S.Amdt. 1576

SA 1576. Mr. GRASSLEY submitted an amendment intended to be proposed
to amendment SA 1183 submitted by Mr. Leahy (for himself and Mr. Hatch)
to the bill S. 744, to provide for comprehensive immigration reform and
for other purposes; which was ordered to lie on the table; as follows:

Beginning on page 534 of the amendment, strike line 7 and
all that follows through page 621, line 8, and insert the
following:
``(D) General participation requirement for new
employees.--All employers in the United States shall
participate in the System, with respect to all employees
hired by such employers on or after the date that is 18
months after the date of the enactment of the Border
Security, Economic Opportunity, and Immigration Modernization
Act.
``(E) Immigration law violators.--
``(i) Orders finding violations.--An order finding any
employer to have violated this section or section 274C may,
in the Secretary's discretion, require the employer to
participate in the System with respect to newly hired
employees and employees with expiring temporary employment
authorization documents, if such employer is not otherwise
required to participate in the System under this section. The
Secretary shall monitor such employer's compliance with
System procedures.
``(ii) Pattern or practice of violations.--The Secretary
may require an employer that is required to participate in
the System with respect to newly hired employees to
participate in the System with respect to the employer's
current employees if the Secretary or other appropriate
authority has reasonable cause to believe that the employer
is, or has been, engaged in a material violation of this
section.
``(F)  Voluntary participation.--The Secretary may permit
any employer that is not required to participate in the
System under this section to do so on a voluntary basis.
``(3) Consequence of failure to participate.--
``(A) In general.--Except as provided in subparagraph (B),
the failure, other than a de minimis or inadvertent failure,
of an employer that is required to participate in the System
to comply with the requirements of the System with respect to
an individual--
``(i) shall be treated as a violation of subsection
(a)(1)(B) with respect to that individual; and

[[Page S5038]]

``(ii) creates a rebuttable presumption that the employer
has violated paragraph (1)(A) or (2) of subsection (a).
``(B) Exception.--
``(i) In general.--Subparagraph (A) shall not apply in a
criminal prosecution.
``(ii) Use as evidence.--Nothing in this paragraph may be
construed to limit the use in the prosecution of a Federal
crime, in a manner otherwise consistent with Federal criminal
law and procedure, of evidence relating to the employer's
failure to comply with requirements of the System.
``(4) Procedures for participants in the system.--
``(A) In general.--An employer participating in the System
shall register such participation with the Secretary and,
when hiring any individual for employment in the United
States, shall comply with the following:
``(i) Registration of employers.--The Secretary, through
notice in the Federal Register, shall prescribe procedures
that employers shall be required to follow to register with
the System.
``(ii) Updating information.--The employer is responsible
for providing notice of any change to the information
required under subclauses (I), (II), and (III) of clause (v)
before conducting any further inquiries within the System, or
on such other schedule as the Secretary may prescribe.
``(iii) Training.--The Secretary shall require employers to
undergo such training as the Secretary determines to be
necessary to ensure proper use, protection of civil rights
and civil liberties, privacy, integrity, and security of the
System. To the extent practicable, such training shall be
made available electronically on the U.S. Citizenship and
Immigration Services website.
``(iv) Notification to employees.--The employer shall
inform individuals hired for employment that the System--

``(I) will be used by the employer;
``(II) may be used for immigration enforcement purposes;
and
``(III) may not be used to discriminate or to take adverse
action against a national of the United States or an alien
who has employment authorized status.

``(v) Provision of additional information.--The employer
shall obtain from the individual (and the individual shall
provide) and shall record in such manner as the Secretary may
specify--

``(I) the individual's social security account number;
``(II) if the individual does not attest to United States
citizenship or status as a national of the United States
under subsection (c)(2), such identification or authorization
number established by the Department as the Secretary shall
specify; and
``(III) such other information as the Secretary may require
to determine the identity and employment authorization of an
individual.

``(vi) Presentation of documentation.--The employer, and
the individual whose identity and employment authorized
status are being confirmed, shall fulfill the requirements
under subsection (c).
``(B) Seeking confirmation.--
``(i) In general.--An employer shall use the System to
confirm the identity and employment authorized status of any
individual during--

``(I) the period beginning on the date on which the
individual accepts an offer of employment and ending 3
business days after the date on which employment begins; or
``(II) such other reasonable period as the Secretary may
prescribe.

``(ii) Limitation.--An employer may not make the starting
date of an individual's employment or training or any other
term and condition of employment dependent on the receipt of
a confirmation of identity and employment authorized status
by the System.
``(iii) Reverification.--If an individual has a limited
period of employment authorized status, the individual's
employer shall reverify such status through the System not
later than 3 business days after the last day of such period.
``(iv) Other employment.--For employers directed by the
Secretary to participate in the System under paragraph
(2)(C)(i) to protect critical infrastructure or otherwise
specified circumstances in this section to verify their
entire workforce, the System may be used for initial
verification of an individual who was hired before the
employer became subject to the System, and the employer shall
initiate all required procedures on or before such date as
the Secretary shall specify.
``(v) Notification.--

``(I) In general.--The Secretary shall provide, and the
employer shall utilize, as part of the System, a method of
notifying employers of a confirmation or nonconfirmation of
an individual's identity and employment authorized status, or
a notice that further action is required to verify such
identity or employment eligibility (referred to in this
subsection as a `further action notice').
``(II) Procedures.--The Secretary shall--

``(aa) directly notify the individual and the employer, by
means of electronic correspondence, mail, text message,
telephone, or other direct communication, of a
nonconfirmation or further action notice;
``(bb) provide information about filing an administrative
appeal under paragraph (6) and a filing for review before an
administrative law judge under paragraph (7); and
``(cc) establish procedures to directly notify the
individual and the employer of a confirmation.

``(III) Implementation.--The Secretary may provide for a
phased-in implementation of the notification requirements
under this clause, as appropriate. The notification system
shall cover all inquiries not later than 1 year from the date
of the enactment of the Border Security, Economic
Opportunity, and Immigration Modernization Act.

``(vi) Before hiring.--An employer may use the System to
confirm the identity and employment authorized status of any
individual before the individual is hired, recruited, or
referred if the individual consents to such verification. If
an employer receives a tentative nonconfirmation for such
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.

``(C) Confirmation or nonconfirmation.--
``(i) Initial response.--

``(I) In general.--Except as provided in subclause (II),
the System shall provide--

``(aa) a confirmation of an individual's identity and
employment authorized status or a further action notice at
the time of the inquiry; and
``(bb) an appropriate code indicating such confirmation or
such further action notice.

``(II) Alternative deadline.--If the System is unable to
provide immediate confirmation or further action notice for
technological reasons or due to unforeseen circumstances, the
System shall provide a confirmation or further action notice
not later than 3 business days after the initial inquiry.

``(ii) Confirmation upon initial inquiry.--If the employer
receives an appropriate confirmation of an individual's
identity and employment authorized status under the System,
the employer shall record the confirmation in such manner as
the Secretary may specify.
``(iii) Further action notice and later confirmation or
nonconfirmation.--

``(I) Notification and acknowledgment that further action
is required.--Not later than 3 business days after an
employer receives a further action notice of an individual's
identity or employment eligibility under the System, or
during such other reasonable time as the Secretary may
prescribe, the employer shall notify the individual for whom
the confirmation is sought of the further action notice and
any procedures specified by the Secretary for addressing such
notice. The further action notice shall be given to the
individual in writing and the employer shall acknowledge in
the System under penalty of perjury that it provided the
employee with the further action notice. The individual shall
affirmatively acknowledge in writing, or in such other manner
as the Secretary may specify, the receipt of the further
action notice from the employer. If the individual refuses to
acknowledge the receipt of the further action notice, or
acknowledges in writing that the individual will not contest
the further action notice under subclause (II), the employer
shall notify the Secretary in such manner as the Secretary
may specify.
``(II) Contest.--Not later than 10 business days after
receiving notification of a further action notice under
subclause (I), the individual shall contact the appropriate
Federal agency and, if the Secretary so requires, appear in
person for purposes of verifying the individual's identity
and employment eligibility. The Secretary, in consultation
with the Commissioner and other appropriate Federal agencies,
shall specify an available secondary verification procedure
to confirm the validity of information provided and to
provide a confirmation or nonconfirmation. Any procedures for
reexamination shall not limit in any way an employee's right
to appeal a nonconfirmation.
``(III) No contest.--If the individual refuses to
acknowledge receipt of the further action notice,
acknowledges that the individual will not contest the further
action notice as provided in subclause (I), or does not
contact the appropriate Federal agency within the period
specified in subclause (II), following expiration of the
period specified in subclause (II), a nonconfirmation shall
be issued. The employer shall record the nonconfirmation in
such manner as the Secretary may specify and terminate the
individual's employment. An individual's failure to contest a
further action notice shall not be considered an admission of
guilt with respect to any violation of this section or any
provision of law.
``(IV) Confirmation or nonconfirmation.--Unless the period
is extended in accordance with this subclause, the System
shall provide a confirmation or nonconfirmation not later
than 10 business days after the date on which the individual
contests the further action notice under subclause (II). If
the Secretary determines that good cause exists, after taking
into account adverse impacts to the employer, and including
time to permit the individual to obtain and provide needed
evidence of identity or employment eligibility, the Secretary
shall extend the period for providing confirmation or
nonconfirmation for stated periods beyond 10 business days.
When confirmation or nonconfirmation is provided, the
confirmation system shall provide an appropriate code
indicating such confirmation or nonconfirmation.

[[Page S5039]]

``(V) Reexamination.--Nothing in this section shall prevent
the Secretary from establishing procedures to reexamine a
case where a confirmation or nonconfirmation has been
provided if subsequently received information indicates that
the confirmation or nonconfirmation may not have been
correct. Any procedures for reexamination shall not limit in
any way an employee's right to appeal a nonconfirmation.
``(VI) Employee protections.--An employer may not terminate
employment or take any other adverse action against an
individual solely because of a failure of the individual to
have identity and employment eligibility confirmed under this
subsection until--

``(aa) a nonconfirmation has been issued;
``(bb) if the further action notice was contested, the
period to timely file an administrative appeal has expired
without an appeal or the contestation to the further action
notice is withdrawn; or
``(cc) if an appeal before an administrative law judge
under paragraph (7) has been filed, the nonconfirmation has
been upheld or the appeal has been withdrawn or dismissed.
``(iv) Notice of nonconfirmation.--Not later than 3
business days after an employer receives a nonconfirmation,
or during such other reasonable time as the Secretary may
provide, the employer shall notify the individual who is the
subject of the nonconfirmation, and provide information about
filing an administrative appeal pursuant to paragraph (6) and
a request for a hearing before an administrative law judge
pursuant to paragraph (7). The nonconfirmation notice shall
be given to the individual in writing and the employer shall
acknowledge in the System under penalty of perjury that it
provided the notice (or adequately attempted to provide
notice, but was unable to do so despite reasonable efforts).
The individual shall affirmatively acknowledge in writing, or
in such other manner as the Secretary may prescribe, the
receipt of the nonconfirmation notice from the employer. If
the individual refuses or fails to acknowledge the receipt of
the nonconfirmation notice, the employer shall notify the
Secretary in such manner as the Secretary may prescribe.
``(D) Consequences of nonconfirmation.--
``(i) Termination of continued employment.--Except as
provided in clause (iii), an employer that has received a
nonconfirmation regarding an individual and has made
reasonable efforts to notify the individual in accordance
with subparagraph (C)(iv) shall terminate the employment of
the individual upon the expiration of the time period
specified in paragraph (7).
``(ii) Continued employment after nonconfirmation.--If the
employer continues to employ an individual after receiving
nonconfirmation and exhaustion of all appeals or expiration
of all rights to appeal if not appealed, in violation of
clause (i), a rebuttable presumption is created that the
employer has violated paragraphs (1)(A) and (2) of subsection
(a). Such presumption shall not apply in any prosecution
under subsection (k)(1).
``(iii) Effect of administrative appeal or review by
administrative law judge.--If an individual files an
administrative appeal of the nonconfirmation within the time
period specified in paragraph (6)(A), or files for review
with an administrative law judge specified in paragraph
(7)(A), the employer shall not terminate the individual's
employment under this subparagraph prior to the resolution of
the administrative appeal unless the Secretary or
Commissioner terminates the stay under paragraph (6)(B) or
(7)(B).
``(iv) Weekly report.--The Director of U.S. Citizenship and
Immigration Services shall submit a weekly report to the
Assistant Secretary for Immigration and Customs Enforcement
that includes, for each individual who receives final
nonconfirmation through the System--

``(I) the name of such individual;
``(II) his or her social security number or alien file
number;
``(III) the name and contact information for his or her
current employer; and
``(IV) any other critical information that the Assistant
Secretary determines to be appropriate.

``(E) Obligation to respond to queries and additional
information.--
``(i) In general.--Employers shall comply with requests for
information from the Secretary and the Special Counsel for
Immigration-Related Unfair Employment Practices of the
Department of Justice, including queries concerning current
and former employees, within the time frame during which
records are required to be maintained under this section
regarding such former employees, if such information relates
to the functioning of the System, the accuracy of the
responses provided by the System, or any suspected misuse,
discrimination, fraud, or identity theft in the use of the
System. Failure to comply with a request under this clause
constitutes a violation of subsection (a)(1)(B).
``(ii) Action by individuals.--

``(I) In general.--Individuals being verified through the
System may be required to take further action to address
questions identified by the Secretary or the Commissioner
regarding the documents relied upon for purposes of
subsection (c).
``(II) Notification.--Not later than 3 business days after
the receipt of such questions regarding an individual, or
during such other reasonable time as the Secretary may
prescribe, the employer shall--

``(aa) notify the individual of any such requirement for
further actions; and
``(bb) record the date and manner of such notification.

``(III) Acknowledgment.--The individual shall acknowledge
the notification received from the employer under subclause
(II) in writing, or in such other manner as the Secretary may
prescribe.

``(iii) Rulemaking.--

``(I) In general.--The Secretary, in consultation with the
Commissioner and the Attorney General, is authorized to issue
regulations implementing, clarifying, and supplementing the
requirements under this subparagraph--

``(aa) to facilitate the functioning, accuracy, and
fairness of the System;
``(bb) to prevent misuse, discrimination, fraud, or
identity theft in the use of the System; or
``(cc) to protect and maintain the confidentiality of
information that could be used to locate or otherwise place
at risk of harm victims of domestic violence, dating
violence, sexual assault, stalking, and human trafficking,
and of the applicant or beneficiary of any petition described
in section 384(a)(2) of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (8 U.S.C. 1367(a)(2)).

``(II) Notice.--The regulations issued under subclause (I)
shall be--

``(aa) published in the Federal Register; and
``(bb) provided directly to all employers registered in the
System.
``(F) Designated agents.--The Secretary shall establish a
process--
``(i) for certifying, on an annual basis or at such times
as the Secretary may prescribe, designated agents and other
System service providers seeking access to the System to
perform verification queries on behalf of employers, based
upon training, usage, privacy, and security standards
prescribed by the Secretary;
``(ii) for ensuring that designated agents and other System
service providers are subject to monitoring to the same
extent as direct access users; and
``(iii) for establishing standards for certification of
electronic I-9 programs.
``(G) Requirement to provide information.--
``(i) In general.--No later than 3 months after the date of
the enactment of the Border Security, Economic Opportunity,
and Immigration Modernization Act, the Secretary, in
consultation with the Secretary of Labor, the Secretary of
Agriculture, the Commissioner, the Attorney General, the
Equal Employment Opportunity Commission, and the
Administrator of the Small Business Administration, shall
commence a campaign to disseminate information respecting the
procedures, rights, and remedies prescribed under this
section.
``(ii) Campaign requirements.--The campaign authorized
under clause (i)--

``(I) shall be aimed at increasing the knowledge of
employers, employees, and the general public concerning
employer and employee rights, responsibilities, and remedies
under this section; and
``(II) shall be coordinated with the public education
campaign conducted by U.S. Citizenship and Immigration
Services.

``(iii) Assessment.--The Secretary shall assess the success
of the campaign in achieving the goals of the campaign.
``(iv) Authority to contract.--In order to carry out and
assess the campaign under this subparagraph, the Secretary
may, to the extent deemed appropriate and subject to the
availability of appropriations, contract with public and
private organizations for outreach and assessment activities
under the campaign.
``(v) Authorization of appropriations.--There are
authorized to be appropriated to carry out this paragraph
$40,000,000 for each of the fiscal years 2014 through 2016.
``(H) Authority to modify information requirements.--Based
on a regular review of the System and the document
verification procedures to identify misuse or fraudulent use
and to assess the security of the documents and processes
used to establish identity or employment authorized status,
the Secretary, in consultation with the Commissioner, after
publication of notice in the Federal Register and an
opportunity for public comment, may modify, if the Secretary
determines that the modification is necessary to ensure that
the System accurately and reliably determines the identity
and employment authorized status of employees and maintain
existing protections against misuse, discrimination, fraud,
and identity theft--
``(i) the information that shall be presented to the
employer by an individual;
``(ii) the information that shall be provided to the System
by the employer; and
``(iii) the procedures that shall be followed by employers
with respect to the process of verifying an individual
through the System.
``(I) Self-verification.--Subject to appropriate safeguards
to prevent misuse of the system, the Secretary, in
consultation with the Commissioner, shall establish a secure
self-verification procedure to permit an individual who seeks
to verify the individual's own employment eligibility to
contact the appropriate agency and, in a timely manner,
correct or update the information contained in the System.
``(5) Protection from liability for actions taken on the
basis of information provided by the system.--An employer
shall not be liable to a job applicant, an employee, the
Federal Government, or a State or local

[[Page S5040]]

government, under Federal, State, or local criminal or civil
law for any employment-related action taken with respect to a
job applicant or employee in good faith reliance on
information provided by the System.
``(6) Administrative appeal.--
``(A) In general.--An individual who is notified of a
nonconfirmation may, not later than 10 business days after
the date that such notice is received, file an administrative
appeal of such nonconfirmation with the Commissioner if the
notice is based on records maintained by the Commissioner, or
in any other case, with the Secretary. An individual who did
not timely contest a further action notice timely received by
that individual for which the individual acknowledged receipt
may not be granted a review under this paragraph.
``(B) Administrative stay of nonconfirmation.--The
nonconfirmation shall be automatically stayed upon the timely
filing of an administrative appeal, unless the
nonconfirmation resulted after the individual acknowledged
receipt of the further action notice but failed to contact
the appropriate agency within the time provided. The stay
shall remain in effect until the resolution of the appeal,
unless the Secretary or the Commissioner terminates the stay
based on a determination that the administrative appeal is
frivolous or filed for purposes of delay.
``(C) Review for error.--The Secretary and the Commissioner
shall develop procedures for resolving administrative appeals
regarding nonconfirmations based upon the information that
the individual has provided, including any additional
evidence or argument that was not previously considered. Any
such additional evidence or argument shall be filed within 10
business days of the date the appeal was originally filed.
Appeals shall be resolved within 20 business days after the
individual has submitted all evidence and arguments the
individual wishes to submit, or has stated in writing that
there is no additional evidence that the individual wishes to
submit. The Secretary and the Commissioner may, on a case by
case basis for good cause, extend the filing and submission
period in order to ensure accurate resolution of an appeal
before the Secretary or the Commissioner.
``(D) Preponderance of evidence.--Administrative appeal
under this paragraph shall be limited to whether a
nonconfirmation notice is supported by a preponderance of the
evidence.
``(E) Damages, fees, and costs.--No money damages, fees or
costs may be awarded in the administrative appeal process
under this paragraph.
``(7) Review by administrative law judge.--
``(A) In general.--Not later than 30 days after the date an
individual receives a final determination on an
administrative appeal under paragraph (6), the individual may
obtain review of such determination by filing a complaint
with a Department of Justice administrative law judge in
accordance with this paragraph.
``(B) Stay of nonconfirmation.--The nonconfirmation related
to such final determination shall be automatically stayed
upon the timely filing of a complaint under this paragraph,
and the stay shall remain in effect until the resolution of
the complaint, unless the administrative law judge determines
that the action is frivolous or filed for purposes of delay.
``(C) Service.--The respondent to complaint filed under
this paragraph is either the Secretary or the Commissioner,
but not both, depending upon who issued the administrative
order under paragraph (6). In addition to serving the
respondent, the plaintiff shall serve the Attorney General.
``(D) Authority of administrative law judge.--
``(i) Rules of practice.--The Secretary shall promulgate
regulations regarding the rules of practice in appeals
brought pursuant to this subsection.
``(ii) Authority of administrative law judge.--The
administrative law judge shall have power to--

``(I) terminate a stay of a nonconfirmation under
subparagraph (B) if the administrative law judge determines
that the action is frivolous or filed for purposes of delay;
``(II) adduce evidence at a hearing;
``(III) compel by subpoena the attendance of witnesses and
the production of evidence at any designated place or
hearing;
``(IV) resolve claims of identity theft; and
``(V) enter, upon the pleadings and any evidence adduced at
a hearing, a decision affirming or reversing the result of
the agency, with or without remanding the cause for a
rehearing.

``(iii) Subpoena.--In case of contumacy or refusal to obey
a subpoena lawfully issued under this section and upon
application of the administrative law judge, an appropriate
district court of the United States may issue an order
requiring compliance with such subpoena and any failure to
obey such order may be punished by such court as a contempt
of such court.
``(iv) Training.--An administrative law judge hearing cases
shall have special training respecting employment authorized
status verification.
``(E) Order by administrative law judge.--
``(i) In general.--The administrative law judge shall issue
and cause to be served to the parties in the proceeding an
order which may be appealed as provided in subparagraph (G).
``(ii) Contents of order.--Such an order shall uphold or
reverse the final determination on the request for
reconsideration and order lost wages and other appropriate
remedies as provided in subparagraph (F).
``(F) Compensation for error.--
``(i) In general.--In cases in which the administrative law
judge reverses the final determination of the Secretary or
the Commissioner made under paragraph (6), and the
administrative law judge finds that--

``(I) the nonconfirmation was due to gross negligence or
intentional misconduct of the employer, the administrative
law judge may order the employer to pay the individual lost
wages, and reasonable costs and attorneys' fees incurred
during administrative and judicial review; or
``(II) such final determination was erroneous by reason of
the negligence of the Secretary or the Commissioner, the
administrative law judge may order the Secretary or the
Commissioner to pay the individual lost wages, and reasonable
costs and attorneys' fees incurred during the administrative
appeal and the administrative law judge review.

``(ii) Calculation of lost wages.--Lost wages shall be
calculated based on the wage rate and work schedule that
prevailed prior to termination. The individual shall be
compensated for wages lost beginning on the first scheduled
work day after employment was terminated and ending 120 days
after completion of the administrative law judge's review
described in this paragraph or the day after the individual
is reinstated or obtains employment elsewhere, whichever
occurs first. If the individual obtains employment elsewhere
at a lower wage rate, the individual shall be compensated for
the difference in wages for the period ending 120 days after
completion of the administrative law judge review process. No
lost wages shall be awarded for any period of time during
which the individual was not in employment authorized status.
``(iii) Payment of compensation.--Notwithstanding any other
law, payment of compensation for lost wages, costs, and
attorneys' fees under this paragraph, or compromise
settlements of the same, shall be made as provided by section
1304 of title 31, United States Code. Appropriations made
available to the Secretary or the Commissioner, accounts
provided for under section 286, and funds from the Federal
Old-Age and Survivors Insurance Trust Fund or the Federal
Disability Insurance Trust Fund shall not be available to pay
such compensation.
``(G) Appeal.--No later than 45 days after the entry of
such final order, any person adversely affected by such final
order may seek review of such order in the United States
Court of Appeals for the circuit in which the violation is
alleged to have occurred or in which the employer resides or
transacts business.
``(8) Management of the system.--
``(A) In general.--The Secretary is authorized to
establish, manage, and modify the System, which shall--
``(i) respond to inquiries made by participating employers
at any time through the internet, or such other means as the
Secretary may designate, concerning an individual's identity
and whether the individual is in employment authorized
status;
``(ii) maintain records of the inquiries that were made, of
confirmations provided (or not provided), and of the codes
provided to employers as evidence of their compliance with
their obligations under the System; and
``(iii) provide information to, and require action by,
employers and individuals using the System.
``(B) Design and operation of system.--The System shall be
designed and operated--
``(i) to maximize its reliability and ease of use by
employers consistent with protecting the privacy and security
of the underlying information, and ensuring full notice of
such use to employees;
``(ii) to maximize its ease of use by employees, including
direct notification of its use, of results, and ability to
challenge results;
``(iii) to respond accurately to all inquiries made by
employers on whether individuals are authorized to be
employed and to register any times when the system is unable
to receive inquiries;
``(iv) to maintain appropriate administrative, technical,
and physical safeguards to prevent unauthorized disclosure of
personal information, misuse by employers and employees, and
discrimination;
``(v) to require regularly scheduled refresher training of
all users of the System to ensure compliance with all
procedures;
``(vi) to allow for auditing of the use of the System to
detect misuse, discrimination, fraud, and identity theft, to
protect privacy and assess System accuracy, and to preserve
the integrity and security of the information in all of the
System, including--

``(I) to develop and use tools and processes to detect or
prevent fraud and identity theft, such as multiple uses of
the same identifying information or documents to fraudulently
gain employment;
``(II) to develop and use tools and processes to detect and
prevent misuse of the system by employers and employees;
``(III) to develop tools and processes to detect anomalies
in the use of the system that may indicate potential fraud or
misuse of the system;
``(IV) to audit documents and information submitted by
employees to employers, including authority to conduct
interviews with

[[Page S5041]]

employers and employees, and obtain information concerning
employment from the employer;

``(vii) to confirm identity and employment authorization
through verification and comparison of records as determined
necessary by the Secretary;
``(viii) to confirm electronically the issuance of the
employment authorization or identity document and--

``(I) if such photograph is available, 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
``(II) if a photograph is not available from the issuer, to
confirm the authenticity of the document using such
alternative procedures as the Secretary may specify; and

``(ix) to provide appropriate notification directly to
employers registered with the System of all changes made by
the Secretary or the Commissioner related to allowed and
prohibited documents, and use of the System.
``(C) Safeguards to the system.--
``(i) Requirement to develop.--The Secretary, in
consultation with the Commissioner and other appropriate
Federal and State agencies, shall develop policies and
procedures to ensure protection of the privacy and security
of personally identifiable information and identifiers
contained in the records accessed or maintained by the
System. The Secretary, in consultation with the Commissioner
and other appropriate Federal and State agencies, shall
develop and deploy appropriate privacy and security training
for the Federal and State employees accessing the records
under the System.
``(ii) Privacy audits.--The Secretary, acting through the
Chief Privacy Officer of the Department, shall conduct
regular privacy audits of the policies and procedures
established under clause (i), including any collection, use,
dissemination, and maintenance of personally identifiable
information and any associated information technology
systems, as well as scope of requests for this information.
The Chief Privacy Officer shall review the results of the
audits and recommend to the Secretary any changes necessary
to improve the privacy protections of the program.
``(iii) Accuracy audits.--

``(I) In general.--Not later than November 30 of each year,
the Inspector General of the Department of Homeland Security
shall submit a report to the Secretary, with a copy to the
President of the Senate and the Speaker of the House of
Representatives, that sets forth the error rate of the System
for the previous fiscal year and the assessments required to
be submitted by the Secretary under subparagraphs (A) and (B)
of paragraph (10). The report shall describe in detail the
methodology employed for purposes of the report, and shall
make recommendations for how error rates may be reduced.
``(II) Error rate defined.--In this clause, the term `error
rate' means the percentage determined by dividing--

``(aa) the number of employment authorized individuals who
received further action notices, contested such notices, and
were subsequently found to be employment authorized; by
``(bb) the number of System inquiries submitted for
employment authorized individuals.

``(III) Reduction of penalties for recordkeeping or
verification practices following persistent system
inaccuracies.--Notwithstanding subsection (e)(4)(C)(i), in
any calendar year following a report by the Inspector General
under subclause (I) that the System had an error rate higher
than 0.3 percent for the previous fiscal year, the civil
penalty assessable by the Secretary or an administrative law
judge under that subsection for each first-time violation by
an employer who has not previously been penalized under this
section may not exceed $1,000.

``(iv) Records security program.--Any person, including a
private third party vendor, who retains document verification
or System data pursuant to this section shall implement an
effective records security program that--

``(I) ensures that only authorized personnel have access to
document verification or System data; and
``(II) ensures that whenever such data is created,
completed, updated, modified, altered, or corrected in
electronic format, a secure and permanent record is created
that establishes the date of access, the identity of the
individual who accessed the electronic record, and the
particular action taken.

``(v) Records security program.--In addition to the
security measures described in clause (iv), a private third
party vendor who retains document verification or System data
pursuant to this section shall implement an effective records
security program that--

``(I) provides for backup and recovery of any records
maintained in electronic format to protect against
information loss, such as power interruptions; and
``(II) ensures that employees are trained to minimize the
risk of unauthorized or accidental alteration or erasure of
such data in electronic format.

``(vi) Authorized personnel defined.--In this subparagraph,
the term `authorized personnel' means anyone registered as a
System user, or anyone with partial or full responsibility
for completion of employment authorization verification or
retention of data in connection with employment authorization
verification on behalf of an employer.
``(D) Available facilities and alternative
accommodations.--The Secretary shall make appropriate
arrangements and develop standards to allow employers or
employees, including remote hires, who are otherwise unable
to access the System to use electronic and telephonic formats
(including video conferencing, scanning technology, and other
available technologies), Federal Government facilities,
public facilities, or other available locations in order to
utilize the System.
``(E) Responsibilities of the secretary.--
``(i) In general.--As part of the System, the Secretary
shall maintain a reliable, secure method, which, operating
through the System and within the time periods specified,
compares the name, alien identification or authorization
number, or other information as determined relevant by the
Secretary, provided in an inquiry against such information
maintained or accessed by the Secretary in order to confirm
(or not confirm) the validity of the information provided,
the correspondence of the name and number, whether the alien
has employment authorized status (or, to the extent that the
Secretary determines to be feasible and appropriate, whether
the records available to the Secretary verify the identity or
status of a national of the United States), and such other
information as the Secretary may prescribe.
``(ii) Photograph display.--As part of the System, the
Secretary shall establish a reliable, secure method, which,
operating through the System, displays the digital photograph
described in subparagraph (B)(viii)(I).
``(iii) Timing of notices.--The Secretary shall have
authority to prescribe when a confirmation, nonconfirmation,
or further action notice shall be issued.
``(iv) Use of information.--The Secretary shall perform
regular audits under the System, as described in subparagraph
(B)(vi) and shall utilize the information obtained from such
audits, as well as any information obtained from the
Commissioner pursuant to part E of title XI of the Social
Security Act (42 U.S.C. 1301 et seq.), for the purposes of
this section and to administer and enforce the immigration
laws.
``(v) Identity fraud protection.--To prevent identity
fraud, not later than 18 months after the date of the
enactment of the Border Security, Economic Opportunity, and
Immigration Modernization Act, the Secretary shall--

``(I) in consultation with the Commissioner, establish a
program to provide a reliable, secure method for an
individual to temporarily suspend or limit the use of the
individual's social security account number or other
identifying information for verification by the System; and
``(II) for each individual being verified through the
System--

``(aa) notify the individual that the individual has the
option to limit the use of the individual's social security
account number or other identifying information for
verification by the System; and
``(bb) provide instructions to the individuals for
exercising the option referred to in item (aa).
``(vi) Allowing parents to prevent theft of their child's
identity.--The Secretary, in consultation with the
Commissioner, shall establish a program that provides a
reliable, secure method by which parents or legal guardians
may suspend or limit the use of the social security account
number or other identifying information of a minor under
their care for the purposes of the System. The Secretary may
implement the program on a limited pilot program basis before
making it fully available to all individuals.
``(vii) Protection from multiple use.--The Secretary and
the Commissioner shall establish a procedure for identifying
and handling a situation in which a social security account
number has been identified to be subject to unusual multiple
use in the System or is otherwise suspected or determined to
have been compromised by identity fraud.
``(viii) Monitoring and compliance unit.--The Secretary
shall establish or designate a monitoring and compliance unit
to detect and reduce identity fraud and other misuse of the
System.
``(ix) Civil rights and civil liberties assessments.--

``(I) Requirement to conduct.--The Secretary shall conduct
regular civil rights and civil liberties assessments of the
System, including participation by employers, other private
entities, and Federal, State, and local government entities.
``(II) Requirement to respond.--Employers, other private
entities, and Federal, State, and local entities shall timely
respond to any request in connection with such an assessment.
``(III) Assessment and recommendations.--The Officer for
Civil Rights and Civil Liberties of the Department shall
review the results of each such assessment and recommend to
the Secretary any changes necessary to improve the civil
rights and civil liberties protections of the System.

``(F) Grants to states.--
``(i) In general.--The Secretary shall create and
administer a grant program to help provide funding for States
that grant--

``(I) the Secretary access to driver's license information
as needed to confirm that a driver's license presented under
subsection

[[Page S5042]]

(c)(1)(D)(i) confirms the identity of the subject of the
System check, and that a driver's license matches the State's
records; and
``(II) such assistance as the Secretary may request in
order to resolve further action notices or nonconfirmations
relating to such information.

``(ii) Construction with the driver's privacy protection
act of 1994.--The provision of a photograph to the Secretary
as described in clause (i) may not be construed as a
violation of section 2721 of title 18, United States Code,
and is a permissible use under subsection (b)(1) of that
section.
``(iii) Authorization of appropriations.--There is
authorized to be appropriated to the Secretary $250,000,000
to carry out this subparagraph.
``(G) Responsibilities of the secretary of state.--As part
of the System, the Secretary of State shall provide to the
Secretary access to passport and visa information as needed
to confirm that a passport, passport card, or visa presented
under subsection (c)(1)(C) confirms the identity of the
subject of the System check, and that a passport, passport
card, or visa photograph matches the Secretary of State's
records, and shall provide such assistance as the Secretary
may request in order to resolve further action notices or
nonconfirmations relating to such information.
``(H) Updating information.--The Commissioner, the
Secretary, and the Secretary of State shall update their
information in a manner that promotes maximum accuracy and
shall provide a process for the prompt correction of
erroneous information.
``(9) Limitation on use of the system.--Notwithstanding any
other provision of law, nothing in this subsection may be
construed to permit or allow any department, bureau, or other
agency of the United States Government or any other entity to
utilize any information, database, or other records assembled
under this subsection for any purpose other than for
employment verification or to ensure secure, appropriate and
nondiscriminatory use of the System.
``(10) Annual report and certification.--Not later than 18
months after the promulgation of regulations to implement
this subsection, and annually thereafter, the Secretary shall
submit to Congress a report that includes the following:
``(A) An assessment, as submitted to the Secretary by the
Inspector General of the Department of Homeland Security
pursuant to paragraph (8)(C)(iii)(I), of the accuracy rates
of further action notices and other System notices provided
by employers to individuals who are authorized to be employed
in the United States.
``(B) An assessment, as submitted to the Secretary by the
Inspector General of the Department of Homeland Security
pursuant to paragraph (8)(C)(iii)(I), of the accuracy rates
of further action notices and other System notices provided
directly (by the System) in a timely fashion to individuals
who are not authorized to be employed in the United States.
``(C) An assessment of any challenges faced by small
employers in utilizing the System.
``(D) An assessment of the rate of employer noncompliance
(in addition to failure to provide required notices in a
timely fashion) in each of the following categories:
``(i) Taking adverse action based on a further action
notice.
``(ii) Use of the System for nonemployees or other
individuals before they are offered employment.
``(iii) Use of the System to reverify employment authorized
status of current employees except if authorized to do so.
``(iv) Use of the System selectively, except in cases in
which such use is authorized.
``(v) Use of the System to deny employment or post-
employment benefits or otherwise interfere with labor rights.
``(vi) Requiring employees or applicants to use any self-
verification feature or to provide self-verification results.
``(vii) Discouraging individuals who receive a further
action notice from challenging the further action notice or
appealing a determination made by the System.
``(E) An assessment of the rate of employee noncompliance
in each of the following categories:
``(i) Obtaining employment when unauthorized with an
employer complying with the System in good faith.
``(ii) Failure to provide required documents in a timely
manner.
``(iii) Attempting to use fraudulent documents or documents
not related to the individual.
``(iv) Misuse of the administrative appeal and judicial
review process.
``(F) An assessment of the amount of time taken for--
``(i) the System to provide the confirmation or further
action notice;
``(ii) individuals to contest further action notices;
``(iii) the System to provide a confirmation or
nonconfirmation of a contested further action notice;
``(iv) individuals to file an administrative appeal of a
nonconfirmation; and
``(v) resolving administrative appeals regarding
nonconfirmations.
``(11) Annual gao study and report.--
``(A) Requirement.--The Comptroller General shall, for each
year, undertake a study to evaluate the accuracy, efficiency,
integrity, and impact of the System.
``(B) Report.--Not later than 18 months after the
promulgation of regulations to implement this subsection, and
yearly thereafter, the Comptroller General shall submit to
Congress a report containing the findings of the study
carried out under this paragraph. Each such report shall
include, at a minimum, the following:
``(i) An assessment of System performance with respect to
the rate at which individuals who are eligible for employment
in the United States are correctly approved within the
required periods, including a separate assessment of such
rate for naturalized United States citizens, nationals of the
United States, and aliens.
``(ii) An assessment of the privacy and confidentiality of
the System and of the overall security of the System with
respect to cybertheft and theft or misuse of private data.
``(iii) An assessment of whether the System is being
implemented in a manner that is not discriminatory or used
for retaliation against employees.
``(iv) An assessment of the most common causes for the
erroneous issuance of nonconfirmations by the System and
recommendations to correct such causes.
``(v) The recommendations of the Comptroller General
regarding System improvements.
``(vi) An assessment of the frequency and magnitude of
changes made to the System and the impact on the ability for
employers to comply in good faith.
``(vii) An assessment of the direct and indirect costs
incurred by employers in complying with the System, including
costs associated with retaining potential employees through
the administrative appeals process and receiving a
nonconfirmation.
``(viii) An assessment of any backlogs or delays in the
System providing the confirmation or further action notice
and impacts to hiring by employers.
``(e) Compliance.--
``(1) Complaints and investigations.--The Secretary shall
establish procedures--
``(A) for individuals and entities to file complaints
respecting potential violations of subsections (a) or (f)(1);
``(B) for the investigation of those complaints which the
Secretary deems appropriate to investigate; and
``(C) for providing notification to the Special Counsel for
Immigration-Related Unfair Employment Practices of the
Department of Justice of potential violations of section
274B.
``(2) Authority in investigations.--In conducting
investigations and proceedings under this subsection--
``(A) immigration officers shall have reasonable access to
examine evidence of the employer being investigated;
``(B) immigration officers designated by the Secretary, and
administrative law judges and other persons authorized to
conduct proceedings under this section, may compel by
subpoena the attendance of relevant witnesses and the
production of relevant evidence at any designated place in an
investigation or case under this subsection. In case of
refusal to fully comply with a subpoena lawfully issued under
this paragraph, the Secretary may request that the Attorney
General apply in an appropriate district court of the United
States for an order requiring compliance with the subpoena,
and any failure to obey such order may be punished by the
court as contempt. Failure to cooperate with the subpoena
shall be subject to further penalties, including further
fines and the voiding of any mitigation of penalties or
termination of proceedings under paragraph (4)(E); and
``(C) the Secretary, in cooperation with the Commissioner
and Attorney General, and in consultation with other relevant
agencies, shall establish a Joint Employment Fraud Task Force
consisting of, at a minimum--
``(i) the System's compliance personnel;
``(ii) immigration law enforcement officers;
``(iii) personnel of the Office of Special Counsel for
Immigration-Related Unfair Employment Practices of the
Department of Justice;
``(iv) personnel of the Office for Civil Rights and Civil
Liberties of the Department; and
``(v) personnel of Office of Inspector General of the
Social Security Administration.
``(3) Compliance procedures.--
``(A) Pre-penalty notice.--If the Secretary has reasonable
cause to believe that there has been a civil violation of
this section in the previous 3 years, the Secretary shall
issue to the employer concerned a written notice of the
Department's intention to issue a claim for a monetary or
other penalty. Such pre-penalty notice shall--
``(i) describe the violation;
``(ii) specify the laws and regulations allegedly violated;
``(iii) disclose the material facts which establish the
alleged violation;
``(iv) describe the penalty sought to be imposed; and
``(v) inform such employer that such employer shall have a
reasonable opportunity to make representations as to why a
monetary or other penalty should not be imposed.
``(B) Employer's response.--Whenever any employer receives
written pre-penalty notice of a fine or other penalty in
accordance with subparagraph (A), the employer may, within 60
days from receipt of such notice, file with the Secretary its
written response to the notice. The response may include any
relevant evidence or proffer of evidence that the employer
wishes to present with respect to whether the employer
violated this section and whether, if so, the penalty should
be mitigated, and shall be filed and considered

[[Page S5043]]

in accordance with procedures to be established by the
Secretary.
``(C) Right to a hearing.--Before issuance of an order
imposing a penalty on any employer, person, or entity, the
employer, person, or entity shall be entitled to a hearing
before an administrative law judge, if requested within 60
days of the notice of penalty. The hearing shall be held at
the nearest location practicable to the place where the
employer, person, or entity resides or of the place where the
alleged violation occurred.
``(D) Issuance of orders.--If no hearing is so requested,
the Secretary's imposition of the order shall constitute a
final and unappealable order. If a hearing is requested and
the administrative law judge determines, upon clear and
convincing evidence received, that there was a violation, the
administrative law judge shall issue the final determination
with a written penalty claim. The penalty claim shall specify
all charges in the information provided under clauses (i)
through (iii) of subparagraph (A) and any mitigation of the
penalty that the administrative law judge deems appropriate
under paragraph (4)(E).
``(4) Civil penalties.--
``(A) Hiring or continuing to employ unauthorized aliens.--
Any employer that violates any provision of subsection
(a)(1)(A) or (a)(2) shall--
``(i) pay a civil penalty of not less than $3,500 and not
more than $7,500 for each unauthorized alien with respect to
which each violation of either subsection (a)(1)(A) or (a)(2)
occurred;
``(ii) if the employer has previously been fined as a
result of a previous enforcement action or previous violation
under this paragraph, pay a civil penalty of not less than
$5,000 and not more than $15,000 for each unauthorized alien
with respect to which a violation of either subsection
(a)(1)(A) or (a)(2) occurred; and
``(iii) if the employer has previously been fined more than
once under this paragraph, pay a civil penalty of not less
than $10,000 and not more than $25,000 for each unauthorized
alien with respect to which a violation of either subsection
(a)(1)(A) or (a)(2) occurred.
``(B) Enhanced penalties.--After the Secretary certifies to
Congress that the System has been established, implemented,
and made mandatory for use by all employers in the United
States, the Secretary may establish an enhanced civil penalty
for an employer who--
``(i) fails to query the System to verify the identify and
work authorized status of an individual; and
``(ii) violates a Federal, State, or local law related to--

``(I) the payment of wages;
``(II) hours worked by employees; or
``(III) workplace health and safety.

``(C) Recordkeeping or verification practices.--Any
employer that violates or fails to comply with any
requirement under subsection (a)(1)(B), other than a minor or
inadvertent failure, as determined by the Secretary, shall
pay a civil penalty of--
``(i) not less than $500 and not more than $2,000 for each
violation;
``(ii) if an employer has previously been fined under this
paragraph, not less than $1,000 and not more than $4,000 for
each violation; and
``(iii) if an employer has previously been fined more than
once under this paragraph, not less than $2,000 and not more
than $8,000 for each violation.
``(D) Other penalties.--The Secretary may impose additional
penalties for violations, including cease and desist orders,
specially designed compliance plans to prevent further
violations, suspended fines to take effect in the event of a
further violation, and in appropriate cases, the remedy
provided by paragraph (f)(2).
``(E) Mitigation.--The Secretary or, if an employer
requests a hearing, the administrative law judge, is
authorized, upon such terms and conditions as the Secretary
or administrative law judge deems reasonable and just and in
accordance with such procedures as the Secretary may
establish or any procedures established governing the
administrative law judge's assessment of penalties, 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,
the size and level of sophistication of the employer, and
voluntary disclosure of violations of this subsection to the
Secretary. The Secretary or administrative law judge shall
not mitigate a penalty below the minimum penalty provided by
this section, except that the Secretary may, in the case of
an employer subject to penalty for recordkeeping or
verification violations only who has not previously been
penalized under this section, in the Secretary's or
administrative law judge's discretion, mitigate the penalty
below the statutory minimum or remit it entirely. In any case
where a civil money penalty has been imposed on an employer
under section 274B for an action or omission that is also a
violation of this section, the Secretary or administrative
law judge shall mitigate any civil money penalty under this
section by the amount of the penalty imposed under section
274B.
``(F) Effective date.--The civil money penalty amounts and
the enhanced penalties provided by subparagraphs (A), (B),
and (C) of this paragraph and by subsection (f)(2) shall
apply to violations of this section committed on or after the
date that is 1 year after the date of the enactment of the
Border Security, Economic Opportunity, and Immigration
Modernization Act. For violations committed prior to such
date of enactment, the civil money penalty amounts provided
by regulations implementing this section as in effect the
minute before such date of enactment with respect to knowing
hiring or continuing employment, verification, or indemnity
bond violations, as appropriate, shall apply.
``(5) Order of internal review and certification of
compliance.--
``(A) Employer compliance.--If the Secretary has reasonable
cause to believe that an employer has failed to comply with
this section, the Secretary is authorized, at any time, to
require that the employer certify that it is in compliance
with this section, or has instituted a program to come into
compliance.
``(B) Employer certification.--
``(i) Requirement.--Except as provided in subparagraph (C),
not later than 60 days after receiving a notice from the
Secretary requiring a certification under subparagraph (A),
an official with responsibility for, and authority to bind
the company on, all hiring and immigration compliance notices
shall certify under penalty of perjury that the employer is
in conformance with the requirements of paragraphs (1)
through (4) of subsection (c), pertaining to document
verification requirements, and with subsection (d),
pertaining to the System (once the System is implemented with
respect to that employer according to the requirements under
subsection (d)(2)), and with any additional requirements that
the Secretary may promulgate by regulation pursuant to
subsection (c) or (d) or that the employer has instituted a
program to come into compliance with these requirements.
``(ii) Application.--Clause (i) shall not apply until the
date that the Secretary certifies to Congress that the System
has been established, implemented, and made mandatory for use
by all employers in the United States.
``(C) Extension of deadline.--At the request of the
employer, the Secretary may extend the 60-day deadline for
good cause.
``(D) Standards or methods.--The Secretary is authorized to
publish in the Federal Register standards or methods for such
certification, require specific recordkeeping practices with
respect to such certifications, and audit the records thereof
at any time. This authority shall not be construed to
diminish or qualify any other penalty provided by this
section.
``(6) Requirements for review of a final determination.--
With respect to judicial review of a final determination or
penalty order issued under paragraph (3)(D), the following
requirements apply:
``(A) Deadline.--The petition for review must be filed no
later than 30 days after the date of the final determination
or penalty order issued under paragraph (3)(D).
``(B) Venue and forms.--The petition for review shall be
filed with the court of appeals for the judicial circuit
where the employer's principal place of business was located
when the final determination or penalty order was made. The
record and briefs do not have to be printed. The court shall
review the proceeding on a typewritten or electronically
filed record and briefs.
``(C) Service.--The respondent is the Secretary. In
addition to serving the respondent, the petitioner shall
serve the Attorney General.
``(D) Petitioner's brief.--The petitioner shall serve and
file a brief in connection with a petition for judicial
review not later than 40 days after the date on which the
administrative record is available, and may serve and file a
reply brief not later than 14 days after service of the brief
of the respondent, and the court may not extend these
deadlines, except for good cause shown. If a petitioner fails
to file a brief within the time provided in this paragraph,
the court shall dismiss the appeal unless a manifest
injustice would result.
``(E) Scope and standard for review.--The court of appeals
shall conduct a de novo review of the administrative record
on which the final determination was based and any additional
evidence that the Court finds was previously unavailable at
the time of the administrative hearing.
``(F) Exhaustion of administrative remedies.--A court may
review a final determination under paragraph (3)(C) only if--
``(i) the petitioner has exhausted all administrative
remedies available to the petitioner as of right, including
any administrative remedies established by regulation, and
``(ii) another court has not decided the validity of the
order, unless the reviewing court finds that the petition
presents grounds that could not have been presented in the
prior judicial proceeding or that the remedy provided by the
prior proceeding was inadequate or ineffective to test the
validity of the order.
``(G) Enforcement of orders.--If the final determination
issued against the employer under this subsection is not
subjected to review as provided in this paragraph, the
Attorney General, upon request by the Secretary, may bring a
civil action to enforce compliance with the final
determination in any appropriate district court of the United
States. The court, on a proper showing, shall issue a
temporary restraining order or a preliminary or permanent
injunction requiring that the employer comply with the final
determination issued against that employer under this
subsection. In any such civil action, the validity and
appropriateness of the

[[Page S5044]]

final determination shall not be subject to review.
``(7) Creation of lien.--If any employer liable for a fee
or penalty under this section neglects or refuses to pay such
liability after demand and fails to file a petition for
review (if applicable) as provided in paragraph (6), the
amount of the fee or penalty shall be a lien in favor of the
United States on all property and rights to property, whether
real or personal, belonging to such employer. If a petition
for review is filed as provided in paragraph (6), the lien
shall arise upon the entry of a final judgment by the court.
The lien continues for 20 years or until the liability is
satisfied, remitted, set aside, or terminated.
``(8) Filing notice of lien.--
``(A) Place for filing.--The notice of a lien referred to
in paragraph (7) shall be filed as described in 1 of the
following:
``(i) Under state laws.--

``(I) Real property.--In the case of real property, in 1
office within the State (or the county, or other governmental
subdivision), as designated by the laws of such State, in
which the property subject to the lien is situated.
``(II) Personal property.--In the case of personal
property, whether tangible or intangible, in 1 office within
the State (or the county, or other governmental subdivision),
as designated by the laws of such State, in which the
property subject to the lien is situated, except that State
law merely conforming to or reenacting Federal law
establishing a national filing system does not constitute a
second office for filing as designated by the laws of such
State.

``(ii) With clerk of district court.--In the office of the
clerk of the United States district court for the judicial
district in which the property subject to the lien is
situated, whenever the State has not by law designated 1
office which meets the requirements of clause (i).
``(iii) With recorder of deeds of the district of
columbia.--In the office of the Recorder of Deeds of the
District of Columbia, if the property subject to the lien is
situated in the District of Columbia.
``(B) Situs of property subject to lien.--For purposes of
subparagraph (A), property shall be deemed to be situated as
follows:
``(i) Real property.--In the case of real property, at its
physical location.
``(ii) Personal property.--In the case of personal
property, whether tangible or intangible, at the residence of
the taxpayer at the time the notice of lien is filed.
``(C) Determination of residence.--For purposes of
subparagraph (B)(ii), the residence of a corporation or
partnership shall be deemed to be the place at which the
principal executive office of the business is located, and
the residence of a taxpayer whose residence is outside the
United States shall be deemed to be in the District of
Columbia.
``(D) Effect of filing notice of lien.--
``(i) In general.--Upon filing of a notice of lien in the
manner described in this paragraph, the lien shall be valid
against any purchaser, holder of a security interest,
mechanic's lien, or judgment lien creditor, except with
respect to properties or transactions specified in subsection
(b), (c), or (d) of section 6323 of the Internal Revenue Code
of 1986 for which a notice of tax lien properly filed on the
same date would not be valid.
``(ii) Notice of lien.--The notice of lien shall be
considered a notice of lien for taxes payable to the United
States for the purpose of any State or local law providing
for the filing of a notice of a tax lien. A notice of lien
that is registered, recorded, docketed, or indexed in
accordance with the rules and requirements relating to
judgments of the courts of the State where the notice of lien
is registered, recorded, docketed, or indexed shall be
considered for all purposes as the filing prescribed by this
section.
``(iii) Other provisions.--The provisions of section
3201(e) of title 28, United States Code, shall apply to liens
filed as prescribed by this paragraph.
``(E) Enforcement of a lien.--A lien obtained through this
paragraph shall be considered a debt as defined by section
3002 of title 28, United States Code and enforceable pursuant
to chapter 176 of such title.
``(9) Attorney general adjudication.--The Attorney General
shall have jurisdiction to adjudicate administrative
proceedings under this subsection. Such proceedings shall be
conducted in accordance with requirements of section 554 of
title 5, United States Code.
``(f) Criminal and Civil Penalties and Injunctions.--
``(1) Prohibition of indemnity bonds.--It is unlawful for
an employer, in the hiring of any individual, to require the
individual to post a bond or security, to pay or agree to pay
an amount, or otherwise to provide a financial guarantee or
indemnity, against any potential liability arising under this
section relating to such hiring of the individual.
``(2) Civil penalty.--Any employer who is determined, after
notice and opportunity for mitigation of the monetary penalty
under subsection (e), to have violated paragraph (1) shall be
subject to a civil penalty of $10,000 for each violation and
to an administrative order requiring the return of any
amounts received in violation of such paragraph to the
employee or, if the employee cannot be located, to the
general fund of the Treasury.
``(g) Government Contracts.--
``(1) Contractors and recipients.--Whenever an employer who
is a Federal contractor (meaning an employer who holds a
Federal contract, grant, or cooperative agreement, or
reasonably may be expected to submit an offer for or be
awarded a government contract) is determined by the Secretary
to have violated this section on more than 3 occasions or is
convicted of a crime under this section, the employer shall
be considered for debarment from the receipt of Federal
contracts, grants, or cooperative agreements in accordance
with the procedures and standards and for the periods
prescribed by the Federal Acquisition Regulation. However,
any administrative determination of liability for civil
penalty by the Secretary or the Attorney General shall not be
reviewable in any debarment proceeding.
``(2) Inadvertent violations.--Inadvertent violations of
recordkeeping or verification requirements, in the absence of
any other violations of this section, shall not be a basis
for determining that an employer is a repeat violator for
purposes of this subsection.
``(3) Other remedies available.--Nothing in this subsection
shall be construed to modify or limit any remedy available to
any agency or official of the Federal Government for
violation of any contractual requirement to participate in
the System, as provided in the final rule relating to
employment eligibility verification published in the Federal
Register on November 14, 2008 (73 Fed. Reg. 67,651), or any
similar subsequent regulation.
``(h) Preemption.--Beginning on the date on which all
employers are required to use the System pursuant to
subsection (d)(2), the provisions of this section preempt any
State or local law, ordinance, policy, or rule, including any
criminal or civil fine or penalty structure, relating to the
hiring, continued employment, or status verification for
employment eligibility purposes, of unauthorized aliens. A
State, locality, municipality, or political subdivision may
exercise its authority over business licensing and similar
laws as a penalty for failure to use the System.
``(i) Deposit of Amounts Received.--Except as otherwise
specified, civil penalties collected under this section shall
be deposited by the Secretary into the Comprehensive
Immigration Reform Trust Fund established under section
6(a)(1) of the Border Security, Economic Opportunity, and
Immigration Modernization Act.
``(j) Challenges to Validity of the System.--
``(1) In general.--Any right, benefit, or claim not
otherwise waived or limited pursuant to this section is
available in an action instituted in the United States
District Court for the District of Columbia, but shall be
limited to determinations of--
``(A) whether this section, or any regulation issued to
implement this section, violates the Constitution of the
United States; or
``(B) whether such a regulation issued by or under the
authority of the Secretary to implement this section, is
contrary to applicable provisions of this section or was
issued in violation of chapter 5 of title 5, United States
Code.
``(2) Deadlines for bringing actions.--Any action
instituted under this subsection must be filed no later than
180 days after the date the challenged section or regulation
described in subparagraph (A) or (B) of paragraph (1) becomes
effective. No court shall have jurisdiction to review any
challenge described in subparagraph (B) after the time period
specified in this subsection expires.
``(k) Criminal Penalties and Injunctions for Pattern or
Practice Violations.--
``(1) Pattern and practice.--Any employer who engages in a
pattern or practice of knowing violations of subsection
(a)(1)(A) or (a)(2) shall be fined under title 18, United
States Code, no more than $10,000 for each unauthorized alien
with respect to whom such violation occurs, imprisoned for
not more than 2 years for the entire pattern or practice, or
both.
``(2) Term of imprisonment.--The maximum term of
imprisonment of a person convicted of any criminal offense
under the United States Code shall be increased by 5 years if
the offense is committed as part of a pattern or practice of
violations of subsection (a)(1)(A) or (a)(2).
``(3) Enjoining of pattern or practice violations.--
Whenever the Secretary or the Attorney General has reasonable
cause to believe that an employer is engaged in a pattern or
practice of employment in violation of subsection (a)(1)(A)
or (a)(2), 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 or Attorney General deems
necessary.
``(l) Criminal Penalties for Unlawful and Abusive
Employment.--
``(1) In general.--Any person who, during any 12-month
period, knowingly employs or hires, employs, recruits, or
refers for a fee for employment 10 or more individuals within
the United States who are under the control and supervision
of such person--
``(A) knowing that the individuals are unauthorized aliens;
and
``(B) under conditions that violate section 5(a) of the
Occupational Safety and Health Act of 1970 (29 U.S.C. 654(a)
(relating to occupational safety and health), section 6 or 7
of the Fair Labor Standards Act of 1938 (29 U.S.C. 206 and
207) (relating to minimum wages and maximum hours of
employment), section 3142 of title 40, United States Code,
(relating to required wages on construction contracts), or
sections 6703 or 6704 of title 41,

[[Page S5045]]

United States Code, (relating to required wages on service
contracts),

shall be fined under title 18, United States Code, or
imprisoned for not more than 10 years, or both.
``(2) Attempt and conspiracy.--Any person who attempts or
conspires to commit any offense under this section shall be
punished in the same manner as a person who completes the
offense.''.
(b) Report on Use of the System in the Agricultural
Industry.--Not later than 18 months after the date of the
enactment of this Act, the Secretary, in consultation with
the Secretary of Agriculture, shall submit a report to
Congress that assesses implementation of the Employment
Verification System established under section 274A(d) of the
Immigration and Nationality Act, as amended by subsection
(a), in the agricultural industry, including the use of such
System technology in agriculture industry hiring processes,
user, contractor, and third-party employer agent employment
practices, timing and logistics regarding employment
verification and reverification processes to meet agriculture
industry practices, and identification of potential
challenges and modifications to meet the unique needs of the
agriculture industry. Such report shall review--
(1) the modality of access, training and outreach, customer
support, processes for further action notices and secondary
verifications for short-term workers, monitoring, and
compliance procedures for such System;
(2) the interaction of such System with the process to
admit nonimmigrant workers pursuant to section 218 or 218A of
the Immigration and Nationality Act (8 U.S.C. 1188 et seq.)
and with enforcement of the immigration laws; and
(3) the collaborative use of processes of other Federal and
State agencies that intersect with the agriculture industry.
(c) Report on Impact of the System on Employers.--Not later
than 18 months after the date of the enactment of this Act,
the Secretary shall submit to Congress a report that
assesses--
(1) the implementation of the Employment Verification
System established under section 274A(d) of the Immigration
and Nationality Act, as amended by subsection (a), by
employers;
(2) any adverse impact on the revenues, business processes,
or profitability of employers required to use such System;
and
(3) the economic impact of such System on small businesses.
(d) Government Accountability Office Study of the Effects
of Document Requirements on Employment Authorized Persons and
Employers.--
(1) Study.--The Comptroller General of the United States
shall carry out a study of--
(A) the effects of the documentary requirements of section
274A of the Immigration and Nationality Act, as amended by
subsection (a), on employers, naturalized United States
citizens, nationals of the United States, and individuals
with employment authorized status; and
(B) the challenges such employers, citizens, nationals, or
individuals may face in obtaining the documentation required
under that section.
(2) Report.--Not later than 4 years after the date of the
enactment of this Act, the Comptroller General shall submit
to Congress a report containing the findings of the study
carried out under paragraph (1). Such report shall include,
at a minimum, the following:
(A) An assessment of available information regarding the
number of working age nationals of the United States and
individuals who have employment authorized status who lack
documents required for employment by such section 274A.
(B) A description of the additional steps required for
individuals who have employment authorized status and do not
possess the documents required by such section 274A to obtain
such documents.
(C) A general assessment of the average financial costs for
individuals who have employment authorized status who do not
possess the documents required by such section 274A to obtain
such documents.
(D) A general assessment of the average financial costs and
challenges for employers who have been required to
participate in the Employment Verification System established
by subsection (d) of such section 274A.
(E) A description of the barriers to individuals who have
employment authorized status in obtaining the documents
required by such section 274A, including barriers imposed by
the executive branch of the Government.
(F) Any particular challenges facing individuals who have
employment authorized status who are members of a federally
recognized Indian tribe in complying with the provisions of
such section 274A.
(e) Repeal of Pilot Programs and E-Verify and Transition
Procedures.--
(1) Repeal.--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
note) are repealed.
(2) Transition procedures.--
(A) Continuation of e-verify program.--Notwithstanding the
repeals made by paragraph (1), the Secretary shall continue
to operate the E-Verify Program as described in section 403
of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (division C of Public Law 104-208;
8 U.S.C. 1324a note), as in effect the minute before the date
of the enactment of this Act, until the transition to the
System described in section 274A(d) of the Immigration and
Nationality Act, as amended by subsection (a), is determined
by the Secretary to be complete.
(B) Transition to the system.--Any employer who was
participating in the E-Verify Program described in section
403 of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (division C of Public Law 104-208;
8 U.S.C. 1324a note), as in effect the minute before the date
of the enactment of this Act, shall participate in the System
described in section 274A(d) of the Immigration and
Nationality Act, as amended by subsection (a), to the same
extent and in the same manner that the employer participated
in such E-Verify Program.
(3) Construction.--The repeal made by paragraph (1) may not
be construed to limit the authority of the Secretary to allow
or continue to allow the participation in such System of
employers who have participated in such E-Verify Program, as
in effect on the minute before the date of the enactment of
this Act.
(f) Conforming Amendment.--Section 274(a) (8 U.S.C.
1324(a)) is amended--
(1) by striking paragraph (3); and
(2) by redesignating paragraph (4) as paragraph (3).
(g) Information Sharing.--The Commissioner of Social
Security, the Secretary, and the Secretary of the Treasury
shall jointly establish a program to share information among
such agencies that may lead to the identification of
unauthorized aliens (as described in section 274A of the
Immigration and Nationality Act, as amended by subsection
(a)), including--
(1) no-match letters; and
(2) any information in the earnings suspense file.
______