Click any annotated section or its icon to see analysis.
Referenced Laws
Public Law 104–208
8 U.S.C. 1324a
8 U.S.C. 1324
Section 1
1. Short title; table of contents This Act may be cited as the Accountability Through Electronic Verification Act. The table of contents for this Act is as follows:
Section 2
2. Permanent reauthorization Section 401(b) 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 amended by striking Unless the Congress otherwise provides, the Secretary of Homeland Security shall terminate a pilot program on September 30, 2015..
Section 3
3. Mandatory use of E-Verify Section 402(e)(1) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note) is amended— by amending subparagraph (A) to read as follows: Each department and agency of the Federal Government shall participate in E-Verify by complying with the terms and conditions set forth in this section. in subparagraph (B), by striking , that conducts hiring in a State and all that follows and inserting shall participate in E-Verify by complying with the terms and conditions set forth in this section.. Section 402(e) of such Act, as amended by subsection (a), is further amended— by redesignating paragraphs (2) and (3) as paragraphs (4) and (5), respectively; and by inserting after paragraph (1) the following: Any person, employer, or other entity that enters into a contract with the Federal Government shall participate in E-Verify by complying with the terms and conditions set forth in this section. Not later than 7 days after the date of the enactment of this paragraph, the Secretary of Homeland Security shall— conduct an assessment of employers that are critical to the homeland security or national security needs of the United States; designate and publish a list of employers and classes of employers that are deemed to be critical pursuant to the assessment conducted under subparagraph (A); and require that critical employers designated pursuant to subparagraph (B) participate in E-Verify by complying with the terms and conditions set forth in this section not later than 30 days after the Secretary makes such designation. Section 402 of such Act, as amended by this section, is further amended— by redesignating subsection (f) as subsection (g); and by inserting after subsection (e) the following: Subject to paragraphs (2) and (3), all employers in the United States shall participate in E-Verify, with respect to all employees recruited, referred, or hired by such employer on or after the date that is 1 year after the date of the enactment of this subsection. Any employer who uses a contract, subcontract, or exchange to obtain the labor of an individual in the United States shall certify in such contract, subcontract, or exchange that the employer, and all parties to such contract, subcontract, or exchange, use E-Verify. If such certification is not included in a contract, subcontract, or exchange, the employer shall be deemed to have violated paragraph (1). Before the date set forth in paragraph (1), the Secretary of Homeland Security shall require any employer or class of employers to participate in E-Verify, with respect to all employees recruited, referred, or hired by such employer if the Secretary has reasonable cause to believe that the employer is or has been engaged in a material violation of section 274A of the Immigration and Nationality Act (8 U.S.C. 1324a). Not later than 14 days before an employer or class of employers is required to begin participating in E-Verify pursuant to subparagraph (A), the Secretary shall provide such employer or class of employers with— written notification of such requirement; and appropriate training materials to facilitate compliance with such requirement. (A)Executive departments and agenciesEach department and agency of the Federal Government shall participate in E-Verify by complying with the terms and conditions set forth in this section.; and (2)United states contractorsAny person, employer, or other entity that enters into a contract with the Federal Government shall participate in E-Verify by complying with the terms and conditions set forth in this section.(3)Designation of critical employersNot later than 7 days after the date of the enactment of this paragraph, the Secretary of Homeland Security shall—(A)conduct an assessment of employers that are critical to the homeland security or national security needs of the United States;(B)designate and publish a list of employers and classes of employers that are deemed to be critical pursuant to the assessment conducted under subparagraph (A); and(C)require that critical employers designated pursuant to subparagraph (B) participate in E-Verify by complying with the terms and conditions set forth in this section not later than 30 days after the Secretary makes such designation.. (f)Mandatory participation in E-Verify(1)In generalSubject to paragraphs (2) and (3), all employers in the United States shall participate in E-Verify, with respect to all employees recruited, referred, or hired by such employer on or after the date that is 1 year after the date of the enactment of this subsection.(2)Use of contract laborAny employer who uses a contract, subcontract, or exchange to obtain the labor of an individual in the United States shall certify in such contract, subcontract, or exchange that the employer, and all parties to such contract, subcontract, or exchange, use E-Verify. If such certification is not included in a contract, subcontract, or exchange, the employer shall be deemed to have violated paragraph (1).(3)Interim mandatory participation(A)In generalBefore the date set forth in paragraph (1), the Secretary of Homeland Security shall require any employer or class of employers to participate in E-Verify, with respect to all employees recruited, referred, or hired by such employer if the Secretary has reasonable cause to believe that the employer is or has been engaged in a material violation of section 274A of the Immigration and Nationality Act (8 U.S.C. 1324a).(B)NotificationNot later than 14 days before an employer or class of employers is required to begin participating in E-Verify pursuant to subparagraph (A), the Secretary shall provide such employer or class of employers with—(i)written notification of such requirement; and(ii)appropriate training materials to facilitate compliance with such requirement..
Section 4
4. Consequences of failure to participate Section 402(e)(5) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note), as redesignated by section 3(b)(1), is amended to read as follows: If a person or other entity that is required to participate in E-Verify fails to comply with the requirements under this title with respect to an individual— such failure shall be treated as a violation of section 274A(a)(1)(B) of the Immigration and Nationality Act (8 U.S.C. 1324a) with respect to such individual; and a rebuttable presumption is created that the person or entity has violated section 274A(a)(1)(A) of such Act. Section 274A of the Immigration and Nationality Act (8 U.S.C. 1324a) is amended— in subsection (e)— in paragraph (4)— in subparagraph (A)— in the matter preceding clause (i), by inserting , subject to paragraph (10), after in an amount; in clause (i), by striking not less than $250 and not more than $2,000 and inserting not less than $2,500 and not more than $5,000; in clause (ii), by striking not less than $2,000 and not more than $5,000 and inserting not less than $5,000 and not more than $10,000; and in clause (iii), by striking not less than $3,000 and not more than $10,000 and inserting not less than $10,000 and not more than $25,000; and by amending subparagraph (B) to read as follows: may require the person or entity to take such other remedial action as is appropriate. in paragraph (5)— by striking of not less than $100 and not more than $1,000 and inserting , subject to paragraphs (10) through (12), of not less than $1,000 and not more than $25,000; by striking the size of the business of the employer being charged, the good faith of the employer and inserting the good faith of the employer being charged; and by adding at the end the following: Failure by a person or entity to utilize the employment eligibility verification system as required by law, or providing information to the system that the person or entity knows or reasonably believes to be false, shall be treated as a violation of subsection (a)(1)(A).; and by adding at the end the following: In the case of the imposition of a civil penalty under paragraph (4)(A) with respect to a violation of paragraph (1)(A) or (2) of subsection (a) for hiring, continuation of employment, recruitment, or referral by a person or entity and, in the case of the imposition of a civil penalty under paragraph (5) for a violation of subsection (a)(1)(B) for hiring, recruitment, or referral by a person or entity, the penalty otherwise imposed may be waived or reduced if the violator establishes that the violator acted in good faith. If a person or entity is determined by the Secretary of Homeland Security to be a repeat violator of paragraph (1)(A) or (2) of subsection (a), or is convicted of a crime under this section, the Secretary of Homeland Security shall debar such person or entity from the receipt of Federal contracts, grants, or cooperative agreements in accordance with the debarment standards and pursuant to the debarment procedures set forth in the Federal Acquisition Regulation maintained under section 1303(a)(1) of title 41, United States Code. If the Secretary of Homeland Security debars a person or entity in accordance with this paragraph, and such person or entity does not hold a Federal contract, grant, or cooperative agreement, the Administrator of General Services shall include the person or entity on the List of Parties Excluded from Federal Procurement for 5 years. If the Secretary of Homeland Security debars a person or entity in accordance with this paragraph, and such person or entity holds a Federal contract, grant, or cooperative agreement, the Secretary— shall notify all agencies or departments holding a contract, grant, or cooperative agreement with the debarred person or entity of such debarment; and after soliciting and considering the views of all such agencies and departments, may waive the operation of this paragraph. Any decision to debar a person or entity under in accordance with this paragraph shall be reviewable pursuant to part 9.4 of the Federal Acquisition Regulation. in subsection (f)— by amending paragraph (1) to read as follows: Any person or entity which engages in a pattern or practice of violations of subsection (a)(1) or (2) shall be fined not more than $30,000 for each unauthorized alien with respect to which such a violation occurs, imprisoned for not less than 1 year and not more than 10 years, or both, notwithstanding the provisions of any other Federal law relating to fine levels. in paragraph (2), by striking Attorney General each place such term appears and inserting Secretary of Homeland Security. (5)Consequences of failure to participateIf a person or other entity that is required to participate in E-Verify fails to comply with the requirements under this title with respect to an individual—(A)such failure shall be treated as a violation of section 274A(a)(1)(B) of the Immigration and Nationality Act (8 U.S.C. 1324a) with respect to such individual; and(B)a rebuttable presumption is created that the person or entity has violated section 274A(a)(1)(A) of such Act.. (B)may require the person or entity to take such other remedial action as is appropriate.; (10)Exemption from penaltyIn the case of the imposition of a civil penalty under paragraph (4)(A) with respect to a violation of paragraph (1)(A) or (2) of subsection (a) for hiring, continuation of employment, recruitment, or referral by a person or entity and, in the case of the imposition of a civil penalty under paragraph (5) for a violation of subsection (a)(1)(B) for hiring, recruitment, or referral by a person or entity, the penalty otherwise imposed may be waived or reduced if the violator establishes that the violator acted in good faith.(11)Authority to debar employers for certain violations(A)In generalIf a person or entity is determined by the Secretary of Homeland Security to be a repeat violator of paragraph (1)(A) or (2) of subsection (a), or is convicted of a crime under this section, the Secretary of Homeland Security shall debar such person or entity from the receipt of Federal contracts, grants, or cooperative agreements in accordance with the debarment standards and pursuant to the debarment procedures set forth in the Federal Acquisition Regulation maintained under section 1303(a)(1) of title 41, United States Code.(B)Does not have contract, grant, agreementIf the Secretary of Homeland Security debars a person or entity in accordance with this paragraph, and such person or entity does not hold a Federal contract, grant, or cooperative agreement, the Administrator of General Services shall include the person or entity on the List of Parties Excluded from Federal Procurement for 5 years.(C)Has contract, grant, agreementIf the Secretary of Homeland Security debars a person or entity in accordance with this paragraph, and such person or entity holds a Federal contract, grant, or cooperative agreement, the Secretary—(i)shall notify all agencies or departments holding a contract, grant, or cooperative agreement with the debarred person or entity of such debarment; and(ii)after soliciting and considering the views of all such agencies and departments, may waive the operation of this paragraph.(D)ReviewAny decision to debar a person or entity under in accordance with this paragraph shall be reviewable pursuant to part 9.4 of the Federal Acquisition Regulation.; and (1)Criminal penaltyAny person or entity which engages in a pattern or practice of violations of subsection (a)(1) or (2) shall be fined not more than $30,000 for each unauthorized alien with respect to which such a violation occurs, imprisoned for not less than 1 year and not more than 10 years, or both, notwithstanding the provisions of any other Federal law relating to fine levels.; and
Section 5
5. Preemption; liability Section 402 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note), as amended by this Act, is further amended by adding at the end the following: A State or local government may not prohibit a person or other entity from verifying the employment authorization of new hires or current employees through E-Verify. A person or other entity that participates in E-Verify may not be held liable under any Federal, State, or local law for any employment-related action taken with respect to the wrongful termination of an individual in good faith reliance on information provided through E-Verify. (h)Limitation on State authority(1)PreemptionA State or local government may not prohibit a person or other entity from verifying the employment authorization of new hires or current employees through E-Verify.(2)LiabilityA person or other entity that participates in E-Verify may not be held liable under any Federal, State, or local law for any employment-related action taken with respect to the wrongful termination of an individual in good faith reliance on information provided through E-Verify..
Section 6
6. Expanded use of E-Verify Section 403(a)(3)(A) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note) is amended to read as follows: The person or other entity may verify the employment eligibility of an individual through E-Verify before the individual is hired, recruited, or referred if the individual consents to such verification. If an employer receives a tentative nonconfirmation for an individual, the employer shall comply with procedures prescribed by the Secretary of Homeland Security, including— providing the individual employees with private, written notification of the finding and written referral instructions; allowing the individual to contest the finding; and not taking adverse action against the individual if the individual chooses to contest the finding. The person or other entity shall verify the employment eligibility of an individual through E-Verify not later than 3 days after the date of the hiring, recruitment, or referral, as the case may be. Not later than 1 year after the date of the enactment of the Accountability Through Electronic Verification Act, the Secretary shall require all employers to use E-Verify to verify the identity and employment eligibility of any individual who has not been previously verified by the employer through E-Verify. (A)In general(i)Before hiringThe person or other entity may verify the employment eligibility of an individual through E-Verify before the individual is hired, recruited, or referred if the individual consents to such verification. If an employer receives a tentative nonconfirmation for an individual, the employer shall comply with procedures prescribed by the Secretary of Homeland Security, including—(I)providing the individual employees with private, written notification of the finding and written referral instructions;(II)allowing the individual to contest the finding; and(III)not taking adverse action against the individual if the individual chooses to contest the finding.(ii)After employment offerThe person or other entity shall verify the employment eligibility of an individual through E-Verify not later than 3 days after the date of the hiring, recruitment, or referral, as the case may be.(iii)Existing employeesNot later than 1 year after the date of the enactment of the Accountability Through Electronic Verification Act, the Secretary shall require all employers to use E-Verify to verify the identity and employment eligibility of any individual who has not been previously verified by the employer through E-Verify..
Section 7
7. Reverification Section 403(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note), as amended by section 6, is further amended by adding at the end the following: Each person or other entity participating in E-Verify shall use the E-Verify confirmation system to reverify the work authorization of any individual not later than 3 days after the date on which such individual’s employment authorization is scheduled to expire (as indicated by the Secretary or the documents provided to the employer pursuant to section 274A(b) of the Immigration and Nationality Act (8 U.S.C. 1324a(b))), in accordance with the procedures set forth in this subsection and section 402. (5)ReverificationEach person or other entity participating in E-Verify shall use the E-Verify confirmation system to reverify the work authorization of any individual not later than 3 days after the date on which such individual’s employment authorization is scheduled to expire (as indicated by the Secretary or the documents provided to the employer pursuant to section 274A(b) of the Immigration and Nationality Act (8 U.S.C. 1324a(b))), in accordance with the procedures set forth in this subsection and section 402..
Section 8
8. Holding employers accountable Section 403(a)(4)(C) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note) is amended to read as follows: If the person or other entity receives a final nonconfirmation regarding an individual, the employer shall immediately— terminate the employment, recruitment, or referral of the individual; and submit to the Secretary any information relating to the individual that the Secretary determines would assist the Secretary in enforcing or administering United States immigration laws. If the person or other entity continues to employ, recruit, or refer the individual after receiving final nonconfirmation, a rebuttable presumption is created that the employer has violated section 274A of the Immigration and Nationality Act (8 U.S.C. 1324a). Section 405 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note) is amended by adding at the end the following: The Director of U.S. Citizenship and Immigration Services shall submit a weekly report to the Director for U.S. Immigration and Customs Enforcement that includes, for each individual who receives final nonconfirmation through E-Verify— the name of such individual; his or her Social Security number or alien file number; the name and contact information for his or her current employer; and any other critical information that the Assistant Secretary determines to be appropriate. The Secretary of Homeland Security shall use information provided under paragraph (1) to enforce compliance with the United States immigration laws. (C)Consequences of nonconfirmation(i)Termination and notificationIf the person or other entity receives a final nonconfirmation regarding an individual, the employer shall immediately—(I)terminate the employment, recruitment, or referral of the individual; and(II)submit to the Secretary any information relating to the individual that the Secretary determines would assist the Secretary in enforcing or administering United States immigration laws.(ii)Consequence of continued employmentIf the person or other entity continues to employ, recruit, or refer the individual after receiving final nonconfirmation, a rebuttable presumption is created that the employer has violated section 274A of the Immigration and Nationality Act (8 U.S.C. 1324a).. (c)Interagency nonconfirmation report(1)In generalThe Director of U.S. Citizenship and Immigration Services shall submit a weekly report to the Director for U.S. Immigration and Customs Enforcement that includes, for each individual who receives final nonconfirmation through E-Verify—(A)the name of such individual;(B)his or her Social Security number or alien file number;(C)the name and contact information for his or her current employer; and(D)any other critical information that the Assistant Secretary determines to be appropriate.(2)Use of weekly reportThe Secretary of Homeland Security shall use information provided under paragraph (1) to enforce compliance with the United States immigration laws..
Section 9
9. Information sharing Not later than 1 year after the date of the enactment of this Act, the Commissioner of Social Security, the Commissioner of Internal Revenue, the Secretary of Homeland Security, and the Secretary of the Treasury shall jointly establish a program to share information among such agencies that may or could lead to the identification of unauthorized aliens (as defined in section 274A(h)(3) of the Immigration and Nationality Act (8 U.S.C. 1324a(h)(3))), including no-match letters and any information in the earnings suspense file.
Section 10
10. Form I–9 process Not later than 9 months after date of the enactment of this Act, the Secretary of Homeland Security shall submit a report to Congress that contains recommendations for— modifying and simplifying the process by which employers are required to complete and retain a Form I–9 for each employee pursuant to section 274A of the Immigration and Nationality Act (8 U.S.C. 1324a); and eliminating the process described in paragraph (1).
Section 11
11. Algorithm Section 404(d) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note) is amended to read as follows: E-Verify shall be designed and operated— to maximize its reliability and ease of use by employers; to insulate and protect the privacy and security of the underlying information; to maintain appropriate administrative, technical, and physical safeguards to prevent unauthorized disclosure of personal information; to respond accurately to all inquiries made by employers on whether individuals are authorized to be employed; to register any time when E-Verify is unable to receive inquiries; to allow for auditing use of the system to detect fraud and identify theft; to preserve the security of the information in all of the system by— developing and using algorithms to detect potential identity theft, such as multiple uses of the same identifying information or documents; developing and using algorithms to detect misuse of the system by employers and employees; developing capabilities to detect anomalies in the use of the system that may indicate potential fraud or misuse of the system; and auditing documents and information submitted by potential employees to employers, including authority to conduct interviews with employers and employees; 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— records maintained by the Social Security Administration; birth and death records maintained by vital statistics agencies of any State or other jurisdiction in the United States; passport and visa records (including photographs) maintained by the Department of State; and State driver's license or identity card information (including photographs) maintained by State department of motor vehicles; to electronically confirm 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 or, in exceptional cases, if a photograph is not available from the issuer, to provide for a temporary alternative procedure, specified by the Secretary, for confirming the authenticity of the document. (d)Design and operation of systemE-Verify shall be designed and operated—(1)to maximize its reliability and ease of use by employers;(2)to insulate and protect the privacy and security of the underlying information;(3)to maintain appropriate administrative, technical, and physical safeguards to prevent unauthorized disclosure of personal information;(4)to respond accurately to all inquiries made by employers on whether individuals are authorized to be employed;(5)to register any time when E-Verify is unable to receive inquiries;(6)to allow for auditing use of the system to detect fraud and identify theft;(7)to preserve the security of the information in all of the system by—(A)developing and using algorithms to detect potential identity theft, such as multiple uses of the same identifying information or documents;(B)developing and using algorithms to detect misuse of the system by employers and employees;(C)developing capabilities to detect anomalies in the use of the system that may indicate potential fraud or misuse of the system; and(D)auditing documents and information submitted by potential employees to employers, including authority to conduct interviews with employers and employees;(8)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—(A)records maintained by the Social Security Administration;(B)birth and death records maintained by vital statistics agencies of any State or other jurisdiction in the United States;(C)passport and visa records (including photographs) maintained by the Department of State; and(D)State driver's license or identity card information (including photographs) maintained by State department of motor vehicles;(9)to electronically confirm the issuance of the employment authorization or identity document; and(10)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 or, in exceptional cases, if a photograph is not available from the issuer, to provide for a temporary alternative procedure, specified by the Secretary, for confirming the authenticity of the document..
Section 12
12. Identity theft Section 1028 of title 18, United States Code, is amended— in subsection (a)(7), by striking of another person and inserting that is not his or her own; and in subsection (b)(3)— in subparagraph (B), by striking or at the end; in subparagraph (C), by adding or at the end; and by adding at the end the following: to facilitate or assist in harboring or hiring unauthorized workers in violation of section 274, 274A, or 274C of the Immigration and Nationality Act (8 U.S.C. 1324, 1324a, and 1324c). (D)to facilitate or assist in harboring or hiring unauthorized workers in violation of section 274, 274A, or 274C of the Immigration and Nationality Act (8 U.S.C. 1324, 1324a, and 1324c)..
Section 13
13. Small Business Demonstration Program Section 403 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note), as amended by this Act, is further amended— by redesignating subsection (d) as subsection (e); and by inserting after subsection (c) the following: Not later than 9 months after the date of the enactment of the Accountability Through Electronic Verification Act, the Director of U.S. Citizenship and Immigration Services shall establish a demonstration program that assists small businesses in rural areas or areas without internet capabilities to verify the employment eligibility of newly hired employees solely through the use of publicly accessible internet terminals. (d)Small Business Demonstration ProgramNot later than 9 months after the date of the enactment of the Accountability Through Electronic Verification Act, the Director of U.S. Citizenship and Immigration Services shall establish a demonstration program that assists small businesses in rural areas or areas without internet capabilities to verify the employment eligibility of newly hired employees solely through the use of publicly accessible internet terminals..
Section 14
14. Employer Compliance Inspection Center There is established, within Homeland Security Investigations of U.S. Immigration and Customs Enforcement, the Employer Compliance Inspection Center (referred to in this section as the Center). The establishment of the Center is intended— to create a culture of compliance for all United States businesses by imposing more effective, efficient, and standardized consequences, including civil and criminal penalties, on employers who fail to comply with the employment eligibility verification requirements; and to consolidate worksite enforcement audits at a centralized location to ensure a standardized process and uniform application of the fine matrix. The Center shall— carry out duties related to the processing of the Employment Eligibility Verification Form I–9, including audits, and related worksite enforcement investigations; ensure that all United States businesses adhere to existing laws and regulations regarding employment eligibility; and carry out such additional duties as may be assigned or delegated by the Director of U.S. Immigration and Customs Enforcement. The Center shall respond as quickly as practicable to employer inquiries based on the facts and circumstances of the employer making the inquiry. The Center shall establish a task force, utilizing existing information sharing agreements with other Federal agencies, including the Social Security Administration, U.S. Citizenship and Immigration Services, the Department of Labor, and the Internal Revenue Service, to serve as a force multiplier to proactively investigate crimes, including Social Security fraud, tax fraud, and wage and hour violations.