commissioner in order to confirm (or not confirm) the validity of the information provided regarding an individual whose identity and employment eligibility must be confirmed, the correspondence of the name and number, and whether the individual has presented a social security account number that is not valid for employment. The Commissioner shall not disclose or release social security information (other than such confirmation or nonconfirmation).
(f)

Responsibilities of the Commissioner of the Immigration and Naturalization Service.—
As part of the confirmation system, the Commissioner of the Immigration and Naturalization Service, in consultation with the entity responsible for administration of the system, shall establish a reliable, secure method, which, within the time periods specified under subsections (b) and (c), compares the name and alien identification or authorization number described in section 403(a)(1)(B) of this division which are provided in an inquiry against such information maintained by the Commissioner in order to confirm (or not confirm) the validity of the information provided, the correspondence of the name and number, and whether the alien is authorized to be employed in the United States.
(g)

Updating Information.—
The Commissioners of Social Security and the Immigration and Naturalization Service shall update their information in a manner that promotes the maximum accuracy and shall provide a process for the prompt correction of erroneous information, including instances in which it is brought to their attention in the secondary verification process described in subsection (c).
(h)

Limitation on Use of the Confirmation System and Any Related Systems.—
(1)

In general.—
Notwithstanding any other provision of law, nothing in this subtitle shall be construed to permit or allow any department, bureau, or other agency of the United States Government to utilize any information, data base, or other records assembled under this subtitle for any other purpose other than as provided for under this subtitle.
(2)

No national identification card.—
Nothing in this subtitle shall be construed to authorize, directly or indirectly, the issuance or use of national identification cards or the establishment of a national identification card.
SEC. 405.
[8 U.S.C. 1324a note]

REPORTS.
(a)

In General.—
The Secretary of Homeland Security shall submit to the Committees on the Judiciary of the House of Representatives and of the Senate reports on the pilot programs within 3 months after the end of the third and fourth years in which the programs are in effect. Such reports shall—
(1)
assess the degree of fraudulent attesting of United States citizenship,
(2)
include recommendations on whether or not the pilot programs should be continued or modified, and
(3)
assess the benefits of the pilot programs to employers and the degree to which they assist in the enforcement of section 274A.
(b)

Report on Expansion.—
Not later than June 1, 2004, the Secretary of Homeland Security shall submit to the Committees on the Judiciary of the House of Representatives and the Senate a report—
(1)
evaluating whether the problems identified by the report submitted under subsection (a) have been substantially resolved; and
(2)
describing what actions the Secretary of Homeland Security shall take before undertaking the expansion of the E-Verify Program to all 50 States in accordance with section 401(c)(1), in order to resolve any outstanding problems raised in the report filed under subsection (a).
* * * * * * *