HR 3982
110th CONGRESS
1st Session
H. R. 3982
To continue to prohibit the hiring, recruitment, or referral
of unauthorized aliens, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
October 29, 2007
Mr. BOSWELL (for himself, Mr. CLEAVER, and Mr. BAIRD) introduced the
following bill; which was referred to the Committee on the Judiciary,
and in addition to the Committees on Ways and Means and Education and
Labor, for a period to be subsequently determined by the Speaker, in each
case for consideration of such provisions as fall within the jurisdiction
of the committee concerned
A BILL
To continue to prohibit the hiring, recruitment, or referral
of unauthorized aliens, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the `Combat Illegal Immigration Through Employment
Verification Act'.
SEC. 2. PURPOSES.
(a) To continue to prohibit the hiring, recruitment, or referral of unauthorized
aliens.
(b) To require that each employer take reasonable steps to verify the
identity and work authorization status of all its employees, without regard
to national origin and citizenship status.
(c) To authorize the Secretary of Homeland Security to access records
of other Federal agencies for the purposes of confirming identity, authenticating
lawful presence and preventing identity theft and fraud related to unlawful
employment.
(d) To ensure that the Commissioner of Social Security has the necessary
authority to provide information to the Secretary of Homeland Security
that would assist in the enforcement of the immigration laws.
(e) To collect information on employee hires.
(f) To electronically secure a social security number in the Employment
Eligibility Verification System (EEVS) at the request of an individual
who has been confirmed to be the holder of that number, and to prevent
fraudulent use of the number by others.
(g) To provide for record retention of EEVS inquiries, to prevent identity
fraud and employment authorization fraud.
(h) To employ fast track regulatory and procurement procedures to expedite
implementation of this title and pertinent sections of the Immigration
and Nationality Act for a period of two years from enactment.
(i) To establish the following:
(1) A document verification process requiring employers to inspect,
copy, and retain identity and work authorization documents.
(2) An EEVS requiring employers to obtain confirmation of an individual's
identity and work authorization.
(3) Procedures for employers to register for the EEVS and to confirm
work eligibility through the EEVS.
(4) A streamlined enforcement procedure to ensure efficient adjudication
of violations of this title.
(5) A system for the imposition of civil penalties and their enforcement,
remission or mitigation.
(6) An enhancement of criminal and civil penalties.
(7) Increased coordination of information and enforcement between the
Internal Revenue Service and the Department of Homeland Security regarding
employers who have violations related to the employment of unauthorized
aliens.
(8) Increased penalties under the Internal Revenue Code for employers
who have violations relating to the employment of unauthorized aliens.
SEC. 3. UNLAWFUL EMPLOYMENT OF ALIENS.
(a) Section 274A of the Immigration and Nationality Act (8 U.S.C. 1324a)
is amended to read as follows:
`(a) Making Employment of Unauthorized Aliens Unlawful-
`(1) IN GENERAL- It is unlawful for an employer--
`(A) to hire an alien for employment in the United States knowing
or with reckless disregard that the alien is an unauthorized alien
(as defined in subsection (b)(1)) with respect to such employment;
or
`(B) to hire for employment in the United States an individual without
complying with the requirements of subsections (c) and (d).
`(2) CONTINUING EMPLOYMENT- It is unlawful for an employer, after hiring
an alien for employment, to continue to employ the alien in the United
States knowing or with reckless disregard that the alien is (or has
become) an unauthorized alien with respect to such employment.
`(3) USE OF LABOR THROUGH CONTRACT- For purposes of this section, an
employer who uses a contract, subcontract, or exchange to obtain the
labor of an alien in the United States knowing that the alien is an
unauthorized alien (as defined in subsection (b)(1)) with respect to
performing such labor, shall be considered to have hired the alien for
employment in the United States in violation of paragraph (1)(A).
`(A) By regulation, the Secretary may require, for purposes of ensuring
compliance with the immigration laws, that an employer include in
a written contract, subcontract, or exchange an effective and enforceable
requirement that the contractor or subcontractor adhere to the immigration
laws of the United States, including use of EEVS.
`(B) The Secretary may establish procedures by which an employer may
obtain confirmation from the Secretary that the contractor or subcontractor
has registered with the EEVS and is utilizing the EEVS to verify its
employees.
`(C) The Secretary may establish such other requirements for employers
using contractors or subcontractors as the Secretary deems necessary
to prevent knowing violations of this paragraph.
`(4) APPLICATION TO FEDERAL GOVERNMENT- For purposes of this section,
the term `employer' includes entities in any branch of the Federal Government.
`(5) DEFENSE- An employer that establishes that it has complied in good
faith with the requirements of subsections (c)(1) through (c)(4), pertaining
to document verification requirements, and subsection (d) has established
an affirmative defense that the employer has not violated paragraph
(1)(A) with respect to such hiring, recruiting, or referral, however--
`(A) until such time as the Secretary has required an employer to
participate in the EEVS or such participation is permitted on a voluntary
basis pursuant to subsection (d), a defense is established without
a showing of compliance with subsection (d); and
`(B) to establish a defense, the employer must also be in compliance
with any additional requirements that the Secretary may promulgate
by regulation pursuant to subsections (c), (d), and (k).
`(6) FAILURE TO COMPLY- An employer is presumed to have acted with knowledge
or reckless disregard if the employer fails to comply with written standards,
procedures or instructions issued by the Secretary. Such standards,
procedures or instructions shall be objective and verifiable.
`(1) DEFINITION OF UNAUTHORIZED ALIEN- As used in this section, the
term `unauthorized alien' means, with respect to the employment of an
alien at a particular time, that the alien is not at that time either--
`(A) an alien lawfully admitted for permanent residence; or
`(B) authorized to be so employed by the Secretary.
`(2) DEFINITION OF EMPLOYER- For purposes of this section, the term
`employer' means any person or entity hiring, recruiting, or referring
an individual for employment in the United States.
`(c) Document Verification Requirements- Any employer hiring, recruiting,
or referring an individual for employment in the United States shall take
all reasonable steps to verify that the individual is authorized to work
in the United States, including the requirements of subsection (d) and
the following paragraphs:
`(1) ATTESTATION AFTER EXAMINATION OF DOCUMENTATION-
`(A) IN GENERAL- The employer must attest, under penalty of perjury
and on a form prescribed by the Secretary, that it has verified the
identity and work authorization status of the individual by examining--
`(i) a document described in subparagraph (B); or
`(ii) a document described in subparagraph (C) and a document described
in subparagraph (D).
Such attestation may be manifested by a handwritten or electronic
signature. An employer has complied with the requirement of this paragraph
with respect to examination of documentation if the employer has followed
applicable regulations and any written procedures or instructions
provided by the Secretary and if a reasonable person would conclude
that the documentation is genuine and establishes the employee's identity
and authorization to work, taking into account any information provided
to the employer by the Secretary, including photographs.
`(B) DOCUMENTS ESTABLISHING BOTH EMPLOYMENT AUTHORIZATION AND IDENTITY-
A document described in this subparagraph is an individual's--
`(i) United States passport, or passport card issued pursuant to
the Secretary of State's authority under 22 U.S.C. 211a; or
`(ii) permanent resident card or other document issued by the Secretary
or Secretary of State to aliens authorized to work in the United
States, if the document--
`(I) contains a photograph of the individual, biometric data,
such as fingerprints, or such other personal identifying information
relating to the individual as the Secretary finds, by regulation,
sufficient for the purposes of this subsection;
`(II) is evidence of authorization for employment in the United
States; and
`(III) contains security features to make it resistant to tampering,
counterfeiting, and fraudulent use.
`(C) DOCUMENTS ESTABLISHING IDENTITY OF INDIVIDUAL- A document described
in this subparagraph includes--
`(i) an individual's driver's license or identity card issued by
a State, the Commonwealth of the Northern Mariana Islands, or an
outlying possession of the United States, provided that the issuing
State or entity has certified to the Secretary of Homeland Security
that it is in compliance with the minimum standards required under
section 202 of the REAL ID Act of 2005 (division B of Public Law
109-13) (49 U.S.C. 30301 note) and implementing regulations issued
by the Secretary of Homeland Security once those requirements become
effective;
`(ii) an individual's driver's license or identity card issued by
a State, the Commonwealth of the Northern Mariana Islands, or an
outlying possession of the United States which is not compliant
with section 202 of the REAL ID Act of 2005 if--
`(I) the driver's license or identity card contains the individual's
photograph as well as the individual's name, date of birth, gender,
height, eye color and address, and
`(II) the card is presented by the individual and examined by
the employer in combination with a U.S. birth certificate, or
a Certificate of Naturalization, or a Certificate of Citizenship,
or such other documents as may be prescribed by the Secretary,
or
`(iii) other documentation evidencing identity as identified by
the Secretary in his discretion, with notice to the public provided
in the Federal Register, to be acceptable for purposes of this section.
`(D) SPECIAL RULE FOR MINORS- Notwithstanding subparagraphs (B) and
(C), a minor who is under the age of 18 and who is unable to produce
an identity document described in clause (i) through (ii) of subparagraph
(B) or clause (i) through (iii) of subparagraph (C) is exempt from
producing such a document if--
`(i) a parent or legal guardian of the minor completes a form prescribed
by the Secretary, and in the space for the minor's signature, the
parent or legal guardian writes the words, `minor under age 18';
`(ii) a parent or legal guardian of the minor completes a form prescribed
by the Secretary, the `Preparer/Translator certification'; and
`(iii) the employer of the minor writes in a form prescribed by
the Secretary, in the space after the words `Document Identification
#' the words, `minor under age 18'.
`(E) SPECIAL RULE FOR INDIVIDUALS WITH DISABILITIES- Notwithstanding
subparagraphs (B) and (C), an individual with a disability (as defined
in section 3 of the Americans with Disabilities Act of 1990 (42 U.S.C.
12102)) who is unable to produce an identity document described in
clause (i) through (ii) of subparagraph (B) or clause (i) through
(iii) of subparagraph (C), and who is being placed into employment
by a nonprofit organization or association or as part of a rehabilitation
program, and an individual who demonstrates mental retardation whether
or not the individual participates in an employment placement program
through a nonprofit organization or association or as part of a rehabilitation
program, is exempt from producing such a document if--
`(i) a parent or legal guardian of the individual, or a representative
from the nonprofit organization, association, or rehabilitation
program placing the individual into a position of employment completes
a form prescribed by the Secretary, and in the space for the covered
individual's signature, writes the words, `special placement';
`(ii) a parent or legal guardian of the individual or the program
representative, completes a form prescribed by the Secretary, the
`Preparer/Translator certification'; and
`(iii) the employer of the covered individual writes in a form prescribed
by the Secretary, in the space after the words `Document Identification
#' the words, `special placement'.
`(F) DOCUMENTS EVIDENCING EMPLOYMENT AUTHORIZATION- The following
documents may be accepted as evidence of employment authorization--
`(i) a social security account number card issued by the Commissioner
of Social Security (other than a card which specifies on its face
that the card is not valid for employment in the United States);
or
`(ii) any other documentation evidencing authorization of employment
in the United States which the Secretary declares, by publication
in the Federal Register, to be acceptable for purposes of this section.
`(G) AUTHORITY TO PROHIBIT USE OF CERTAIN DOCUMENTS- If the Secretary
finds that any document or class of documents described in subparagraph
(B), (C), or (D) 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 shall,
with notice to the public provided in the Federal Register, prohibit
or restrict the use of that document or class of documents for purposes
of this subsection.
`(2) INDIVIDUAL ATTESTATION OF EMPLOYMENT AUTHORIZATION- The individual
must attest, under penalty of perjury on the form prescribed by the
Secretary, 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 to be hired, recruited,
or referred for such employment. Such attestation may be manifested
by either a hand-written or electronic signature.
`(3) RETENTION OF VERIFICATION FORM- After completion of such form in
accordance with paragraphs (1) and (2), the employer must retain a paper,
microfiche, microfilm, or electronic version of the form and make it
available for inspection by officers of the Department of Homeland Security
(or persons designated by the Secretary), the Special Counsel for Immigration-Related
Unfair Employment Practices, or the Department of Labor during a period
beginning on the date of the hiring, recruiting, or referral of the
individual and ending--
`(A) in the case of the recruiting or referral for a fee (without
hiring) of an individual, five years after the date of the recruiting
or referral; and
`(B) in the case of the hiring of an individual--
`(i) five years after the date of such hiring; or
`(ii) two years after the date the individual's employment is terminated,
whichever is earlier.
`(4) COPYING OF DOCUMENTATION AND RECORDKEEPING REQUIRED-
`(A) Notwithstanding any other provision of law, the employer shall
copy all documents presented by an individual pursuant to this subsection
and shall retain a paper, microfiche, microfilm, or electronic copy
as prescribed in paragraph (3), but only (except as otherwise permitted
under law) for the purposes of complying with the requirements of
this subsection. Such copies shall reflect the signatures of the employer
and the employee, as well as the date of receipt.
`(B) The employer shall also maintain records of Social Security Administration
correspondence regarding name and number mismatches or no-matches
and the steps taken to resolve such issues.
`(C) The employer shall maintain records of all actions and copies
of any correspondence or action taken by the employer to clarify or
resolve any issue that raises reasonable doubt as to the validity
of the alien's identity or work authorization.
`(D) The employer shall maintain such records as prescribed in this
subsection. The Secretary may prescribe the manner of recordkeeping
and may require that additional records be kept or that additional
documents be copied and maintained. The Secretary may require that
these documents be transmitted electronically, and may develop automated
capabilities to request such documents.
`(5) PENALTIES- An employer that fails to comply with any requirement
of this subsection shall be penalized under subsection (e)(4)(B).
`(6) NO AUTHORIZATION OF NATIONAL IDENTIFICATION CARDS- Nothing in this
section shall be construed to authorize, directly or indirectly, the
issuance or use of national identification cards or the establishment
of a national identification card.
`(7) NONDISCRIMINATION- The employer shall use the procedures for document
verification set forth in this paragraph for all employees without regard
to national origin or citizenship status.
`(d) Employment Eligibility Verification System-
`(1) IN GENERAL- The basic pilot program established under section 403(a)
of the Illegal Immigration Reform and Immigrant Responsibility Act of
1996 (division C of Public Law 104-208; 8 U.S.C. 1324a note) is hereby
renamed as the `Employment Eligibility Verification System' or `EEVS'
(and is referred to in this section as such).
`(2) EXTENSION OF PROGRAM- The Secretary of Homeland Security shall
provide for the implementation of EEVS throughout the United States
on a timely basis, consistent with the implementation of paragraph (3)
and such System shall continue in operation permanently and shall not
terminate.
`(3) IMPLEMENTATION SCHEDULE-
`(A) PRIORITY EMPLOYERS- Not later than 1 year after the date of enactment
of this section, the Secretary in his discretion, with notice to the
public provided in the Federal Register, is authorized to require
any employer or industry which the Secretary determines to be part
of the critical infrastructure, a federal contractor, or directly
related to the national security or homeland security of the United
States to participate in the EEVS. This requirement may be applied
to both newly hired and current employees. The Secretary shall notify
employers subject to this subparagraph 60 days prior to required EEVS
compliance.
`(B) LARGE EMPLOYERS- Not later than 2 years after the date of enactment
of this Act of 2007 the Secretary shall require an employer with 5,000
or more employees in the United States to participate in the System,
with respect to all employees hired by the employer after the date
the Secretary requires such participation.
`(C) MIDSIZED EMPLOYERS- Not later than 3 years after the date of
enactment of this Act, the Secretary shall require an employer with
less than 5,000 employees and 1,000 or more employees in the United
States to participate in the System, with respect to all employees
hired by the employer after the date the Secretary requires such participation.
`(D) SMALL EMPLOYERS- Not later than 4 years after the date of the
enactment of this Act of 2007, the Secretary shall require all employers
with less than 1,000 employees in the United States to participate
in the System, with respect to all employees hired by the employer
after the date the Secretary requires such participation.
`(E) ALL EMPLOYEES- No later than 5 years after the date of enactment
of this section, all employers shall participate in the EEVS with
respect to new employees and all employees whose identity and employment
authorization have not been previously verified through EEVS. The
Secretary may specify earlier dates for participation in the EEVS
in his discretion for some or all classes of employer or employee,
provided that the Secretary provides notification to employees and
prints notification in the Federal Register 60 days prior to required
compliance with EEVS.
`(F) The Secretary shall create the necessary systems and processes
to monitor the functioning of the EEVS, including the volume of the
workflow, the speed of processing of queries, and the speed and accuracy
of responses. These systems and processes shall be audited by the
Government Accountability Office 9 months after the date of enactment
of this section and 24 months after the date of enactment of this
section. The Government Accountability Office shall report the results
of the audits to Congress.
`(4) PARTICIPATION IN EEVS- The Secretary has the following discretionary
authority to require or to permit participation in the EEVS--
`(A) to permit any employer that is not required to participate in
the EEVS to do so on a voluntary basis;
`(B) to require any employer that is required to participate in the
EEVS with respect to its newly hired employees also to do so with
respect to its current workforce if the Secretary has reasonable cause
to believe that the employer has engaged in any violation of the immigration
laws.
`(5) CONSEQUENCE OF FAILURE TO PARTICIPATE- If an employer is required
under this subsection to participate in the EEVS and fails to comply
with the requirements of such program with respect to an individual--
`(A) such failure shall be treated as a violation of subsection (a)(1)(B)
of this section with respect to that individual, and
`(B) a rebuttable presumption is created that the employer has violated
subsection (a)(1)(A) or (a)(2) of this section.
Subparagraph (B) shall not apply in any prosecution under subsection
274A(f)(1).
`(6) PROCEDURES FOR PARTICIPANTS IN THE EEVS-
`(A) IN GENERAL- An employer participating in the EEVS must register
in the EEVS and conform to the following procedures in the event of
hiring, recruiting, or referring any individual for employment in
the United States:
`(i) REGISTRATION OF EMPLOYERS- The Secretary, through notice in
the Federal Register, shall prescribe procedures that employers
must follow to register in the EEVS. In prescribing these procedures,
the Secretary shall have authority to require employers to provide:
`(II) employer's Employment Identification Number (EIN);
`(IV) name, position and social security number of the employer's
employees accessing the EEVS; and
`(V) such other information as the Secretary deems necessary to
ensure proper use and security of the EEVS.
The Secretary shall require employers to undergo such training as
the Secretary deems necessary to ensure proper use and security
of the EEVS. To the extent practicable, such training shall be made
available electronically.
`(ii) PROVISION OF ADDITIONAL INFORMATION- The employer shall obtain
from the individual (and the individual shall provide) and shall
record in such manner as the Secretary may specify--
`(I) an individual's social security account number,
`(II) if the individual does not attest to United States nationality
under subsection (c)(2) of this section, such identification or
authorization number established by the Department of Homeland
Security as the Secretary of Homeland Security shall specify,
and
`(III) such other information as the Secretary may require to
determine the identity and work authorization of an employee.
`(iii) PRESENTATION OF DOCUMENTATION- The employer, and the individual
whose identity and employment eligibility are being confirmed, shall
fulfill the requirements of subsection (c) of this section.
`(B) SEEKING CONFIRMATION-
`(i) The employer shall use the EEVS to provide to the Secretary
all required information in order to obtain confirmation of the
identity and employment eligibility of any individual no earlier
than the date of hire and no later than on the first day of employment
(or recruitment or referral, as the case may be). An employer may
not, however, make the starting date of an individual's employment
contingent on the receipt of a confirmation of the identity and
employment eligibility.
`(ii) For reverification of an employee with a limited period of
work authorization, all required verification procedures must be
complete on the date the employee's work authorization expires.
`(iii) For initial verification of an employee hired before the
employer is subject to the employment eligibility verification system,
all required procedures must be complete on such date as the Secretary
shall specify in accordance with subparagraph (d)(2)(E).
`(iv) The Secretary shall provide, and the employer shall utilize,
as part of EEVS, a method of communicating notices and requests
for information or action on the part of the employer with respect
to expiring work authorization or status and other matters. Additionally,
the Secretary shall provide a method of notifying employers of a
confirmation, nonconfirmation or a notice that further action is
required (`further action notice'). The employer shall communicate
to the individual that is the subject of the verification all information
provided to the employer by the EEVS for communication to the individual
in a timely manner.
`(C) CONFIRMATION OR NONCONFIRMATION-
`(i) INITIAL RESPONSE- The verification system shall provide a confirmation,
a nonconfirmation, or a further action notice of an individual's
identity and employment eligibility at the time of the inquiry,
unless for technological reasons or due to unforeseen circumstances,
the EEVS is unable to provide such confirmation or further action
notice. In such situations, the system shall provide confirmation
or further action notice within 3 business days of the initial inquiry.
If providing confirmation or further action notice, the EEVS shall
provide an appropriate code indicating such confirmation or such
further action notice.
`(ii) CONFIRMATION UPON INITIAL INQUIRY- When the employer receives
an appropriate confirmation of an individual's identity and work
eligibility under the EEVS, the employer shall record the confirmation
in such manner as the Secretary may specify.
`(iii) FURTHER ACTION NOTICE UPON INITIAL INQUIRY AND SECONDARY
VERIFICATION-
`(I) FURTHER ACTION NOTICE- If the employer receives a further
action notice of an individual's identity or work eligibility
under the EEVS, the employer shall inform the individual without
delay for whom the confirmation is sought of the further action
notice and any procedures specified by the Secretary for addressing
the further action notice. The employee must acknowledge in writing
the receipt of the further action notice from the employer.
`(II) CONTEST- Within ten business days from the date of notification
to the employee, the employee must contact the appropriate agency
to contest the further action notice and, if the Secretary so
requires, appear in person at the appropriate Federal or state
agency for purposes of verifying the individual's identity and
employment authorization. The Secretary, in consultation with
the Commissioner of Social Security and other appropriate Federal
and State agencies, shall specify an available secondary verification
procedure to confirm the validity of information provided and
to provide a final confirmation or nonconfirmation. An individual
contesting a further action notice must attest under penalty of
perjury to his identity and employment authorization.
`(III) NO CONTEST- If the individual does not contest the further
action notice within the period specified in subparagraph (5)(C)(iii)(II),
a final nonconfirmation shall issue. The employer shall then record
the nonconfirmation in such manner as the Secretary may specify.
`(IV) FINALITY- The EEVS shall provide a final confirmation or
nonconfirmation within 10 business days from the date of the employee's
contesting of the further action notice. As long as the employee
is taking the steps required by the Secretary and the agency that
the employee has contacted to resolve a further action notice,
the Secretary shall extend the period of investigation until the
secondary verification procedure allows the Secretary to provide
a final confirmation or nonconfirmation. If the employee fails
to take the steps required by the Secretary and the appropriate
agency, a final nonconfirmation may be issued to that employee.
`(V) RE-EXAMINATION- Nothing in this section shall prevent the
Secretary from reexamining a case where a final confirmation has
been provided if subsequently received information indicates that
the individual may not be work authorized.
`(VI) TERMINATION- In no case shall an employer terminate employment
of an individual solely because of a failure of the individual
to have identity and work eligibility confirmed under this section
until a nonconfirmation becomes final and the period to timely
file an administrative appeal has passed, and in the case where
an administrative appeal has been denied, the period to timely
file a petition for judicial review has passed. When final confirmation
or nonconfirmation is provided, the confirmation system shall
provide an appropriate code indicating such confirmation or nonconfirmation.
An individual's failure to contest a further action notice shall
not be considered an admission of guilt with respect to any violation
of this section or any provision of law.
`(D) CONSEQUENCES OF NONCONFIRMATION-
`(i) TERMINATION OF CONTINUED EMPLOYMENT- If the employer has received
a final nonconfirmation regarding an individual, the employer shall
terminate employment (or recruitment or referral) of the individual,
unless the individual files an administrative appeal of a final
nonconfirmation notice under paragraph (7) within the time period
prescribed in that paragraph and the Secretary or the Commissioner
stays the final nonconfirmation notice pending the resolution of
the administrative appeal.
`(ii) CONTINUED EMPLOYMENT AFTER FINAL NONCONFIRMATION- If the employer
continues to employ (or to recruit or refer) an individual after
receiving final nonconfirmation (unless the individual filed an
administrative appeal of a final nonconfirmation notice under paragraph
(7) within the time period prescribed in that paragraph and the
Secretary of the Commissioner stayed the final nonconfirmation notice
pending the resolution of the administrative appeal), a rebuttable
presumption is created that the employer has violated subsections
(a)(1)(A) and (a)(2) of this section. The previous sentence shall
not apply in any prosecution under subsection (f)(1) of this section.
`(E) OBLIGATION TO RESPOND TO QUERIES AND ADDITIONAL INFORMATION-
`(i) Employers are required to comply with requests from the Secretary
through EEVS for information, including queries concerning current
and former employees that relate to the functioning of the EEVS,
the accuracy of the responses provided by the EEVS, and any suspected
fraud or identity theft in the use of the EEVS. Failure to comply
with such a request is a violation of section (a)(1)(B).
`(ii) Individuals being verified through EEVS may be required to
take further action to address irregularities identified in the
documents relied upon for purposes of employment verification. The
employer shall communicate to the individual any such requirement
for further actions and shall record the date and manner of such
communication. The individual must acknowledge in writing the receipt
of this communication from the employer. Failure to communicate
such a requirement is a violation of section (a)(1)(B).
`(iii) The Secretary is authorized, with notice to the public provided
in the Federal Register, to implement, clarify, and supplement the
requirements of this paragraph in order to facilitate the functioning
of the EEVS or to prevent fraud or identity theft in the use of
the EEVS.
`(F) IMPERMISSIBLE USE OF THE EEVS-
`(i) An employer may not use the EEVS to verify an individual prior
to extending to the individual an offer of employment.
`(ii) An employer may not require an individual to verify the individual's
own employment eligibility through the EEVS as a condition of extending
to that individual an offer of employment. Nothing in this paragraph
shall be construed to prevent an employer from encouraging an employee
or a prospective employee from verifying the employee's or a prospective
employee's own employment eligibility prior to obtaining employment
pursuant to paragraph (5)(H).
`(iii) An employer may not terminate an individual's employment
solely because that individual has been issued a further action
notice.
`(iv) An employer may not take the following actions solely because
an individual has been issued a further action notice:
`(I) reduce salary, bonuses or other compensation due to the employee;
`(II) suspend the employee without pay;
`(III) reduce the hours that the employee is required to work
if such reduction is accompanied by a reduction in salary, bonuses
or other compensation due to the employee, except that, with the
agreement of the employee, an employer may provide an employee
with reasonable time off without pay in order to contest and resolve
the further action notice received by the employee;
`(IV) deny the employee the training necessary to perform the
employment duties for which the employee has been hired.
`(v) An employer may not, in the course of utilizing the procedures
for document verification set forth in subsection (c), require that
a prospective employee present additional documents or different
documents than those prescribed under that subsection.
`(vi) The Secretary of Homeland Security shall develop the necessary
policies and procedures to monitor employers' use of the EEVS and
their compliance with the requirements set forth in this section.
Employers are required to comply with requests from the Secretary
for information related to any monitoring, audit or investigation
undertaken pursuant to this subparagraph.
`(vii) The Secretary of Homeland Security, in consultation with
the Secretary of Labor, shall establish and maintain a process by
which any employee (or any prospective employee who would otherwise
have been hired) who has reason to believe that an employer has
violated subparagraphs (i)-(v) may file a complaint against the
employer.
`(viii) Any employer found to have violated subparagraphs (i)-(v)
shall pay a civil penalty of up to $10,000 for each violation.
`(ix) This paragraph is not intended to, and does not, create any
right, benefit, trust, or responsibility, whether substantive or
procedural, enforceable at law or equity by a party against the
United States, its departments, agencies, instrumentalities, entities,
officers, employees, or agents, or any person, nor does it create
any right of review in a judicial proceeding.
`(x) No later than 3 months after the date of enactment of this
section, the Secretary of Homeland Security, in cooperation with
the Secretary of Labor and the Administrator of the Small Business
Administration, shall conduct a campaign to disseminate information
respecting the rights and remedies prescribed under this section.
Such campaign shall be aimed at increasing the knowledge of employers,
employees, and the general public concerning employer and employee
rights, responsibilities and remedies under this section.
`(I) In order to carry out the campaign under this paragraph,
the Secretary of Homeland Security may, to the extent deemed appropriate
and subject to the availability of appropriations, contract with
public and private organizations for outreach activities under
the campaign.
`(II) There are authorized to be appropriated to carry out this
paragraph $40,000,000 for each fiscal year 2007 through 2009.
`(G) Based on a regular review of the EEVS and the document verification
procedures to identify fraudulent use and to assess the security of
the documents being used to establish identity or employment authorization,
the Secretary in consultation with the Commissioner of Social Security
may modify by Notice published in the Federal Register the documents
that must be presented to the employer, the information that must
be provided to EEVS by the employer, and the procedures that must
be followed by employers with respect to any aspect of the EEVS if
the Secretary in his discretion concludes that the modification is
necessary to ensure that EEVS accurately and reliably determines the
work authorization of employees while providing protection against
fraud and identity theft.
`(H) Subject to appropriate safeguards to prevent misuse of the system,
the Secretary in consultation with the Commissioner of Social Security,
shall establish secure procedures to permit an individual who seeks
to verify the individual's own employment eligibility prior to obtaining
or changing employment, to contact the appropriate agency and, in
a timely manner, correct or update the information used by the EEVS.
`(7) PROTECTION FROM LIABILITY FOR ACTIONS TAKEN ON THE BASIS OF INFORMATION
PROVIDED BY THE CONFIRMATION SYSTEM- No employer participating in the
EEVS shall be liable under any law for any employment-related action
taken with respect to the employee in good faith reliance on information
provided through the confirmation system.
`(8) ADMINISTRATIVE REVIEW-
`(A) IN GENERAL- An individual who receives a final nonconfirmation
notice may, not later than 30 days after the date that such notice
is received, file an administrative appeal of such final notice. An
individual who did not timely contest a further action notice may
not avail himself of this paragraph. Unless the Secretary of Homeland
Security, in consultation with the Commissioner of Social Security,
specifies otherwise, all administrative appeals shall be filed as
follows:
`(i) NATIONALS OF THE UNITED STATES- An individual claiming to be
a national of the United States shall file the administrative appeal
with the Commissioner.
`(ii) ALIENS- An individual claiming to be an alien authorized to
work in the United States shall file the administrative appeal with
the Secretary.
`(B) REVIEW FOR ERROR- The Secretary and the Commissioner shall each
develop procedures for resolving administrative appeals regarding
final nonconfirmations based upon the information that the individual
has provided, including any additional evidence that was not previously
considered. Appeals shall be resolved within 30 days after the individual
has submitted all evidence relevant to the appeal. The Secretary and
the Commissioner may, on a case by case basis for good cause, extend
this period in order to ensure accurate resolution of an appeal before
him. Administrative review under this paragraph (7) shall be limited
to whether the final nonconfirmation notice is supported by the weight
of the evidence.
`(C) ADMINISTRATIVE RELIEF- The relief available under this paragraph
(7) is limited to an administrative order upholding, reversing, modifying,
amending, or setting aside the final nonconfirmation notice. The Secretary
or the Commissioner shall stay the final nonconfirmation notice pending
the resolution of the administrative appeal unless the Secretary or
the Commissioner determines that the administrative appeal is frivolous,
unlikely to succeed on the merits, or filed for purposes of delay
and terminates the stay.
`(D) DAMAGES, FEES AND COSTS- No money damages, fees or costs may
be awarded in the administrative review process, and no court shall
have jurisdiction to award any damages, fees or costs relating to
such administrative review under the Equal Access to Justice Act or
any other law.
`(A) EXCLUSIVE PROCEDURE- Notwithstanding any other provision of law
(statutory or nonstatutory) including sections 1361 and 1651 of title
28, no court shall have jurisdiction to consider any claim against
the United States, or any of its agencies, officers, or employees,
challenging or otherwise relating to a final nonconfirmation notice
or to the EEVS, except as specifically provided by this paragraph.
Judicial review of a final nonconfirmation notice is governed only
by chapter 158 of title 28, except as provided below.
`(B) REQUIREMENTS FOR REVIEW OF A FINAL NONCONFIRMATION NOTICE- With
respect to review of a final nonconfirmation notice under subsection
(a), the following requirements apply:
`(i) DEADLINE- The petition for review must be filed no later than
30 days after the date of the completion of the administrative appeal.
`(ii) VENUE AND FORMS- The petition for review shall be filed with
the United States Court of Appeals for the judicial circuit wherein
the petitioner resided when the final nonconfirmation notice was
issued. The record and briefs do not have to be printed. The court
of appeals shall review the proceeding on a typewritten record and
on typewritten briefs.
`(iii) SERVICE- The respondent is either the Secretary of Homeland
Security or the Commissioner of Social Security, but not both, depending
upon who issued (or affirmed) the final nonconfirmation notice.
In addition to serving the respondent, the petitioner must also
serve the Attorney General.
`(iv) Petitioner's BRIEF- The petitioner shall serve and file a
brief in connection with a petition for judicial review not later
than 40 days after the date on which the administrative record is
available, and may serve and file a reply brief not later than 14
days after service of the brief of the respondent, and the court
may not extend these deadlines, except for good cause shown. If
a petitioner fails to file a brief within the time provided in this
paragraph, the court shall dismiss the appeal unless a manifest
injustice would result. The court of appeals may set an expedited
briefing schedule.
`(v) SCOPE AND STANDARD FOR REVIEW- The court of appeals shall decide
the petition only on the administrative record on which the final
nonconfirmation order is based. The burden shall be on the petitioner
to show that the final nonconfirmation decision was arbitrary, capricious,
not supported by substantial evidence, or otherwise not in accordance
with law. Administrative findings of fact are conclusive unless
any reasonable adjudicator would be compelled to conclude to the
contrary.
`(vi) STAY- The court of appeals shall stay the final nonconfirmation
notice pending its decision on the petition for review unless the
court determines that the petition for review is frivolous, unlikely
to succeed on the merits, or filed for purposes of delay.
`(C) EXHAUSTION OF ADMINISTRATIVE REMEDIES- A court may review a final
nonconfirmation order only if--
`(i) the petitioner has exhausted all administrative remedies available
to the alien as of right, and
`(ii) another court has not decided the validity of the order, unless
the reviewing court finds that the petition presents grounds that
could not have been presented in the prior judicial proceeding or
that the remedy provided by the prior proceeding was inadequate
or ineffective to test the validity of the order.
`(D) LIMIT ON INJUNCTIVE RELIEF- Regardless of the nature of the action
or claim or of the identity of the party or parties bringing the action,
no court (other than the Supreme Court) shall have jurisdiction or
authority to enjoin or restrain the operation of the provisions in
this section, other than with respect to the application of such provisions
to an individual petitioner.
`(10) MANAGEMENT OF EMPLOYMENT ELIGIBILITY VERIFICATION SYSTEM-
`(A) IN GENERAL- The Secretary shall manage and modify the EEVS in
order to--
`(i) respond to inquiries made by participating employers at any
time through the internet concerning an individual's identity and
whether the individual is authorized to be employed;
`(ii) maintain records of the inquiries that were made, of confirmations
provided (or not provided), and of the codes provided to employers
as evidence of their compliance with their obligations under the
EEVS; and
`(iii) provide information to, and request action by, employers
and individuals using the system, including notifying employers
in advance of the expiration or other relevant change in an employee's
employment authorization, and directing an employer to convey to
the employee a request to contact the appropriate Federal or State
agency.
`(B) OPERATION OF SYSTEM- The EEVS shall be operated--
`(i) to maximize its reliability and ease of use by employers consistent
with insulating and protecting the privacy and security of the underlying
information;
`(ii) to respond accurately to all inquiries made by employers on
whether individuals are authorized to be employed and to register
any times when the system is unable to receive inquiries;
`(iii) to maintain appropriate administrative, technical, and physical
safeguards to prevent unauthorized disclosure of personal information;
`(iv) to allow for auditing use of the system to detect fraud and
identify theft, and to preserve the security of the information
in all of the system, including but not limited to the following:
`(I) to develop and use algorithms to detect potential identity
theft, such as multiple uses of the same identifying information
or documents;
`(II) to develop and use algorithms to detect misuse of the system
by employers and employees;
`(III) to develop capabilities to detect anomalies in the use
of the system that may indicate potential fraud or misuse of the
system;
`(IV) to audit documents and information submitted by potential
employees to employers, including authority to conduct interviews
with employers and employees;
`(v) to confirm identity and work authorization through verification
of records maintained by the Secretary, other Federal departments,
states, the Commonwealth of the Northern Mariana Islands, or an
outlying possession of the United States, as determined necessary
by the Secretary, including--
`(I) records maintained by the Social Security Administration
as specified in (D);
`(II) Birth and death records maintained by vital statistics agencies
of any state or other United States jurisdiction;
`(III) Passport and visa records (including photographs) maintained
by the United States Department of State; and
`(IV) State driver's license or identity card information (including
photographs) maintained by State department of motor vehicles;
and
`(vi) to confirm electronically the issuance of the employment authorization
or identity document and to display the digital photograph that
the issuer placed on the document so that the employer can compare
the photograph displayed to the photograph on the document presented
by the employee. If in exceptional cases a photograph is not available
from the issuer, the Secretary shall specify a temporary alternative
procedure for confirming the authenticity of the document.
`(C) OPERATIONAL AND TECHNICAL REGULATIONS- The Secretary is authorized,
with notice to the public provided in the Federal Register, to issue
regulations concerning operational and technical aspects of the EEVS
and the efficiency, accuracy, and security of the EEVS.
`(D) ACCESS TO INFORMATION-
`(i) Notwithstanding any other provision of law, the Secretary of
Homeland Security shall have access to relevant records described
at paragraph (9)(B)(v), for the purposes of preventing identity
theft and fraud in the use of the EEVS and enforcing the provisions
of this section governing employment verification.
`(ii) The Secretary, in consultation with the Commissioner of Social
Security and other appropriate Federal and State agencies, shall
develop policies and procedures to ensure protection of the privacy
and security of personally identifiable information and identifiers
contained in the records accessed pursuant to this paragraph and
subparagraph (d)(5)(E)(i). The Secretary, in consultation with the
Commissioner and other appropriate Federal and State agencies, shall
develop and deploy appropriate privacy and security training for
the Federal and State employees accessing the records pursuant to
this paragraph and subparagraph (d)(5)(E)(i).
`(iii) The Chief Privacy Officer of the Department of Homeland Security
shall conduct regular privacy audits of the policies and procedures
established under subparagraph (9)(D)(ii), including any collection,
use, dissemination, and maintenance of personally identifiable information
and any associated information technology systems, as well as scope
of requests for this information. The Chief Privacy Officer shall
review the results of the audits and recommend to the Secretary
and the Privacy and Civil Liberties Oversight Board any changes
necessary to improve the privacy protections of the program.
`(E) RESPONSIBILITIES OF THE SECRETARY OF HOMELAND SECURITY-
`(i) As part of the EEVS, the Secretary shall maintain a reliable,
secure method, which, operating through the EEVS and within the
time periods specified, compares the name, alien identification
or authorization number, or other relevant information provided
in an inquiry against such information maintained or accessed by
the Secretary in order to confirm (or not confirm) the validity
of the information provided, the correspondence of the name and
number, whether the alien is authorized to be employed in the United
States (or, to the extent that the Secretary determines to be feasible
and appropriate, whether the Secretary's records verify United States
citizenship), and such other information as the Secretary may prescribe.
`(ii) As part of the EEVS, the Secretary shall establish a reliable,
secure method, which, operating through the EEVS, displays the digital
photograph described in paragraph (d)(9)(B)(vi).
`(iii) The Secretary shall have authority to prescribe when a confirmation,
nonconfirmation or further action notice shall be issued.
`(iv) The Secretary shall perform regular audits under the EEVS,
as described in paragraph (d)(9)(B)(iv) of this section and shall
utilize the information obtained from such audits, as well as any
information obtained from the Commissioner of Social Security pursuant
to section 4 of this Act, for the purposes of this Act and of immigration
enforcement in general.
`(v) The Secretary shall make appropriate arrangements to allow
employers who are otherwise unable to access the EEVS to use Federal
Government facilities or public facilities in order to utilize the
EEVS.
`(vi) The Secretary shall authorize certain entities to serve as
liaisons between the electronic verification system and employers
who wish to outsource submission of employment eligibility verification
queries for newly hired or current employees. The Secretary shall
establish regulations modeled on the E-Verify Designated Agent program
in place at the Department as of 2007. Designated agents shall register
with the Department and sign a Memorandum of Understanding as determined
by the Secretary. Additionally designated agents shall sign the
determined Memorandum of Understanding with each employer who has
designated the agent to perform verification services on their behalf.
The Secretary may authorize regulations ensuring proper conduct
and oversight of designated agents as appropriate. The Secretary
shall make available to employers information on how to identify
and enter into an agreement with a designated agent to arrange for
such an agent to perform verification services on their behalf.
`(F) RESPONSIBILITIES OF THE SECRETARY OF STATE- As part of the EEVS,
the Secretary of State shall provide to the Secretary access to passport
and visa information as needed to confirm that a passport or passport
card presented under section (c)(1)(B) belongs to the subject of the
EEVS check, or that a passport or visa photograph matches an individual.
`(G) UPDATING INFORMATION- The Commissioner of Social Security and
the Secretaries of Homeland Security and State shall update their
information in a manner that promotes maximum accuracy and shall provide
a process for the prompt correction of erroneous information.
`(11) LIMITATION ON USE OF THE EMPLOYMENT ELIGIBILITY VERIFICATION SYSTEM-
Notwithstanding any other provision of law, nothing in this subsection
shall 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 subsection for any purpose other
than for the enforcement and administration of the immigration laws,
anti-terrorism laws, or for enforcement of Federal criminal law related
to the functions of the EEVS, including prohibitions on forgery, fraud
and identity theft.
`(12) UNAUTHORIZED USE OR DISCLOSURE OF INFORMATION- Any employee of
the Department of Homeland Security or another Federal or State agency
who knowingly uses or discloses the information assembled under this
subsection for a purpose other than one authorized under this section
shall pay a civil penalty of $5,000-$50,000 for each violation.
`(13) CONFORMING AMENDMENT- Public Law 104-208, div. C, title IV, subtitle
A, sections 402-405 are repealed, provided that nothing in this subsection
shall be construed to limit the authority of the Secretary to allow
or continue to allow the participation of Basic Pilot employers in the
EEVS established by this subsection.
`(14) FUNDS- In addition to any appropriated funds, the Secretary is
authorized to use funds provided in sections 286(m) and (n), for the
maintenance and operation of the EEVS. EEVS shall be considered an immigration
adjudication service for purposes of sections 286(m) and (n).
`(15) NON-DISCRIMINATION- The employer shall use the procedures for
EEVS specified in this section for all employees without regard to national
origin or citizenship status.
`(1) COMPLAINTS AND INVESTIGATIONS- The Secretary of Homeland Security
shall establish procedures--
`(A) for individuals and entities to file complaints respecting potential
violations of subsection (a) or (g)(1);
`(B) for the investigation of those complaints which the Secretary
deems it appropriate to investigate; and
`(C) for the investigation of such other violations of subsection
(a) or (g)(1) as the Secretary determines to be appropriate.
`(2) AUTHORITY IN INVESTIGATIONS- In conducting investigations and hearings
under this subsection--
`(A) immigration officers shall have reasonable access to examine
evidence of any employer being investigated; and
`(B) immigration officers designated by the Secretary may compel by
subpoena the attendance of witnesses and the production of evidence
at any designated place in an investigation or case under this subsection.
In case of contumacy or refusal to obey a subpoena lawfully issued
under this paragraph, the Secretary may request that the Attorney
General apply in an appropriate district court of the United States
for an order requiring compliance with such subpoena, and any failure
to obey such order may be punished by such court as a contempt thereof.
Failure to cooperate with such subpoena shall be subject to further
penalties, including but not limited to further fines and the voiding
of any mitigation of penalties or termination of proceedings under
subsection (e)(3)(B).
`(3) COMPLIANCE PROCEDURES-
`(A) PRE-PENALTY NOTICE- If the Secretary has reasonable cause to
believe that there has been a civil violation of this section or the
requirements of this section, including but not limited to subsections
(b), (c), (d) and (k), and determines that further proceedings are
warranted, the Secretary shall issue to the employer concerned a written
notice of the Department's intention to issue a claim for a monetary
or other penalty. Such pre-penalty notice shall--
`(i) describe the violation;
`(ii) specify the laws and regulations allegedly violated;
`(iii) disclose the material facts which establish the alleged violation;
and
`(iv) inform such employer that he or she shall have a reasonable
opportunity to make representations as to why a claim for a monetary
or other penalty should not be imposed.
`(B) REMISSION OR MITIGATION OF PENALTIES- Whenever any employer receives
written pre-penalty notice of a fine or other penalty in accordance
with subparagraph (A), the employer may file, within 15 days from
receipt of such notice, with the Secretary a petition for the remission
or mitigation of such fine or penalty, or a petition for termination
of the proceedings. The petition may include any relevant evidence
or proffer of evidence the employer wishes to present, and shall be
filed and considered in accordance with procedures to be established
by the Secretary. If the Secretary finds that such fine, penalty,
or forfeiture was incurred erroneously, or finds the existence of
such mitigating circumstances as to justify the remission or mitigation
of such fine or penalty, the Secretary may remit or mitigate the same
upon such terms and conditions as the Secretary deems reasonable and
just, or order termination of any proceedings relating thereto. Such
mitigating circumstances may include, but need not be limited to,
good faith compliance and participation in, or agreement to participate
in, the EEVS, if not otherwise required. This subparagraph shall not
apply to an employer that has or is engaged in a pattern or practice
of violations of subsection (a)(1)(A), (a)(1)(B), or (a)(2) or of
any other requirements of this section.
`(C) PENALTY CLAIM- After considering evidence and representations,
if any, offered by the employer pursuant to subparagraph (B), the
Secretary shall determine whether there was a violation and promptly
issue a written final determination setting forth the findings of
fact and conclusions of law on which the determination is based. If
the Secretary determines that there was a violation, the Secretary
shall issue the final determination with a written penalty claim.
The penalty claim shall specify all charges in the information provided
under clauses (i) through (iii) of subparagraph (A) and any mitigation
or remission of the penalty that the Secretary deems appropriate.
`(A) HIRING AND CONTINUED EMPLOYMENT OF UNAUTHORIZED ALIENS- Any employer
that violates any provision of subsection (a)(1)(A) or (a)(2) shall--
`(i) pay a civil penalty of not less than $550 and not more than
$4,400 for each unauthorized alien with respect to which each violation
of either subsection (a)(1)(A) or (a)(2) occurred;
`(ii) if an employer has previously been fined under subsection
(e)(4)(A), pay a civil penalty of not less than $4,400 and not more
than $11,000 for each unauthorized alien with respect to which a
violation of either subsection (a)(1)(A) or (a)(2) occurred;
`(iii) if an employer has previously been fined more than once under
subsection (e)(4), pay a civil penalty of not less than $6,600 and
not more than $22,000 for each unauthorized alien with respect to
which a violation of either subsection has occurred. This penalty
shall apply, in addition to any penalties previously assessed, to
employers who fail to comply with a previously issued and final
order under this section;
`(iv) if an employer has previously been fined more than twice under
subsection (e)(4)(A), pay a civil penalty of `$10,000 for each alien
with respect to which a violation of either subsection (a)(1) or
(a)(2) occurred; and
`(v) in addition to any penalties previously assessed, an employer
who fails to comply with a previously issued and final order under
this section shall be fined $25,000 for each violation.
`(B) RECORDKEEPING OR VERIFICATION PRACTICES- Any employer that violates
or fails to comply with any requirement of subsection (b), (c), and
(d), shall pay a civil penalty as follows:
`(i) Pay a civil penalty of $1,000 for each violation.
`(ii) If an employer has previously been fined under subsection
(e)(4)(B), pay a civil penalty of $2,000 for each violation.
`(iii) If an employer has previously been fined more than once under
subsection (e)(4), pay a civil penalty of $5,000 for each violation.
This penalty shall apply, in addition to any penalties previously
assessed, to employers who fail to comply with a previously issued
and final order under this section.
`(iv) If an employer has previously been fined more than twice under
subsection (e)(4)(B), pay a civil penalty of $15,000 for each violation.
`(v) In addition to any penalties previously assessed, an employer
who fails to comply with a previously issued and final order under
this section shall be fined $15,000 for each violation.
`(C) OTHER PENALTIES- The Secretary may impose additional penalties
for violations, including cease and desist orders, specially designed
compliance plans to prevent further violations, suspended fines to
take effect in the event of a further violation, and in appropriate
cases, the remedy provided by paragraph (g)(2). All penalties in this
section may be adjusted every four years to account for inflation
as provided by law.
`(D) PENALTY REDUCTION AND MITIGATION- The Secretary is authorized
to reduce or mitigate penalties imposed upon employers, based upon
factors including, but not limited to, the employer's hiring volume,
compliance history, good-faith implementation of a compliance program,
participation in a temporary worker program, and voluntary disclosure
of violations of this subsection to the Secretary.
`(5) ORDER OF INTERNAL REVIEW AND CERTIFICATION OF COMPLIANCE- If the
Secretary has reasonable cause to believe that an employer has failed
to comply with this section, the Secretary is authorized, at any time,
to require that the employer certify that it is in compliance with this
section, or has instituted a program to come into compliance. Within
60 days of receiving a notice from the Secretary requiring such a certification,
the employer's chief executive officer or similar official with responsibility
for, and authority to bind the company on, all hiring and immigration
compliance notices shall certify under penalty of perjury that the employer
is in conformance with the requirements of subsections (c)(1) through
(c)(4), pertaining to document verification requirements, and with subsection
(d), pertaining to the EEVS (once that system is implemented according
to the requirements of (d)(1)), and with any additional requirements
that the Secretary may promulgate by regulation pursuant to subsections
(c), (d), and (k), or that the employer has instituted a program to
come into compliance with these requirements. At the request of the
employer, the Secretary may extend the 60-day deadline for good cause.
The Secretary is authorized to publish in the Federal Register standards
or methods for such certification, require specific recordkeeping practices
with respect to such certifications, and audit the records thereof at
any time. This authority shall not be construed to diminish or qualify
any other penalty provided by this section.
`(A) IN GENERAL- Notwithstanding any other provision of law (statutory
or nonstatutory) including sections 1361 and 1651 of title 28, no
court shall have jurisdiction to consider a final determination or
penalty claim issued under subparagraph (3)(C), except as specifically
provided by this paragraph. Judicial review of a final determination
under paragraph (e)(4) is governed only by chapter 158 of title 28,
except as specifically provided below. The filing of a petition as
provided in this paragraph shall stay the Secretary's determination
until entry of judgment by the court. The Secretary is authorized
to require that petitioner provide, prior to filing for review, security
for payment of fines and penalties through bond or other guarantee
of payment acceptable to the Secretary.
`(B) REQUIREMENTS FOR REVIEW OF A FINAL DETERMINATION- With respect
to judicial review of a final determination or penalty claim issued
under subparagraph (3)(C), the following requirements apply:
`(i) DEADLINE- The petition for review must be filed no later than
30 days after the date of the final determination or penalty claim
issued under subparagraph (3)(C).
`(ii) VENUE AND FORMS- The petition for review shall be filed with
the court of appeals for the judicial circuit wherein the employer
resided when the final determination or penalty claim was issued.
The record and briefs do not have to be printed. The court of appeals
shall review the proceeding on a typewritten record and on typewritten
briefs.
`(iii) SERVICE- The respondent is either the Secretary of Homeland
Security or the Commissioner of Social Security, but not both, depending
upon who issued (or affirmed) the final nonconfirmation notice.
In addition to serving the respondent, the petitioner must also
serve the Attorney General.
`(iv) Petitioner's BRIEF- The petitioner shall serve and file a
brief in connection with a petition for judicial review not later
than 40 days after the date on which the administrative record is
available, and may serve and file a reply brief not later than 14
days after service of the brief of the respondent, and the court
may not extend these deadlines, except for good cause shown. If
a petitioner fails to file a brief within the time provided in this
paragraph, the court shall dismiss the appeal unless a manifest
injustice would result.
`(v) SCOPE AND STANDARD FOR REVIEW- The court of appeals shall decide
the petition only on the administrative record on which the final
determination is based. The burden shall be on the petitioner to
show that the final determination was arbitrary, capricious, not
supported by substantial evidence, or otherwise not in accordance
with law. Administrative findings of fact are conclusive unless
any reasonable adjudicator would be compelled to conclude to the
contrary.
`(C) EXHAUSTION OF ADMINISTRATIVE REMEDIES- A court may review a final
determination under subparagraph (3)(C) only if--
`(i) the petitioner has exhausted all administrative remedies available
to the petitioner as of right, and
`(ii) another court has not decided the validity of the order, unless
the reviewing court finds that the petition presents grounds that
could not have been presented in the prior judicial proceeding or
that the remedy provided by the prior proceeding was inadequate
or ineffective to test the validity of the order.
`(D) LIMIT ON INJUNCTIVE RELIEF- Regardless of the nature of the action
or claim or of the identity of the party or parties bringing the action,
no court (other than the Supreme Court) shall have jurisdiction or
authority to enjoin or restrain the operation of the provisions in
this section, other than with respect to the application of such provisions
to an individual petitioner.
`(7) ENFORCEMENT OF ORDERS- If an employer fails to comply with a final
determination issued against that employer under this subsection, and
the final determination is not subject to review as provided in paragraph
(6), the Attorney General may file suit to enforce compliance with the
final determination in any appropriate district court of the United
States. In any such suit, the validity and appropriateness of the final
determination shall not be subject to review.
`(A) CREATION OF LIEN- If any employer liable for a fee or penalty
under this section neglects or refuses to pay such liability and fails
to file a petition for review (if applicable) as provided in paragraph
6 of this subsection, such liability is a lien in favor of the United
States on all property and rights to property of such person as if
the liability of such person were a liability for a tax assessed under
the Internal Revenue Code of 1986. If a petition for review is filed
as provided in paragraph 6 of this subsection, the lien (if any) shall
arise upon the entry of a final judgment by the court. The lien continues
for 20 years or until the liability is satisfied, remitted, set aside,
or is terminated.
`(B) EFFECT OF FILING NOTICE OF LIEN- Upon filing of a notice of lien
in the manner in which a notice of tax lien would be filed under section
6323(f)(1) and (2) of the Internal Revenue Code of 1986, the lien
shall be valid against any purchaser, holder of a security interest,
mechanic's lien or judgment lien creditor, except with respect to
properties or transactions specified in subsection (b), (c), or (d)
of section 6323 of the Internal Revenue Code of 1986 for which a notice
of tax lien properly filed on the same date would not be valid. The
notice of lien shall be considered a notice of lien for taxes payable
to the United States for the purpose of any State or local law providing
for the filing of a notice of a tax lien. A notice of lien that is
registered, recorded, docketed, or indexed in accordance with the
rules and requirements relating to judgments of the courts of the
State where the notice of lien is registered, recorded, docketed,
or indexed shall be considered for all purposes as the filing prescribed
by this section. The provisions of section 3201(e) of chapter 176
of title 28 shall apply to liens filed as prescribed by this section.
`(C) ENFORCEMENT OF A LIEN- A lien obtained through this process shall
be considered a debt as defined by 28 U.S.C. 3002 and enforceable
pursuant to the Federal Debt Collection Procedures Act.
`(f) Criminal Penalties and Injunctions for Pattern or Practice Violations-
`(1) CRIMINAL PENALTY- Any employer which engages in a pattern or practice
of knowing violations of subsection (a)(1)(A) or (a)(2) shall be fined
not more than $75,000 for each unauthorized alien with respect to whom
such a violation occurs, imprisoned for not more than six months for
the entire pattern or practice, or both.
`(2) ENJOINING OF PATTERN OR PRACTICE VIOLATIONS- Whenever the Secretary
or the Attorney General has reasonable cause to believe that an employer
is engaged in a pattern or practice of employment, recruitment, or referral
in violation of paragraph (1)(A) or (2) of subsection (a), the Attorney
General may bring a civil action in the appropriate district court of
the United States requesting such relief, including a permanent or temporary
injunction, restraining order, or other order against the employer,
as the Secretary deems necessary.
`(g) Prohibition of Indemnity Bonds-
`(1) PROHIBITION- It is unlawful for an employer, in the hiring, recruiting,
or referring for employment of any individual, to require the individual
to post a bond or security, to pay or agree to pay an amount, or otherwise
to provide a financial guarantee or indemnity, against any potential
liability arising under this section relating to such hiring, recruiting,
or referring of the individual.
`(2) CIVIL PENALTY- Any employer which is determined, after notice and
opportunity for mitigation of the monetary penalty under subsection
(e), to have violated paragraph (1) of this subsection shall be subject
to a civil penalty of $10,000 for each violation and to an administrative
order requiring the return of any amounts received in violation of such
paragraph to the employee or, if the employee cannot be located, to
the general fund of the Treasury.
`(h) Government Contracts-
`(1) EMPLOYERS- Whenever an employer who does not hold Federal contracts,
grants, or cooperative agreements is determined by the Secretary to
be a repeat violator of this section or is convicted of a crime under
this section, the employer shall be subject to debarment from the receipt
of Federal contracts, grants, or cooperative agreements for a period
of up to two years in accordance with the procedures and standards prescribed
by the Federal Acquisition Regulations. The Secretary or the Attorney
General shall advise the Administrator of General Services of any such
debarment, and the Administrator of General Services shall list the
employer on the List of Parties Excluded from Federal Procurement and
Nonprocurement Programs for the period of the debarment. The Administrator
of General Services, in consultation with the Secretary and Attorney
General, may waive operation of this subsection or may limit the duration
or scope of the debarment.
`(2) CONTRACTORS AND RECIPIENTS- Whenever an employer who holds Federal
contracts, grants, or cooperative agreements is determined by the Secretary
to be a repeat violator of this section or is convicted of a crime under
this section, the employer shall be subject to debarment from the receipt
of Federal contracts, grants, or cooperative agreements for a period
of up to two years in accordance with the procedures and standards prescribed
by the Federal Acquisition Regulations. Prior to debarring the employer,
the Secretary, in cooperation with the Administrator of General Services,
shall advise all agencies holding contracts, grants, or cooperative
agreements with the employer of the proceedings to debar the employer
from the receipt of new Federal contracts, grants, or cooperative agreements
for a period of up to two years. After consideration of the views of
agencies holding contracts, grants or cooperative agreements with the
employer, the Secretary may, in lieu of proceedings to debar the employer
from the receipt of new Federal contracts, grants, or cooperative agreements
for a period of up to two years, waive operation of this subsection,
limit the duration or scope of the proposed debarment, or may refer
to an appropriate lead agency the decision of whether to seek debarment
of the employer, for what duration, and under what scope in accordance
with the procedures and standards prescribed by the Federal Acquisition
Regulation. However, any proposed debarment predicated on an administrative
determination of liability for civil penalty by the Secretary or the
Attorney General shall not be reviewable in any debarment proceeding.
`(3) SUSPENSION- Indictments for violations of this section or adequate
evidence of actions that could form the basis for debarment under this
subsection shall be considered a cause for suspension under the procedures
and standards for suspension prescribed by the Federal Acquisition Regulation.
`(4) INADVERTENT VIOLATION- Inadvertent violations of recordkeeping
or verification requirements, in the absence of any other violations
of this section, shall not be a basis for determining that an employer
is a repeat violator for purposes of this subsection.
`(i) Miscellaneous Provisions-
`(1) DOCUMENTATION- In providing documentation or endorsement of authorization
of aliens (other than aliens lawfully admitted for permanent residence)
authorized to be employed in the United States, the Secretary shall
provide that any limitations with respect to the period or type of employment
or employer shall be conspicuously stated on the documentation or endorsement.
`(2) PREEMPTION- The provisions of this section preempt any State or
local law that requires the use of the EEVS in a fashion that conflicts
with Federal policies, procedures or timetables, or that imposes civil
or criminal sanctions (other than through licensing and similar laws)
upon those who employ, or recruit or refer for a fee for employment,
unauthorized aliens.
`(j) Deposit of Amounts Received- Except as otherwise specified, civil
penalties collected under this section shall be deposited by the Secretary
into the general fund of the Treasury.
`(1) IN GENERAL- For the purpose of this subsection, a no match notice
is written notice from the Social Security Administration (SSA) to an
employer reporting earnings on a Form W-2 that employees' names or corresponding
social security account numbers fail to match SSA records. The Secretary,
in consultation with the Commissioner of the Social Security Administration,
is authorized to establish by regulation requirements for verifying
the identity and work authorization of employees who are the subject
of no-match notices.
`(2) NOTIFICATION OF EMPLOYEE- An employee subject to a no-match notice
shall also be issued a no-match notice, within 5 days of the employer,
which shall explain--
`(A) that the no-match notice has been issued to employer;
`(B) that the no-match notice does not represent a binding decision
on employment status;
`(C) that the employee has the right to resolve the no-match notice
within the period of time designated by (k)(2); and
`(D) that the employee is protected from adverse employment consequences
during the period of time designated by (k)(2).
`(3) TIME PERIOD FOR RESOLUTION- The Secretary shall establish by regulation
a reasonable period of time during which an employer must allow an employee
who is subject to a no-match notice to resolve the no-match notice with
no adverse employment consequences. The period of time shall be extended
in such cases where an employee has sought resolution of the no-match
notice, at an office of the Social Security Administration or other
appropriate entity, during the designated period of time but final resolution
or non-resolution of the no-match noticed has yet to be determined by
the office or entity in question. The period of time shall be extended
until such time as the pending final resolution or non-resolution of
the no-match notice is determined, provided that the employee has acted
in good faith cooperation with the office or entity in question.
`(4) CONTINUED EMPLOYMENT IN CASE OF UNRESOLVED NO-MATCH- The Secretary
shall establish by regulation a procedure for verifying employer compliance
with any provision of subsection (a)(2) in the case of unresolved no-match
notices.
`(5) CHALLENGES TO VALIDITY-
`(A) IN GENERAL- Any right, benefit, or claim not otherwise waived
or limited pursuant to this section is available in an action instituted
in the United States District Court for the District of Columbia,
but shall be limited to determinations of--
`(i) whether this section, or any regulation issued to implement
this section, violates the Constitution of the United States; or
`(ii) whether such a regulation issued by or under the authority
of the Secretary to implement this section, is contrary to applicable
provisions of this section or was issued in violation of title 5,
chapter 5, United States Code.
`(B) DEADLINES FOR BRINGING ACTIONS- Any action instituted under this
paragraph must be filed no later than 90 days after the date the challenged
section or regulation described in clause (i) or (ii) of subparagraph
(A) is first implemented.
`(C) CLASS ACTIONS- The court may not certify a class under Rule 23
of the Federal Rules of Civil Procedure in any action under this section.
`(D) RULE OF CONSTRUCTION- In determining whether the Secretary's
interpretation regarding any provision of this section is contrary
to law, a court shall accord to such interpretation the maximum deference
permissible under the Constitution.
`(E) NO ATTORNEYS' FEES- Notwithstanding any other provision of law,
the court shall not award fees or other expenses to any person or
entity based upon any action relating to this title brought pursuant
to this subsection.'.
SEC. 4. EFFECTIVE DATE.
This title shall become effective on the date of enactment.
SEC. 5. DISCLOSURE OF CERTAIN TAXPAYER INFORMATION TO ASSIST IN IMMIGRATION
ENFORCEMENT.
(a) Disclosure of Certain Taxpayer Identity Information-
(1) IN GENERAL- Section 6103(l) of the Internal Revenue Code of 1986
is amended by adding at the end the following new paragraph:
`(21) DISCLOSURE OF CERTAIN TAXPAYER IDENTITY INFORMATION BY SOCIAL
SECURITY ADMINISTRATION TO DEPARTMENT OF HOMELAND SECURITY-
`(A) IN GENERAL- From taxpayer identity information or other information
which has been disclosed or otherwise made available to the Social
Security Administration and upon written request by the Secretary
of Homeland Security (in this paragraph referred to as the `Secretary'),
the Commissioner of Social Security shall disclose directly to officers,
employees, and contractors of the Department of Homeland Security--
`(i) the taxpayer identity information of each person who has filed
an information return required by reason of section 6051 after calendar
year 2005 and before the date specified in subparagraph (D) which
contains--
`(I) 1 (or any greater number the Secretary shall request) taxpayer
identifying number, name, and address of any employee (within
the meaning of such section) that did not match the records maintained
by the Commissioner of Social Security, or
`(II) 2 (or any greater number the Secretary shall request) names,
and addresses of employees (within the meaning of such section),
with the same taxpayer identifying number, and the taxpayer identity
of each such employee, and
`(ii) the taxpayer identity of each person who has filed an information
return required by reason of section 6051 after calendar year 2005
and before the date specified in subparagraph (D) which contains
the taxpayer identifying number (assigned under section 6109) of
an employee (within the meaning of section 6051)--
`(I) who is under the age of 14 (or any lesser age the Secretary
shall request), according to the records maintained by the Commissioner
of Social Security,
`(II) whose date of death, according to the records so maintained,
occurred in a calendar year preceding the calendar year for which
the information return was filed,
`(III) whose taxpayer identifying number is contained in more
than one (or any greater number the Secretary shall request) information
return filed in such calendar year, or
`(IV) who is not authorized to work in the United States, according
to the records maintained by the Commissioner of Social Security,
and the taxpayer identity and date of birth of each such employee.
`(B) REIMBURSEMENT- The Secretary shall transfer to the Commissioner
the funds necessary to cover the additional cost directly incurred
by the Commissioner in carrying out the searches or manipulations
requested by the Secretary.'.
(2) COMPLIANCE BY DHS CONTRACTORS WITH CONFIDENTIALITY SAFEGUARDS-
(A) IN GENERAL- Section 6103(p) of such Code is amended by adding
at the end the following new paragraph:
`(9) DISCLOSURE TO DHS CONTRACTORS- Notwithstanding any other provision
of this section, no return or return information shall be disclosed
to any contractor of the Department of Homeland Security unless such
Department, to the satisfaction of the Secretary--
`(A) has requirements in effect which require each such contractor
which would have access to returns or return information to provide
safeguards (within the meaning of paragraph (4)) to protect the confidentiality
of such returns or return information,
`(B) agrees to conduct an on-site review every 3 years (mid-point
review in the case of contracts or agreements of less than 3 years
in duration) of each contractor to determine compliance with such
requirements,
`(C) submits the findings of the most recent review conducted under
subparagraph (B) to the Secretary as part of the report required by
paragraph (4)(E), and
`(D) certifies to the Secretary for the most recent annual period
that such contractor is in compliance with all such requirements.
The certification required by subparagraph (D) shall include the name
and address of each contractor, a description of the contract or agreement
with such contractor, and the duration of such contract or agreement.'.
(3) CONFORMING AMENDMENTS-
(A) Section 6103(a)(3) of such Code is amended by striking `or (20)'
and inserting `(20), or (21)'.
(B) Section 6103(p)(3)(A) of such Code is amended by adding at the
end the following new sentence: `The Commissioner of Social Security
shall provide to the Secretary such information as the Secretary may
require in carrying out this paragraph with respect to return information
inspected or disclosed under the authority of subsection (l)(21).'.
(C) Section 6103(p)(4) of such Code is amended--
(i) by striking `or (17)' both places it appears and inserting `(17),
or (21)'; and
(ii) by striking `or (20)' each place it appears and inserting `(20),
or (21)'.
(D) Section 6103(p)(8)(B) of such Code is amended by inserting `or
paragraph (9)' after `subparagraph (A)'.
(E) Section 7213(a)(2) of such Code is amended by striking `or (20)'
and inserting `(20), or (21)'.
(b) Authorization of Appropriations- There are authorized to be appropriated
to the Secretary of Homeland Security such sums as are necessary to carry
out the amendments made by this section.
(c) Repeal of Reporting Requirements-
(1) REPORT ON EARNINGS OF ALIENS NOT AUTHORIZED TO WORK- Subsection
(c) of section 290 of the Immigration and Nationality Act (8 U.S.C.
1360) is repealed.
(2) REPORT ON FRAUDULENT USE OF SOCIAL SECURITY ACCOUNT NUMBERS- Subsection
(b) of section 414 of the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 (division C of Public Law 104-208; 8 U.S.C. 1360 note) is
repealed.
(1) IN GENERAL- The amendments made by subsection (a) shall apply to
disclosures made after the date of the enactment of this Act.
(2) CERTIFICATIONS- The first certification under section 6103(p)(9)(D)
of the Internal Revenue Code of 1986, as added by subsection (a)(2),
shall be made with respect to calendar year 2007.
(3) REPEALS- The repeals made by subsection (c) shall take effect on
the date of the enactment of this Act.
SEC. 6. RESPONSIBILITIES OF THE SOCIAL SECURITY ADMINISTRATION.
Section 205(c)(12) of the Social Security Act, 42 U.S.C. 405(c)(2), is
amended by adding at the end the following new subparagraphs:
`(I) RESPONSIBILITIES OF THE COMMISSIONER OF SOCIAL SECURITY-
`(i) EMPLOYMENT VERIFICATION- As part of the verification system,
the Commissioner of Social Security shall, subject to the provisions
of section 274A(d) of the Immigration and Nationality Act, establish
a reliable, secure method that, operating through the EEVS and within
the time periods specified in section 274A(d) of the Immigration
and Nationality Act:
`(I) compares the name, social security account number and available
citizenship information provided in an inquiry against such information
maintained by the Commissioner in order to confirm (or not confirm)
the validity of the information provided regarding an individual
whose identity and employment eligibility must be confirmed;
`(II) the correspondence of the name, number, and any other identifying
information;
`(III) whether the name and number belong to an individual who
is deceased;
`(IV) whether an individual is a national of the United States
(when available); and
`(V) whether the individual has presented a social security account
number that is not valid for employment.
The EEVS shall not disclose or release social security information
to employers through the confirmation system (other than such confirmation
or nonconfirmation).
`(ii) SOCIAL SECURITY ADMINISTRATION DATABASE IMPROVEMENTS- For
purposes of preventing identity theft, protecting employees, and
reducing burden on employers, and notwithstanding section 6103 of
title 26, United States Code, the Commissioner of Social Security,
in consultation with the Secretary, shall review the Social Security
Administration databases and information technology to identify
any deficiencies and discrepancies related to name, birth date,
citizenship status, or death records of the social security accounts
and social security account holders likely to contribute to fraudulent
use of documents, or identity theft, or to affect the proper functioning
of the EEVS or accuracy of no-match notices and shall correct any
identified errors. The Commissioner shall ensure that a system for
identifying and correcting such deficiencies and discrepancies is
adopted to ensure the accuracy of the Social Security Administration's
databases.
`(iii) SOCIAL SECURITY UPDATE PUBLIC INFORMATION CAMPAIGN- The Commissioner
shall implement a public information campaign explaining the importance
of verifying the accuracy of a citizen's or other authorized Social
Security card holder's information in the Social Security Administration
Database.
`(I) The campaign shall include information on how to verify that
an individual's record in the Social Security Database is correct
and make corrections if needed.
`(II) The campaign shall target groups of individuals who are
most likely to have outdated records, such as persons who have
changed their name (such as may be the case in marriage or divorce),
naturalized citizens, and other groups of individuals identified
by the Commissioner.
`(III) In order to carry out the campaign under this paragraph,
the Commissioner may, to the extent deemed appropriate and subject
to the availability of appropriations, contract with public and
private organizations for outreach activities under the campaign.
`(IV) There are authorized to be appropriated to carry out this
paragraph $10,000,000 for each fiscal year 2008 through 2010.
`(iv) NOTIFICATION TO `FREEZE' USE OF SOCIAL SECURITY NUMBER- The
Commissioner of Social Security, in consultation with the Secretary
of Homeland Security, shall establish a secure process whereby an
individual can request that the Commissioner preclude any confirmation
under the EEVS based on that individual's Social Security number
until it is reactivated by that individual.
`(v) SOCIAL SECURITY ADMINISTRATION NO-MATCH RESOLUTION SUPPORT-
The Commissioner shall take necessary steps to ensure prompt final
resolution or non-resolution of no-match notices when employees
subject to such notices inquire about the no-match notice at an
office of the Social Security Administration whenever possible.'.
SEC. 7. IMMIGRATION ENFORCEMENT SUPPORT BY THE INTERNAL REVENUE SERVICE
AND THE SOCIAL SECURITY ADMINISTRATION.
(a) Tightening Requirements for the Provision of Social Security Numbers
on Form W-2 Wage and Tax Statements- Section 6724 of the Internal Revenue
Code of 1986 (relating to waiver; definitions and special rules) is amended
by adding at the end the following new subsection:
`(f) Special Rules With Respect to Social Security Numbers on Withholding
Exemption Certificates-
`(1) EMPLOYEE SOCIAL SECURITY ACCOUNT NUMBER EXEMPTION- Subsection (a)
shall not apply with respect to the social security account number of
an employee furnished under section 6051(a)(2).
`(A) IN GENERAL- Except as provided in subparagraph (B), the exemption
to reasonable cause waiver eligibility for employee social security
account numbers shall not apply in any case in which the employer--
`(i) receives confirmation that the discrepancy described in section
205(c)(2)(I) of the Social Security Act has been resolved, or
`(ii) corrects a clerical error made by the employer with respect
to the social security account number of an employee within 60 days
after notification under section 205(c)(2)(1) of the Social Security
Act that the social security account number contained in wage records
provided to the Social Security Administration by the employer with
respect to the employee does not match the social security account
number of the employee contained in relevant records otherwise maintained
by the Social Security Administration.
`(B) EXCEPTION NOT APPLICABLE TO FREQUENT OFFENDERS- Subparagraph
(A) shall not apply--
`(i) in any case in which not less than 50 of the statements required
to be made by an employer pursuant to section 6051 either fail to
include an employee's social security account number or include
an incorrect social security account number, or
`(ii) with respect to any employer who has received written notification
under section 205(c)(2)(1) of the Social Security Act during each
of the 3 preceding taxable years that the social security account
numbers in the wage records provided to the Social Security Administration
by such employer with respect to 10 more employees do not match
relevant records otherwise maintained by the Social Security Administration.'.
(1) IN GENERAL- Not later than 90 days after the date of the enactment
of this Act, the Secretary of the Treasury, in consultation with the
Secretary of Homeland Security, shall establish a unit within the Criminal
Investigation office of the Internal Revenue Service to investigate
violations of the Internal Revenue Code of 1986 related to the employment
of individuals who are not authorized to work in the United States.
(2) SPECIAL AGENTS; SUPPORT STAFF- The Secretary of the Treasury shall
assign to the unit a minimum of 10 full-time special agents and necessary
support staff and is authorized to employ up to 200 full time special
agents for this unit based on investigative requirements and work load.
(3) REPORTS- During each of the first 5 calendar years beginning after
the establishment of such unit and biennially thereafter, the unit shall
transmit to Congress a report that describes its activities and includes
the number of investigations and cases referred for prosecution.
(c) Increase in Penalty on Employer Failing To File Correct Information
Returns- Section 6721 of such Code (relating to failure to file correct
information returns) is amended as follows--
(1) in subsection (a)(1)--
(A) by striking `$50' and inserting `$200', and
(B) by striking `$250,000' and inserting `$1,000,000',
(2) in subsection (b)(1)(A), by striking `$15 in lieu of $50' and inserting
`$60 in lieu of $200',
(3) in subsection (b)(1)(B), by striking `$75,000' and inserting `$300,000',
(4) in subsection (b)(2)(A), by striking `$30 in lieu of $50' and inserting
`$120 in lieu of $200',
(5) in subsection (b)(2)(B), by striking `$150,000' and inserting `$600,000',
(6) in subsection (d)(A) in paragraph (1)--
(A) by striking `$100,000' for `$250,000' and inserting `$400,000'
for `$1,000,000' in subparagraph (A),
(B) by striking `$25,000' for `$75,000' and inserting `$100,000' for
`$300,000' in subparagraph (B), and
(C) by striking `$50,000' for `$150,000' and inserting `$200,000'
for `$600,000' in subparagraph (C),
(D) in paragraph (2)(A), by striking `$5,000,000' and inserting `$2,000,000',
and
(E) in the heading, by striking `$5,000,000' and inserting `$2,000,000',
(7) in subsection (e)(2)--
(A) by striking `$100' and inserting `$400',
(B) by striking `$25,000' and inserting `$100,000' in subparagraph
(C)(i), and
(C) by striking `$100,000' and inserting `$400,000' in subparagraph
(C)(ii), and
(8) in subsection (e)(3)(A), by striking `$250,000' and inserting `$1,000,000'.
(d) Effective Date- The amendments made by subsections (b) and (c) shall
apply to failures occurring after enactment of this Act.
SEC. 8. ADDITIONAL WORKSITE ENFORCEMENT AND FRAUD DETECTION AGENTS.
(a) Increase in Number of Personnel- The Secretary shall, subject to the
availability of appropriations for such purpose, increase, by not less
than 1,150, the number of personnel of the Bureau of Immigration and Customs
Enforcement during the 5-year period beginning on the date of the enactment
of this Act for the purpose of increasing enforcement of compliance with
sections 274A and 274C of the Immigration and Nationality Act (8 U.S.C.
1324a and 1324c).
(b) Authorization of Appropriations- There are authorized to be appropriated
to the Secretary for each of the fiscal years 2007 through 2011 such sums
as may be necessary to carry out this section.
SEC. 9. AUTHORIZATION OF APPROPRIATIONS.
(a) There are authorized to be appropriated to the Secretary of Homeland
Security such sums as may be necessary to carry out the provisions of
this Act, and the amendments made by this Act, including the following
appropriations:
(1) In each of the five years beginning on the date of the enactment
of this Act, the appropriations necessary to increase to a level not
less than 4500 the number of personnel of the Department of Homeland
Security assigned exclusively or principally to an office or offices
dedicated to monitoring and enforcing compliance with sections 274A
and 274C of the Immigration and Nationality Act (8 U.S.C. 1324a and
1324c), including compliance with the requirements of the EEVS. These
personnel shall perform the following compliance and monitoring activities:
(A) Verify Employment Identification Numbers of employers participating
in the EEVS.
(B) Verify compliance of employers participating in the EEVS with
the requirements for participation that are prescribed by the Secretary.
(C) Monitor the EEVS for multiple uses of Social Security Numbers
and any immigration identification numbers for evidence that could
indicate identity theft or fraud.
(D) Monitor the EEVS to identify discriminatory practices.
(E) Monitor the EEVS to identify employers who are not using the system
properly, including employers who fail to make appropriate records
with respect to their queries and any notices of confirmation, nonconfirmation,
or further action.
(F) Identify instances where employees allege that an employer violated
their privacy rights.
(G) Analyze and audit the use of the EEVS and the data obtained through
the EEVS to identify fraud trends, including fraud trends across industries,
geographical areas, or employer size.
(H) Analyze and audit the use of the EEVS and the data obtained through
the EEVS to develop compliance tools as necessary to respond to changing
patterns of fraud.
(I) Provide employers with additional training and other information
on the proper use of the EEVS.
(J) Perform threshold evaluation of cases for referral to the U.S.
Immigration and Customs Enforcement and to liaise with the U.S. Immigration
and Customs Enforcement with respect to these referrals.
(K) Any other compliance and monitoring activities that, in the Secretary's
judgment, are necessary to ensure the functioning of the EEVS.
(L) Investigate identity theft and fraud detected through the EEVS
and undertake the necessary enforcement actions.
(M) Investigate use of fraudulent documents or access to fraudulent
documents through local facilitation and undertake the necessary enforcement
actions.
(N) Provide support to the U.S. Citizenship and Immigration Services
with respect to the evaluation of cases for referral to the U.S. Immigration
and Customs Enforcement.
(O) Perform any other investigations that, in the Secretary's judgment,
are necessary to ensure the functioning of the EEVS, and undertake
any enforcement actions necessary as a result of these investigations.
(2) The appropriations necessary to acquire, install and maintain technological
equipment necessary to support the functioning of the EEVS and the connectivity
between U.S. Citizenship and Immigration Services and the U.S. Immigration
and Customs Enforcement with respect to the sharing of information to
support the EEVS and related immigration enforcement actions.
(b) There are authorized to be appropriated to Commissioner of Social
Security such sums as may be necessary to carry out the provisions of
this Act, including section 6 of this Act.
END
