Sec. 801. Employment eligibility verification process
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Section 274A(b) of the Immigration and Nationality Act ( 8 U.S.C. 1324a(b) ) is amended to read as follows: 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: 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— 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 examining— a document relating to the individual presenting it described in clause (ii); or 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). A document described in this subparagraph is an individual’s— unexpired United States passport or passport card; unexpired permanent resident card that contains a photograph; unexpired employment authorization card that contains a photograph; 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; 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 other document designated by the Secretary of Homeland Security, if the document— 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; is evidence of authorization of 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 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). A document described in this subparagraph is— 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; 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 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. 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. Such attestation may be manifested by either a handwritten or electronic signature. 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. After completion of such form in accordance with subparagraphs
(A)and (B), the person or entity shall— 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— in the case of the recruiting or referral of an individual, 3 years after the date of the recruiting or referral; and 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 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. 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. 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. 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. 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. 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. 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. 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). 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: 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. 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. 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, on the date that is 18 months after the date of the enactment of such title. 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. 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. 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). 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. 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. 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): This subsection, as in effect before the enactment of title VIII of division B of the Secure the Border Act of 2023. 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. 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). For purposes of this paragraph: In the case of recruitment or referral, the term verification period means the period ending on the date recruiting or referring commences. 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). 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. 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. 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: 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. 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. 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. 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. 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). 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— use a form designated or established by the Secretary by regulation for purposes of this paragraph; and 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. 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). An individual described in this clause is any of the following: An employee of any unit of a Federal, State, or local government. 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). An employee assigned to perform work in the United States under a Federal contract, except that this subclause— 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 only applies to contracts over the simple acquisition threshold as defined in section 2.101 of title 48, Code of Federal Regulations. In the case of an employer who is required by this subsection to use the 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: 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. 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. 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. 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. 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— use a form designated or established by the Secretary by regulation for purposes of this paragraph; and 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. 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. 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. 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. 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. 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. Subparagraph
(A)shall not apply if— the failure is not de minimus; the Secretary of Homeland Security has explained to the person or entity the basis for the failure and why it is not de minimus; 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 the person or entity has not corrected the failure voluntarily within such period. 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). 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). . Section 274A(h) of the Immigration and Nationality Act ( 8 U.S.C. 1324a(h) ) is amended by adding at the end the following: 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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- EO 13465
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Sec. 801
Employment eligibility verification process
Exec. Ord.EO 13465
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