§ 402. VOLUNTARY ELECTION TO PARTICIPATE IN A PILOT PROGRAM.
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Voluntary Election .— Subject to subsection (c)(3)(B), any person or other entity that conducts any hiring (or recruitment or referral) in a State in which a pilot program is operating may elect to participate in that pilot program. Except as specifically provided in subsection (e), the Secretary of Homeland Security may not require any person or other entity to participate in a pilot program. Benefit of Rebuttable Presumption.— In general .— If a person or other entity is participating in a pilot program and obtains confirmation of identity and employment eligibility in compliance with the terms and conditions of the program with respect to the hiring (or recruitment or referral) of an individual for employment in the United States, the person or entity has established a rebuttable presumption that the person or entity has not violated section 274A(a)(1)(A) with respect to such hiring (or such recruitment or referral).
Construction .— Paragraph
(1)shall not be construed as preventing a person or other entity that has an election in effect under subsection
(a)from establishing an affirmative defense under section 274A(a)(3) if the person or entity complies with the requirements of section 274A(a)(1)(B) but fails to obtain confirmation under paragraph (1). General Terms of Elections.— In general .— An election under subsection
(a)shall be in such form and manner, under such terms and conditions, and shall take effect, as the Secretary of Homeland Security shall specify. The Secretary of Homeland Security may not impose any fee as a condition of making an election or participating in a pilot program. Scope of election.— In general .— Subject to paragraph (3), any electing person or other entity may provide that the election under subsection
(a)shall apply (during the period in which the election is in effect)— to all its hiring (and all recruitment or referral) in the State (or States) in which the pilot program is operating, or to its hiring (or recruitment or referral) in one or more pilot program States or one or more places of hiring (or recruitment or referral, as the case may be) in the pilot program States. Application of programs in non-pilot program states .— In addition, the Secretary of Homeland Security may permit a person or entity electing the citizen attestation pilot program (described in 403(b) of this division) or the machine-readable-document pilot program (described in section 403(c) of this division) to provide that the election applies to its hiring (or recruitment or referral) in one or more States or places of hiring (or recruitment or referral) in which the pilot program is not otherwise operating but only if such States meet the requirements of 403(b)(2)(A) and 403(c)(2) of this division, respectively. Termination of elections .— The Secretary of Homeland Security may terminate an election by a person or other entity under this section because the person or entity has substantially failed to comply with its obligations under the pilot program. A person or other entity may terminate an election in such form and manner as the Secretary of Homeland Security shall specify. Consultation, Education, and Publicity.— Consultation .— The Secretary of Homeland Security shall closely consult with representatives of employers (and recruiters and referrers) in the development and implementation of the pilot programs, including the education of employers (and recruiters and referrers) about such programs. Publicity .— The Secretary of Homeland Security shall widely publicize the election process and pilot programs, including the voluntary nature of the pilot programs and the advantages to employers (and recruiters and referrers) of making an election under this section. Assistance through district offices .— The Secretary of Homeland Security shall designate one or more individuals in each District office of the Immigration and Naturalization Service for a Service District in which a pilot program is being implemented— to inform persons and other entities that seek information about pilot programs of the voluntary nature of such programs, and to assist persons and other entities in electing and participating in any pilot programs in effect in the District, in complying with the requirements of section 274A, and in facilitating confirmation of the identity and employment eligibility of individuals consistent with such section. Select Entities Required to Participate in a Pilot Program.— Federal government.— Executive departments.— In general .— Each Department of the Federal Government shall elect to participate in a pilot program and shall comply with the terms and conditions of such an election. Election .— Subject to clause (iii), the Secretary of each such Department— shall elect the pilot program (or programs) in which the Department shall participate, and may limit the election to hiring occurring in certain States (or geographic areas) covered by the program (or programs) and in specified divisions within the Department, so long as all hiring by such divisions and in such locations is covered. Role of secretary of homeland security .— The Secretary of Homeland Security shall assist and coordinate elections under this subparagraph in such manner as assures that— a significant portion of the total hiring within each Department within States covered by a pilot program is covered under such a program, and there is significant participation by the Federal Executive branch in each of the pilot programs. Legislative branch .— Each Member of Congress, each officer of Congress, and the head of each agency of the legislative branch, that conducts hiring in a State in which a pilot program is operating shall elect to participate in a pilot program, may specify which pilot program or programs (if there is more than one) in which the Member, officer, or agency will participate, and shall comply with the terms and conditions of such an election. Application to certain violators .— An order under section 274A(e)(4) or section 274B(g) of the Immigration and Nationality Act [ 8 U.S.C. 1324a(e)(4) , 1324b(g)] may require the subject of the order to participate in, and comply with the terms of, a pilot program with respect to the subject’s hiring (or recruitment or referral) of individuals in a State covered by such a program. Consequence of failure to participate .— If a person or other entity is required under this subsection to participate in a pilot program and fails to comply with the requirements of such program with respect to an individual— such failure shall be treated as a violation of section 274A(a)(1)(B) with respect to that individual, and a rebuttable presumption is created that the person or entity has violated section 274A(a)(1)(A). Subparagraph
(B)shall not apply in any prosecution under section 274A(f)(1). Construction .— This subtitle shall not affect the authority of the Secretary of Homeland Security under any other law (including section 274A(d)(4)) to conduct demonstration projects in relation to section 274A.
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§ 402
VOLUNTARY ELECTION TO PARTICIPATE IN A PILOT PROGRAM.
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