[Congressional Record Volume 170, Number 24 (Friday, February 9, 2024)]
[Senate]
[Pages S647-S650]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 1483. Mr. TUBERVILLE submitted an amendment intended to be
proposed to amendment SA 1388 submitted by Mrs. Murray (for herself and
Mr. Schumer) and intended to be proposed to the bill H.R. 815, to amend
title 38, United States Code, to make certain improvements relating to
the eligibility of veterans to receive reimbursement for emergency
treatment furnished through the Veterans Community Care program, and
for other purposes; which was ordered to lie on the table; as follows:
At the appropriate place, insert the following:
SEC. ___. EMPLOYMENT ELIGIBILITY VERIFICATION PROCESS.
(a) In General.--Section 274A(b) of the Immigration and
Nationality Act (8 U.S.C. 1324a(b)) is amended to read as
follows:
``(b) Employment Eligibility Verification Process.--
``(1) New hires, recruitment, and referral.--The
requirements referred to in paragraphs (1)(B) and (3) of
subsection (a) are, in the case of a person or other entity
hiring, recruiting, or referring an individual for employment
in the United States, the following:
``(A) Attestation after examination of documentation.--
``(i) Attestation.--During the verification period (as
defined in subparagraph (E)), the person or entity shall
attest, under penalty of perjury and on a form, including
electronic format, designated or established by the Secretary
by regulation not later than 6 months after the date of the
enactment of title VIII of division B of the Secure the
Border Act of 2023, that it has verified that the individual
is not an unauthorized alien by--
``(I) obtaining from the individual the individual's social
security account number or United States passport number and
recording the number on the form (if the individual claims to
have been issued such a number), and, if the individual does
not attest to United States nationality under subparagraph
(B), obtaining such identification or authorization number
established by the Department of Homeland Security for the
alien as the Secretary of Homeland Security may specify, and
recording such number on the form; and
``(II) examining--
[[Page S648]]
``(aa) a document relating to the individual presenting it
described in clause (ii); or
``(bb) a document relating to the individual presenting it
described in clause (iii) and a document relating to the
individual presenting it described in clause (iv).
``(ii) Documents evidencing employment authorization and
establishing identity.--A document described in this
subparagraph is an individual's--
``(I) unexpired United States passport or passport card;
``(II) unexpired permanent resident card that contains a
photograph;
``(III) unexpired employment authorization card that
contains a photograph;
``(IV) in the case of a nonimmigrant alien authorized to
work for a specific employer incident to status, a foreign
passport with Form I-94 or Form I-94A, or other documentation
as designated by the Secretary specifying the alien's
nonimmigrant status as long as the period of status has not
yet expired and the proposed employment is not in conflict
with any restrictions or limitations identified in the
documentation;
``(V) passport from the Federated States of Micronesia
(FSM) or the Republic of the Marshall Islands (RMI) with Form
I-94 or Form I-94A, or other documentation as designated by
the Secretary, indicating nonimmigrant admission under the
Compact of Free Association Between the United States and the
FSM or RMI; or
``(VI) other document designated by the Secretary of
Homeland Security, if the document--
``(aa) contains a photograph of the individual and
biometric identification data from the individual and such
other personal identifying information relating to the
individual as the Secretary of Homeland Security finds, by
regulation, sufficient for purposes of this clause;
``(bb) is evidence of authorization of employment in the
United States; and
``(cc) contains security features to make it resistant to
tampering, counterfeiting, and fraudulent use.
``(iii) Documents evidencing employment authorization.--A
document described in this subparagraph is an individual's
social security account number card (other than such a card
which specifies on the face that the issuance of the card
does not authorize employment in the United States).
``(iv) Documents establishing identity of individual.--A
document described in this subparagraph is--
``(I) an individual's unexpired State issued driver's
license or identification card if it contains a photograph
and information such as name, date of birth, gender, height,
eye color, and address;
``(II) an individual's unexpired United States military
identification card;
``(III) an individual's unexpired Native American tribal
identification document issued by a tribal entity recognized
by the Bureau of Indian Affairs; or
``(IV) in the case of an individual under 18 years of age,
a parent or legal guardian's attestation under penalty of law
as to the identity and age of the individual.
``(v) Authority to prohibit use of certain documents.--If
the Secretary of Homeland Security finds, by regulation, that
any document described in clause (i), (ii), or (iii) as
establishing employment authorization or identity does not
reliably establish such authorization or identity or is being
used fraudulently to an unacceptable degree, the Secretary
may prohibit or place conditions on its use for purposes of
this paragraph.
``(vi) Signature.--Such attestation may be manifested by
either a handwritten or electronic signature.
``(B) Individual attestation of employment authorization.--
During the verification period (as defined in subparagraph
(E)), the individual shall attest, under penalty of perjury
on the form designated or established for purposes of
subparagraph (A), that the individual is a citizen or
national of the United States, an alien lawfully admitted for
permanent residence, or an alien who is authorized under this
Act or by the Secretary of Homeland Security to be hired,
recruited, or referred for such employment. Such attestation
may be manifested by either a handwritten or electronic
signature. The individual shall also provide that
individual's social security account number or United States
passport number (if the individual claims to have been issued
such a number), and, if the individual does not attest to
United States nationality under this subparagraph, such
identification or authorization number established by the
Department of Homeland Security for the alien as the
Secretary may specify.
``(C) Retention of verification form and verification.--
``(i) In general.--After completion of such form in
accordance with subparagraphs (A) and (B), the person or
entity shall--
``(I) retain a paper or electronic version of the form and
make it available for inspection by officers of the
Department of Homeland Security, the Department of Justice,
or the Department of Labor during a period beginning on the
date of the recruiting or referral of the individual, or, in
the case of the hiring of an individual, the date on which
the verification is completed, and ending--
``(aa) in the case of the recruiting or referral of an
individual, 3 years after the date of the recruiting or
referral; and
``(bb) in the case of the hiring of an individual, the
later of 3 years after the date the verification is completed
or one year after the date the individual's employment is
terminated; and
``(II) during the verification period (as defined in
subparagraph (E)), make an inquiry, as provided in subsection
(d), using the verification system to seek verification of
the identity and employment eligibility of an individual.
``(ii) Confirmation.--
``(I) Confirmation received.--If the person or other entity
receives an appropriate confirmation of an individual's
identity and work eligibility under the verification system
within the time period specified, the person or entity shall
record on the 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.
``(II) Tentative nonconfirmation received.--If the person
or other entity receives a tentative nonconfirmation of an
individual's identity or work eligibility under the
verification system within the time period specified, the
person or entity shall so inform the individual for whom the
verification is sought. If the individual does not contest
the nonconfirmation within the time period specified, the
nonconfirmation shall be considered final. The person or
entity shall then record on the form an appropriate code
which has been provided under the system to indicate a final
nonconfirmation. If the individual does contest the
nonconfirmation, the individual shall utilize the process for
secondary verification provided under subsection (d). The
nonconfirmation will remain tentative until a final
confirmation or nonconfirmation is provided by the
verification system within the time period specified. 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. In no case shall an employer
rescind the offer of employment to an individual because of a
failure of the individual to have identity and work
eligibility confirmed under this subsection until a
nonconfirmation becomes final. Nothing in this subclause
shall apply to a recission of the offer of employment for any
reason other than because of such a failure.
``(III) Final confirmation or nonconfirmation received.--If
a final confirmation or nonconfirmation is provided by the
verification system regarding an individual, the person or
entity shall record on the 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.
``(IV) Extension of time.--If the person or other entity in
good faith attempts to make an inquiry during the time period
specified and the verification system has registered that not
all inquiries were received during such time, the person or
entity may make an inquiry in the first subsequent working
day in which the verification system registers that it has
received all inquiries. If the verification 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.
``(V) Consequences of nonconfirmation.--
``(aa) Termination or notification of continued
employment.--If the person or other entity has received a
final nonconfirmation regarding an individual, the person or
entity may terminate employment of the individual (or decline
to recruit or refer the individual). If the person or entity
does not terminate employment of the individual or proceeds
to recruit or refer the individual, the person or entity
shall notify the Secretary of Homeland Security of such fact
through the verification system or in such other manner as
the Secretary may specify.
``(bb) Failure to notify.--If the person or entity fails to
provide notice with respect to an individual as required
under item (aa), the failure is deemed to constitute a
violation of subsection (a)(1)(A) with respect to that
individual.
``(VI) 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 subsection (a)(1)(A).
``(D) Effective dates of new procedures.--
``(i) Hiring.--Except as provided in clause (iii), the
provisions of this paragraph shall apply to a person or other
entity hiring an individual for employment in the United
States as follows:
``(I) With respect to employers having 10,000 or more
employees in the United States on the date of the enactment
of title VIII of division B of the Secure the Border Act of
2023, on the date that is 6 months after the date of the
enactment of title.
``(II) With respect to employers having 500 or more
employees in the United States, but less than 10,000
employees in the United States, on the date of the enactment
of title VIII of division B of the Secure the Border Act of
2023, on the date that is 12 months after the date of the
enactment of such title.
``(III) With respect to employers having 20 or more
employees in the United States, but less than 500 employees
in the United States,
[[Page S649]]
on the date of the enactment of title VIII of division B of
the Secure the Border Act of 2023, on the date that is 18
months after the date of the enactment of such title.
``(IV) With respect to employers having one or more
employees in the United States, but less than 20 employees in
the United States, on the date of the enactment of title VIII
of division B of the Secure the Border Act of 2023, on the
date that is 24 months after the date of the enactment of
such title.
``(ii) Recruiting and referring.--Except as provided in
clause (iii), the provisions of this paragraph shall apply to
a person or other entity recruiting or referring an
individual for employment in the United States on the date
that is 12 months after the date of the enactment of title
VIII of division B of the Secure the Border Act of 2023.
``(iii) Agricultural labor or services.--With respect to an
employee performing agricultural labor or services, this
paragraph shall not apply with respect to the verification of
the employee until the date that is 36 months after the date
of the enactment of title VIII of division B of the Secure
the Border Act of 2023. For purposes of the preceding
sentence, the term `agricultural labor or services' has the
meaning given such term by the Secretary of Agriculture in
regulations and includes agricultural labor as defined in
section 3121(g) of the Internal Revenue Code of 1986,
agriculture as defined in section 3(f) of the Fair Labor
Standards Act of 1938 (29 U.S.C. 203(f)), the handling,
planting, drying, packing, packaging, processing, freezing,
or grading prior to delivery for storage of any agricultural
or horticultural commodity in its unmanufactured state, all
activities required for the preparation, processing or
manufacturing of a product of agriculture (as such term is
defined in such section 3(f)) for further distribution, and
activities similar to all the foregoing as they relate to
fish or shellfish facilities. An employee described in this
clause shall not be counted for purposes of clause (i).
``(iv) Extensions.--
``(I) On request.--Upon request by an employer having 50 or
fewer employees, the Secretary shall allow a one-time 6-month
extension of the effective date set out in this subparagraph
applicable to such employer. Such request shall be made to
the Secretary and shall be made prior to such effective date.
``(II) Following report.--If the study under section 814 of
title VIII of division B of the Secure the Border Act of 2023
has been submitted in accordance with such section, the
Secretary of Homeland Security may extend the effective date
set out in clause (iii) on a one-time basis for 12 months.
``(v) Transition rule.--Subject to paragraph (4), the
following shall apply to a person or other entity hiring,
recruiting, or referring an individual for employment in the
United States until the effective date or dates applicable
under clauses (i) through (iii):
``(I) This subsection, as in effect before the enactment of
title VIII of division B of the Secure the Border Act of
2023.
``(II) Subtitle A of title IV of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (8 U.S.C.
1324a note), as in effect before the effective date in
section 807(c) of title VIII of division B of the Secure the
Border Act of 2023.
``(III) Any other provision of Federal law requiring the
person or entity to participate in the E-Verify Program
described in section 403(a) of the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a
note), as in effect before the effective date in section
807(c) of title VIII of division B of the Secure the Border
Act of 2023, including Executive Order 13465 (8 U.S.C. 1324a
note; relating to Government procurement).
``(E) Verification period defined.--
``(i) In general.--For purposes of this paragraph:
``(I) In the case of recruitment or referral, the term
`verification period' means the period ending on the date
recruiting or referring commences.
``(II) In the case of hiring, the term `verification
period' means the period beginning on the date on which an
offer of employment is extended and ending on the date that
is three business days after the date of hire, except as
provided in clause (iii). The offer of employment may be
conditioned in accordance with clause (ii).
``(ii) Job offer may be conditional.--A person or other
entity may offer a prospective employee an employment
position that is conditioned on final verification of the
identity and employment eligibility of the employee using the
procedures established under this paragraph.
``(iii) Special rule.--Notwithstanding clause (i)(II), in
the case of an alien who is authorized for employment and who
provides evidence from the Social Security Administration
that the alien has applied for a social security account
number, the verification period ends three business days
after the alien receives the social security account number.
``(2) Reverification for individuals with limited work
authorization.--
``(A) In general.--Except as provided in subparagraph (B),
a person or entity shall make an inquiry, as provided in
subsection (d), using the verification system to seek
reverification of the identity and employment eligibility of
all individuals with a limited period of work authorization
employed by the person or entity during the three business
days after the date on which the employee's work
authorization expires as follows:
``(i) With respect to employers having 10,000 or more
employees in the United States on the date of the enactment
of title VIII of division B of the Secure the Border Act of
2023, beginning on the date that is 6 months after the date
of the enactment of such title.
``(ii) With respect to employers having 500 or more
employees in the United States, but less than 10,000
employees in the United States, on the date of the enactment
of title VIII of division B of the Secure the Border Act of
2023, beginning on the date that is 12 months after the date
of the enactment of such title.
``(iii) With respect to employers having 20 or more
employees in the United States, but less than 500 employees
in the United States, on the date of the enactment of title
VIII of division B of the Secure the Border Act of 2023,
beginning on the date that is 18 months after the date of the
enactment of such title.
``(iv) With respect to employers having one or more
employees in the United States, but less than 20 employees in
the United States, on the date of the enactment of title VIII
of division B of the Secure the Border Act of 2023, beginning
on the date that is 24 months after the date of the enactment
of such title.
``(B) Agricultural labor or services.--With respect to an
employee performing agricultural labor or services, or an
employee recruited or referred by a farm labor contractor (as
defined in section 3 of the Migrant and Seasonal Agricultural
Worker Protection Act (29 U.S.C. 1801)), subparagraph (A)
shall not apply with respect to the reverification of the
employee until the date that is 36 months after the date of
the enactment of title VIII of division B of the Secure the
Border Act of 2023. For purposes of the preceding sentence,
the term `agricultural labor or services' has the meaning
given such term by the Secretary of Agriculture in
regulations and includes agricultural labor as defined in
section 3121(g) of the Internal Revenue Code of 1986,
agriculture as defined in section 3(f) of the Fair Labor
Standards Act of 1938 (29 U.S.C. 203(f)), the handling,
planting, drying, packing, packaging, processing, freezing,
or grading prior to delivery for storage of any agricultural
or horticultural commodity in its unmanufactured state, all
activities required for the preparation, processing, or
manufacturing of a product of agriculture (as such term is
defined in such section 3(f)) for further distribution, and
activities similar to all the foregoing as they relate to
fish or shellfish facilities. An employee described in this
subparagraph shall not be counted for purposes of
subparagraph (A).
``(C) Reverification.--Paragraph (1)(C)(ii) shall apply to
reverifications pursuant to this paragraph on the same basis
as it applies to verifications pursuant to paragraph (1),
except that employers shall--
``(i) use a form designated or established by the Secretary
by regulation for purposes of this paragraph; and
``(ii) retain a paper or electronic version of the form and
make it available for inspection by officers of the
Department of Homeland Security, the Department of Justice,
or the Department of Labor during the period beginning on the
date the reverification commences and ending on the date that
is the later of 3 years after the date of such reverification
or 1 year after the date the individual's employment is
terminated.
``(3) Previously hired individuals.--
``(A) On a mandatory basis for certain employees.--
``(i) In general.--Not later than the date that is 6 months
after the date of the enactment of title VIII of division B
of the Secure the Border Act of 2023, an employer shall make
an inquiry, as provided in subsection (d), using the
verification system to seek verification of the identity and
employment eligibility of any individual described in clause
(ii) employed by the employer whose employment eligibility
has not been verified under the E-Verify Program described in
section 403(a) of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note).
``(ii) Individuals described.--An individual described in
this clause is any of the following:
``(I) An employee of any unit of a Federal, State, or local
government.
``(II) An employee who requires a Federal security
clearance working in a Federal, State, or local government
building, a military base, a nuclear energy site, a weapons
site, or an airport or other facility that requires workers
to carry a Transportation Worker Identification Credential
(TWIC).
``(III) An employee assigned to perform work in the United
States under a Federal contract, except that this subclause--
``(aa) is not applicable to individuals who have a
clearance under Homeland Security Presidential Directive 12
(HSPD 12 clearance), are administrative or overhead
personnel, or are working solely on contracts that provide
Commercial Off The Shelf goods or services as set forth by
the Federal Acquisition Regulatory Council, unless they are
subject to verification under subclause (II); and
``(bb) only applies to contracts over the simple
acquisition threshold as defined in section 2.101 of title
48, Code of Federal Regulations.
``(B) On a mandatory basis for multiple users of same
social security account number.--In the case of an employer
who is required by this subsection to use the
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verification system described in subsection (d), or has
elected voluntarily to use such system, the employer shall
make inquiries to the system in accordance with the
following:
``(i) The Commissioner of Social Security shall notify
annually employees (at the employee address listed on the
Wage and Tax Statement) who submit a social security account
number to which more than one employer reports income and for
which there is a pattern of unusual multiple use. The
notification letter shall identify the number of employers to
which income is being reported as well as sufficient
information notifying the employee of the process to contact
the Social Security Administration Fraud Hotline if the
employee believes the employee's identity may have been
stolen. The notice shall not share information protected as
private, in order to avoid any recipient of the notice from
being in the position to further commit or begin committing
identity theft.
``(ii) If the person to whom the social security account
number was issued by the Social Security Administration has
been identified and confirmed by the Commissioner, and
indicates that the social security account number was used
without their knowledge, the Secretary and the Commissioner
shall lock the social security account number for employment
eligibility verification purposes and shall notify the
employers of the individuals who wrongfully submitted the
social security account number that the employee may not be
work eligible.
``(iii) Each employer receiving such notification of an
incorrect social security account number under clause (ii)
shall use the verification system described in subsection (d)
to check the work eligibility status of the applicable
employee within 10 business days of receipt of the
notification.
``(C) On a voluntary basis.--Subject to paragraph (2), and
subparagraphs (A) through (C) of this paragraph, beginning on
the date that is 30 days after the date of the enactment of
title VIII of division B of the Secure the Border Act of
2023, an employer may make an inquiry, as provided in
subsection (d), using the verification system to seek
verification of the identity and employment eligibility of
any individual employed by the employer. If an employer
chooses voluntarily to seek verification of any individual
employed by the employer, the employer shall seek
verification of all individuals employed at the same
geographic location or, at the option of the employer, all
individuals employed within the same job category, as the
employee with respect to whom the employer seeks voluntarily
to use the verification system. An employer's decision about
whether or not voluntarily to seek verification of its
current workforce under this subparagraph may not be
considered by any government agency in any proceeding,
investigation, or review provided for in this Act.
``(D) Verification.--Paragraph (1)(C)(ii) shall apply to
verifications pursuant to this paragraph on the same basis as
it applies to verifications pursuant to paragraph (1), except
that employers shall--
``(i) use a form designated or established by the Secretary
by regulation for purposes of this paragraph; and
``(ii) retain a paper or electronic version of the form and
make it available for inspection by officers of the
Department of Homeland Security, the Department of Justice,
or the Department of Labor during the period beginning on the
date the verification commences and ending on the date that
is the later of 3 years after the date of such verification
or 1 year after the date the individual's employment is
terminated.
``(4) Early compliance.--
``(A) Former e-verify required users, including federal
contractors.--Notwithstanding the deadlines in paragraphs (1)
and (2), beginning on the date of the enactment of title VIII
of division B of the Secure the Border Act of 2023, the
Secretary is authorized to commence requiring employers
required to participate in the E-Verify Program described in
section 403(a) of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note),
including employers required to participate in such program
by reason of Federal acquisition laws (and regulations
promulgated under those laws, including the Federal
Acquisition Regulation), to commence compliance with the
requirements of this subsection (and any additional
requirements of such Federal acquisition laws and regulation)
in lieu of any requirement to participate in the E-Verify
Program.
``(B) Former e-verify voluntary users and others desiring
early compliance.--Notwithstanding the deadlines in
paragraphs (1) and (2), beginning on the date of the
enactment of title VIII of division B of the Secure the
Border Act of 2023, the Secretary shall provide for the
voluntary compliance with the requirements of this subsection
by employers voluntarily electing to participate in the E-
Verify Program described in section 403(a) of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996
(8 U.S.C. 1324a note) before such date, as well as by other
employers seeking voluntary early compliance.
``(5) Copying of documentation permitted.--Notwithstanding
any other provision of law, the person or entity may copy a
document presented by an individual pursuant to this
subsection and may retain the copy, but only (except as
otherwise permitted under law) for the purpose of complying
with the requirements of this subsection.
``(6) Limitation on use of forms.--A form designated or
established by the Secretary of Homeland Security under this
subsection and any information contained in or appended to
such form, may not be used for purposes other than for
enforcement of this Act and any other provision of Federal
criminal law.
``(7) Good faith compliance.--
``(A) In general.--Except as otherwise provided in this
subsection, a person or entity is considered to have complied
with a requirement of 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 minimus;
``(ii) the Secretary of Homeland Security has explained to
the person or entity the basis for the failure and why it is
not de minimus;
``(iii) the person or entity has been provided a period of
not less than 30 calendar days (beginning after the date of
the explanation) within which to correct the failure; and
``(iv) the 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 a person or entity that
has engaged or is engaging in a pattern or practice of
violations of subsection (a)(1)(A) or (a)(2).
``(8) Single extension of deadlines upon certification.--In
a case in which the Secretary of Homeland Security has
certified to the Congress that the employment eligibility
verification system required under subsection (d) will not be
fully operational by the date that is 6 months after the date
of the enactment of title VIII of division B of the Secure
the Border Act of 2023, each deadline established under this
section for an employer to make an inquiry using such system
shall be extended by 6 months. No other extension of such a
deadline shall be made except as authorized under paragraph
(1)(D)(iv).''.
(b) Date of Hire.--Section 274A(h) of the Immigration and
Nationality Act (8 U.S.C. 1324a(h)) is amended by adding at
the end the following:
``(4) Definition of date of hire.--As used in this section,
the term `date of hire' means the date of actual commencement
of employment for wages or other remuneration, unless
otherwise specified.''.
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