Sec. 301. Electronic employment eligibility verification system
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Chapter 8 of title II of the Immigration and Nationality Act ( 8 U.S.C. 1321 et seq. ) is amended by inserting after section 274D the following: The Secretary of Homeland Security (referred to in this section as the Secretary ) shall establish and administer an electronic verification system (referred to in this section as the System ), patterned on 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 on the day before the effective date described in section 303(a)(4) of the Affordable and Secure Food Act of 2022 ), and using the employment eligibility confirmation system established under section 404 of such Act ( 8 U.S.C. 1324a note) (as so in effect) as a foundation, through which the Secretary shall— respond to legitimate inquiries made by persons or entities seeking to verify the identity and employment authorization of individuals that such persons or entities have hired, or to recruit or refer for a fee, for employment in the United States; and maintain records of the inquiries that were made, and of verifications provided (or not provided) to such persons or entities as evidence of compliance with the requirements of this section.
The System shall provide confirmation or a tentative nonconfirmation of an individual’s identity and employment authorization as soon as practicable, but not later than 3 calendar days after the initial inquiry. If a person or other entity attempts in good faith to make an inquiry through the System during a period in which the System is offline due to a technical issue, a natural disaster, or another reason, the System shall provide the confirmation or nonconfirmation required under subparagraph
(A)as soon as practicable after the System becomes fully operational. The Secretary shall design and operate the System— using responsive web design and other technology approaches to maximize its ease of use and accessibility for users on a variety of electronic devices and screen sizes, and in remote locations; to maximize the accuracy of responses to inquiries submitted by persons or entities; to maximize the reliability of the System and to register each instance when the System is unable to receive inquiries; to maintain and safeguard the privacy and security of the personally identifiable information maintained by or submitted to the System, in accordance with applicable law; to provide direct notification of an inquiry to an individual with respect to whom the inquiry is made, including the results of such inquiry, and information related to the process for challenging the results, in cases in which the individual has established a user account as described in paragraph (4)(B) or an electronic mail or messaging address for the individual is submitted by the person or entity at the time the inquiry is made; and to maintain appropriate administrative, technical, and physical safeguards to prevent misuse of the System and unfair immigration-related employment practices. To prevent identity theft and other forms of fraud, the Secretary shall design and operate the System with the following attributes: The System shall display a digital photograph of the individual, if available, that corresponds to the document presented by an individual to establish identity and employment authorization so that the person or entity that makes an inquiry can compare the photograph displayed by the System to the photograph on the document presented by the individual. The individual may not be deemed ineligible for employment solely for failure to match using the photo matching tool. The verification of an individual's employment eligibility shall be made based on the totality of the information available. The System shall enable individuals to establish user accounts, after authentication of an individual’s identity, that would allow each individual— to confirm the individual’s own employment authorization; to receive electronic notification when the individual’s Social Security account number or other personally identifying information has been submitted to the System; to monitor the use history of the individual’s personally identifying information in the System, including the identities of all persons or entities that have submitted such identifying information to the System, the date of each query run, and the System response for each query run; to suspend or limit the use of the individual’s Social Security account number or other personally identifying information for purposes of the System; and to provide notice to the Department of Homeland Security of any suspected identity fraud or other improper use of personally identifying information. The Secretary, in consultation with the Commissioner of Social Security (referred to in this section as the Commissioner ), shall issue, after publication in the Federal Register and an opportunity for public comment, a final rule establishing a process by which Social Security account numbers that have been identified to be subject to unusual multiple use in the System or that are otherwise suspected or determined to have been compromised by identity fraud or other misuse, will be blocked from use in the System unless an individual using such a number establishes, through secure and fair procedures, that the individual is the legitimate holder of such number. During the period in which the Commissioner of Social Security is developing the process required under clause (i), the Commissioner shall maintain the Self Lock system that permits individuals to prevent unauthorized users from using their Social Security account numbers to confirm employment authorization through E-Verify. If the Secretary blocks or suspends a Social Security account number pursuant to this subparagraph, the Secretary shall provide notice to the persons or entities that have made inquiries to the System using such account number that the identity and employment authorization of the individual who provided such account number must be re-verified. The Secretary shall develop additional security measures to adequately verify the identity of an individual whose identity may not be verified using the photo matching tool described in subparagraph (A). Such additional security measures shall be— kept up to date with technological advances; designed to provide a high level of certainty with respect to identity authentication; and designed to safeguard the individual’s privacy and civil liberties. The Secretary, in consultation with the Commissioner, shall establish a reliable, secure program, on a limited, pilot basis, for suspending or limiting the use of the Social Security account number or other personally identifying information of children for purposes of the System. The Commissioner— in consultation with the Secretary, shall establish a reliable, secure method that, within the periods specified in paragraph
(2)and subsection (b)(4)(D)(i)(II), compares the name and Social Security account number provided in an inquiry against such information maintained by the Commissioner in order to validate (or not validate)— the information provided by the person or entity with respect to an individual whose identity and employment authorization the person or entity seeks to confirm; the correspondence of the name and number; and whether the individual has presented a Social Security account number that is not valid for employment; may not disclose or release Social Security information (other than such confirmation or nonconfirmation) under the System except as provided under this section; shall coordinate and provide the Department of Homeland Security with access to the Social Security Administration's systems that are necessary to resolve tentative nonconfirmations without direct Social Security Administration involvement; and shall establish electronic or call-in resolution systems. The Secretary shall establish a reliable, secure method that, within the time periods specified in paragraph
(2)and subsection (b)(4)(D)(i)(II), compares the name and identification or other authorization number (or any other information determined relevant by the Secretary) that are provided in an inquiry against such information maintained or accessed by the Secretary in order to validate (or not validate)— the information provided; the correspondence of the name and number; and whether the individual is authorized to be employed in the United States. The Secretary shall provide and regularly update required training and training materials on the use of the System for persons and entities making inquiries. The Secretary shall provide for periodic auditing of the System to detect and prevent misuse, discrimination, fraud, and identity theft, to protect privacy and assess System accuracy, and to preserve the integrity and security of the information in the System. The Secretary shall provide appropriate notification to persons and entities registered in the System of any change made by the Secretary or the Commissioner related to permitted and prohibited documents, and use of the System. As part of the System, the Secretary of State shall— provide to the Secretary with access to passport and visa information as needed to confirm that— a passport or passport card presented under subsection (b)(3)(A)(i) confirms the employment authorization and identity of the individual presenting such document; a passport, passport card, or visa photograph matches the Secretary of State’s records; and provide such assistance as the Secretary may request to resolve tentative nonconfirmations or final nonconfirmations relating to information described in subparagraph (A). The Commissioner, the Secretary, and the Secretary of State shall— update records in their custody in a manner that promotes maximum accuracy of the System; and provide a process for the prompt correction of erroneous information, including instances in which it is brought to their attention through the tentative nonconfirmation review process under subsection (b)(4)(D). Except as otherwise provided under Federal or State law, including sections 302 and 303 of the Affordable and Secure Food Act of 2022 , nothing in this section may be construed to require the use of the System by any person or entity hiring, recruiting, or referring for a fee, an individual for employment in the United States. Beginning after the date that is 30 days after the date on which final rules are published under section 309(a) of the Affordable and Secure Food Act of 2022 , a person or entity may use the System on a voluntary basis to seek verification of the identity and employment authorization of individuals who the person or entity is hiring, recruiting, or referring for a fee for employment in the United States. The employment verification process for any person or entity hiring, recruiting, or referring for a fee, an individual for employment in the United States shall be governed by section 274A(b) unless the person or entity— is required by Federal or State law to use the System; or has opted to use the System voluntarily in accordance with subparagraph (B). The Secretary may not charge a fee to any individual, person, or entity to use the System or to be included in the System. The Secretary, in consultation with the Commissioner, the Secretary of State, and other appropriate Federal officials, shall— develop policies and procedures to ensure protection of the privacy and security of personally identifiable information and identifiers contained in the records accessed or maintained by the System; and develop and deploy appropriate privacy and security training for Federal employees accessing the records under the System. The Secretary, acting through the Chief Privacy Officer of the Department of Homeland Security, shall conduct regular privacy audits of the policies and procedures established pursuant to subparagraph (A), including— any collection, use, dissemination, and maintenance of personally identifiable information; and any associated information technology systems. The Chief Privacy Officer shall— review the results of the audits conducted pursuant to clause (i); and recommend to the Secretary any changes that may be necessary to improve the privacy protections of the System. The Inspector General of the Department of Homeland Security shall certify to the Secretary, the Committee on the Judiciary of the Senate , and the Committee on the Judiciary of the House of Representatives that— the System appropriately protects the privacy and security of personally identifiable information and identifiers contained in the records accessed or maintained by the System; during 2 consecutive years beginning after the date of the enactment of the Affordable and Secure Food Act of 2022 , the System's error rate is not higher than the error rate of the System during the preceding year; and specific steps are being taken to continue to reduce such error rate. Beginning on November 30 of the fiscal year beginning after the fiscal year during which the certification was submitted pursuant to subparagraph (C), and annually thereafter, the Inspector General of the Department of Homeland Security shall submit a report to the Secretary, the Committee on the Judiciary of the Senate , and the Committee on the Judiciary of the House of Representatives that— describes in detail— the error rate of the System during the previous fiscal year; and the methodology employed to prepare the report; and includes recommendations for how the System's error rate may be reduced. Notwithstanding section 274A(b), the requirements referred to in paragraphs (1)(B) and
(3)of section 274A(a) are, in the case of a person or entity that uses the System for the hiring, recruiting, or referring for a fee, an individual for employment in the United States, the following: During the period beginning on the date on which an offer of employment is accepted and ending on the date of hire, the individual shall attest, under penalty of perjury on a form designated by the Secretary, that the individual is authorized to be employed in the United States by providing on such form— the individual’s name and date of birth; the individual’s Social Security account number (unless the individual has applied for and not yet been issued such a number); whether the individual is— a citizen or national of the United States; an alien lawfully admitted for permanent residence; or an alien who is otherwise authorized by the Secretary to be employed in the United States; and if the individual does not attest to United States citizenship or nationality, such identification or other authorization number established by the Department of Homeland Security for the alien as the Secretary may specify. Not later than 3 business days after the date of hire, the individual or entity shall attest, under penalty of perjury on the form designated under paragraph (1), the verification that the individual is not an unauthorized alien by— obtaining from the individual the information described in paragraph
(1)and recording such information on the form; examining— a document described in paragraph (3)(A); or a document described in paragraph (3)(B) and a document described in paragraph (3)(C); and attesting that the information recorded on the form is consistent with the documents examined. A document described in this subparagraph is an individual’s— United States passport or passport card; permanent resident card that contains a photograph; foreign passport containing temporary evidence of lawful permanent residence in the form of an official I–551 (or successor) stamp from the Department of Homeland Security or a printed notation on a machine-readable immigrant visa; unexpired employment authorization document that contains a photograph; in the case of a nonimmigrant alien authorized to engage in employment for a specific employer incident to status, a foreign passport with Form I–94, Form I–94A, or other documentation as designated by the Secretary specifying the alien’s nonimmigrant status as long as such status has not yet expired and the proposed employment is not in conflict with any restrictions or limitations identified in the documentation; passport from the Federated States of Micronesia or the Republic of the Marshall Islands with Form I–94, 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 Federated States of Micronesia or the Republic of the Marshall Islands; or another document designated by the Secretary, by notice published in the Federal Register, if the document— contains a photograph of the individual, biometric identification data, and other personal identifying information relating to the individual; is evidence of authorization for employment in the United States; and contains security features to make it resistant to tampering, counterfeiting, and fraudulent use. A document described in this subparagraph is— an individual’s driver’s license or identification card if the license or card— was issued by a State or an outlying possession of the United States; contains a photograph and personal identifying information relating to the individual; and 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 complies with the travel rules under the Western Hemisphere Travel Initiative; an individual’s unexpired United States military identification card; an individual’s unexpired Native American tribal identification document issued by a tribal entity recognized by the Bureau of Indian Affairs; or a document establishing identity that the Secretary determines, by notice published in the Federal Register, to be acceptable for purposes of this subparagraph, if such documentation contains— a photograph of the individual and other personal identifying information relating to the individual; and security features to make it resistant to tampering, counterfeiting, and fraudulent use. A document described in this subparagraph is— an individual’s Social Security account number card (other than such a card which specifies on its face that the issuance of the card does not authorize employment in the United States); or a document establishing employment authorization that the Secretary determines, by notice published in the Federal Register, to be acceptable for purposes of this subparagraph if such documentation contains security features to make it resistant to tampering, counterfeiting, and fraudulent use. If the Secretary determines that any document or class of documents described in subparagraph (A), (B), or
(C)does not reliably establish identity or employment authorization or is being used fraudulently to an unacceptable degree, the Secretary, by notice published in the Federal Register, may prohibit or place conditions on the use of such document or class of documents for purposes of this section. The Secretary, in the sole discretion of the Secretary, may confirm the identity of an individual who submits a document described in subparagraph (B)(iv) that does not contain a photograph of the individual under exceptional circumstances, including the individual's religious beliefs. A person or entity that uses the System for the hiring, recruiting, or referring for a fee an individual for employment in the United States, during the period described in subparagraph (B), shall submit an inquiry through the System to seek confirmation of the identity and employment authorization of the individual. Except as provided in clause (ii), and subject to subsection (d), the confirmation period shall begin on the date of hire and end on the date that is 3 business days after the date of hire, or such other reasonable period as the Secretary may prescribe. The confirmation period of an alien who is authorized to be employed in the United States and provides evidence from the Social Security Administration that the alien has applied for a Social Security account number shall end 3 business days after the alien receives such Social Security account number. A person or entity receiving confirmation of an individual’s identity and employment authorization shall record such confirmation on the form designated by the Secretary for purposes of paragraph (1). In cases of tentative nonconfirmation, the Secretary, in consultation with the Commissioner, shall provide a process for— an individual to contest the tentative nonconfirmation not later than 10 business days after the date of the receipt of the notice described in clause (ii); and the Secretary to issue a confirmation or final nonconfirmation of an individual’s identity and employment authorization not later than 30 days after the Secretary receives notice from the individual contesting a tentative nonconfirmation. Not later than 3 business days after receiving a tentative nonconfirmation of an individual’s identity or employment authorization in the System, a person or entity shall— provide such individual with written notification— in a language understood by the individual; on a form designated by the Secretary; and that includes a description of the individual’s right to contest the tentative nonconfirmation; and attest, under penalty of perjury, that the person or entity provided (or attempted to provide) such notice to the individual, who shall acknowledge receipt of such notice in a manner specified by the Secretary. A tentative nonconfirmation shall become final if, upon receiving the notice described in clause (ii), the individual— refuses to acknowledge receipt of such notice; acknowledges in writing, in a manner specified by the Secretary, that the individual will not contest the tentative nonconfirmation; or fails to contest the tentative nonconfirmation within the 10-business-day period beginning on the date the individual received such notice. The person or entity shall— indicate in the System that the individual refused to acknowledge receipt of, or did not contest, the tentative nonconfirmation; and specify the reason that the tentative nonconfirmation became final under subclause (I). An individual’s failure to contest a tentative nonconfirmation shall not be considered an admission of any fact with respect to any violation of this Act or any other provision of law. An individual may contest a tentative nonconfirmation by using the tentative nonconfirmation review process under clause (i), not later than 10 business days after receiving the notice described in clause (ii). Except as provided in clause (iii), the nonconfirmation shall remain tentative until a confirmation or final nonconfirmation is provided by the System. A person or entity may not terminate employment or take any adverse employment action against an individual for failure to obtain confirmation of the individual’s identity and employment authorization until the person or entity receives a notice of final nonconfirmation from the System. Nothing in this subclause may be construed to prohibit an employer from terminating the employment of the individual for any other lawful reason. The Secretary, in consultation with the Commissioner, shall issue notice of a confirmation or final nonconfirmation of the individual’s identity and employment authorization not later than 30 days after the date on which the Secretary receives notice from the individual contesting the tentative nonconfirmation. If the relevant data needed to confirm the identity of an individual is not maintained by the Department of Homeland Security, the Social Security Administration, or the Department of State, or if the employee is unable to contact the Department of Homeland Security or the Social Security Administration, the Secretary, in the sole discretion of the Secretary, may place the case in continuance. If a person or entity receives a final nonconfirmation of an individual’s identity or employment authorization, the person or entity, not later than 5 business days after receiving such final nonconfirmation, shall— notify such individual of the final nonconfirmation in writing, on a form designated by the Secretary, which shall include information regarding the individual’s right to appeal the final nonconfirmation in accordance with subparagraph (F); and attest, under penalty of perjury, that the person or entity provided (or attempted to provide) the notice to the individual, who shall acknowledge receipt of such notice in a manner designated by the Secretary. If a person or entity receives a final nonconfirmation regarding an individual, the person or entity may terminate employment of the individual. If the person or entity does not terminate such employment pending appeal of the final nonconfirmation, the person or entity shall notify the Secretary of such fact through the System. Failure to notify the Secretary in accordance with this clause shall be deemed a violation of section 274A(a)(1)(A). If a person or entity continues to employ an individual after receipt of a final nonconfirmation, and an appeal of the nonconfirmation is not pending, there shall be a rebuttable presumption that the person or entity has violated paragraphs (1)(A) and
(2)of section 274A(a). The Secretary, in consultation with the Commissioner and the Assistant Attorney General for Civil Rights, shall develop a process by which an individual may seek administrative review of a final nonconfirmation. Such process shall— permit the individual to submit additional evidence establishing identity or employment authorization; ensure prompt resolution of an appeal, including a response to the appeal in all circumstances within 60 days; and permit the Secretary to impose a civil money penalty equal to not more than $500 on any individual who files a frivolous appeal or files an appeal for purposes of delay. If, upon consideration of an appeal of a final nonconfirmation, the Secretary determines that the final nonconfirmation was issued in error, the Secretary shall further determine whether the final nonconfirmation was the result of government error or omission. If the Secretary determines that the final nonconfirmation was solely the result of Government error or omission and the individual was terminated from employment, the Secretary shall compensate the individual for lost wages. Lost wages shall be calculated based on the wage rate and work schedule that were in effect prior to the individual’s termination. The individual shall be compensated for lost wages beginning on the first scheduled work day after employment was terminated and ending 90 days after completion of the administrative review process described in this subparagraph or the day the individual is reinstated or obtains other employment, whichever occurs first. Compensation for lost wages may not be awarded for any period during which the individual was not authorized for employment in the United States. There is established in the general fund of the Treasury, a separate account, which shall be known as the Electronic Verification Compensation Account . Monetary penalties collected pursuant to subsections
(f)and
(g)shall be deposited in the Electronic Verification Compensation Account and shall remain available for purposes of providing compensation for lost wages under this clause. Not later than 30 days after the dismissal of an appeal under this subparagraph, an individual may seek judicial review of such dismissal in the United States District Court in the jurisdiction in which the employer resides or conducts business. After completing the form designated by the Secretary under paragraph
(1)with respect to an individual, a person or entity shall retain such form in paper, microfiche, microfilm, electronic, or other format deemed acceptable by the Secretary, and make such form 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 is completed and ending on the later of— the date that is 3 years after the date hire; or the date that is 1 year after the date on which such individual’s employment is terminated. Notwithstanding any other provision of law, a person or entity may, for the purpose of complying with the requirements under this section— copy a document presented by an individual pursuant to this subsection; and retain such copy. A person or entity that uses the System for the hiring, recruiting, or referring for a fee an individual for employment in the United States shall submit an inquiry through the System to verify the identity and employment authorization of— an individual with a limited period of employment authorization, when such employment authorization expires; an individual, not later than 10 days after receiving a notification from the Secretary requiring the verification of such individual pursuant to subsection (a)(4)(C); and an individual employed by an employer 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) by reason of any Federal, State, or local law, Executive order, rule, regulation, or delegation of authority, including employers required to participate in such program by reason of Federal acquisition laws (and regulations promulgated under such laws, including the Federal Acquisition Regulation). The verification procedures under subsection
(b)shall apply to reverifications under this subsection, except that employers shall— use a form designated by the Secretary for purposes of this paragraph; and retain the form in paper, microfiche, microfilm, electronic, or other format approved by the Secretary, and make the form 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 later of— the date that is 3 years after the date of reverification; or the date that is 1 year after the date on which the individual’s employment is terminated. Except as otherwise provided in this subsection, a person or entity that uses the System is considered to have complied with the requirements under this section notwithstanding a technical failure of the System, or other technical or procedural failure to meet such requirement if there was a good faith attempt to comply with such requirement. Paragraph
(1)shall not apply if— the failure of the person or entity to meet a requirement under this section is not de minimis; the Secretary has provided notice to the person or entity of such failure, including an explanation as to why such failure is not de minimis; the person or entity has been provided a period of not less than 30 days (beginning after the date of the notice) to correct such failure; and the person or entity has not corrected such failure voluntarily within such period. Paragraph
(1)shall not apply to a person or entity that has engaged or is engaging in a pattern or practice of violations of paragraph (1)(A) or
(2)of section 274A(a). A person or entity that uses the System for the hiring, recruiting, or referring for a fee an individual for employment in the United States— 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 an employee in good-faith reliance on information provided by the System; and shall be deemed to have established compliance with its obligations under this section, absent a showing by the Secretary, by clear and convincing evidence, that the employer had knowledge that an employee is an unauthorized alien. Nothing in this section may be construed to authorize, directly or indirectly, the issuance or use of national identification cards or the establishment of a national identification card. Notwithstanding any other provision of law, nothing in this section may be construed to permit or allow any department, bureau, or other agency of the United States Government to utilize any information, database, or other records assembled under this section for any purpose other than the verification of identity and employment authorization of an individual or to ensure the secure, appropriate, and non-discriminatory use of the System. Except as otherwise provided in this subsection, the provisions of subsections
(e)through
(g)of section 274A shall apply with respect to compliance with the provisions under this section and penalties for noncompliance for persons or entities that use the System. Notwithstanding the civil money penalties set forth in section 274A(e)(4), with respect to a violation of paragraph (1)(A) or
(2)of section 274A(a) by a person or entity that is subject to the provisions under this section that has hired, recruited, or referred for a fee, an individual for employment in the United States, a cease and desist order— shall require the person or entity to pay a civil penalty in an amount, subject to subsection (d), that is equal to— not less than $2,500 and not more than $5,000 for each unauthorized alien with respect to whom a violation of either such subsection occurred; not less than $5,000 and not more than $10,000 for each such alien in the case of a person or entity previously subject to 1 order under this paragraph; or not less than $10,000 and not more than $25,000 for each such alien in the case of a person or entity previously subject to more than 1 order under this paragraph; and may require the person or entity to take other appropriate remedial action. Notwithstanding paragraphs
(4)and
(5)of section 274A(e) and any other Federal law relating to civil monetary penalties, any person or entity that is required to comply with the provisions of this section that violates section 274A(a)(1)(B) shall be required to pay a civil penalty in an amount, subject to paragraphs (5), (6), and (7), that is equal to not less than $1,000 and not more than $25,000 for each individual with respect to whom such violation occurred. Failure by a person or entity to utilize the System as required by law or providing information to the System that the person or entity knows or reasonably believes to be false, shall be treated as a violation of section 274A(a)(1)(A). A person or entity that uses the System is presumed to have acted with knowledge for purposes of paragraphs (1)(A) and
(2)of section 274A(a) if the person or entity fails to make an inquiry to verify the identity and employment authorization of the individual through the System. In the case of imposition of a civil penalty under paragraph (2)(A) with respect to a violation of paragraph (1)(A) or
(2)of section 274A(a) for hiring or continuation of employment or recruitment or referral by a person or entity, and in the case of imposition of a civil penalty under paragraph
(3)for a violation of section 274A(a)(1)(B) for hiring or recruitment or referral by a person or entity, the penalty otherwise imposed may be waived or reduced if the person or entity establishes that the person or entity acted in good faith. For purposes of paragraphs (2)(A) and (3), when assessing the level of civil money penalties for a particular case, in addition to the good faith of the person or entity being charged, due consideration shall be given to factors such as the size of the business, the seriousness of the violation, whether or not the individual was an unauthorized alien, and the history of previous violations, which factors may be aggravating, mitigating, or neutral depending on the facts of each case. Notwithstanding section 274A(f)(1) and the provisions of any other Federal law relating to fine levels, any person or entity required to comply with the provisions under this section that engages in a pattern or practice of violations of paragraph
(1)or
(2)of section 274A(a)— shall be fined not more than $5,000 for each unauthorized alien with respect to whom such a violation occurs; shall be imprisoned for not more than 18 months; or shall be subject to the fine under subparagraph
(A)and imprisonment under subparagraph (B). Civil money penalties collected pursuant to this subsection shall be deposited in the Electronic Verification Compensation Account for the purpose of compensating individuals for lost wages as a result of a final nonconfirmation issued by the System that was based on government error or omission, in accordance with subsection (b)(4)(F)(ii)(IV). If the Secretary determines that a person or entity is a repeat violator of paragraph (1)(A) or
(2)of section 274A(a) or has been convicted of a crime under section 274A, such person or entity may be considered for debarment from the receipt of Federal contracts, grants, or cooperative agreements in accordance with the debarment standards and pursuant to the debarment procedures set forth in the Federal Acquisition Regulation. If the Secretary or the Attorney General determines that a person or entity should be considered for debarment under this paragraph, and such person or entity does not hold a Federal contract, grant or cooperative agreement, the Secretary or the Attorney General shall refer the matter to the Administrator of General Services to determine whether to list the person or entity on the List of Parties Excluded from Federal Procurement and Nonprocurement Programs, and if so, for what duration and under what scope. If the Secretary or the Attorney General determines that a person or entity should be considered for debarment under this paragraph, and such person or entity holds a Federal contract, grant, or cooperative agreement, the Secretary or the Attorney General— shall advise all agencies or departments holding a contract, grant, or cooperative agreement with the person or entity of the Government’s interest in having such person or entity considered for debarment; and after soliciting and considering the views of all such agencies and departments, may refer the matter to the appropriate lead agency to determine whether to list the person or entity on the List of Parties Excluded from Federal Procurement and Nonprocurement Programs, and if so, for what duration and under what scope. Any decision to debar a person or entity in accordance with this subsection shall be reviewable pursuant to part 9.4 of the Federal Acquisition Regulation. This section preempts 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, except that 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 as required under this section. In addition to the prohibitions on discrimination set forth in section 274B, it is an unfair immigration-related employment practice for a person or entity, in the course of utilizing the System— to use the System for screening an applicant before the date of hire; to terminate the employment of an individual or take any adverse employment action with respect to that individual due to a tentative nonconfirmation issued by the System; to use the System to screen any individual for any purpose other than confirmation of identity and employment authorization in accordance with this section; to use the System to verify the identity and employment authorization of a current employee, including an employee continuing in employment, other than for purposes of reverification authorized under subsection (c); to use the System to discriminate based on national origin or citizenship status; to willfully fail to provide an individual with any notice required under this chapter; to require an individual to make an inquiry under the self-verification procedures described in subsection (a)(4)(B) or to provide the results of such an inquiry as a condition of employment, or hiring, recruiting, or referring; or to terminate the employment of an individual or take any adverse employment action with respect to that individual based upon the need to verify the identity and employment authorization of the individual in accordance with subsection (b). Nothing in paragraph (1)(A) may be construed to preclude a preemployment screening or background check that is required or permitted under any other provision of law. Notwithstanding section 274B(g)(2)(B)(iv), the penalties that may be imposed by an administrative law judge with respect to a finding that a person or entity has engaged in an unfair immigration-related employment practice described in paragraph
(1)are— not less than $1,000 and not more than $4,000 for each aggrieved individual; in the case of a person or entity previously subject to a single order under this paragraph, not less than $4,000 and not more than $10,000 for each aggrieved individual; and in the case of a person or entity previously subject to more than 1 order under this paragraph, not less than $6,000 and not more than $20,000 for each aggrieved individual. Civil money penalties collected under this subsection shall be deposited into the Electronic Verification Compensation Account for the purpose of compensating individuals for lost wages as a result of a final nonconfirmation issued by the System that was based on a Government error or omission described in subsection (b)(4)(F)(ii)(IV). Any amounts deposited into the Electronic Verification Compensation Account pursuant to subparagraph
(A)that are not used within 5 years to compensate individuals under such subparagraph shall be made available to the Secretary and the Attorney General to provide education to employers and employees regarding the requirements, obligations, and rights under the System. 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— the employee’s status as an unauthorized alien during or after the period of employment; or the employer’s or employee’s failure to comply with the requirements under this section. In this section, the term date of hire means the date on which employment for pay or other remuneration commences. . The table of contents for the Immigration and Nationality Act ( 8 U.S.C. 1101 note) is amended by inserting after the item relating to section 274D the following: Sec. 274E. Requirements for the electronic verification of employment eligibility. .
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- Pub. L. 109-13
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Sec. 301
Electronic employment eligibility verification system
Pub. L.Pub. L. 109-13
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