Part Eleven: E-Verify Provisions

Amends INA §274A to expand use of E-Verify and make it mandatory for all employers over a period of five years.

Making Employment of Unauthorized Aliens Unlawful

· Prohibits employers from hiring, recruiting, or referring for a fee an alien known to be unauthorized for employment in the U.S.

· Prohibits employers from hiring, recruiting, or referring for a fee without complying with document verification and other E-Verify system requirements.

· Prohibits continued employment of unauthorized aliens.

· Prohibits the consideration of previous unauthorized status for hiring purposes.

· Prohibits employers from using contracts, subcontracts, or exchanges to obtain the labor of an alien known to be unauthorized.

· Employers can rely on a state employment agency’s referral if employer retained appropriate documentation certifying that the agency complied with document verification requirements.

· Establishes good faith affirmative defense for employers who have complied in good faith with document verification and E-Verify system requirements.

o Employer who made E-Verify inquiry but did not receive verification within the designated time period has good faith defense if he or she timely records the reasons for continuing to employ the individual.

o Employers who are not required to participate in E-Verify or are participating on a voluntary basis also have an affirmative defense.

o A technical or procedural failure to meet an E-Verify requirement still constitutes compliance if the employer made a good faith attempt to comply with the requirement.

o Does not include failures that are not de minimis if the employer has been given at least 30 days to voluntarily correct the errors and has not done so.

o Does not apply to employers who engage in a pattern or practice of violations.

o After the date on which an employer is required to use E-Verify, he or she will be presumed to have acted with knowledge in hiring an alien who lacks work authorization if he or she failed to use E-Verify.

Attestation after Examination of Documentation

· Requires employer to attest that he or she has verified the identity and employment authorization status of an individual by examining certain documents and using an identity authentication mechanism. USCIS must publish pictures of acceptable documents on its website.

· Within six months of enactment, DHS will make available an attestation form that an employer may complete in paper form, via telephone, or electronically.

o Employer must sign attestation form with a handwritten, electronic, or digital pin code signature.

o An employer will be deemed to have complied with document verification requirements if he or she has, in good faith, followed applicable regulations and if a reasonable person would conclude that the documentation is genuine and relates to the individual presenting it.

  • · Specifies documents that establish both identity and employment authorization:

o U.S. Passport or passport card;

o Document demonstrating alien is lawfully admitted for permanent residence or another document showing work authorized status with a photograph of the bearer and other security features;

o An enhanced driver’s license or identification card issued by a U.S. state, or federally recognized Indian tribe that meets REAL ID Act 2005 requirements and has been certified for use by the Secretary;

o A foreign passport accompanied by a Form I-94 or Form I-94A (or similar successor form), or other appropriate documentation designated by Secretary;

o A passport issued by Federated States of Micronesia or the Republic of the Marshall Islands with evidence of nonimmigrant admission in to the U.S.

· Specifies documents that establish identity:

o Driver’s license or identity card that includes photograph, name, DOB, gender, driver’s license or identification card number, as well as security features;

o Voter registration card;

o A document that complies with the requirements of the Intelligence Reform and Terrorism Prevention Act of 2004;

o Alternative documents established by the Secretary for those under 18.

· Specifies documents that establish employment authorization:

o Social Security card, other than one that is not valid for work authorization;

o Any other document that the Secretary publishes in the Federal Register if such document contains appropriate security features.

· Requires employers to use an identity authentication mechanism once it becomes available.

o “Covered identity document” means a valid U.S. passport, passport card, document evidencing lawful permanent resident status or employment authorized status, enhanced driver’s license or identity card issued by a participating state, or photograph with appropriate identifying information provided by DOS pursuant to the granting of a visa.

o “Participating state” means a state that has an agreement with the Secretary to provide, for purposes of identity verification in the E-Verify, photographs and other identifying information.

o Establishes a photo tool that enables employers to verify an individual’s identity by matching a photo on a covered identity document with a photo in a USCIS database.

o An employer seeking to hire an individual whose identity may not be verified using the photo tool shall verify the identity of the individual using additional security measures, which the Secretary must develop after publication in the Federal Register and opportunity for public comment.

· Secretary may, after publication in the Federal Register, opportunity for public comment, and notice to employers: (1) prohibit or restrict use of certain documents considered unreliable, and (2) allow the use of additional documents or classes of documents, which must be published on USCIS website.

· Individual Attestation of Employment Authorization: Requires individuals, upon commencing employment, to attest under penalty of perjury that they are authorized to work in the U.S. using a handwritten, electronic, or digital pin code signature, and to provide their Social Security numbers.

· Retention of Verification Records: Requires employers to retain verification records for three years after hiring or one year after termination, whichever is later. The forms may be retained electronically.

· Copying of Documentation and Recordkeeping: Allows Secretary to promulgate regulations regarding copying and retaining documents and related information.

· Penalties: An employer that fails to comply may be penalized (as outlined below).

· Civil Rights Protections: Preserves the application of existing civil rights laws to E-Verify system and prohibits discrimination in document verification.

· Receipts: Permits the use of receipts for replacement documents and temporary evidence of employment authorization to meet documentation requirements for up to 1 year.

· National Identification Card: Does not authorize the creation of a national identification card.

274A(d) Employment Verification System:

· Requires DHS, in consultation with SSA, to establish an Employment Verification System and monitor use and misuse of the System, including speed, error rates, discrimination, security, integrity, and privacy.

· Requires DHS to give individuals direct access to their case histories in the System.

· Allows DHS to develop protocols for notifying individuals when their records have been queried and for individuals to submit queries and notifications of potential identity fraud.

274A(d)(2) Participation Requirements

· Requires participation by all federal government agencies and departments beginning on the date of enactment (if already required to participate) or 90 days after date of enactment.

· Requires participation by federal contractors as provided in the final rule currently requiring their participation or subsequent regulations.

· Beginning one year after implementation, allows DHS to require participation by critical infrastructure employers, provided that they receive 90 days’ notice.

· Requires employers with more than 5,000 employees to use system for all new hires and employees with expiring employment authorization no later than two years after publication of implementing regulations.

· Requires employers with more than 500 employees to use system for all new hires and employees with expiring employment authorization no later than three years after publication of implementing regulations.

· Does not require employer participation with respect to agricultural labor or services employees until four years after the date of enactment of the Legal Workforce Act.

· Requires all employers to use the system for new hires and employees with expiring employment authorization no later than four years after publication of implementing regulations.

· Requires DHS to implement rules governing tribal government employers; requires these employers to use the system to verify new hires and employees with expiring employment authorization no later than five years after those regulations are published.

· May require employers who have violated sections 274A or 274C to participate in E-Verify even if not already required to do so; may require employers who have engaged in a pattern or practice of violations to use System with regard to current employees as well as new hires.

· Allows any employer to voluntarily participate in E-Verify.

Consequences of Failure to Participate: Provides that, outside of a de minimis or inadvertent failure, failure to participate in E-Verify where required is a civil violation and creates a rebuttable presumption of additional civil violations. Evidence regarding an employer’s noncompliance with E-Verify requirements may be used in federal criminal proceedings.

Procedures for Participants: Requires employers to register with E-Verify before using it, update their information as needed, and participate in mandatory trainings. Employer must notify new hires that it is using E-Verify. The employer must also obtain and record in a manner specified by DHS the employee’s social security number, proof of citizenship or noncitizen nationality, and other information that DHS may require to determine identity and employment authorization.

Seeking Confirmation: Requires employers to confirm identity and employment authorized status between the date when an individual accepts an employment offer and three business days later, or during another period prescribed by DHS.

· Bars employer from making start date or any other term of employment contingent on E-Verify confirmation.

· Requires reverification of temporary employment status no later than three business days after the last day of authorized employment.

· For critical infrastructure employers and others required to verify their entire workforce, employer must conduct verification on or before date specified by DHS.

· Requires DHS to establish method of notifying employers of confirmation, non-confirmation, or further action notice.

· Requires DHS to establish procedures to directly notify the individual and employer of the results and to provide information about the appeals process.

Confirmation or NonConfirmation:

· Requires that E-Verify provide confirmation or further action notice at the time of the inquiry or not more than three days later. An employer must record a confirmation in the manner specified by DHS. In the event of a further action notice, the employer must notify the employee within three business days of receipt or during another period established by DHS, of the notice and any procedures required to address the notice. The individual must acknowledge in writing the receipt of the notice; employers must notify DHS of an individual’s failure to acknowledge or decision not to contest a further action notice.

· Individuals contesting further action notices must contact appropriate federal agency within 10 business days of receiving the notice. DHS may require the person to appear in person for purposes of verifying identity and employment eligibility using a secondary verification procedure.

· If a further action notice is not contested or acknowledged within the required time period, a nonconfirmation will be issued. The employer must record the nonconfirmation and terminate the individual’s employment.

· Unless DHS grants an extension, E-Verify must provide a confirmation or nonconfirmation no later than 10 business days after an individual contests a further action notice.

· DHS may establish procedures for reexamining confirmations or nonconfirmations in the event that subsequent information is received.

Employee Protections: An employer may not terminate employment or take any other adverse action against an individual based solely on lack of employment verification unless (1) a nonconfirmation has been issued; (2) a further action notice was issued, and the individual failed to file an administrative appeal within the permissible time period; or (3) an administrative appeal was filed, and the nonconfirmation was upheld.

Notice of NonConfirmation: Not later than three business days after receiving a nonconfirmation or during another period specified by DHS, an employer must notify the applicant in writing, provide information about filing an administrative appeal and requesting a hearing before an ALJ, and attest (through the E-Verify system) that he or she has done so. The individual must acknowledge receipt of the notice in writing or in another manner prescribed by DHS.

Consequences of NonConfirmation:

If an employer has received a nonconfirmation and has made a reasonable effort to notify the individual, employment must be terminated after the expiration of the time period specified for filing an administrative appeal and for requesting a hearing before an ALJ. If the employer does not terminate the employee, a rebuttable presumption is created that the employer knowingly hired an alien who was not authorized to work. This presumption does not apply to criminal prosecutions. If an individual files an administrative appeal or requests review by an ALJ, the employer may not terminate the individual prior to resolution of the appeal unless DHS terminates the stay of the nonconfirmation.

Obligation to Respond to Queries and Additional Information:

· Employers must comply with requests for information from DHS and DOJ’s Office of Special Counsel for Immigration-Related Unfair Employment Practices, including queries regarding current and former employees, within the time frame during which records are to be maintained, if the inquiry relates to the functioning of the System, the accuracy of the responses provided, or any suspected misuse, discrimination, fraud, or identity theft.

· Failure to comply constitutes a violation of the employer’s obligation to comply with the requirements of the E-Verify system.

· Individuals may be required to take further action to address questions identified by DHS or SSA regarding the documents relied on for verification.

Civil Penalties

o $3,500 to $7,500 per worker for knowingly hiring, recruiting, referring for a fee, or continuing to employ an unauthorized alien

§ $5,000 to $15,000 per worker, for second-time violators

§ $10,000 to $25,000 per worker, for multiple-time violators

o $500 to $2,000 per violation for failure to comply with document verification or E-Verify use requirements, except for minor or inadvertent failures

§ $1,000 to $4,000 per violation, for second-time violators

§ $2,000 to $8,000 per worker, for multiple-time violators

· Permits enhanced penalties for failure to use the system or for violation of federal, state or local labor laws after E-Verify becomes mandatory for all employers.

· Allows DHS to impose additional penalties, including cease and desist orders, compliance plans, and suspended fines.

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