S.Amdt. 1634

SA 1634. Mr. PORTMAN (for himself and Mr. Tester) 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:

At the appropriate place, insert the following:

SEC. ___. EMPLOYMENT VERIFICATION SYSTEM IMPROVEMENTS.

(a) Trigger.--In addition to the conditions set forth in
section 3(c)(2)(A), the Secretary may not adjust the status
of aliens who have been granted registered provisional
immigrant status, except for aliens granted blue card status
under section 2201 of this Act or described in section
245D(b) of the Immigration and Nationality Act, unless the
Secretary, after consultation with the Comptroller General of
the United States, and as part of the written certification
submitted to the President and Congress pursuant to section
3(c)(2)(A), certifies that the Secretary has implemented the
mandatory employment verification system, including the full
incorporation of the photo tool and additional security
measures, required by section 274A of the Immigration and
Nationality Act (8 U.S.C. 1324a), as amended by section 3101,
and has required the system's use by all employers to prevent
unauthorized workers from obtaining employment in the United
States.
(b) Employment Verification System.--Section 274A (8 U.S.C.
1324a), as amended by section 3101, is further amended--
(1) in subsection (a)(5)(A)(ii), by inserting ``, by clear
and convincing evidence,'' after demonstrates; and
(2) by striking subsections (c) and (d) and inserting the
following:
``(c) Document Verification Requirements.--Any employer
hiring an individual for employment in the United States
shall comply with the following requirements and the
requirements under subsection (d) to verify that the
individual has employment authorized status.
``(1) Attestation after examination of documentation.--
``(A) In general.--
``(i) Examination by employer.--An employer shall attest,
under penalty of perjury on a form prescribed by the
Secretary, that the employer has verified the identity and
employment authorization status of the individual--

``(I) by examining--

``(aa) a document specified in subparagraph (C); or
``(bb) a document specified in subparagraph (D) and a
document specified in subparagraph (E); and

``(II) by utilizing an identity authentication mechanism
described in clause (iii) or (iv) of subparagraph (F).

``(ii) Publication of documents.--The Secretary shall
publish a picture of each document specified in subparagraphs
(C) and (E) on the U.S. Citizenship and Immigration Services
website.
``(B) Requirements.--
``(i) Form.--The form referred to in subparagraph (A)(i)--

``(I) shall be prescribed by the Secretary not later than 6
months after the date of the enactment of the Border
Security, Economic Opportunity, and Immigration Modernization
Act;
``(II) shall be available as--

``(aa) a paper form;
``(bb) a form that may be completed by an employer via
telephone or video conference;
``(cc) an electronic form; and
``(dd) a form that is integrated electronically with the
requirements under subparagraph (F) and subsection (d).
``(ii) Attestation.--Each such form shall require the
employer to sign an attestation with a handwritten,
electronic, or digital signature, according to standards
prescribed by the Secretary.
``(iii) Compliance.--An employer has complied with the
requirements under this paragraph with respect to examination
of the documents included in subclauses (I) and (II) of
subparagraph (A)(i) if--

``(I) the employer has, in good faith, followed applicable
regulations and any written procedures or instructions
provided by the Secretary; and
``(II) a reasonable person would conclude that the
documentation is genuine and relates to the individual
presenting such documentation.

``(C) Documents establishing identity and employment
authorized status.--A document is specified in this
subparagraph if the document is unexpired (unless the
validity of the document is extended by law) and is 1 of the
following:
``(i) A United States passport or passport card issued to
an individual pursuant to the Secretary of State's authority
under the Act entitled An Act to regulate the issue and
validity of passports, and for other purposes, approved July
3, 1926 (22 U.S.C. 211a).
``(ii) A document issued to an alien evidencing that the
alien is lawfully admitted for permanent residence or another
document issued to an individual evidencing the individual's
employment authorized status, as designated by the Secretary,
if the document--

``(I) contains a photograph of the individual, or such
other personal identifying information relating to the
individual as the Secretary determines, by regulation, to be
sufficient for the purposes of this subparagraph;
``(II) is evidence of employment authorized status; and
``(III) contains security features to make the document
resistant to tampering, counterfeiting, and fraudulent use.

``(iii) An enhanced driver's license or identification card
issued to a national of the

[[Page S5085]]

United States by a State, an outlying possession of the
United States, or a federally recognized Indian tribe that--

``(I) meets the requirements under section 202 of the REAL
ID Act of 2005 (division B of Public Law 109-13; 49 U.S.C.
30301 note); and
``(II) the Secretary has certified by notice published in
the Federal Register and through appropriate notice directly
to employers registered in the System 3 months prior to
publication that such enhanced license or card is suitable
for use under this subparagraph based upon the accuracy and
security of the issuance process, security features on the
document, and such other factors as the Secretary may
prescribe.

``(iv) A passport issued by the appropriate authority of a
foreign country accompanied by a Form I-94 or Form I-94A (or
similar successor record), or other documentation as
designated by the Secretary that specifies the individual's
status in the United States and the duration of such status
if the proposed employment is not in conflict with any
restriction or limitation specified on such form or
documentation.
``(v) A passport issued by the Federated States of
Micronesia or the Republic of the Marshall Islands with
evidence of nonimmigrant admission to the United States under
the Compact of Free Association between the United States and
the Federated States of Micronesia or the Republic of the
Marshall Islands.
``(D) Documents establishing identity of individual.--A
document is specified in this subparagraph if the document is
unexpired (unless the validity of the document is extended by
law) and is 1 of the following:
``(i) A driver's license or identity card that is not
described in subparagraph (C)(iii) and is issued to an
individual by a State or an outlying possession of the United
States, a federally recognized Indian tribe, or an agency
(including military) of the Federal Government if the
driver's license or identity card includes, at a minimum--

``(I) the individual's photograph, name, date of birth,
gender, and driver's license or identification card number;
and
``(II) security features to make the license or card
resistant to tampering, counterfeiting, and fraudulent use.

``(ii) A voter registration card.
``(iii) A document that complies with the requirements
under section 7209(b)(1) of the Intelligence Reform and
Terrorism Prevention Act of 2004 (Public Law 108-458; 8
U.S.C. 1185 note).
``(iv) For individuals under 18 years of age who are unable
to present a document listed in clause (i) or (ii),
documentation of personal identity of such other type as the
Secretary determines will provide a reliable means of
identification, which may include an attestation as to the
individual's identity by a parent or legal guardian under
penalty of perjury.
``(E) Documents evidencing employment authorization.--A
document is specified in this subparagraph if the document is
unexpired (unless the validity of the document is extended by
law) and is 1 of the following:
``(i) A social security account number card issued by the
Commissioner, other than a card which specifies on its face
that the card is not valid to evidence employment authorized
status or has other similar words of limitation.
``(ii) Any other documentation evidencing employment
authorized status that the Secretary determines and publishes
in the Federal Register and through appropriate notice
directly to employers registered within the System to be
acceptable for purposes of this subparagraph if such
documentation, including any electronic security measures
linked to such documentation, contains security features to
make such documentation resistant to tampering,
counterfeiting, and fraudulent use.
``(F) Identity authentication mechanism.--
``(i) Definitions.--In this subparagraph:

``(I) Covered identity document.--The term `covered
identity document' means a valid--

``(aa) United States passport, passport card, or a document
evidencing lawful permanent residence status or employment
authorized status issued to an alien;
``(bb) enhanced driver's license or identity card issued by
a participating State or an outlying possession of the United
States; or
``(cc) photograph and appropriate identifying information
provided by the Secretary of State pursuant to the granting
of a visa.

``(II) Participating state.--The term `participating State'
means a State that has an agreement with the Secretary to
provide the Secretary, for purposes of identity verification
in the System, with photographs and appropriate identifying
information maintained by the State.

``(ii) Requirement for identity authentication.--In
addition to verifying the documents specified in subparagraph
(C), (D), or (E), the System shall require each employer to
verify the identity of each new hire using the identity
authentication mechanism described in clause (iii) or, for an
individual whose identity is not able to be verified using
that mechanism, to use the additional security measures
provided in clause (iv) after such measures become available.
A failure of the System to verify the identity of an
individual due to the use of an identity authentication
mechanism shall result in a further action notice under
subsection (d)(4)(C)(iii).
``(iii) Photo tool.--

``(I) Use requirement.--An employer that hires an
individual who has a presented a covered identity document to
establish his or her identity and employment authorization
under subsection (c) shall verify the identity of such
individual using the photo tool described in subclause (II).
``(II) Development requirement.--The Secretary shall
develop and maintain a photo tool that enables employers to
match the photo on a covered identity document provided to
the employer to a photo maintained by a U.S. Citizenship and
Immigration Services or other appropriate database.
``(III) Individual queries.--The photo tool capability
shall be incorporated into the System and made available to
employers not later than 1 year after the date on which
regulations are published implementing subsection (d).
``(IV) Limitations on use of information.--Information and
images acquired from State motor vehicle databases through
the photo tool developed under subclause (II)--

``(aa) may only be used for matching photos to a covered
identity document for the purposes of employment
verification;
``(bb) shall not be collected or stored by the Federal
Government; and
``(cc) may only be disseminated in response to an
individual photo tool query.
``(iv) Additional security measures.--

``(I) Use requirement.--An employer seeking to hire an
individual whose identity is not able to be verified using
the photo tool described in clause (iii), because the
employee did not present a covered document for employment
eligibility verification purposes, shall verify the identity
of such individual using the additional security measures
described in subclause (II).
``(II) Development requirement.--The Secretary shall
develop, after publication in the Federal Register and an
opportunity for public comment, specific and effective
additional security measures to adequately verify the
identity of an individual whose identity is not able to be
verified using the photo tool described in clause (iii). Such
additional security measures--

``(aa) shall be kept up-to-date with technological
advances;
``(bb) shall provide a means of identity authentication in
a manner that provides a high level of certainty as to the
identity of such individual, using immigration and
identifying information that may include review of identity
documents or background screening verification techniques
using publicly available information; and
``(cc) shall be incorporated into the System and made
available to employers not later than 1 year after the date
on which regulations are published implementing subsection
(d).

``(III) Comprehensive use.--An employer may employ the
additional security measures set forth in this clause with
respect to all individuals the employer hires if the employer
notifies the Secretary of such election at the time the
employer registers for use of the System under subsection
(d)(4)(A)(i) or anytime thereafter. An election under this
subclause may be withdrawn 90 days after the employer
notifies the Secretary of the employer's intent to
discontinue such election.

``(v) Automated verification.--The Secretary--

``(I) may establish a program, in addition to the identity
authentication mechanism described in subparagraph (F)(iii),
in which the System automatically verifies information
contained in a covered identity document issued by a
participating State, which is presented under subparagraph
(D)(i), including information needed to verify that the
covered identity document matches the State's records;
``(II) may not maintain information provided by a
participating State in a database maintained by U.S.
Citizenship and Immigration Services; and
``(III) may not utilize or disclose such information,
except as authorized under this section.

``(G) Authority to prohibit use of certain documents.--If
the Secretary determines, after publication in the Federal
Register and an opportunity for public comment, that any
document or class of documents specified in subparagraph (B),
(C), or (D) does not reliably establish identity or that
employment authorized status is being used fraudulently to an
unacceptable degree, the Secretary--
``(i) may prohibit or restrict the use of such document or
class of documents for purposes of this subsection; and
``(ii) shall directly notify all employers registered
within the System of the prohibition through appropriate
means.
``(H) Authority to allow use of certain documents.--If the
Secretary has determined that another document or class of
documents, such as a document issued by a federally
recognized Indian tribe, may be used to reliably establish
identity or employment authorized status, the Secretary--
``(i) may allow the use of that document or class of
documents for purposes of this subsection after publication
in the Federal Register and an opportunity for public
comment;
``(ii) shall publish a description of any such document or
class of documents on the U.S. Citizenship and Immigration
Services website; and
``(iii) shall directly notify all employers registered
within the System of the addition through appropriate means.
``(2) Individual attestation of employment authorization.--
An individual, upon

[[Page S5086]]

commencing employment with an employer, shall--
``(A) attest, under penalty of perjury, on the form
prescribed by the Secretary, that the individual is--
``(i) a citizen of the United States;
``(ii) an alien lawfully admitted for permanent residence;
``(iii) an alien who has employment authorized status; or
``(iv) otherwise authorized by the Secretary to be hired
for such employment;
``(B) provide such attestation by a handwritten,
electronic, or digital signature; and
``(C) provide the individual's social security account
number to the Secretary, unless the individual has not yet
been issued such a number, on such form as the Secretary may
require.
``(3) Retention of verification record.--
``(A) In general.--After completing a form for an
individual in accordance with paragraphs (1) and (2), the
employer shall retain a version of such completed form and
make such form available for inspection by the Secretary or
the Office of Special Counsel for Immigration-Related Unfair
Employment Practices of the Department of Justice during the
period beginning on the hiring date of the individual and
ending on the later of--
``(i) the date that is 3 years after such hiring date; or
``(ii) the date that is 1 year after the date on which the
individual's employment with the employer is terminated.
``(B) Requirement for electronic retention.--The
Secretary--
``(i) shall permit an employer to retain the form described
in subparagraph (A) in electronic form; and
``(ii) shall permit an employer to retain such form in
paper, microfiche, microfilm, portable document format, or
other media.
``(4) Copying of documentation and recordkeeping.--The
Secretary may promulgate regulations regarding--
``(A) copying documents and related information pertaining
to employment verification presented by an individual under
this subsection; and
``(B) retaining such information during a period not to
exceed the required retention period set forth in paragraph
(3).
``(5) Penalties.--An employer that fails to comply with any
requirement under this subsection may be penalized under
subsection (e)(4)(B).
``(6) Protection of civil rights.--
``(A) In general.--Nothing in this section may be construed
to diminish any rights otherwise protected by Federal law.
``(B) Prohibition on discrimination.--An employer shall use
the procedures for document verification set forth in this
paragraph for all employees without regard to race, color,
religion, sex, national origin, or, unless specifically
permitted in this section, to citizenship status.
``(7) Receipts.--The Secretary may authorize the use of
receipts for replacement documents, and temporary evidence of
employment authorization by an individual to meet a
documentation requirement under this subsection on a
temporary basis not to exceed 1 year, after which time the
individual shall provide documentation sufficient to satisfy
the documentation requirements under this subsection.
``(8) No authorization of national identification cards.--
Nothing in this section may be construed to directly or
indirectly authorize the issuance, use, or establishment of a
national identification card.
``(d) Employment Verification System.--
``(1) In general.--
``(A) Establishment.--The Secretary, in consultation with
the Commissioner, shall establish the Employment Verification
System.
``(B) Monitoring.--The Secretary shall create the necessary
processes to monitor--
``(i) the functioning of the System, including the volume
of the workflow, the speed of processing of queries, the
speed and accuracy of responses;
``(ii) the misuse of the System, including the prevention
of fraud or identity theft;
``(iii) whether the use of the System results in wrongful
adverse actions or discrimination based upon a prohibited
factor against citizens or nationals of the United States or
individuals who have employment authorized status; and
``(iv) the security, integrity, and privacy of the System.
``(C) Procedures.--The Secretary--
``(i) shall create processes to provide an individual with
direct access to the individual's case history in the System,
including--

``(I) the identities of all persons or entities that have
queried the individual through the System;
``(II) the date of each such query; and
``(III) the System response for each such query; and

``(ii) in consultation with the Commissioner, shall
develop--

``(I) protocols to notify an individual, in a timely manner
through the use of electronic correspondence or mail, that a
query for the individual has been processed through the
System; or
``(II) a process for the individual to submit additional
queries to the System or notify the Secretary of potential
identity fraud.

``(2) Participation requirements.--
``(A) Federal government.--Except as provided in
subparagraph (B), all agencies and departments in the
executive, legislative, or judicial branches of the Federal
Government shall participate in the System beginning on the
earlier of--
``(i) the date of the enactment of the Border Security,
Economic Opportunity, and Immigration Modernization Act, to
the extent required under section 402(e)(1) of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996
(division C of Public Law 104-208; 8 U.S.C. 1324a) and as
already implemented by each agency or department; or
``(ii) the date that is 90 days after the date of the
enactment of the Border Security, Economic Opportunity, and
Immigration Modernization Act.
``(B) Federal contractors.--Federal contractors shall
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, for which
purpose references to E-Verify in the final rule shall be
construed to apply to the System.
``(C) Critical infrastructure.--
``(i) In general.--Beginning on the date that is 1 year
after the date on which regulations are published
implementing this subsection, the Secretary may authorize or
direct any employer, person, or entity responsible for
granting access to, protecting, securing, operating,
administering, or regulating part of the critical
infrastructure (as defined in section 1016(e) of the Critical
Infrastructure Protection Act of 2001 (42 U.S.C. 5195c(e)))
to participate in the System to the extent the Secretary
determines that such participation will assist in the
protection of the critical infrastructure.
``(ii) Notification to employers.--The Secretary shall
notify an employer required to participate in the System
under this subparagraph not later than 90 days before the
date on which the employer is required to participate.
``(D) Employers with more than 10,000 employees.--Not later
than 1 year after regulations are published implementing this
subsection, all employers with more than 10,000 employees
shall participate in the System with respect to all newly
hired employees and employees with expiring temporary
employment authorization documents.
``(E) Employers with more than 500 employees.--Not later
than 2 years after regulations are published implementing
this subsection, all employers with more than 500 employees
shall participate in the System with respect to all newly
hired employees and employees with expiring temporary
employment authorization documents.
``(F) Employers with more than 20 employees.--Not later
than 3 years after regulations are published implementing
this subsection, all employers with more than 20 employees
shall participate in the System with respect to all newly
hired employees and employees with expiring temporary
employment authorization documents.
``(G) Agricultural employment.--Not later than 4 years
after regulations are published implementing this subsection,
employers of employees performing agricultural employment (as
defined in section 218A of this Act and section 2202 of the
Border Security, Economic Opportunity, and Immigration
Modernization Act) shall participate in the System with
respect to all newly hired employees and employees with
expiring temporary employment authorization documents. An
agricultural employee shall not be counted for purposes of
subparagraph (D), (E), or (F).
``(H) All employers.--Not later than 4 years after
regulations are published implementing this subsection, all
employers shall participate in the System with respect to all
newly hired employees and employees with expiring temporary
employment authorization documents.
``(I) Tribal government employers.--
``(i) Rulemaking.--In developing regulations to implement
this subsection, the Secretary shall--

``(I) consider the effects of this section on federally
recognized Indian tribes and tribal members; and
``(II) consult with the governments of federally recognized
Indian tribes.

``(ii) Required participation.--Not later than 4 years
after regulations are published implementing this subsection,
all employers owned by, or entities of, the government of a
federally recognized Indian tribe shall participate in the
System with respect to all newly hired employees and
employees with expiring temporary employment authorization
documents.
``(J) 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 employer is determined by the
Secretary or other appropriate authority to have engaged in a
pattern or practice of violations of the immigration laws of
the United States.
``(K)  Voluntary participation.--The Secretary may permit
any employer that is not

[[Page S5087]]

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
``(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.

``(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.
``(V) Reexamination.--Nothing in this section shall prevent
the Secretary from establishing procedures to reexamine a
case where a confirmation or nonconfirmation has been

[[Page S5088]]

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.

``(v) Other referral.--The Director of U.S. Citizenship and
Immigration Services shall refer to the Assistant Secretary
for Immigration and Customs Enforcement for appropriate
action by the Assistant Secretary or for referral by the
Assistant Secretary to another law enforcement agency, as
appropriate--

``(I) any case in which the Director believes that a social
security number has been falsely or fraudulently used; and
``(II) any case in which a false or fraudulent document is
used by an employee who has received a further action notice
to resolve such notice.

``(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

[[Page S5089]]

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 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;

[[Page S5090]]

``(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 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 additional
security measures set forth in subsection (c)(1)(F)(iv);

``(ix) to employ specific and effective additional security
measures set forth in subsection (c)(1)(F)(iv) to adequately
verify the identity of an individual that are designed and
operated--

``(I) to use state-of-the-art technology to determine to a
high degree of accuracy whether an individual presenting
biographic information is the individual with that true
identity;
``(II) to retain under the control of the Secretary the use
of all determinations communicated by the System, regardless
of the entity operating the system pursuant to a contract or
other agreement with a nongovernmental entity or entities to
the extent helpful in acquiring the best technology to
implement the additional security measures;
``(III) to be integrated with the System so that employment
authorizations will be determined for all individuals
identified as presenting their true identities through the
databases maintained by the Commissioner of Social Security
and the Secretary;
``(IV) to use tools and processes to detect and prevent
further action notices and final nonconfirmations that are
not correlated to fraud or identity theft;
``(V) to make risk-based assessments regarding the
reliability of a claim of identity made by an individual
presenting biographic information and to tailor the identity
determination in accordance with those assessments;
``(VI) to permit queries to be presented to individuals
subject to identity verification at the time their identities
are being verified in a manner that permits rapid
communication through Internet, mobile phone, and landline
telephone connections to facilitate identity proofing;
``(VII) to generate queries that conform to the context of
the identity verification process and the circumstances of
the individual whose identity is being verified;
``(VIII) to use publicly available databases and databases
under the jurisdiction of the Commissioner of Social
Security, the Secretary, and the Secretary of State to
formulate queries to be presented to individuals whose
identities are being verified, as appropriate;
``(IX) to not retain data collected by the System within
any database separate from the database in which the
operating system is located and to limit access to the
existing databases to a reference process that shields the
operator of the System from acquiring possession of the data
beyond the formulation of queries and verification of
responses;
``(X) to not permit individuals or entities using the
System to access any data related to the individuals whose
identities are being verified beyond confirmations, further
action notices, and final nonconfirmations of identity;
``(XI) to include, if feasible, a capability for permitting
document or other inputs that can be offered to individuals
and entities using the System and that may be used at the
option of employees to facilitate identity verification, but
would not be required of either employers or employees; and
``(XII) to the greatest extent possible, in accordance with
the time frames specified in this section; and

``(x) 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) and the Department's compliance
with the limitations set forth in subsection
(c)(1)(F)(iii)(IV), 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) Error rate determination.--The audits required
under this clause shall--

``(aa) determine the error rate for identity determinations
pursuant to subsection (c)(1)(F) for individuals presenting
their true identities in the same manner and applying the
same standards as for employment authorization; and
``(bb) include recommendations, as provided in subclause
(I), but no reduction in fines pursuant to subclause (IV).

``(IV) 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 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

[[Page S5091]]

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. Such procedure shall
include notifying the legitimate holder of the social
security number at the appropriate time.
``(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
reimbursement of the actual costs to States that grant--

``(I) the Secretary access to driver's license information
as needed to confirm that a driver's license presented under
subsection (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, from the
Comprehensive Immigration Reform Trust Fund established under
section 6(a)(1), $500,000,000 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, no department, bureau, or other
agency of the United States Government or any other entity
shall utilize, share, or transmit 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.

[[Page S5092]]

``(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.
``(ix) An assessment of the effect of the identity
authentication mechanism and any other security measures set
forth in subsection (c)(1)(F)(iv) to verify identity
incorporated into the System or otherwise used by employers
on employees.
``(12) Outreach and partnership.--
``(A) Outreach.--The Secretary is authorized to conduct
outreach and establish programs to assist employers in
verifying employment authorization and preventing identity
fraud.
``(B) Partnership initiative.--The Secretary may establish
partnership initiatives between the Federal Government and
private sector employers to foster cooperative relationships
and to strengthen overall hiring practices.''.
(c) Taxpayer Address Information.--Section 6103(m) of the
Internal Revenue Code of 1986 is amended by adding at the end
the following:
``(8) Taxpayer address information furnished to secretary
of homeland security.--Upon written request from the
Secretary of Homeland Security, the Secretary shall disclose
the mailing address of any taxpayer who is entitled to
receive a notification from the Secretary of Homeland
Security pursuant to paragraphs (1)(C) and (8)(E)(vii) of
section 274A(d) of the Immigration and Nationality Act (8
U.S.C. 1324a(d)) for use only by employees of the Department
of Homeland for the purpose of mailing such notification to
such taxpayer.''.
(d) Social Security Account Statements.--Section 1143(a)(2)
of the Social Security Act (8 U.S.C. 1320b-13(a)(2)) is
amended--
(1) in subparagraph (D), by striking ``and'' at the end;
(2) in subparagraph (E), by striking the period at the end
and inserting ``; and''; and
(3) by adding at the end the following:
``(F) to the extent resources are available, information in
the Commissioner's records indicating that a query was
submitted to the employment verification system established
under section 274A (d) of the Immigration and Nationality Act
(8 U.S.C. 1324a(d)) under that individual's name or social
security number; and
``(G) a toll-free telephone number operated by the
Department of Homeland Security for employment verification
system inquiries and a link to self-verification procedure
established under section 274A(d)(4)(I) of such Act.''.
(e) Good Faith Compliance.--Section 274B(a) (8 U.S.C.
1324b(a)), as amended by section 3105(a) of this Act, is
further amended by adding at the end the following:
``(10) Treatment of certain violations after reasonable
steps in good faith.--Notwithstanding paragraphs (4), (6),
and (7), a person, other entity, or employment agency shall
not be liable for civil penalties described in section
274B(g)(2)(B)(iv) that are related to a violation of any such
paragraph if the person, entity, or employment agency has
taken reasonable steps, in good faith, to comply with such
paragraphs at issue, unless the person, other entity, or
employment agency--
``(A) was, for similar conduct, subject to--
``(i) a reasonable cause determination by the Office of
Special Counsel for Immigration Related Unfair Employment
Practices; or
``(ii) a finding by an administrative law judge that a
violation of this section has occurred; or
``(B) committed the violation in order to interfere with
`workplace rights' (as defined in section 274A(b)(8)).
``(11) Good faith.--As used in paragraph (10), the term
`good faith' shall not include any action taken in order to
interfere with `workplace rights' (as defined in section
274A(b)(8)). Neither the Office of Special Counsel nor an
administrative law judge hearing a claim under this section
shall have any authority to assess workplace rights other
than those guaranteed under this section.
``(12) Rules of construction.--Nothing in this section may
be construed--
``(A) to permit the Office of Special Counsel for
Immigration-Related Unfair Employment Practices or an
administrative law judge hearing a claim under this Section
to enforce any workplace rights other than those guaranteed
under this section; or
``(B) to prohibit any person, other entity, or employment
agency from using an identity verification system, service,
or method (in addition to the employment verification system
described in section 274A(d)), until the date on which the
employer is required to participate in the System under
section 274A(d)(2) and the additional security measures
mandated by section 274A(c)(F)(iv) have become available to
verify the identity of a newly hired employee, if such
system--
``(i) is used in a uniform manner for all newly hired
employees;
``(ii) is not used for the purpose or with the intent of
discriminating against any individual;
``(iii) provides for timely notice to employees run through
the system of a mismatch or failure to confirm identity; and
``(iv) sets out procedures for employees run through the
system to resolve a mismatch or other failure to confirm
identity.
``(13) Liability.--A person, entity, or employment agency
that uses an identity verification system, service, or method
in a way that conflicts with the requirements set forth in
paragraph (10) shall be subject to liability under paragraph
(4)(I).''.
(f) Maintenance of Reasonable Levels of Service and
Enforcement.--Notwithstanding section 3301(b)(1), amounts
appropriated pursuant to such section shall be used to
maintain reasonable levels of service and enforcement rather
than a specific numeric increase in the number of Department
personnel dedicated to administering the Employment
Verification System.
______