S.Amdt. 3548

1. Strikes title III

   Strikes

   In S. 2454 · Placed on Calendar Senate

   Struck: TITLE III--UNLAWFUL EMPLOYMENT OF ALIENS

   Struck: SEC. 301. UNLAWFUL EMPLOYMENT OF ALIENS.

   Struck: (a) In General.--Section 274A (8 U.S.C. 1324a) is amended to read as follows:

   Struck: "SEC. 274A. UNLAWFUL EMPLOYMENT OF ALIENS.

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   Struck: "(a) Making Employment of Unauthorized Aliens Unlawful.--

   Struck: "(1) In general.--It is unlawful for an employer--

   Struck: "(A) to hire, or to recruit or refer for a fee, an alien for employment in the United States knowing, or with reason to know, that the alien is an unauthorized alien with respect to such employment; or

   Struck: "(B) to hire, or to recruit or refer for a fee, for employment in the United States an individual unless such employer meets the requirements of subsections (c) and (d).

   Struck: "(2) Continuing employment.--It is unlawful for an employer, after lawfully hiring an alien for employment, to continue to employ the alien in the United States knowing or with reason to know that the alien is (or has become) an unauthorized alien with respect to such employment.

   Struck: "(3) Use of labor through contract.--In this section, an employer who uses a contract, subcontract, or exchange, entered into, renegotiated, or extended after the date of the enactment of the Securing America's Borders Act, to obtain the labor of an alien in the United States knowing, or with reason to know, that the alien is an unauthorized alien 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).

   Struck: "(4) Rebuttable presumption of unlawful hiring.--If the Secretary determines that an employer has hired more than 10 unauthorized aliens during a calendar year, a rebuttable presumption is created for the purpose of a civil enforcement proceeding, that the employer knew or had reason to know that such aliens were unauthorized.

   Struck: "(5) Defense.--

   Struck: "(A) In general.--Subject to subparagraph (B), an employer that establishes that the employer has complied in good faith with the requirements of subsections (c) and (d) has established an affirmative defense that the employer has not violated paragraph (1)(A) with respect to such hiring, recruiting, or referral.

   Struck: "(B) Exception.--Until the date that an employer is required to participate in the Electronic Employment Verification System under subsection (d) or is permitted to participate in such System on a voluntary basis, the employer may establish an affirmative defense under subparagraph (A) without a showing of compliance with subsection (d).

   Struck: "(b) Order of Internal Review and Certification of Compliance.--

   Struck: "(1) Authority to require certification.--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 the employer is in compliance with this section, or has instituted a program to come into compliance.

   Struck: "(2) Content of certification.--Not later than 60 days after the date an employer receives a request for a certification under paragraph (1) the chief executive officer or similar official of the employer shall certify under penalty of perjury that--

   Struck: "(A) the employer is in compliance with the requirements of subsections (c) and (d); or

   Struck: "(B) that the employer has instituted a program to come into compliance with such requirements.

   Struck: "(3) Extension.--The 60-day period referred to in paragraph (2), may be extended by the Secretary for good cause, at the request of the employer.

   Struck: "(4) Publication.--The Secretary is authorized to publish in the Federal Register standards or methods for certification and for specific record keeping practices with respect to such certification, and procedures for the audit of any records related to such certification.

   Struck: "(c) Document Verification Requirements.--An employer hiring, or recruiting or referring for a fee, an individual for employment in the United States shall take all reasonable steps to verify that the individual is eligible for such employment. Such steps shall include meeting the requirements of subsection (d) and the following paragraphs:

   Struck: "(1) Attestation by employer.--

   Struck: "(A) Requirements.--

   Struck: "(i) In general.--The employer shall attest, under penalty of perjury and on a form prescribed by the Secretary, that the employer has verified the identity and eligibility for employment of the individual by examining--

   Struck: "(I) a document described in subparagraph (B); or

   Struck: "(II) a document described in subparagraph (C) and a document described in subparagraph (D).

   Struck: "(ii) Signature requirements.--An attestation required by clause (i) may be manifested by a handwritten or electronic signature.

   Struck: "(iii) Standards for examination.--An employer has complied with the requirement of this paragraph with respect to examination of documentation if, based on the totality of the circumstances, a reasonable person would conclude that the document examined is genuine and establishes the individual's identity and eligibility for employment in the United States.

   Struck: "(iv) Requirements for employment eligibility system participants.--A participant in the Electronic Employment Verification System established under subsection (d), regardless of whether such participation is voluntary or mandatory, shall be permitted to utilize any technology that is consistent with this section and with any regulation or guidance from the Secretary to streamline the procedures to comply with the attestation requirement, and to comply with the employment eligibility verification requirements contained in this section.

   Struck: "(B) Documents establishing both employment eligibility and identity.--A document described in this subparagraph is an individual's--

   Struck: "(i) United States passport; or

   Struck: "(ii) permanent resident card or other document designated by the Secretary, if the document--

   Struck: "(I) contains a photograph of the individual and such other personal identifying information relating to the individual that the Secretary proscribes in regulations is sufficient for the purposes of this subparagraph;

   Struck: "(II) is evidence of eligibility for employment in the United States; and

   Struck: "(III) contains security features to make the document resistant to tampering, counterfeiting, and fraudulent use.

   Struck: "(C) Documents evidencing employment eligibility.--A document described in this subparagraph is an individual's--

   Struck: "(i) social security account number card issued by the Commissioner of Social Security (other than a card which specifies on its face that the issuance of the card does not authorize employment in the United States); or

   Struck: "(ii) any other documents evidencing eligibility of employment in the United States, if--

   Struck: "(I) the Secretary has published a notice in the Federal Register stating that such document is acceptable for purposes of this subparagraph; and

   Struck: "(II) contains security features to make the document resistant to tampering, counterfeiting, and fraudulent use.

   Struck: "(D) Documents establishing identity of individual.--A document described in this subparagraph is an individual's--

   Struck: "(i) 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 that complies with the requirements of the REAL ID Act of 2005 (division B of Public Law 109-13; 119 Stat. 302);

   Struck: "(ii) 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 that is not in compliance with the requirements of the REAL ID Act of 2005, if the license or identity card--

   Struck: "(I) is not required by the Secretary to comply with such requirements; and

   Struck: "(II) contains the individual's photograph or information, including the individual's name, date of birth, gender, and address; and

   Struck: "(iii) identification card issued by a Federal agency or department, including a branch of the Armed Forces, or an agency, department, or entity of a State, or a Native American tribal document, provided that such card or document--

   Struck: "(I) contains the individual's photograph or information including the individual's name, date of birth, gender, eye color, and address; and

   Struck: "(II) contains security features to make the card resistant to tampering, counterfeiting, and fraudulent use; or

   Struck: "(iv) in the case of an individual who is under 16 years of age who is unable to present a document described in clause (i), (ii), or

   Struck: (iii) a document of personal identity of such other type that--

   Struck: "(I) the Secretary determines is a reliable means of identification; and

   Struck: "(II) contains security features to make the document resistant to tampering, counterfeiting, and fraudulent use.

   Struck: "(E) Authority to prohibit use of certain documents.--

   Struck: "(i) Authority.--If the Secretary finds that a document or class of documents described in subparagraph (B), (C), or (D) is not reliable to establish identity or eligibility for employment (as the case may be) or is being used fraudulently to an unacceptable degree, the Secretary is authorized to prohibit, or impose conditions, on the use of such document or class of documents for purposes of this subsection.

   Struck: "(ii) Requirement for publication.--The Secretary shall publish notice of any findings under clause (i) in the Federal Register.

   Struck: "(2) Attestation of employee.--

   Struck: "(A) Requirements.--

   Struck: "(i) In general.--The individual shall attest, under penalty of perjury on the form prescribed by the Secretary, that the individual is a 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 a fee, in the United States.

   Struck: "(ii) Signature for examination.--An attestation required by clause (i) may be manifested by a handwritten or electronic signature.

   Struck: "(B) Penalties.--An individual who falsely represents that the individual is eligible for employment in the United States in an attestation required by subparagraph (A) shall, for each such violation, be subject to a fine of not more than $5,000, a term of imprisonment not to exceed 3 years, or both.

   Struck: "(3) Retention of attestation.--An employer shall retain a paper, microfiche, microfilm, or electronic version of an attestation submitted under paragraph (1) or (2) for an individual and make such attestations available for inspection by an officer of the Department of Homeland Security, any other person designated by the Secretary, the Special Counsel for Immigration-Related Unfair Employment Practices of the Department of Justice, or the Secretary of Labor during a period beginning on the date of the hiring, or recruiting or referring for a fee, of the individual and ending--

   Struck: "(A) in the case of the recruiting or referral for a fee (without hiring) of an individual, 7 years after the date of the recruiting or referral; or

   Struck: "(B) in the case of the hiring of an individual the later of--

   Struck: "(i) 7 years after the date of such hiring;

   Struck: "(ii) 1 year after the date the individual's employment is terminated; or

   Struck: "(iii) in the case of an employer or class of employers, a period that is less than the applicable period described in clause (i) or

   Struck: (ii) if the Secretary reduces such period for such employer or class of employers.

   Struck: "(4) Document retention and record keeping requirements.--

   Struck: "(A) Retention of documents.--An employer shall retain, for the applicable period described in paragraph (3), the following documents:

   Struck: "(i) In general.--Notwithstanding any other provision of law, the employer shall copy all documents presented by an individual pursuant to this subsection and shall retain paper, microfiche, microfilm, or electronic copies of such documents. Such copies shall reflect the signature of the employer and the individual and the date of receipt of such documents.

   Struck: "(ii) Use of retained documents.--An employer shall use copies retained under clause (i) only for the purposes of complying with the requirements of this subsection, except as otherwise permitted under law.

   Struck: "(B) Retention of social security correspondence.--The employer shall maintain records related to an individual of any no-match notice from the Commissioner of Social Security regarding the individual's name or corresponding social security account number and the steps taken to resolve each issue described in the no-match notice.

   Struck: "(C) Retention of clarification documents.--The employer shall maintain records of any 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 individual's identity or eligibility for employment in the United States.

   Struck: "(D) Retention of other records.--The Secretary may require that an employer retain copies of additional records related to the individual for the purposes of this section.

   Struck: "(5) Penalties.--An employer that fails to comply with the requirement of this subsection shall be subject to the penalties described in subsection (e)(4)(B).

   Struck: "(6) No authorization of national identification cards.-- Nothing in this section may be construed to authorize, directly or indirectly, the issuance, use, or establishment of a national identification card.

   Struck: "(d) Electronic Employment Verification System.--

   Struck: "(1) Requirement for system.--The Secretary, in cooperation with the Commissioner of Social Security, shall implement an Electronic Employment Verification System (referred to in this subsection as the 'System') as described in this subsection.

   Struck: "(2) Management of system.--

   Struck: "(A) In general.--The Secretary shall, through the System--

   Struck: "(i) provide a response to an inquiry made by an employer through the Internet or other electronic media or over a telephone line regarding an individual's identity and eligibility for employment in the United States;

   Struck: "(ii) establish a set of codes to be provided through the System to verify such identity and authorization; and

   Struck: "(iii) maintain a record of each such inquiry and the information and codes provided in response to such inquiry.

   Struck: "(B) Initial response.--Not later than 3 days after an employer submits an inquire to the System regarding an individual, the Secretary shall provide, through the System, to the employer--

   Struck: "(i) if the System is able to confirm the individual's identity and eligibility for employment in the United States, a confirmation notice, including the appropriate codes on such confirmation notice; or

   Struck: "(ii) if the System is unable to confirm the individual's identity or eligibility for employment in the United States, a tentative nonconfirmation notice, including the appropriate codes for such nonconfirmation notice.

   Struck: "(C) Verification process in case of a tentative nonconfirmation notice.--

   Struck: "(i) In general.--If a tentative nonconfirmation notice is issued under subparagraph (B)(ii), not later than 10 days after the date an individual submits information to contest such notice under paragraph (7)(C)(ii)(III), the Secretary, through the System, shall issue a final confirmation notice or a final nonconfirmation notice to the employer, including the appropriate codes for such notice.

   Struck: "(ii) Development of process.--The Secretary shall consult with the Commissioner of Social Security to develop a verification process to be used to provide a final confirmation notice or a final nonconfirmation notice under clause (i).

   Struck: "(D) Design and operation of system.--The Secretary, in consultation with the Commissioner of Social Security, shall design and operate the System--

   Struck: "(i) to maximize reliability and ease of use by employers in a manner that protects and maintains the privacy and security of the information maintained in the System;

   Struck: "(ii) to respond to each inquiry made by an employer; and

   Struck: "(iii) to track and record any occurrence when the System is unable to receive such an inquiry;

   Struck: "(iv) to include appropriate administrative, technical, and physical safeguards to prevent unauthorized disclosure of personal information;

   Struck: "(v) to allow for monitoring of the use of the System and provide an audit capability; and

   Struck: "(vi) to have reasonable safeguards, developed in consultation with the Attorney General, to prevent employers from engaging in unlawful discriminatory practices, based on national origin or citizenship status.

   Struck: "(E) Responsibilities of the commissioner of social security.--The Commissioner of Social Security shall establish a reliable, secure method to provide through the System, within the time periods required by subparagraphs (B) and (C)--

   Struck: "(i) a determination of whether the name and social security account number provided in an inquiry by an employer match such information maintained by the Commissioner in order to confirm the validity of the information provided;

   Struck: "(ii) a determination of whether such social security account number was issued to the named individual;

   Struck: "(iii) determination of whether such social security account number is valid for employment in the United States; and

   Struck: "(iv) a confirmation notice or a nonconfirmation notice under subparagraph (B) or (C), in a manner that ensures that other information maintained by the Commissioner is not disclosed or released to employers through the System.

   Struck: "(F) Responsibilities of the secretary.--The Secretary shall establish a reliable, secure method to provide through the System, within the time periods required by subparagraphs (B) and (C)--

   Struck: "(i) a determination of whether the name and alien identification or authorization number provided in an inquiry by an employer match such information maintained by the Secretary in order to confirm the validity of the information provided;

   Struck: "(ii) a determination of whether such number was issued to the named individual;

   Struck: "(iii) a determination of whether the individual is authorized to be employed in the United States; and

   Struck: "(iv) any other related information that the Secretary may require.

   Struck: "(G) Updating information.--The Commissioner of Social Security and the Secretary shall update the information maintained in the System in a manner that promotes maximum accuracy and shall provide a process for the prompt correction of erroneous information.

   Struck: "(3) Requirements for participation.--Except as provided in paragraphs (4) and (5), the Secretary shall require employers to participate in the System as follows:

   Struck: "(A) Critical employers.--

   Struck: "(i) Required participation.--As of the date that is 180 days after the date of the enactment of the Securing America's Borders Act, the Secretary shall require any employer or class of employers to participate in the System, with respect to employees hired by the employer prior to, on, or after such date of enactment, if the Secretary determines, in the Secretary's sole and unreviewable discretion, such employer or class of employer is--

   Struck: "(I) part of the critical infrastructure of the United States; or

   Struck: "(II) directly related to the national security or homeland security of the United States.

   Struck: "(ii) Discretionary participation.--As of the date that is 180 days after the date of the enactment of the Securing America's Borders Act, the Secretary may require additional any employer or class of employers to participate in the System with respect to employees hired on or after such date if the Secretary designates such employer or class of employers, in the Secretary's sole and unreviewable discretion, as a critical employer based on immigration enforcement or homeland security needs.

   Struck: "(B) Large employers.--Not later than 2 years after the date of the enactment of the Securing America's Borders Act, Secretary shall require an employer with more than 5,000 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.

   Struck: "(C) Mid-sized employers.--Not later than 3 years after the date of enactment of the Securing America's Borders Act, the Secretary shall require an employer with less than 5,000 employees and with more 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.

   Struck: "(D) Small employers.--Not later than 4 years after the date of the enactment of the Securing America's Borders Act, the Secretary shall require all employers with less than 1,000 employees and with more than 250 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.

   Struck: "(E) Remaining employers.--Not later than 5 years after the date of the enactment of the Securing America's Borders Act, the Secretary shall require all employers in the United States to participate in the System, with respect to all employees hired by an employer after the date the Secretary requires such participation.

   Struck: "(F) Requirement to publish.--The Secretary shall publish in the Federal Register the requirements for participation in the System as described in subparagraphs (A), (B), (C), (D), and (E) prior to the effective date of such requirements.

   Struck: "(4) Other participation in system.--Notwithstanding paragraph (3), the Secretary has the authority, in the Secretary's sole and unreviewable discretion--

   Struck: "(A) to permit any employer that is not required to participate in the System under paragraph (3) to participate in the System on a voluntary basis; and

   Struck: "(B) to require any employer that is required to participate in the System under paragraph (3) with respect to newly hired employees to participate in the System with respect to all employees hired by the employer prior to, on, or after the date of the enactment of the Securing America's Borders Act, if the Secretary has reasonable causes to believe that the employer has engaged in violations of the immigration laws.

   Struck: "(5) Waiver.--The Secretary is authorized to waive or delay the participation requirements of paragraph (3) respect to any employer or class of employers if the Secretary provides notice to Congress of such waiver prior to the date such waiver is granted.

   Struck: "(6) Consequence of failure to participate.--If an employer is required to participate in the System and fails to comply with the requirements of the System with respect to an individual--

   Struck: "(A) such failure shall be treated as a violation of subsection (a)(1)(B) of this section with respect to such individual; and

   Struck: "(B) a rebuttable presumption is created that the employer has violated subsection (a)(1)(A) of this section, however such presumption may not apply to a prosecution under subsection (f)(1).

   Struck: "(7) System requirements.--

   Struck: "(A) In general.--An employer that participates in the System shall, with respect to the hiring, or recruiting or referring for a fee, any individual for employment in the United States, shall--

   Struck: "(i) obtain from the individual and record on the form designated by the Secretary--

   Struck: "(I) the individual's social security account number; and

   Struck: "(II) in the case of an individual who does not attest that the individual is a national of the United States under subsection (c)(2), such identification or authorization number that the Secretary shall require; and

   Struck: "(ii) retain the original of such form and make such form available for inspection for the periods and in the manner described in subsection (c)(3).

   Struck: "(B) Seeking verification.--The employer shall submit an inquiry through the System to seek confirmation of the individual's identity and eligibility for employment in the United States--

   Struck: "(i) not later than 3 working days (or such other reasonable time as may be specified by the Secretary of Homeland Security) after the date of the hiring, or recruiting or referring for a fee, of the individual (as the case may be); or

   Struck: "(ii) in the case of an employee hired prior to the date of enactment of the Securing America's Borders Act, at such time as the Secretary shall specify.

   Struck: "(C) Confirmation or nonconfirmation.--

   Struck: "(i) Confirmation upon initial inquiry.-- If an employer receives a confirmation notice under paragraph (2)(B)(i) for an individual, the employer shall record, on the form specified by the Secretary, the appropriate code provided in such notice.

   Struck: "(ii) Nonconfirmation and verification.--

   Struck: "(I) Nonconfirmation.--If an employer receives a tentative nonconfirmation notice under paragraph (2)(B)(ii) for an individual, the employer shall inform such individual of the issuances of such notice in writing and the individual may contest such nonconfirmation notice.

   Struck: "(II) No contest.--If the individual does not contest the tentative nonconfirmation notice under subclause (I) within 10 days of receiving notice from the individual's employer, the notice shall become final and the employer shall record on the form specified by the Secretary, the appropriate code provided in the nonconfirmation notice.

   Struck: "(III) Contest.--If the individual contests the tentative nonconfirmation notice under subclause (I), the individual shall submit appropriate information to contest such notice to the System within 10 days of receiving notice from the individual's employer and shall utilize the verification process developed under paragraph (2)(C)(ii).

   Struck: "(IV) Effective period of tentative nonconfirmation.--A tentative nonconfirmation notice shall remain in effect until a final such notice becomes final under clause (II) or a final confirmation notice or final nonconfirmation notice is issued by the System.

   Struck: "(V) Prohibition on termination.-- An employer may not terminate the employment of an individual based on a tentative nonconfirmation notice until such notice becomes final under clause (II) or a final nonconfirmation notice is issued for the individual by the System. Nothing in this clause shall apply to a termination of employment for any reason other than because of such a failure.

   Struck: "(VI) Recording of conclusion on form.--If a final confirmation or nonconfirmation is provided by the System regarding an individual, the employer shall record on the form designated by the Secretary the appropriate code that is provided under the System to indicate a confirmation or nonconfirmation of the identity and employment eligibility of the individual.

   Struck: "(D) Consequences of nonconfirmation.--

   Struck: "(i) Termination of continued employment.--If the employer has received a final nonconfirmation regarding an individual, the employer shall terminate the employment, recruitment, or referral of the individual. Such employer shall provide to the Secretary any information relating to the nonconfirmed individual that the Secretary determines would assist the Secretary in enforcing or administering the immigration laws. If the employer continues to employ, recruit, or refer the individual after receiving final nonconfirmation, a rebuttable presumption is created that the employer has violated subsections (a)(1)(A) and (a)(2). Such presumption may not apply to a prosecution under subsection (f)(1).

   Struck: "(8) Protection from liability.--No employer that participates in the System shall be liable under any law for any employment-related action taken with respect to an individual in good faith reliance on information provided by the System.

   Struck: "(9) Limitation on use of the 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 to utilize any information, database, or other records used in the System for any purpose other than as provided for under this subsection.

   Struck: "(10) Modification authority.--The Secretary, after notice is submitted to Congress and provided to the public in the Federal Register, is authorized to modify the requirements of this subsection, including requirements with respect to completion of forms, method of storage, attestations, copying of documents, signatures, methods of transmitting information, and other operational and technical aspects to improve the efficiency, accuracy, and security of the System.

   Struck: "(11) Fees.--The Secretary is authorized to require any employer participating in the System to pay a fee or fees for such participation. The fees may be set at a level that will recover the full cost of providing the System to all participants. The fees shall be deposited and remain available as provided in subsection (m) and (n) of section 286 and the System is providing an immigration adjudication and naturalization service for purposes of section 286(n).

   Struck: "(12) Report.--Not later than 1 year after the date of the enactment of the Securing America's Borders Act, the Secretary shall submit to Congress a report on the capacity, systems integrity, and accuracy of the System.

   Struck: "(e) Compliance.--

   Struck: "(1) Complaints and investigations.--The Secretary shall establish procedures--

   Struck: "(A) for individuals and entities to file complaints regarding potential violations of subsection (a);

   Struck: "(B) for the investigation of those complaints that the Secretary deems it appropriate to investigate; and

   Struck: "(C) for the investigation of such other violations of subsection (a), as the Secretary determines are appropriate.

   Struck: "(2) Authority in investigations.--

   Struck: "(A) In general.--In conducting investigations and hearings under this subsection, officers and employees of the Department of Homeland Security--

   Struck: "(i) shall have reasonable access to examine evidence of any employer being investigated; and

   Struck: "(ii) if designated by the Secretary of Homeland Security, 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.

   Struck: "(B) Failure to cooperate.--In case of refusal to obey a subpoena lawfully issued under subparagraph (A)(ii), 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 contempt.

   Struck: "(C) Department of labor.--The Secretary of Labor shall have the investigative authority provided under section 11(a) of the Fair Labor Standards Act of 1938 (29 U.S.C. 211(a)) to ensure compliance with the provisions of this title, or any regulation or order issued under this title.

   Struck: "(3) Compliance procedures.--

   Struck: "(A) Pre-penalty notice.--If the Secretary has reasonable cause to believe that there has been a violation of a requirement of this section and determines that further proceedings related to such violation are warranted, the Secretary shall issue to the employer concerned a written notice of the Secretary's intention to issue a claim for a fine or other penalty. Such notice shall--

   Struck: "(i) describe the violation;

   Struck: "(ii) specify the laws and regulations allegedly violated;

   Struck: "(iii) disclose the material facts which establish the alleged violation; and

   Struck: "(iv) inform such employer that the employer shall have a reasonable opportunity to make representations as to why a claim for a monetary or other penalty should not be imposed.

   Struck: "(B) Remission or mitigation of penalties.--

   Struck: "(i) Petition by employer.--Whenever any employer receives written notice of a fine or other penalty in accordance with subparagraph (A), the employer may file within 30 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.

   Struck: "(ii) Review by secretary.--If the Secretary finds that such fine or other penalty 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 such fine or other penalty on the terms and conditions as the Secretary determines are reasonable and just, or order termination of any proceedings related to the notice. Such mitigating circumstances may include good faith compliance and participation in, or agreement to participate in, the System, if not otherwise required.

   Struck: "(iii) Applicability.--This subparagraph may not apply to an employer that has or is engaged in a pattern or practice of violations of paragraph (1)(A), (1)(B), or (2) of subsection (a) or of any other requirements of this section.

   Struck: "(C) Penalty claim.--After considering evidence and representations 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 and the appropriate penalty.

   Struck: "(4) Civil penalties.--

   Struck: "(A) Hiring or continuing to employ unauthorized aliens.--Any employer that violates any provision of paragraph (1)(A) or (2) of subsection (a) shall pay civil penalties as follows:

   Struck: "(i) Pay a civil penalty of not less than $500 and not more than $4,000 for each unauthorized alien with respect to each such violation.

   Struck: "(ii) If the employer has previously been fined 1 time under this subparagraph, pay a civil penalty of not less than $4,000 and not more than $10,000 for each unauthorized alien with respect to each such violation.

   Struck: "(iii) If the employer has previously been fined more than 1 time under this subparagraph or has failed to comply with a previously issued and final order related to any such provision, pay a civil penalty of not less than $6,000 and not more than $20,000 for each unauthorized alien with respect to each such violation.

   Struck: "(B) Record keeping or verification practices.-- Any employer that violates or fails to comply with the requirements of the subsection (b), (c), and (d), shall pay a civil penalty as follows:

   Struck: "(i) Pay a civil penalty of not less than $200 and not more than $2,000 for each such violation.

   Struck: "(ii) If the employer has previously been fined 1 time under this subparagraph, pay a civil penalty of not less than $400 and not more than $4,000 for each such violation.

   Struck: "(iii) If the employer has previously been fined more than 1 time under this subparagraph or has failed to comply with a previously issued and final order related to such requirements, pay a civil penalty of $6,000 for each such violation.

   Struck: "(C) Other penalties.--Notwithstanding subparagraphs (A) and (B), 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 civil penalty described in subsection (g)(2).

   Struck: "(D) Reduction of penalties.--Notwithstanding subparagraphs (A), (B), and (C), the Secretary is authorized to reduce or mitigate penalties imposed upon employers, based upon factors including 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.

   Struck: "(E) Adjustment for inflation.--All penalties in this section may be adjusted every 4 years to account for inflation, as provided by law.

   Struck: "(5) Judicial review.--An employer adversely affected by a final determination may, within 45 days after the date the final determination is issued, file a petition in the Court of Appeals for the appropriate circuit for review of the order. The filing of a petition as provided in this paragraph shall stay the Secretary's determination until entry of judgment by the court. The burden shall be on the employer to show that the final determination was not supported by substantial evidence. The Secretary is authorized to require that the 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.

   Struck: "(6) 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 (5), 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.

   Struck: "(f) Criminal Penalties and Injunctions for Pattern or Practice Violations.--

   Struck: "(1) Criminal penalty.--An employer that engages in a pattern or practice of knowing violations of subsection (a)(1)(A) or (a)(2) shall be fined not more than $20,000 for each unauthorized alien with respect to whom such a violation occurs, imprisoned for not more than 6 months for the entire pattern or practice, or both.

   Struck: "(2) Enjoining of pattern or practice violations.--If 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.

   Struck: "(g) Prohibition of Indemnity Bonds.--

   Struck: "(1) Prohibition.--It is unlawful for an employer, in the hiring, recruiting, or referring for a fee, of an 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.

   Struck: "(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 Employer Compliance Fund established under section 286(w).

   Struck: "(h) Prohibition on Award of Government Contracts, Grants, and Agreements.--

   Struck: "(1) Employers with no contracts, grants or agreements.--

   Struck: "(A) In general.--If an employer who does not hold a Federal contract, grant, or cooperative agreement 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 debarred from the receipt of a Federal contract, grant, or cooperative agreement for a period of 2 years. The Secretary or the Attorney General shall advise the Administrator of General Services of such a debarment, and the Administrator of General Services shall list the employer on the List of Parties Excluded from Federal Procurement and Nonprocurement Programs for a period of 2 years.

   Struck: "(B) Waiver.--The Administrator of General Services, in consultation with the Secretary and the Attorney General, may waive operation of this subsection or may limit the duration or scope of the debarment.

   Struck: "(2) Employers with contracts, grants, or agreements.--

   Struck: "(A) In general.--An employer who holds a Federal contract, grant, or cooperative agreement and is determined by the Secretary of Homeland Secretary to be a repeat violator of this section or is convicted of a crime under this section, shall be debarred from the receipt of Federal contracts, grants, or cooperative agreements for a period of 2 years.

   Struck: "(B) Notice to agencies.--Prior to debarring the employer under subparagraph (A), the Secretary, in cooperation with the Administrator of General Services, shall advise any agency or department holding a contract, grant, or cooperative agreement with the employer of the Government's intention to debar the employer from the receipt of new Federal contracts, grants, or cooperative agreements for a period of 2 years.

   Struck: "(C) Waiver.--After consideration of the views of any agency or department that holds a contract, grant, or cooperative agreement with the employer, the Secretary may, in lieu of debarring the employer from the receipt of new Federal contracts, grants, or cooperative agreements for a period of 2 years, waive operation of this subsection, limit the duration or scope of the debarment, or may refer to an appropriate lead agency the decision of whether to debar 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. The decision of whether to debar or take alternation shall not be judicially reviewed.

   Struck: "(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.

   Struck: "(i) Miscellaneous Provisions.--

   Struck: "(1) Documentation.--In providing documentation or endorsement of authorization of aliens (other than aliens lawfully admitted for permanent residence) eligible 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.

   Struck: "(2) Preemption.--The provisions of this section preempt any State or local law--

   Struck: "(A) imposing 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; or

   Struck: "(B) requiring as a condition of conducting, continuing, or expanding a business that a business entity--

   Struck: "(i) provide, build, fund, or maintain a shelter, structure, or designated area for use by day laborers at or near its place of business; or

   Struck: "(ii) take other steps that facilitate the employment of day laborers by others.

   Struck: "(j) Deposit of Amounts Received.--Except as otherwise specified, civil penalties collected under this section shall be deposited by the Secretary into the Employer Compliance Fund established under section 286(w).

   Struck: "(k) Definitions.--In this section:

   Struck: "(1) Employer.--The term 'employer' means any person or entity, including any entity of the Government of the United States, hiring, recruiting, or referring an individual for employment in the United States.

   Struck: "(2) No-match notice.--The term 'no-match notice' means written notice from the Commissioner of Social Security to an employer reporting earnings on a Form W-2 that an employee name or corresponding social security account number fail to match records maintained by the Commissioner.

   Struck: "(3) Secretary.--Except as otherwise provided, the term 'Secretary' means the Secretary of Homeland Security.

   Struck: "(4) Unauthorized alien.--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--

   Struck: "(A) an alien lawfully admitted for permanent residence; or

   Struck: "(B) authorized to be so employed by this Act or by the Secretary.".

   Struck: (b) Conforming Amendment.--

   Struck: (1) Amendment.--Sections 401, 402, 403, 404, and 405 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (division C of Public Law 104-208; 8 U.S.C. 1324a) are repealed.

   Struck: (2) Construction.--Nothing in this subsection or in subsection (d) of section 274A, as amended by subsection (a), may be construed to limit the authority of the Secretary to allow or continue to allow the participation of employers who participated in the basic pilot program under such sections 401, 402, 403, 404, and 405 in the Electronic Employment Verification System established pursuant to such subsection (d).

   Struck: (c) Technical Amendments.--

   Struck: (1) Definition of unauthorized alien.--Sections 218(i)(1) (8 U.S.C. 1188(i)(1)), 245(c)(8) (8 U.S.C. 1255(c)(8)), 274(a)(3)(B)(i) (8 U.S.C. 1324(a)(3)(B)(i)), and 274B(a)(1) (8 U.S.C. 1324b(a)(1)) are amended by striking "274A(h)(3)" and inserting "274A".

   Struck: (2) Document requirements.--Section 274B (8 U.S.C. 1324b) is amended--

   Struck: (A) in subsections (a)(6) and (g)(2)(B), by striking "274A(b)" and inserting "274A(d)"; and

   Struck: (B) in subsection (g)(2)(B)(ii), by striking "274A(b)(5)" and inserting "274A(d)(9)".

   Struck: (d) Effective Date.--The amendments made by subsections (a), (b), and (c) shall take effect on the date that is 180 days after the date of the enactment of this Act.

   Struck: SEC. 302. EMPLOYER COMPLIANCE FUND.

   Struck: Section 286 (8 U.S.C. 1356) is amended by adding at the end the following new subsection:

   Struck: "(w) Employer Compliance Fund.--

   Struck: "(1) In general.--There is established in the general fund of the Treasury, a separate account, which shall be known as the 'Employer Compliance Fund' (referred to in this subsection as the 'Fund').

   Struck: "(2) Deposits.--There shall be deposited as offsetting receipts into the Fund all civil monetary penalties collected by the Secretary of Homeland Security under section 274A.

   Struck: "(3) Purpose.--Amounts refunded to the Secretary from the Fund shall be used for the purposes of enhancing and enforcing employer compliance with section 274A.

   Struck: "(4) Availability of funds.--Amounts deposited into the Fund shall remain available until expended and shall be refunded out of the Fund by the Secretary of the Treasury, at least on a quarterly basis, to the Secretary of Homeland Security.".

   Struck: SEC. 303. ADDITIONAL WORKSITE ENFORCEMENT AND FRAUD DETECTION AGENTS.

   Struck: (a) Worksite Enforcement.--The Secretary shall, subject to the availability of appropriations for such purpose, annually increase, by not less than 2,000, the number of positions for investigators dedicated to enforcing compliance with sections 274 and 274A of the Immigration and Nationality Act (8 U.S.C. 1324, and 1324a) during the 5-year period beginning date of the enactment of this Act.

   Struck: (b) Fraud Detection.--The Secretary shall, subject to the availability of appropriations for such purpose, increase by not less than 1,000 the number of positions for agents of the Bureau of Immigration and Customs Enforcement dedicated to immigration fraud detection during the 5-year period beginning date of the enactment of this Act.

   Struck: (c) 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.

   Struck: SEC. 304. CLARIFICATION OF INELIGIBILITY FOR MISREPRESENTATION.

   Struck: Section 212(a)(6)(C)(ii)(I) (8 U.S.C. 1182(a)(6)(C)(ii)(I)), is amended by striking "citizen" and inserting "national".

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