[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[S. 1196 Introduced in Senate (IS)]
112th CONGRESS
1st Session
S. 1196
To expand the use of E-Verify, to hold employers accountable, and for
other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
June 14, 2011
Mr. Grassley (for himself, Mr. Sessions, Mr. Rubio, Mr. Wicker, Mr.
Boozman, Mr. Lee, Mr. Hatch, Mr. Vitter, Mr. Coburn, and Mr. Corker)
introduced the following bill; which was read twice and referred to the
Committee on the Judiciary
_______________________________________________________________________
A BILL
To expand the use of E-Verify, to hold employers accountable, 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 ``Accountability Through Electronic
Verification Act''.
SEC. 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, 2012.''.
SEC. 3. MANDATORY USE OF E-VERIFY.
(a) Federal Government.--Section 402(e)(1) of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C.
1324a note) is amended--
(1) by amending subparagraph (A) to read as follows:
``(A) Executive departments and agencies.--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.''; and
(2) 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.''.
(b) Federal Contractors; Critical Employers.--Section 402(e) of the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8
U.S.C. 1324a note) is amended--
(1) by redesignating paragraphs (2) and (3) as paragraphs
(4) and (5), respectively; and
(2) by inserting after paragraph (1) the following:
``(2) United states contractors.--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.
``(3) Designation of critical employers.--Not 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.''.
(c) All Employers.--Section 402 of the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note) is
amended--
(1) by redesignating subsection (f) as subsection (g); and
(2) by inserting after subsection (e) the following:
``(f) Mandatory Participation in E-Verify.--
``(1) In general.--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.
``(2) Use of contract labor.--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 uses 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 general.--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).
``(B) Notification.--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--
``(i) written notification of such
requirement; and
``(ii) appropriate training materials to
facilitate compliance with such requirement.''.
SEC. 4. CONSEQUENCES OF FAILURE TO PARTICIPATE.
(a) In General.--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:
``(5) Consequences of failure to participate.--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--
``(A) such failure shall be treated as a violation
of section 274A(a)(1)(B) with respect to such
individual; and
``(B) a rebuttable presumption is created that the
person or entity has violated section 274A(a)(1)(A).''.
(b) Penalties.--Section 274A of the Immigration and Nationality Act
(8 U.S.C. 1324a) is amended--
(1) in subsection (e)--
(A) in paragraph (4)--
(i) in subparagraph (A), in the matter
preceding clause (i), by inserting ``, subject
to paragraph (10),'' after ``in an amount'';
(ii) in subparagraph (A)(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'';
(iii) in subparagraph (A)(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'';
(iv) in subparagraph (A)(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
(v) by amending subparagraph (B) to read as
follows:
``(B) may require the person or entity to take such
other remedial action as is appropriate.'';
(B) in paragraph (5)--
(i) by inserting ``, subject to paragraphs
(10) through (12),'' after ``in an amount'';
(ii) by striking ``$100'' and inserting
``$1,000'';
(iii) by striking ``$1,000'' and inserting
``$25,000'';
(iv) 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
(v) 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).'';
(C) by adding at the end the following:
``(10) Exemption from penalty.--In the case of imposition
of a civil penalty under paragraph (4)(A) with respect to a
violation of subsection (a)(1)(A) or (a)(2) for hiring or
continuation of employment or recruitment or referral by person
or entity and in the case of imposition of a civil penalty
under paragraph (5) for a violation of subsection (a)(1)(B) for
hiring or 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 general.--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, such person or entity may be considered for
debarment 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.
``(B) Does not have contract, grant, agreement.--If
the Secretary of Homeland Security or the Attorney
General wishes to have a person or entity considered
for debarment in accordance with this paragraph, and
such an person or entity does not hold a Federal
contract, grant or cooperative agreement, the Secretary
or Attorney General shall refer the matter to the
Administrator of General Services to determine whether
to list the person or entity on the List of Parties
Excluded from Federal Procurement, and if so, for what
duration and under what scope.
``(C) Has contract, grant, agreement.--If the
Secretary of Homeland Security or the Attorney General
wishes to have a person or entity considered for
debarment in accordance with this paragraph, and such
person or entity holds a Federal contract, grant or
cooperative agreement, the Secretary or Attorney
General shall advise all agencies or departments
holding a contract, grant, or cooperative agreement
with the person or entity of the Government's interest
in having the person or entity considered for
debarment, and after soliciting and considering the
views of all such agencies and departments, the
Secretary or Attorney General may waive the operation
of this paragraph or refer the matter to any
appropriate lead agency to determine whether to list
the person or entity on the List of Parties Excluded
from Federal Procurement, and if so, for what duration
and under what scope.
``(D) Review.--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.''; and
(2) in subsection (f)--
(A) by amending paragraph (1) to read as follows:
``(1) Criminal penalty.--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 $15,000 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
(B) in paragraph (2), by striking ``Attorney
General'' each place it appears and inserting
``Secretary of Homeland Security''.
SEC. 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:
``(h) Limitation on State Authority.--
``(1) Preemption.--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.
``(2) Liability.--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.''.
SEC. 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:
``(A) In general.--
``(i) Before hiring.--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, 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 offer.--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.
``(iii) Existing employees.--Not later than
3 years 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.''.
SEC. 7. REVERIFICATION.
Section 403(a) 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:
``(5) Reverification.--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.''.
SEC. 8. HOLDING EMPLOYERS ACCOUNTABLE.
(a) Consequences of Nonconfirmation.--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:
``(C) Consequences of nonconfirmation.--
``(i) Termination and notification.--If 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
employment.--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).''.
(b) Interagency Nonconfirmation Report.--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:
``(c) Interagency Nonconfirmation Report.--
``(1) In general.--The Director of U.S. Citizenship and
Immigration Services shall submit a weekly report to the
Assistant Secretary of 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 report.--The Secretary of Homeland
Security shall use information provided under paragraph (1) to
enforce compliance of the United States immigration laws.''.
SEC. 9. INFORMATION SHARING.
The Commissioner of Social Security, 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 under section
274A(h)(3) of the Immigration and Nationality Act), including any no-
match letter and any information in the earnings suspense file.
SEC. 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--
(1) 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
(2) eliminating the process described in paragraph (1).
SEC. 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:
``(d) Design and Operation of System.--E-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 times 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.''.
SEC. 12. IDENTITY THEFT.
Section 1028 of title 18, United States Code, is amended--
(1) in subsection (a)(7), by striking ``of another person''
and inserting ``that is not his or her own''; and
(2) in subsection (b)(3)--
(A) in subparagraph (B), by striking ``or'' at the
end;
(B) in subparagraph (C), by adding ``or'' at the
end; and
(C) by adding at the end the following:
``(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).''.
SEC. 13. SMALL BUSINESS DEMONSTRATION PROGRAM.
Section 403 of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (8 U.S.C. 1324a note) is amended--
(1) by redesignating subsection (d) as subsection (e); and
(2) by inserting after subsection (c) the following:
``(d) Small Business Demonstration Program.--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.''.
SEC. 14. RESCISSION OF UNSPENT FEDERAL FUNDS TO OFFSET LOSS IN
REVENUES.
(a) In General.--Notwithstanding any other provision of law, of all
available unobligated funds that have been appropriated for
discretionary purposes, an amount equal to the amount necessary to
carry out this Act and the amendments made by this Act is rescinded.
(b) Implementation.--The Director of the Office of Management and
Budget shall--
(1) determine the amount of the rescission required under
subsection (a);
(2) use all unobligated funds from the Department of
Homeland Security before using funds from other executive
branch departments and agencies;
(3) identify the appropriation accounts from which the
rescission under subsection (a) shall apply; and
(4) identify the amount of such rescission that shall be
applied to each such account.
(c) Report.--Not later than 60 days after the date of the enactment
of this Act, the Director shall submit a report to Congress and the
Secretary of the Treasury that describes the accounts and amounts
determined and identified for rescission under subsection (b).
(d) Exception.--In determining and identifying the accounts and
amounts of rescinded funds under subsection (b), the Director shall
exclude the unobligated funds of--
(1) the Department of Defense;
(2) the Department of Veterans Affairs; and
(3) the National Nuclear Security Administration Weapons
Activities and Naval Reactors Accounts.
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