TITLE 8 - ALIENS AND NATIONALITY
CHAPTER 12 - IMMIGRATION AND NATIONALITY
SUBCHAPTER II - IMMIGRATION
Part VIII - General Penalty Provisions
HEAD
Sec. 1324a. Unlawful employment of aliens
STATUTE
(a) Making employment of unauthorized aliens unlawful
(1) In general
It is unlawful for a person or other entity -
(A) to hire, or to recruit or refer for a fee, for employment
in the United States an alien knowing the alien is an
unauthorized alien (as defined in subsection (h)(3) of this
section) with respect to such employment, or
(B)(i) to hire for employment in the United States an
individual without complying with the requirements of
subsection (b) of this section or (ii) if the person or entity
is an agricultural association, agricultural employer, or farm
labor contractor (as defined in section 1802 of title 29), to
hire, or to recruit or refer for a fee, for employment in the
United States an individual without complying with the
requirements of subsection (b) of this section.
(2) Continuing employment
It is unlawful for a person or other entity, after hiring an
alien for employment in accordance with paragraph (1), to
continue to employ the alien in the United States knowing the
alien is (or has become) an unauthorized alien with respect to
such employment.
(3) Defense
A person or entity that establishes that it has complied in
good faith with the requirements of subsection (b) of this
section with respect to the hiring, recruiting, or referral for
employment of an alien in the United States has established an
affirmative defense that the person or entity has not violated
paragraph (1)(A) with respect to such hiring, recruiting, or
referral.
(4) Use of labor through contract
For purposes of this section, a person or other entity who uses
a contract, subcontract, or exchange, entered into, renegotiated,
or extended after November 6, 1986, to obtain the labor of an
alien in the United States knowing that the alien is an
unauthorized alien (as defined in subsection (h)(3) of this
section) with respect to performing such labor, shall be
considered to have hired the alien for employment in the United
States in violation of paragraph (1)(A).
(5) Use of State employment agency documentation
For purposes of paragraphs (1)(B) and (3), a person or entity
shall be deemed to have complied with the requirements of
subsection (b) of this section with respect to the hiring of an
individual who was referred for such employment by a State
employment agency (as defined by the Attorney General), if the
person or entity has and retains (for the period and in the
manner described in subsection (b)(3) of this section)
appropriate documentation of such referral by that agency, which
documentation certifies that the agency has complied with the
procedures specified in subsection (b) of this section with
respect to the individual's referral.
(6) Treatment of documentation for certain employees
(A) In general
For purposes of this section, if -
(i) an individual is a member of a collective-bargaining
unit and is employed, under a collective bargaining agreement
entered into between one or more employee organizations and
an association of two or more employers, by an employer that
is a member of such association, and
(ii) within the period specified in subparagraph (B),
another employer that is a member of the association (or an
agent of such association on behalf of the employer) has
complied with the requirements of subsection (b) of this
section with respect to the employment of the individual,
the subsequent employer shall be deemed to have complied with
the requirements of subsection (b) of this section with respect
to the hiring of the employee and shall not be liable for civil
penalties described in subsection (e)(5) of this section.
(B) Period
The period described in this subparagraph is 3 years, or, if
less, the period of time that the individual is authorized to
be employed in the United States.
(C) Liability
(i) In general
If any employer that is a member of an association hires
for employment in the United States an individual and relies
upon the provisions of subparagraph (A) to comply with the
requirements of subsection (b) of this section and the
individual is an alien not authorized to work in the United
States, then for the purposes of paragraph (1)(A), subject to
clause (ii), the employer shall be presumed to have known at
the time of hiring or afterward that the individual was an
alien not authorized to work in the United States.
(ii) Rebuttal of presumption
The presumption established by clause (i) may be rebutted
by the employer only through the presentation of clear and
convincing evidence that the employer did not know (and could
not reasonably have known) that the individual at the time of
hiring or afterward was an alien not authorized to work in
the United States.
(iii) Exception
Clause (i) shall not apply in any prosecution under
subsection (f)(1) of this section.
(7) Application to Federal Government
For purposes of this section, the term "entity" includes an
entity in any branch of the Federal Government.
(b) Employment verification system
The requirements referred to in paragraphs (1)(B) and (3) of
subsection (a) of this section are, in the case of a person or
other entity hiring, recruiting, or referring an individual for
employment in the United States, the requirements specified in the
following three paragraphs:
(1) Attestation after examination of documentation
(A) In general
The person or entity must attest, under penalty of perjury
and on a form designated or established by the Attorney General
by regulation, that it has verified that the individual is not
an unauthorized alien by examining -
(i) a document described in subparagraph (B), or
(ii) a document described in subparagraph (C) and a
document described in subparagraph (D).
Such attestation may be manifested by either a hand-written or
an electronic signature. A person or entity has complied with
the requirement of this paragraph with respect to examination
of a document if the document reasonably appears on its face to
be genuine. If an individual provides a document or combination
of documents that reasonably appears on its face to be genuine
and that is sufficient to meet the requirements of the first
sentence of this paragraph, nothing in this paragraph shall be
construed as requiring the person or entity to solicit the
production of any other document or as requiring the individual
to produce such another document.
(B) Documents establishing both employment authorization and
identity
A document described in this subparagraph is an individual's -
(i) United States passport; (!1)
(ii) resident alien card, alien registration card, or other
document designated by the Attorney General, if the document -
(I) contains a photograph of the individual and such
other personal identifying information relating to the
individual as the Attorney General finds, by regulation,
sufficient for purposes of this subsection,
(II) is evidence of authorization of employment in the
United States, and
(III) contains security features to make it resistant to
tampering, counterfeiting, and fraudulent use.
(C) Documents evidencing employment authorization
A document described in this subparagraph is an individual's -
(i) social security account number card (other than such a
card which specifies on the face that the issuance of the
card does not authorize employment in the United States); or
(ii) other documentation evidencing authorization of
employment in the United States which the Attorney General
finds, by regulation, to be acceptable for purposes of this
section.
(D) Documents establishing identity of individual
A document described in this subparagraph is an individual's -
(i) driver's license or similar document issued for the
purpose of identification by a State, if it contains a
photograph of the individual or such other personal
identifying information relating to the individual as the
Attorney General finds, by regulation, sufficient for
purposes of this section; or
(ii) in the case of individuals under 16 years of age or in
a State which does not provide for issuance of an
identification document (other than a driver's license)
referred to in clause (i), documentation of personal identity
of such other type as the Attorney General finds, by
regulation, provides a reliable means of identification.
(E) Authority to prohibit use of certain documents
If the Attorney General finds, by regulation, that any
document described in subparagraph (B), (C), or (D) as
establishing employment authorization or identity does not
reliably establish such authorization or identity or is being
used fraudulently to an unacceptable degree, the Attorney
General may prohibit or place conditions on its use for
purposes of this subsection.
(2) Individual attestation of employment authorization
The individual must attest, under penalty of perjury on the
form designated or established for purposes of paragraph (1),
that the individual is a citizen or national of the United
States, an alien lawfully admitted for permanent residence, or an
alien who is authorized under this chapter or by the Attorney
General to be hired, recruited, or referred for such employment.
Such attestation may be manifested by either a hand-written or an
electronic signature.
(3) Retention of verification form
After completion of such form in accordance with paragraphs (1)
and (2), the person or entity must retain a paper, microfiche,
microfilm, or electronic version of the form and make it
available for inspection by officers of the Service, the Special
Counsel for Immigration-Related Unfair Employment Practices, or
the Department of Labor during a period beginning on the date of
the hiring, recruiting, or referral of the individual and ending -
(A) in the case of the recruiting or referral for a fee
(without hiring) of an individual, three years after the date
of the recruiting or referral, and
(B) in the case of the hiring of an individual -
(i) three years after the date of such hiring, or
(ii) one year after the date the individual's employment is
terminated,
whichever is later.
(4) Copying of documentation permitted
Notwithstanding any other provision of law, the person or
entity may copy a document presented by an individual pursuant to
this subsection and may retain the copy, but only (except as
otherwise permitted under law) for the purpose of complying with
the requirements of this subsection.
(5) Limitation on use of attestation form
A form designated or established by the Attorney General under
this subsection and any information contained in or appended to
such form, may not be used for purposes other than for
enforcement of this chapter and sections 1001, 1028, 1546, and
1621 of title 18.
(6) Good faith compliance
(A) In general
Except as provided in subparagraphs (B) and (C), a person or
entity is considered to have complied with a requirement of
this subsection notwithstanding a technical or procedural
failure to meet such requirement if there was a good faith
attempt to comply with the requirement.
(B) Exception if failure to correct after notice
Subparagraph (A) shall not apply if -
(i) the Service (or another enforcement agency) has
explained to the person or entity the basis for the failure,
(ii) the person or entity has been provided a period of not
less than 10 business days (beginning after the date of the
explanation) within which to correct the failure, and
(iii) the person or entity has not corrected the failure
voluntarily within such period.
(C) Exception for pattern or practice violators
Subparagraph (A) shall not apply to a person or entity that
has or is engaging in a pattern or practice of violations of
subsection (a)(1)(A) or (a)(2) of this section.
(c) No authorization of national identification cards
Nothing in this section shall be construed to authorize, directly
or indirectly, the issuance or use of national identification cards
or the establishment of a national identification card.
(d) Evaluation and changes in employment verification system
(1) Presidential monitoring and improvements in system
(A) Monitoring
The President shall provide for the monitoring and evaluation
of the degree to which the employment verification system
established under subsection (b) of this section provides a
secure system to determine employment eligibility in the United
States and shall examine the suitability of existing Federal
and State identification systems for use for this purpose.
(B) Improvements to establish secure system
To the extent that the system established under subsection
(b) of this section is found not to be a secure system to
determine employment eligibility in the United States, the
President shall, subject to paragraph (3) and taking into
account the results of any demonstration projects conducted
under paragraph (4), implement such changes in (including
additions to) the requirements of subsection (b) of this
section as may be necessary to establish a secure system to
determine employment eligibility in the United States. Such
changes in the system may be implemented only if the changes
conform to the requirements of paragraph (2).
(2) Restrictions on changes in system
Any change the President proposes to implement under paragraph
(1) in the verification system must be designed in a manner so
the verification system, as so changed, meets the following
requirements:
(A) Reliable determination of identity
The system must be capable of reliably determining whether -
(i) a person with the identity claimed by an employee or
prospective employee is eligible to work, and
(ii) the employee or prospective employee is claiming the
identity of another individual.
(B) Using of counterfeit-resistant documents
If the system requires that a document be presented to or
examined by an employer, the document must be in a form which
is resistant to counterfeiting and tampering.
(C) Limited use of system
Any personal information utilized by the system may not be
made available to Government agencies, employers, and other
persons except to the extent necessary to verify that an
individual is not an unauthorized alien.
(D) Privacy of information
The system must protect the privacy and security of personal
information and identifiers utilized in the system.
(E) Limited denial of verification
A verification that an employee or prospective employee is
eligible to be employed in the United States may not be
withheld or revoked under the system for any reason other than
that the employee or prospective employee is an unauthorized
alien.
(F) Limited use for law enforcement purposes
The system may not be used for law enforcement purposes,
other than for enforcement of this chapter or sections 1001,
1028, 1546, and 1621 of title 18.
(G) Restriction on use of new documents
If the system requires individuals to present a new card or
other document (designed specifically for use for this purpose)
at the time of hiring, recruitment, or referral, then such
document may not be required to be presented for any purpose
other than under this chapter (or enforcement of sections 1001,
1028, 1546, and 1621 of title 18) nor to be carried on one's
person.
(3) Notice to Congress before implementing changes
(A) In general
The President may not implement any change under paragraph
(1) unless at least -
(i) 60 days,
(ii) one year, in the case of a major change described in
subparagraph (D)(iii), or
(iii) two years, in the case of a major change described in
clause (i) or (ii) of subparagraph (D),
before the date of implementation of the change, the President
has prepared and transmitted to the Committee on the Judiciary
of the House of Representatives and to the Committee on the
Judiciary of the Senate a written report setting forth the
proposed change. If the President proposes to make any change
regarding social security account number cards, the President
shall transmit to the Committee on Ways and Means of the House
of Representatives and to the Committee on Finance of the
Senate a written report setting forth the proposed change. The
President promptly shall cause to have printed in the Federal
Register the substance of any major change (described in
subparagraph (D)) proposed and reported to Congress.
(B) Contents of report
In any report under subparagraph (A) the President shall
include recommendations for the establishment of civil and
criminal sanctions for unauthorized use or disclosure of the
information or identifiers contained in such system.
(C) Congressional review of major changes
(i) Hearings and review
The Committees on the Judiciary of the House of
Representatives and of the Senate shall cause to have printed
in the Congressional Record the substance of any major change
described in subparagraph (D), shall hold hearings respecting
the feasibility and desirability of implementing such a
change, and, within the two year period before
implementation, shall report to their respective Houses
findings on whether or not such a change should be
implemented.
(ii) Congressional action
No major change may be implemented unless the Congress
specifically provides, in an appropriations or other Act, for
funds for implementation of the change.
(D) Major changes defined
As used in this paragraph, the term "major change" means a
change which would -
(i) require an individual to present a new card or other
document (designed specifically for use for this purpose) at
the time of hiring, recruitment, or referral,
(ii) provide for a telephone verification system under
which an employer, recruiter, or referrer must transmit to a
Federal official information concerning the immigration
status of prospective employees and the official transmits to
the person, and the person must record, a verification code,
or
(iii) require any change in any card used for accounting
purposes under the Social Security Act [42 U.S.C. 301 et
seq.], including any change requiring that the only social
security account number cards which may be presented in order
to comply with subsection (b)(1)(C)(i) of this section are
such cards as are in a counterfeit-resistant form consistent
with the second sentence of section 205(c)(2)(D) of the
Social Security Act [42 U.S.C. 405(c)(2)(D)].
(E) General revenue funding of social security card changes
Any costs incurred in developing and implementing any change
described in subparagraph (D)(iii) for purposes of this
subsection shall not be paid for out of any trust fund
established under the Social Security Act [42 U.S.C. 301 et
seq.].
(4) Demonstration projects
(A) Authority
The President may undertake demonstration projects
(consistent with paragraph (2)) of different changes in the
requirements of subsection (b) of this section. No such project
may extend over a period of longer than five years.
(B) Reports on projects
The President shall report to the Congress on the results of
demonstration projects conducted under this paragraph.
(e) Compliance
(1) Complaints and investigations
The Attorney General shall establish procedures -
(A) for individuals and entities to file written, signed
complaints respecting potential violations of subsection (a) or
(g)(1) of this section,
(B) for the investigation of those complaints which, on their
face, have a substantial probability of validity,
(C) for the investigation of such other violations of
subsection (a) or (g)(1) of this section as the Attorney
General determines to be appropriate, and
(D) for the designation in the Service of a unit which has,
as its primary duty, the prosecution of cases of violations of
subsection (a) or (g)(1) of this section under this subsection.
(2) Authority in investigations
In conducting investigations and hearings under this subsection
-
(A) immigration officers and administrative law judges shall
have reasonable access to examine evidence of any person or
entity being investigated,
(B) administrative law judges, may, if necessary, compel by
subpoena the attendance of witnesses and the production of
evidence at any designated place or hearing, and
(C) immigration officers designated by the Commissioner may
compel by subpoena the attendance of witnesses and the
production of evidence at any designated place prior to the
filing of a complaint in a case under paragraph (2).
In case of contumacy or refusal to obey a subpoena lawfully
issued under this paragraph and upon application of the Attorney
General, 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 thereof.
(3) Hearing
(A) In general
Before imposing an order described in paragraph (4), (5), or
(6) against a person or entity under this subsection for a
violation of subsection (a) or (g)(1) of this section, the
Attorney General shall provide the person or entity with notice
and, upon request made within a reasonable time (of not less
than 30 days, as established by the Attorney General) of the
date of the notice, a hearing respecting the violation.
(B) Conduct of hearing
Any hearing so requested shall be conducted before an
administrative law judge. The hearing shall be conducted in
accordance with the requirements of section 554 of title 5. The
hearing shall be held at the nearest practicable place to the
place where the person or entity resides or of the place where
the alleged violation occurred. If no hearing is so requested,
the Attorney General's imposition of the order shall constitute
a final and unappealable order.
(C) Issuance of orders
If the administrative law judge determines, upon the
preponderance of the evidence received, that a person or entity
named in the complaint has violated subsection (a) or (g)(1) of
this section, the administrative law judge shall state his
findings of fact and issue and cause to be served on such
person or entity an order described in paragraph (4), (5), or
(6).
(4) Cease and desist order with civil money penalty for hiring,
recruiting, and referral violations
With respect to a violation of subsection (a)(1)(A) or (a)(2)
of this section, the order under this subsection -
(A) shall require the person or entity to cease and desist
from such violations and to pay a civil penalty in an amount of
-
(i) not less than $250 and not more than $2,000 for each
unauthorized alien with respect to whom a violation of either
such subsection occurred,
(ii) not less than $2,000 and not more than $5,000 for each
such alien in the case of a person or entity previously
subject to one order under this paragraph, or
(iii) not less than $3,000 and not more than $10,000 for
each such alien in the case of a person or entity previously
subject to more than one order under this paragraph; and
(B) may require the person or entity -
(i) to comply with the requirements of subsection (b) of
this section (or subsection (d) of this section if
applicable) with respect to individuals hired (or recruited
or referred for employment for a fee) during a period of up
to three years, and
(ii) to take such other remedial action as is appropriate.
In applying this subsection in the case of a person or entity
composed of distinct, physically separate subdivisions each of
which provides separately for the hiring, recruiting, or
referring for employment, without reference to the practices
of, and not under the control of or common control with,
another subdivision, each such subdivision shall be considered
a separate person or entity.
(5) Order for civil money penalty for paperwork violations
With respect to a violation of subsection (a)(1)(B) of this
section, the order under this subsection shall require the person
or entity to pay a civil penalty in an amount of not less than
$100 and not more than $1,000 for each individual with respect to
whom such violation occurred. In determining the amount of the
penalty, due consideration shall be given to the size of the
business of the employer being charged, the good faith of the
employer, the seriousness of the violation, whether or not the
individual was an unauthorized alien, and the history of previous
violations.
(6) Order for prohibited indemnity bonds
With respect to a violation of subsection (g)(1) of this
section, the order under this subsection may provide for the
remedy described in subsection (g)(2) of this section.
(7) Administrative appellate review
The decision and order of an administrative law judge shall
become the final agency decision and order of the Attorney
General unless either (A) within 30 days, an official delegated
by regulation to exercise review authority over the decision and
order modifies or vacates the decision and order, or (B) within
30 days of the date of such a modification or vacation (or within
60 days of the date of decision and order of an administrative
law judge if not so modified or vacated) the decision and order
is referred to the Attorney General pursuant to regulations, in
which case the decision and order of the Attorney General shall
become the final agency decision and order under this subsection.
The Attorney General may not delegate the Attorney General's
authority under this paragraph to any entity which has review
authority over immigration-related matters.
(8) Judicial review
A person or entity adversely affected by a final order
respecting an assessment may, within 45 days after the date the
final order is issued, file a petition in the Court of Appeals
for the appropriate circuit for review of the order.
(9) Enforcement of orders
If a person or entity fails to comply with a final order issued
under this subsection against the person or entity, the Attorney
General shall file a suit to seek compliance with the order in
any appropriate district court of the United States. In any such
suit, the validity and appropriateness of the final order shall
not be subject to review.
(f) Criminal penalties and injunctions for pattern or practice
violations
(1) Criminal penalty
Any person or entity which engages in a pattern or practice of
violations of subsection (a)(1)(A) or (a)(2) of this section
shall be fined not more than $3,000 for each unauthorized alien
with respect to whom such a violation occurs, imprisoned for not
more than six months for the entire pattern or practice, or both,
notwithstanding the provisions of any other Federal law relating
to fine levels.
(2) Enjoining of pattern or practice violations
Whenever the Attorney General has reasonable cause to believe
that a person or entity is engaged in a pattern or practice of
employment, recruitment, or referral in violation of paragraph
(1)(A) or (2) of subsection (a) of this section, 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 person or entity, as the Attorney General deems
necessary.
(g) Prohibition of indemnity bonds
(1) Prohibition
It is unlawful for a person or other entity, in the hiring,
recruiting, or referring for employment 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, recruiting, or
referring of the individual.
(2) Civil penalty
Any person or entity which is determined, after notice and
opportunity for an administrative hearing under subsection (e) of
this section, to have violated paragraph (1) shall be subject to
a civil penalty of $1,000 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.
(h) Miscellaneous provisions
(1) Documentation
In providing documentation or endorsement of authorization of
aliens (other than aliens lawfully admitted for permanent
residence) authorized to be employed in the United States, the
Attorney General shall provide that any limitations with respect
to the period or type of employment or employer shall be
conspicuously stated on the documentation or endorsement.
(2) Preemption
The provisions of this section preempt any State or local law
imposing civil or criminal sanctions (other than through
licensing and similar laws) upon those who employ, or recruit or
refer for a fee for employment, unauthorized aliens.
(3) Definition of unauthorized alien
As used in this section, the term "unauthorized alien" means,
with respect to the employment of an alien at a particular time,
that the alien is not at that time either (A) an alien lawfully
admitted for permanent residence, or (B) authorized to be so
employed by this chapter or by the Attorney General.
SOURCE
(June 27, 1952, ch. 477, title II, ch. 8, Sec. 274A, as added Pub.
L. 99-603, title I, Sec. 101(a)(1), Nov. 6, 1986, 100 Stat. 3360;
amended Pub. L. 100-525, Sec. 2(a)(1), Oct. 24, 1988, 102 Stat.
2609; Pub. L. 101-649, title V, Secs. 521(a), 538(a), Nov. 29,
1990, 104 Stat. 5053, 5056; Pub. L. 102-232, title III, Secs.
306(b)(2), 309(b)(11), Dec. 12, 1991, 105 Stat. 1752, 1759; Pub. L.
103-416, title II, Secs. 213, 219(z)(4), Oct. 25, 1994, 108 Stat.
4314, 4318; Pub. L. 104-208, div. C, title III, Sec. 379(a), title
IV, Secs. 411(a), 412(a)-(d), 416, Sept. 30, 1996, 110 Stat. 3009-
649, 3009-666 to 3009-669; Pub. L. 108-390, Sec. 1(a), Oct. 30,
2004, 118 Stat. 2242.)
REFERENCES IN TEXT
The Social Security Act, referred to in subsec. (d)(3)(D)(iii),
(E), is act Aug. 14, 1935, ch. 531, 49 Stat. 620, as amended, which
is classified generally to chapter 7 (Sec. 301 et seq.) of Title
42, The Public Health and Welfare. For complete classification of
this Act to the Code, see section 1305 of Title 42 and Tables.
AMENDMENTS
2004 - Subsec. (b)(1)(A). Pub. L. 108-390, Sec. 1(a)(1), inserted
"Such attestation may be manifested by either a hand-written or an
electronic signature." before "A person or entity has complied" in
concluding provisions.
Subsec. (b)(2). Pub. L. 108-390, Sec. 1(a)(2), inserted at end
"Such attestation may be manifested by either a hand-written or an
electronic signature."
Subsec. (b)(3). Pub. L. 108-390, Sec. 1(a)(3), inserted "a paper,
microfiche, microfilm, or electronic version of" after "must
retain" in introductory provisions.
1996 - Subsec. (a)(6). Pub. L. 104-208, Sec. 412(b), added par.
(6).
Subsec. (a)(7). Pub. L. 104-208, Sec. 412(d), added par. (7).
Subsec. (b)(1)(B). Pub. L. 104-208, Sec. 412(a)(1)(A), (B),
redesignated cl. (v) as (ii), substituted ", alien registration
card, or other document designated by the Attorney General, if the
document" for "or other alien registration card, if the card" in
introductory provisions of that cl., and struck out former cls.
(ii) to (iv) which read as follows:
"(ii) certificate of United States citizenship;
"(iii) certificate of naturalization;
"(iv) unexpired foreign passport, if the passport has an
appropriate, unexpired endorsement of the Attorney General
authorizing the individual's employment in the United States; or".
Subsec. (b)(1)(B)(ii). Pub. L. 104-208, Sec. 412(a)(1)(C), in
subcl. (I), substituted "and" for "or" before "such other personal"
and struck out "and" at end, in subcl. (II), substituted ", and"
for the period at end, and added subcl. (III).
Subsec. (b)(1)(C). Pub. L. 104-208, Sec. 412(a)(2), inserted "or"
at end of cl. (i), redesignated cl. (iii) as (ii), and struck out
former cl. (ii) which read as follows: "certificate of birth in the
United States or establishing United States nationality at birth,
which certificate the Attorney General finds, by regulation, to be
acceptable for purposes of this section; or".
Subsec. (b)(1)(E). Pub. L. 104-208, Sec. 412(a)(3), added subpar.
(E).
Subsec. (b)(6). Pub. L. 104-208, Sec. 411(a), added par. (6).
Subsec. (e)(2)(C). Pub. L. 104-208, Sec. 416, added subpar. (C).
Subsec. (e)(7). Pub. L. 104-208, Sec. 379(a)(2), substituted "the
final agency decision and order under this subsection" for "a final
order under this subsection".
Pub. L. 104-208, Sec. 379(a)(1), substituted "unless either (A)
within 30 days, an official delegated by regulation to exercise
review authority over the decision and order modifies or vacates
the decision and order, or (B) within 30 days of the date of such a
modification or vacation (or within 60 days of the date of decision
and order of an administrative law judge if not so modified or
vacated) the decision and order is referred to the Attorney General
pursuant to regulations" for "unless, within 30 days, the Attorney
General modifies or vacates the decision and order".
Subsecs. (i) to (n). Pub. L. 104-208, Sec. 412(c), struck out
subsec. (i) which provided effective dates for implementation of
this section, subsec. (j) which required General Accounting Office
reports on implementation of this section, subsec. (k) which
established a taskforce to review reports, subsec. (l) which
provided a termination date for employer sanctions under this
section upon finding of widespread discrimination in implementing
this section, and subsecs. (m) and (n) which provided for expedited
procedures in House of Representatives and Senate for considering
resolutions to approve findings in the reports.
1994 - Subsec. (b)(3). Pub. L. 103-416, Sec. 219(z)(4), made
technical correction to Pub. L. 102-232, Sec. 306(b)(2). See 1991
Amendment note below.
Subsec. (d)(4)(A). Pub. L. 103-416, Sec. 213, substituted "five"
for "three" in second sentence.
1991 - Subsec. (b)(1)(D)(ii). Pub. L. 102-232, Sec. 309(b)(11),
substituted "clause (i)" for "clause (ii)".
Subsec. (b)(3). Pub. L. 102-232, Sec. 306(b)(2), as amended by
Pub. L. 103-416, Sec. 219(z)(4), made technical correction to Pub.
L. 101-649, Sec. 538(a). See 1990 Amendment note below.
1990 - Subsec. (a)(1). Pub. L. 101-649, Sec. 521(a), struck out
"to hire, or to recruit or refer for a fee, for employment in the
United States" after "or other entity" in introductory provisions,
inserted "to hire, or to recruit or refer for a fee, for employment
in the United States" after "(A)" in subpar. (A), and inserted "(i)
to hire for employment in the United States an individual without
complying with the requirements of subsection (b) of this section
or (ii) if the person or entity is an agricultural association,
agricultural employer, or farm labor contractor (as defined in
section 1802 of title 29), to hire, or to recruit or refer for a
fee, for employment in the United States" after "(B)" in subpar.
(B).
Subsec. (b)(3). Pub. L. 101-649, Sec. 538(a), as amended by Pub.
L. 102-232, Sec. 306(b)(2), as amended by Pub. L. 103-416, Sec.
219(z)(4), inserted ", the Special Counsel for Immigration-Related
Unfair Employment Practices," after "officers of the Service".
1988 - Subsec. (b)(1)(A). Pub. L. 100-525, Sec. 2(a)(1)(A),
substituted "the first sentence of this paragraph" for "such
sentence" and "such another document" for "such a document".
Subsec. (d)(3)(D). Pub. L. 100-525, Sec. 2(a)(1)(B), in heading
substituted "defined" for "requiring two years notice and
congressional review".
Subsec. (e)(1). Pub. L. 100-525, Sec. 2(a)(1)(C)(i), inserted
reference to subsec. (g)(1) in three places.
Subsec. (e)(3). Pub. L. 100-525, Sec. 2(a)(1)(C)(i), (ii),
inserted reference to subsec. (g)(1) in two places and reference to
par. (6) in two places.
Subsec. (e)(4)(A)(ii), (iii). Pub. L. 100-525, Sec. 2(a)(1)(D),
substituted "paragraph" for "subparagraph".
Subsec. (e)(6) to (9). Pub. L. 100-525, Sec. 2(a)(1)(C)(iii),
(iv), added par. (6) and redesignated former pars. (6) to (8) as
(7) to (9), respectively.
Subsec. (g)(2). Pub. L. 100-525, Sec. 2(a)(1)(E), inserted
reference to subsec. (e) of this section.
Subsec. (i)(3)(B)(iii). Pub. L. 100-525, Sec. 2(a)(1)(F),
substituted "an order" for "a order" and "subsection (a)(1)(A) of
this section" for "paragraph (1)(A)".
Subsec. (j)(1). Pub. L. 100-525, Sec. 2(a)(1)(G), made technical
amendment to provision of original act which was translated as
"November 6, 1986," and struck out "of the United States" after
"Comptroller General".
Subsec. (j)(2). Pub. L. 100-525, Sec. 2(a)(1)(H), substituted
"this section" for "that section".
EFFECTIVE DATE OF 2004 AMENDMENT
Pub. L. 108-390, Sec. 1(b), Oct. 30, 2004, 118 Stat. 2242,
provided that: "The amendments made by subsection (a) [amending
this section] shall take effect on the earlier of -
"(1) the date on which final regulations implementing such
amendments take effect; or
"(2) 180 days after the date of the enactment of this Act [Oct.
30, 2004]."
EFFECTIVE DATE OF 1996 AMENDMENT
Section 379(b) of div. C of Pub. L. 104-208 provided that: "The
amendments made by subsection (a) [amending this section and
section 1324c of this title] shall apply to orders issued on or
after the date of the enactment of this Act [Sept. 30, 1996]."
Section 411(b) of div. C of Pub. L. 104-208 provided that: "The
amendment made by subsection (a) [amending this section] shall
apply to failures occurring on or after the date of the enactment
of this Act [Sept. 30, 1996]."
Section 412(e) of div. C of Pub. L. 104-208, as amended by Pub.
L. 105-54, Sec. 3(a), Oct. 6, 1997, 111 Stat. 1175; Pub. L. 108-
156, Sec. 3(d), Dec. 3, 2003, 117 Stat. 1945, provided that:
"(1) The amendments made by subsection (a) [amending this
section] shall apply with respect to hiring (or recruitment or
referral) occurring on or after such date (not later than 18 months
after the date of the enactment of this Act [Sept. 30, 1996]) as
the Secretary of Homeland Security shall designate.
"(2) The amendment made by subsection (b) [amending this section]
shall apply to individuals hired on or after 60 days after the date
of the enactment of this Act.
"(3) The amendment made by subsection (c) [amending this section]
shall take effect on the date of the enactment of this Act.
"(4) The amendment made by subsection (d) [amending this section]
applies to hiring occurring before, on, or after the date of the
enactment of this Act, but no penalty shall be imposed under
subsection (e) or (f) of section 274A of the Immigration and
Nationality Act [subsecs. (e) and (f) of this section] for such
hiring occurring before such date."
[Section 3(b) of Pub. L. 105-54 provided that: "The amendment
made by subsection (a) [amending section 412(e) of div. C of Pub.
L. 104-208, set out above] shall take effect as if included in the
enactment of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 [div. C of Pub. L. 104-208]."]
EFFECTIVE DATE OF 1994 AMENDMENT
Section 219(z) of Pub. L. 103-416 provided that the amendment
made by subsec. (z)(4) of that section is effective as if included
in the Miscellaneous and Technical Immigration and Naturalization
Amendments of 1991, Pub. L. 102-232.
EFFECTIVE DATE OF 1991 AMENDMENT
Amendment by section 306(b)(2) of Pub. L. 102-232 effective as if
included in the enactment of the Immigration Act of 1990, Pub. L.
101-649, see section 310(1) of Pub. L. 102-232, set out as a note
under section 1101 of this title.
EFFECTIVE DATE OF 1990 AMENDMENT
Section 521(b) of Pub. L. 101-649 provided that: "The amendments
made by subsection (a) [amending this section] shall apply to
recruiting and referring occurring on or after the date of the
enactment of this Act [Nov. 29, 1990]."
Section 538(b) of Pub. L. 101-649 provided that: "The amendment
made by subsection (a) [amending this section] shall take effect on
the date of the enactment of this Act [Nov. 29, 1990]."
EFFECTIVE DATE OF 1988 AMENDMENT
Amendment by Pub. L. 100-525 effective as if included in
enactment of Immigration Reform and Control Act of 1986, Pub. L. 99-
603, see section 2(s) of Pub. L. 100-525, set out as a note under
section 1101 of this title.
DATE OF ENACTMENT OF THIS SECTION FOR ALIENS EMPLOYED UNDER SECTION
8704 OF TITLE 46, SHIPPING
Date of enactment of this section with respect to aliens deemed
employed under section 8704 of Title 46, Shipping, as the date 180
days after Jan. 11, 1988, see section 5(f)(3) of Pub. L. 100-239,
set out as a Construction note under section 8704 of Title 46.
ABOLITION OF IMMIGRATION AND NATURALIZATION SERVICE AND TRANSFER OF FUNCTIONS
For abolition of Immigration and Naturalization Service, transfer
of functions, and treatment of related references, see note set out
under section 1551 of this title.
DELEGATION OF AUTHORITY
Memorandum of President of the United States, Feb. 10, 1992, 57
F.R. 24345, provided:
Memorandum for the Secretary of Health and Human Services
Section 205(c)(2)(F) of the Social Security Act (section
405(c)(2)(F) of title 42 of the United States Code) directs the
Secretary of Health and Human Services to issue Social Security
number cards to individuals who are assigned Social Security
numbers.
By the authority vested in me as President by the Constitution
and the laws of the United States of America, including section
274A(d)(3)(A) of the Immigration and Nationality Act (the "Act")
(section 1324a(d)(3)(A) of title 8 of the United States Code) and
section 301 of title 3 of the United States Code, and in order to
provide for the delegation of certain functions under the Act [8
U.S.C. 1101 et seq.], I hereby:
(1) Authorize you to prepare and transmit, to the Committee on
the Judiciary and the Committee on Ways and Means of the House of
Representatives and to the Committee on the Judiciary and the
Committee on Finance of the Senate, a written report regarding the
substance of any proposed change in Social Security number cards,
to the extent required by section 274A(d)(3)(A) of the Act, and
(2) Authorize you to cause to have printed in the Federal
Register the substance of any change in the Social Security number
card so proposed and reported to the designated congressional
committees, to the extent required by section 274A(d)(3)(A) of the
Act.
The authority delegated by this memorandum may be further
redelegated within the Department of Health and Human Services.
You are hereby authorized and directed to publish this memorandum
in the Federal Register.
George Bush.
Authority of President under subsec. (d)(4) of this section to
undertake demonstration projects of different changes in
requirements of employment verification system delegated to
Attorney General by section 2 of Ex. Ord. No. 12781, Nov. 20, 1991,
56 F.R. 59203, set out as a note under section 301 of Title 3, The
President.
PILOT PROGRAMS FOR EMPLOYMENT ELIGIBILITY CONFIRMATION
Pub. L. 104-208, div. C, title IV, subtitle A, Sept. 30, 1996,
110 Stat. 3009-655, as amended by Pub. L. 107-128, Sec. 2, Jan. 16,
2002, 115 Stat. 2407; Pub. L. 108-156, Secs. 2, 3, Dec. 3, 2003,
117 Stat. 1944, provided that:
"SEC. 401. ESTABLISHMENT OF PROGRAMS.
"(a) In General. - The Secretary of Homeland Security shall
conduct 3 pilot programs of employment eligibility confirmation
under this subtitle.
"(b) Implementation Deadline; Termination. - The Secretary of
Homeland Security shall implement the pilot programs in a manner
that permits persons and other entities to have elections under
section 402 of this division made and in effect no later than 1
year after the date of the enactment of this Act [Sept. 30, 1996].
Unless the Congress otherwise provides, the Secretary of Homeland
Security shall terminate a pilot program at the end of the 11-year
period beginning on the first day the pilot program is in effect.
"(c) Scope of Operation of Pilot Programs. - The Secretary of
Homeland Security shall provide for the operation -
"(1) of the basic pilot program (described in section 403(a) of
this division) in, at a minimum, 5 of the 7 States with the
highest estimated population of aliens who are not lawfully
present in the United States, and the Secretary of Homeland
Security shall expand the operation of the program to all 50
States not later than December 1, 2004;
"(2) of the citizen attestation pilot program (described in
section 403(b) of this division) in at least 5 States (or, if
fewer, all of the States) that meet the condition described in
section 403(b)(2)(A) of this division; and
"(3) of the machine-readable-document pilot program (described
in section 403(c) of this division) in at least 5 States (or, if
fewer, all of the States) that meet the condition described in
section 403(c)(2) of this division.
"(d) References in Subtitle. - In this subtitle -
"(1) Pilot program references. - The terms 'program' or 'pilot
program' refer to any of the 3 pilot programs provided for under
this subtitle.
"(2) Confirmation system. - The term 'confirmation system'
means the confirmation system established under section 404 of
this division.
"(3) References to section 274a. - Any reference in this
subtitle to section 274A (or a subdivision of such section) is
deemed a reference to such section (or subdivision thereof) of
the Immigration and Nationality Act [8 U.S.C. 1324a].
"(4) I-9 or similar form. - The term 'I-9 or similar form'
means the form used for purposes of section 274A(b)(1)(A) or such
other form as the Secretary of Homeland Security determines to be
appropriate.
"(5) Limited application to recruiters and referrers. - Any
reference to recruitment or referral (or a recruiter or referrer)
in relation to employment is deemed a reference only to such
recruitment or referral (or recruiter or referrer) that is
subject to section 274A(a)(1)(B)(ii).
"(6) United states citizenship. - The term 'United States
citizenship' includes United States nationality.
"(7) State. - The term 'State' has the meaning given such term
in section 101(a)(36) of the Immigration and Nationality Act [8
U.S.C. 1101(a)(36)].
"SEC. 402. VOLUNTARY ELECTION TO PARTICIPATE IN A PILOT PROGRAM.
"(a) Voluntary Election. - Subject to subsection (c)(3)(B), any
person or other entity that conducts any hiring (or recruitment or
referral) in a State in which a pilot program is operating may
elect to participate in that pilot program. Except as specifically
provided in subsection (e), the Secretary of Homeland Security may
not require any person or other entity to participate in a pilot
program.
"(b) Benefit of Rebuttable Presumption. -
"(1) In general. - If a person or other entity is participating
in a pilot program and obtains confirmation of identity and
employment eligibility in compliance with the terms and
conditions of the program with respect to the hiring (or
recruitment or referral) of an individual for employment in the
United States, the person or entity has established a rebuttable
presumption that the person or entity has not violated section
274A(a)(1)(A) with respect to such hiring (or such recruitment or
referral).
"(2) Construction. - Paragraph (1) shall not be construed as
preventing a person or other entity that has an election in
effect under subsection (a) from establishing an affirmative
defense under section 274A(a)(3) if the person or entity complies
with the requirements of section 274A(a)(1)(B) but fails to
obtain confirmation under paragraph (1).
"(c) General Terms of Elections. -
"(1) In general. - An election under subsection (a) shall be in
such form and manner, under such terms and conditions, and shall
take effect, as the Secretary of Homeland Security shall specify.
The Secretary of Homeland Security may not impose any fee as a
condition of making an election or participating in a pilot
program.
"(2) Scope of election. -
"(A) In general. - Subject to paragraph (3), any electing
person or other entity may provide that the election under
subsection (a) shall apply (during the period in which the
election is in effect) -
"(i) to all its hiring (and all recruitment or referral) in
the State (or States) in which the pilot program is
operating, or
"(ii) to its hiring (or recruitment or referral) in one or
more pilot program States or one or more places of hiring (or
recruitment or referral, as the case may be) in the pilot
program States.
"(B) Application of programs in non-pilot program states. -
In addition, the Secretary of Homeland Security may permit a
person or entity electing the citizen attestation pilot program
(described in 403(b) of this division) or the machine-readable-
document pilot program (described in section 403(c) of this
division) to provide that the election applies to its hiring
(or recruitment or referral) in one or more States or places of
hiring (or recruitment or referral) in which the pilot program
is not otherwise operating but only if such States meet the
requirements of 403(b)(2)(A) and 403(c)(2) of this division,
respectively.
"(3) Termination of elections. - The Secretary of Homeland
Security may terminate an election by a person or other entity
under this section because the person or entity has substantially
failed to comply with its obligations under the pilot program. A
person or other entity may terminate an election in such form and
manner as the Secretary of Homeland Security shall specify.
"(d) Consultation, Education, and Publicity. -
"(1) Consultation. - The Secretary of Homeland Security shall
closely consult with representatives of employers (and recruiters
and referrers) in the development and implementation of the pilot
programs, including the education of employers (and recruiters
and referrers) about such programs.
"(2) Publicity. - The Secretary of Homeland Security shall
widely publicize the election process and pilot programs,
including the voluntary nature of the pilot programs and the
advantages to employers (and recruiters and referrers) of making
an election under this section.
"(3) Assistance through district offices. - The Secretary of
Homeland Security shall designate one or more individuals in each
District office of the Immigration and Naturalization Service for
a Service District in which a pilot program is being implemented -
"(A) to inform persons and other entities that seek
information about pilot programs of the voluntary nature of
such programs, and
"(B) to assist persons and other entities in electing and
participating in any pilot programs in effect in the District,
in complying with the requirements of section 274A, and in
facilitating confirmation of the identity and employment
eligibility of individuals consistent with such section.
"(e) Select Entities Required to Participate in a Pilot Program. -
"(1) Federal government. -
"(A) Executive departments. -
"(i) In general. - Each Department of the Federal
Government shall elect to participate in a pilot program and
shall comply with the terms and conditions of such an
election.
"(ii) Election. - Subject to clause (iii), the Secretary of
each such Department -
"(I) shall elect the pilot program (or programs) in which the
Department shall participate, and
"(II) may limit the election to hiring occurring in certain
States (or geographic areas) covered by the program (or
programs) and in specified divisions within the Department,
so long as all hiring by such divisions and in such locations
is covered.
"(iii) Role of secretary of homeland security. - The
Secretary of Homeland Security shall assist and coordinate
elections under this subparagraph in such manner as assures
that -
"(I) a significant portion of the total hiring within each
Department within States covered by a pilot program is
covered under such a program, and
"(II) there is significant participation by the Federal
Executive branch in each of the pilot programs.
"(B) Legislative branch. - Each Member of Congress, each
officer of Congress, and the head of each agency of the
legislative branch, that conducts hiring in a State in which a
pilot program is operating shall elect to participate in a
pilot program, may specify which pilot program or programs (if
there is more than one) in which the Member, officer, or agency
will participate, and shall comply with the terms and
conditions of such an election.
"(2) Application to certain violators. - An order under section
274A(e)(4) or section 274B(g) of the Immigration and Nationality
Act [8 U.S.C. 1324a(e)(4), 1324b(g)] may require the subject of
the order to participate in, and comply with the terms of, a
pilot program with respect to the subject's hiring (or
recruitment or referral) of individuals in a State covered by
such a program.
"(3) Consequence of failure to participate. - If a person or
other entity is required under this subsection to participate in
a pilot program and fails to comply with the requirements of such
program with respect to an individual -
"(A) such failure shall be treated as a violation of section
274A(a)(1)(B) with respect to that individual, and
"(B) a rebuttable presumption is created that the person or
entity has violated section 274A(a)(1)(A).
Subparagraph (B) shall not apply in any prosecution under section
274A(f)(1).
"(f) Construction. - This subtitle shall not affect the authority
of the Secretary of Homeland Security under any other law
(including section 274A(d)(4)) to conduct demonstration projects in
relation to section 274A.
"SEC. 403. PROCEDURES FOR PARTICIPANTS IN PILOT PROGRAMS.
"(a) Basic Pilot Program. - A person or other entity that elects
to participate in the basic pilot program described in this
subsection agrees to conform to the following procedures in the
case of the hiring (or recruitment or referral) for employment in
the United States of each individual covered by the election:
"(1) Provision of additional information. - The person or
entity shall obtain from the individual (and the individual shall
provide) and shall record on the I-9 or similar form -
"(A) the individual's social security account number, if the
individual has been issued such a number, and
"(B) if the individual does not attest to United States
citizenship under section 274A(b)(2), such identification or
authorization number established by the Immigration and
Naturalization Service for the alien as the Secretary of
Homeland Security shall specify,
and shall retain the original form and make it available for
inspection for the period and in the manner required of I-9 forms
under section 274A(b)(3).
"(2) Presentation of documentation. -
"(A) In general. - The person or other entity, and the
individual whose identity and employment eligibility are being
confirmed, shall, subject to subparagraph (B), fulfill the
requirements of section 274A(b) with the following
modifications:
"(i) A document referred to in section 274A(b)(1)(B)(ii)
(as redesignated by section 412(a) of this division) must be
designated by the Secretary of Homeland Security as suitable
for the purpose of identification in a pilot program.
"(ii) A document referred to in section 274A(b)(1)(D) must
contain a photograph of the individual.
"(iii) The person or other entity has complied with the
requirements of section 274A(b)(1) with respect to
examination of a document if the document reasonably appears
on its face to be genuine and it reasonably appears to
pertain to the individual whose identity and work eligibility
is being confirmed.
"(B) Limitation of requirement to examine documentation. - If
the Secretary of Homeland Security finds that a pilot program
would reliably determine with respect to an individual whether -
"(i) the person with the identity claimed by the individual
is authorized to work in the United States, and
"(ii) the individual is claiming the identity of another
person,
if a person or entity could fulfill the requirement to examine
documentation contained in subparagraph (A) of section 274A(b)(1)
by examining a document specified in either subparagraph (B) or
(D) of such section, the Secretary of Homeland Security may
provide that, for purposes of such requirement, only such a
document need be examined. In such case, any reference in section
274A(b)(1)(A) to a verification that an individual is not an
unauthorized alien shall be deemed to be a verification of the
individual's identity.
"(3) Seeking confirmation. -
"(A) In general. - The person or other entity shall make an
inquiry, as provided in section 404(a)(1) of this division,
using the confirmation system to seek confirmation of the
identity and employment eligibility of an individual, by not
later than the end of 3 working days (as specified by the
Secretary of Homeland Security) after the date of the hiring
(or recruitment or referral, as the case may be).
"(B) Extension of time period. - If the person or other
entity in good faith attempts to make an inquiry during such 3
working days and the confirmation system has registered that
not all inquiries were received during such time, the person or
entity can make an inquiry in the first subsequent working day
in which the confirmation system registers that it has received
all inquiries. If the confirmation system cannot receive
inquiries at all times during a day, the person or entity
merely has to assert that the entity attempted to make the
inquiry on that day for the previous sentence to apply to such
an inquiry, and does not have to provide any additional proof
concerning such inquiry.
"(4) Confirmation or nonconfirmation. -
"(A) Confirmation upon initial inquiry. - If the person or
other entity receives an appropriate confirmation of an
individual's identity and work eligibility under the
confirmation system within the time period specified under
section 404(b) of this division, the person or entity shall
record on the I-9 or similar form an appropriate code that is
provided under the system and that indicates a final
confirmation of such identity and work eligibility of the
individual.
"(B) Nonconfirmation upon initial inquiry and secondary
verification. -
"(i) Nonconfirmation. - If the person or other entity
receives a tentative nonconfirmation of an individual's
identity or work eligibility under the confirmation system
within the time period specified under 404(b) of this
division, the person or entity shall so inform the individual
for whom the confirmation is sought.
"(ii) No contest. - If the individual does not contest the
nonconfirmation within the time period specified in section
404(c) of this division, the nonconfirmation shall be
considered final. The person or entity shall then record on
the I-9 or similar form an appropriate code which has been
provided under the system to indicate a tentative
nonconfirmation.
"(iii) Contest. - If the individual does contest the
nonconfirmation, the individual shall utilize the process for
secondary verification provided under section 404(c) of this
division. The nonconfirmation will remain tentative until a
final confirmation or nonconfirmation is provided by the
confirmation system within the time period specified in such
section. In no case shall an employer terminate employment of
an individual because of a failure of the individual to have
identity and work eligibility confirmed under this section
until a nonconfirmation becomes final. Nothing in this clause
shall apply to a termination of employment for any reason
other than because of such a failure.
"(iv) Recording of conclusion on form. - If a final
confirmation or nonconfirmation is provided by the
confirmation system under section 404(c) of this division
regarding an individual, the person or entity shall record on
the I-9 or similar form an appropriate code that is provided
under the system and that indicates a confirmation or
nonconfirmation of identity and work eligibility of the
individual.
"(C) Consequences of nonconfirmation. -
"(i) Termination or notification of continued employment. -
If the person or other entity has received a final
nonconfirmation regarding an individual under subparagraph
(B), the person or entity may terminate employment (or
recruitment or referral) of the individual. If the person or
entity does not terminate employment (or recruitment or
referral) of the individual, the person or entity shall
notify the Secretary of Homeland Security of such fact
through the confirmation system or in such other manner as
the Secretary of Homeland Security may specify.
"(ii) Failure to notify. - If the person or entity fails to
provide notice with respect to an individual as required
under clause (i), the failure is deemed to constitute a
violation of section 274A(a)(1)(B) with respect to that
individual and the applicable civil monetary penalty under
section 274A(e)(5) shall be (notwithstanding the amounts
specified in such section) no less than $500 and no more than
$1,000 for each individual with respect to whom such
violation occurred.
"(iii) Continued employment after final nonconfirmation. -
If the person or other entity continues to employ (or to
recruit or refer) an individual after receiving final
nonconfirmation, a rebuttable presumption is created that the
person or entity has violated section 274A(a)(1)(A). The
previous sentence shall not apply in any prosecution under
section 274A(f)(1).
"(b) Citizen Attestation Pilot Program. -
"(1) In general. - Except as provided in paragraphs (3) through
(5), the procedures applicable under the citizen attestation
pilot program under this subsection shall be the same procedures
as those under the basic pilot program under subsection (a).
"(2) Restrictions. -
"(A) State document requirement to participate in pilot
program. - The Secretary of Homeland Security may not provide
for the operation of the citizen attestation pilot program in a
State unless each driver's license or similar identification
document described in section 274A(b)(1)(D)(i) issued by the
State -
"(i) contains a photograph of the individual involved, and
"(ii) has been determined by the Secretary of Homeland
Security to have security features, and to have been issued
through application and issuance procedures, which make such
document sufficiently resistant to counterfeiting, tampering,
and fraudulent use that it is a reliable means of
identification for purposes of this section.
"(B) Authorization to limit employer participation. - The
Secretary of Homeland Security may restrict the number of
persons or other entities that may elect to participate in the
citizen attestation pilot program under this subsection as the
Secretary of Homeland Security determines to be necessary to
produce a representative sample of employers and to reduce the
potential impact of fraud.
"(3) No confirmation required for certain individuals attesting
to u.s. citizenship. - In the case of a person or other entity
hiring (or recruiting or referring) an individual under the
citizen attestation pilot program, if the individual attests to
United States citizenship (under penalty of perjury on an I-9 or
similar form which form states on its face the criminal and other
penalties provided under law for a false representation of United
States citizenship) -
"(A) the person or entity may fulfill the requirement to
examine documentation contained in subparagraph (A) of section
274A(b)(1) by examining a document specified in either
subparagraph (B)(i) or (D) of such section; and
"(B) the person or other entity is not required to comply
with respect to such individual with the procedures described
in paragraphs (3) and (4) of subsection (a), but only if the
person or entity retains the form and makes it available for
inspection in the same manner as in the case of an I-9 form
under section 274A(b)(3).
"(4) Waiver of document presentation requirement in certain
cases. -
"(A) In general. - In the case of a person or entity that
elects, in a manner specified by the Secretary of Homeland
Security consistent with subparagraph (B), to participate in
the pilot program under this paragraph, if an individual being
hired (or recruited or referred) attests (in the manner
described in paragraph (3)) to United States citizenship and
the person or entity retains the form on which the attestation
is made and makes it available for inspection in the same
manner as in the case of an I-9 form under section 274A(b)(3),
the person or entity is not required to comply with the
procedures described in section 274A(b).
"(B) Restriction. - The Secretary of Homeland Security shall
restrict the election under this paragraph to no more than
1,000 employers and, to the extent practicable, shall select
among employers seeking to make such election in a manner that
provides for such an election by a representative sample of
employers.
"(5) Nonreviewable determinations. - The determinations of the
Secretary of Homeland Security under paragraphs (2) and (4) are
within the discretion of the Secretary of Homeland Security and
are not subject to judicial or administrative review.
"(c) Machine-Readable-Document Pilot Program. -
"(1) In general. - Except as provided in paragraph (3), the
procedures applicable under the machine-readable-document pilot
program under this subsection shall be the same procedures as
those under the basic pilot program under subsection (a).
"(2) State document requirement to participate in pilot
program. - The Secretary of Homeland Security may not provide for
the operation of the machine-readable-document pilot program in a
State unless driver's licenses and similar identification
documents described in section 274A(b)(1)(D)(i) issued by the
State include a machine-readable social security account number.
"(3) Use of machine-readable documents. - If the individual
whose identity and employment eligibility must be confirmed
presents to the person or entity hiring (or recruiting or
referring) the individual a license or other document described
in paragraph (2) that includes a machine-readable social security
account number, the person or entity must make an inquiry through
the confirmation system by using a machine-readable feature of
such document. If the individual does not attest to United States
citizenship under section 274A(b)(2), the individual's
identification or authorization number described in subsection
(a)(1)(B) shall be provided as part of the inquiry.
"(d) Protection From Liability for Actions Taken on the Basis of
Information Provided by the Confirmation System. - No person or
entity participating in a pilot program shall be civilly or
criminally liable under any law for any action taken in good faith
reliance on information provided through the confirmation system.
"SEC. 404. EMPLOYMENT ELIGIBILITY CONFIRMATION SYSTEM.
"(a) In General. - The Secretary of Homeland Security shall
establish a pilot program confirmation system through which the
Secretary of Homeland Security (or a designee of the Secretary of
Homeland Security, which may be a nongovernmental entity) -
"(1) responds to inquiries made by electing persons and other
entities (including those made by the transmittal of data from
machine-readable documents under the machine-readable pilot
program) at any time through a toll-free telephone line or other
toll-free electronic media concerning an individual's identity
and whether the individual is authorized to be employed, and
"(2) maintains records of the inquiries that were made, of
confirmations provided (or not provided), and of the codes
provided to inquirers as evidence of their compliance with their
obligations under the pilot programs.
To the extent practicable, the Secretary of Homeland Security shall
seek to establish such a system using one or more nongovernmental
entities.
"(b) Initial Response. - The confirmation system shall provide
confirmation or a tentative nonconfirmation of an individual's
identity and employment eligibility within 3 working days of the
initial inquiry. If providing confirmation or tentative
nonconfirmation, the confirmation system shall provide an
appropriate code indicating such confirmation or such
nonconfirmation.
"(c) Secondary Verification Process in Case of Tentative
Nonconfirmation. - In cases of tentative nonconfirmation, the
Secretary of Homeland Security shall specify, in consultation with
the Commissioner of Social Security and the Commissioner of the
Immigration and Naturalization Service, an available secondary
verification process to confirm the validity of information
provided and to provide a final confirmation or nonconfirmation
within 10 working days after the date of the tentative
nonconfirmation. When final confirmation or nonconfirmation is
provided, the confirmation system shall provide an appropriate code
indicating such confirmation or nonconfirmation.
"(d) Design and Operation of System. - The confirmation system
shall be designed and operated -
"(1) to maximize its reliability and ease of use by persons and
other entities making elections under section 402(a) of this
division consistent with insulating and protecting the privacy
and security of the underlying information;
"(2) to respond to all inquiries made by such persons and
entities on whether individuals are authorized to be employed and
to register all times when such inquiries are not received;
"(3) with appropriate administrative, technical, and physical
safeguards to prevent unauthorized disclosure of personal
information; and
"(4) to have reasonable safeguards against the system's
resulting in unlawful discriminatory practices based on national
origin or citizenship status, including -
"(A) the selective or unauthorized use of the system to
verify eligibility;
"(B) the use of the system prior to an offer of employment;
or
"(C) the exclusion of certain individuals from consideration
for employment as a result of a perceived likelihood that
additional verification will be required, beyond what is
required for most job applicants.
"(e) Responsibilities of the Commissioner of Social Security. -
As part of the confirmation system, the Commissioner of Social
Security, in consultation with the entity responsible for
administration of the system, shall establish a reliable, secure
method, which, within the time periods specified under subsections
(b) and (c), compares the name and social security account number
provided in an inquiry against such information maintained by the
Commissioner in order to confirm (or not confirm) the validity of
the information provided regarding an individual whose identity and
employment eligibility must be confirmed, the correspondence of the
name and number, and whether the individual has presented a social
security account number that is not valid for employment. The
Commissioner shall not disclose or release social security
information (other than such confirmation or nonconfirmation).
"(f) Responsibilities of the Commissioner of the Immigration and
Naturalization Service. - As part of the confirmation system, the
Commissioner of the Immigration and Naturalization Service, in
consultation with the entity responsible for administration of the
system, shall establish a reliable, secure method, which, within
the time periods specified under subsections (b) and (c), compares
the name and alien identification or authorization number described
in section 403(a)(1)(B) of this division which are provided in an
inquiry against such information maintained by the Commissioner in
order to confirm (or not confirm) the validity of the information
provided, the correspondence of the name and number, and whether
the alien is authorized to be employed in the United States.
"(g) Updating Information. - The Commissioners of Social Security
and the Immigration and Naturalization Service shall update their
information in a manner that promotes the maximum accuracy and
shall provide a process for the prompt correction of erroneous
information, including instances in which it is brought to their
attention in the secondary verification process described in
subsection (c).
"(h) Limitation on Use of the Confirmation System and Any Related
Systems. -
"(1) In general. - Notwithstanding any other provision of law,
nothing in this subtitle shall be construed to permit or allow
any department, bureau, or other agency of the United States
Government to utilize any information, data base, or other
records assembled under this subtitle for any other purpose other
than as provided for under a pilot program.
"(2) No national identification card. - Nothing in this
subtitle shall be construed to authorize, directly or indirectly,
the issuance or use of national identification cards or the
establishment of a national identification card.
"SEC. 405. REPORTS.
"(a) In General. - The Secretary of Homeland Security shall
submit to the Committees on the Judiciary of the House of
Representatives and of the Senate reports on the pilot programs
within 3 months after the end of the third and fourth years in
which the programs are in effect. Such reports shall -
"(1) assess the degree of fraudulent attesting of United States
citizenship,
"(2) include recommendations on whether or not the pilot
programs should be continued or modified, and
"(3) assess the benefits of the pilot programs to employers and
the degree to which they assist in the enforcement of section
274A.
"(b) Report on Expansion. - Not later than June 1, 2004, the
Secretary of Homeland Security shall submit to the Committees on
the Judiciary of the House of Representatives and the Senate a
report -
"(1) evaluating whether the problems identified by the report
submitted under subsection (a) have been substantially resolved;
and
"(2) describing what actions the Secretary of Homeland Security
shall take before undertaking the expansion of the basic pilot
program to all 50 States in accordance with section 401(c)(1), in
order to resolve any outstanding problems raised in the report
filed under subsection (a)."
[Pub. L. 107-128, Sec. 3, Jan. 16, 2002, 115 Stat. 2407, provided
that: "The amendment made by this Act [amending section 401(b) of
Pub. L. 104-208, set out above] shall take effect on the date of
the enactment of this Act [Jan. 16, 2002]."]
REPORT ON ADDITIONAL AUTHORITY OR RESOURCES NEEDED FOR ENFORCEMENT
OF EMPLOYER SANCTIONS PROVISIONS
Pub. L. 104-208, div. C, title IV, Sec. 413(a), Sept. 30, 1996,
110 Stat. 3009-668, as amended by Pub. L. 108-156, Sec. 3(d), Dec.
3, 2003, 117 Stat. 1945, provided that not later than 1 year after
Sept. 30, 1996, the Secretary of Homeland Security was to submit to
the Committees on the Judiciary of the House of Representatives and
of the Senate a report on any additional authority or resources
needed by the Immigration and Naturalization Service in order to
enforce section 1324a of this title, or by Federal agencies in
order to carry out Ex. Ord. No. 12989, set out below, and to expand
the restrictions in such order to cover agricultural subsidies,
grants, job training programs, and other Federally subsidized
assistance programs.
PILOT PROJECTS FOR SECURE DOCUMENTS
Pub. L. 101-238, Sec. 5, Dec. 18, 1989, 103 Stat. 2104, provided
that:
"(a) Consultation. - Before June 1, 1991, the Attorney General
shall consult with State governments on any proper State initiative
to improve the security of State or local documents which would
satisfy the requirements of section 274A(b)(1) of the Immigration
and Nationality Act (8 U.S.C. 1324a). The result of such
consultations shall be reported, before September 1, 1991, to the
Committees on the Judiciary of the Senate and House of
Representatives of the United States.
"(b) Assistance for State Initiatives. - After such consultation
described in subsection (a), the Attorney General shall make grants
to, and enter into contracts with (to such extent or in such
amounts as are provided in an appropriation Act), the State of
California and at least 2 other States with large immigrant
populations to promote any State initiatives to improve the
security of State or local documents which would satisfy the
requirements of section 274A(b)(1) of the Immigration and
Nationality Act [8 U.S.C. 1324a(b)(1)].
"(c) Authorization of Appropriations. - There are authorized to
be appropriated to the Attorney General $10,000,000 for fiscal year
1992 to carry out subsection (b).
"(d) Report Required. - The Attorney General shall report to the
Committees on the Judiciary of the Senate and House of
Representatives not later than August 1, 1993, on the security of
State or local documents which would satisfy the requirements of
section 274A(b)(1) of the Immigration and Nationality Act (8 U.S.C.
1324a), and any improvements in such documents that have occurred
as a result of this section."
INTERIM REGULATIONS
Section 101(a)(2) of Pub. L. 99-603 provided that: "The Attorney
General shall, not later than the first day of the seventh month
beginning after the date of the enactment of this Act [Nov. 6,
1986], first issue, on an interim or other basis, such regulations
as may be necessary in order to implement this section [enacting
this section, amending sections 1802, 1813, 1816, and 1851 of Title
29, Labor, and enacting provisions set out as notes under this
section, section 1802 of Title 29, and section 405 of Title 42, The
Public Health and Welfare]."
GRANDFATHER PROVISION FOR CURRENT EMPLOYEES
Section 101(a)(3) of Pub. L. 99-603 provided that:
"(A) Section 274A(a)(1) of the Immigration and Nationality Act [8
U.S.C. 1324a(a)(1)] shall not apply to the hiring, or recruiting or
referring of an individual for employment which has occurred before
the date of the enactment of this Act [Nov. 6, 1986].
"(B) Section 274A(a)(2) of the Immigration and Nationality Act
shall not apply to continuing employment of an alien who was hired
before the date of the enactment of this Act."
STUDY OF USE OF TELEPHONE VERIFICATION SYSTEM FOR DETERMINING
EMPLOYMENT ELIGIBILITY OF ALIENS
Section 101(d) of Pub. L. 99-603 provided that:
"(1) The Attorney General, in consultation with the Secretary of
Labor and the Secretary of Health and Human Services, shall conduct
a study for use by the Department of Justice in determining
employment eligibility of aliens in the United States. Such study
shall concentrate on those data bases that are currently available
to the Federal Government which through the use of a telephone and
computation capability could be used to verify instantly the
employment eligibility status of job applicants who are aliens.
"(2) Such study shall be conducted in conjunction with any
existing Federal program which is designed for the purpose of
providing information on the resident or employment status of
aliens for employers. The study shall include an analysis of costs
and benefits which shows the differences in costs and efficiency of
having the Federal Government or a contractor perform this service.
Such comparisons should include reference to such technical
capabilities as processing techniques and time, verification
techniques and time, back up safeguards, and audit trail
performance.
"(3) Such study shall also concentrate on methods of phone
verification which demonstrate the best safety and service
standards, the least burden for the employer, the best capability
for effective enforcement, and procedures which are within the
boundaries of the Privacy Act of 1974 [5 U.S.C. 552a, 552a note].
"(4) Such study shall be conducted within twelve months of the
date of enactment of this Act [Nov. 6, 1986].
"(5) The Attorney General shall prepare and transmit to the
Congress a report -
"(A) not later than six months after the date of enactment of
this Act, describing the status of such study; and
"(B) not later than twelve months after such date, setting
forth the findings of such study."
FEASIBILITY STUDY OF SOCIAL SECURITY NUMBER VALIDATION SYSTEM
Section 101(e) of Pub. L. 99-603 provided that: "The Secretary of
Health and Human Services, acting through the Social Security
Administration and in cooperation with the Attorney General and the
Secretary of Labor, shall conduct a study of the feasibility and
costs of establishing a social security number validation system to
assist in carrying out the purposes of section 274A of the
Immigration and Nationality Act [8 U.S.C. 1324a], and of the
privacy concerns that would be raised by the establishment of such
a system. The Secretary shall submit to the Committees on Ways and
Means and Judiciary of the House of Representatives and to the
Committees on Finance and Judiciary of the Senate, within 2 years
after the date of the enactment of this Act [Nov. 6, 1986], a full
and complete report on the results of the study together with such
recommendations as may be appropriate."
REPORTS ON UNAUTHORIZED ALIEN EMPLOYMENT
Section 402 of Pub. L. 99-603 provided that: "The President shall
transmit to Congress annual reports on the implementation of
section 274A of the Immigration and Nationality Act [8 U.S.C.
1324a] (relating to unlawful employment of aliens) during the first
three years after its implementation. Each report shall include -
"(1) an analysis of the adequacy of the employment verification
system provided under subsection (b) of that section;
"(2) a description of the status of the development and
implementation of changes in that system under subsection (d) of
that section, including the results of any demonstration projects
conducted under paragraph (4) of such subsection; and
"(3) an analysis of the impact of the enforcement of that
section on -
"(A) the employment, wages, and working conditions of United
States workers and on the economy of the United States,
"(B) the number of aliens entering the United States
illegally or who fail to maintain legal status after entry, and
"(C) the violation of terms and conditions of nonimmigrant
visas by foreign visitors."
[Functions of President under section 402 of Pub. L. 99-603
delegated to Secretary of Homeland Security, except functions in
section 402(3)(A) which were delegated to Secretary of Labor, by
sections 1(b) and 2(a) of Ex. Ord. No. 12789, Feb. 10, 1992, 57
F.R. 5225, as amended, set out as a note under section 1364 of this
title.]
EXECUTIVE ORDER
EX. ORD. NO. 12989. ECONOMY AND EFFICIENCY IN GOVERNMENT
PROCUREMENT THROUGH COMPLIANCE WITH CERTAIN IMMIGRATION AND
NATIONALITY ACT PROVISIONS AND USE OF AN ELECTRONIC EMPLOYMENT
ELIGIBILITY VERIFICATION SYSTEM
Ex. Ord. No. 12989, Feb. 13, 1996, 61 F.R. 6091, as amended by
Ex. Ord. No. 13286, Sec. 19, Feb. 28, 2003, 68 F.R. 10623; Ex. Ord.
No. 13465, Secs. 1-6, June 6, 2008, 73 F.R. 33285-33287, provided:
This order is designed to promote economy and efficiency in
Federal Government procurement. Stability and dependability are
important elements of economy and efficiency. A contractor whose
workforce is less stable will be less likely to produce goods and
services economically and efficiently than a contractor whose
workforce is more stable. It is the policy of the executive branch
to enforce fully the immigration laws of the United States,
including the detection and removal of illegal aliens and the
imposition of legal sanctions against employers that hire illegal
aliens. Because of the worksite enforcement policy of the United
States and the underlying obligation of the executive branch to
enforce the immigration laws, contractors that employ illegal
aliens cannot rely on the continuing availability and service of
those illegal workers, and such contractors inevitably will have a
less stable and less dependable workforce than contractors that do
not employ such persons. Where a contractor assigns illegal aliens
to work on Federal contracts, the enforcement of Federal
immigration laws imposes a direct risk of disruption, delay, and
increased expense in Federal contracting. Such contractors are less
dependable procurement sources, even if they do not knowingly hire
or knowingly continue to employ unauthorized workers.
Contractors that adopt rigorous employment eligibility
confirmation policies are much less likely to face immigration
enforcement actions, because they are less likely to employ
unauthorized workers, and they are therefore generally more
efficient and dependable procurement sources than contractors that
do not employ the best available measures to verify the work
eligibility of their workforce. It is the policy of the executive
branch to use an electronic employment verification system because,
among other reasons, it provides the best available means to
confirm the identity and work eligibility of all employees that
join the Federal workforce. Private employers that choose to
contract with the Federal Government should meet the same standard.
I find, therefore, that adherence to the general policy of
contracting only with providers that do not knowingly employ
unauthorized alien workers and that have agreed to utilize an
electronic employment verification system designated by the
Secretary of Homeland Security to confirm the employment
eligibility of their workforce will promote economy and efficiency
in Federal procurement.
NOW, THEREFORE, to ensure the economical and efficient
administration and completion of Federal Government contracts, and
by the authority vested in me as President by the Constitution and
the laws of the United States of America, including subsection
121(a) of title 40 and section 301 of title 3, United States Code,
it is hereby ordered as follows:
Section 1. (a) It is the policy of the executive branch in
procuring goods and services that, to ensure the economical and
efficient administration and completion of Federal Government
contracts, contracting agencies should not contract with employers
that have not complied with section 274A(a)(1)(A) and 274A(a)(2) of
the Immigration and Nationality Act (8 U.S.C. 1324a(a)(1)(A),
1324a(a)(2)) (the "INA employment provisions") prohibiting the
unlawful employment of aliens.
(b) It is the policy of the executive branch in procuring goods
and services that, to ensure the economical and efficient
administration and completion of Federal Government contracts,
contracting agencies may not enter into contracts with employers
that do not use the best available means to confirm the work
authorization of their workforce.
(c) It is the policy of the executive branch to enforce fully the
antidiscrimination provisions of the INA. Nothing in this order
relieves employers of antidiscrimination obligations under section
274B of the INA (8 U.S.C. 1324b) or any other law.
(d) All discretion under this order shall be exercised consistent
with the policies set forth in this section.
Sec. 2. Contractor, as used in this Executive order, shall have
the same meaning as defined in subpart 9.4 of the Federal
Acquisition Regulation.
Sec. 3. Using the procedures established pursuant to 8 U.S.C.
1324a(e): (a) the Secretary of Homeland Security may investigate to
determine whether a contractor or an organizational unit thereof is
not in compliance with the INA employment provisions;
(b) the Secretary of Homeland Security shall receive and may
investigate complaints by employees of any entity covered under
section 3(a) of this order where such complaints allege
noncompliance with the INA employment provisions; and
(c) the Attorney General shall hold such hearings as are required
under 8 U.S.C. 1324a(e) to determine whether an entity covered
under section 3(a) is not in compliance with the INA employment
provisions.
Sec. 4. (a) Whenever the Secretary of Homeland Security or the
Attorney General determines that a contractor or an organizational
unit thereof is not in compliance with the INA employment
provisions, the Secretary of Homeland Security or the Attorney
General shall transmit that determination to the appropriate
contracting agency and such other Federal agencies as the Secretary
of Homeland Security or the Attorney General may determine. Upon
receipt of such determination from the Secretary of Homeland
Security or the Attorney General, the head of the appropriate
contracting agency shall consider the contractor or an
organizational unit thereof for debarment as well as for such other
action as may be appropriate in accordance with the procedures and
standards prescribed by the Federal Acquisition Regulation.
(b) The head of the contracting agency may debar the contractor
or an organizational unit thereof based on the determination of the
Secretary of Homeland Security or the Attorney General that it is
not in compliance with the INA employment provisions. Such
determination shall not be reviewable in the debarment proceedings.
(c) The scope of the debarment generally should be limited to
those organizational units of a Federal contractor that the
Secretary of Homeland Security or the Attorney General finds are
not in compliance with the INA employment provisions.
(d) The period of the debarment shall be for 1 year and may be
extended for additional periods of 1 year if, using the procedures
established pursuant to 8 U.S.C. 1324a(e), the Secretary of
Homeland Security or the Attorney General determines that the
organizational unit of the Federal contractor continues to be in
violation of the INA employment provisions.
(e) The Administrator of General Services shall list a debarred
contractor or an organizational unit thereof on the List of Parties
Excluded from Federal Procurement and Nonprocurement Programs and
the contractor or an organizational unit thereof shall be
ineligible to participate in any procurement or nonprocurement
activities.
Sec. 5. (a) Executive departments and agencies that enter into
contracts shall require, as a condition of each contract, that the
contractor agree to use an electronic employment eligibility
verification system designated by the Secretary of Homeland
Security to verify the employment eligibility of: (i) all persons
hired during the contract term by the contractor to perform
employment duties within the United States; and (ii) all persons
assigned by the contractor to perform work within the United States
on the Federal contract.
(b) The Secretary of Homeland Security:
(i) shall administer, maintain, and modify as necessary and
appropriate the electronic employment eligibility verification
system designated by the Secretary under subsection (a) of this
section; and
(ii) may establish with respect to such electronic employment
verification system:
(A) terms and conditions for use of the system; and
(B) procedures for monitoring the use, failure to use, or
improper use of the system.
(c) The Secretary of Defense, the Administrator of General
Services, and the Administrator of the National Aeronautics and
Space Administration shall amend the Federal Acquisition Regulation
to the extent necessary and appropriate to implement the debarment
responsibility, the employment eligibility verification
responsibility, and other related responsibilities assigned to
heads of departments and agencies under this order.
(d) Except to the extent otherwise specified by law or this
order, the Secretary of Homeland Security and the Attorney General:
(i) shall administer and enforce this order; and
(ii) may, after consultation to the extent appropriate with the
Secretary of Defense, the Secretary of Labor, the Administrator of
General Services, the Administrator of the National Aeronautics and
Space Administration, the Administrator for Federal Procurement
Policy, and the heads of such other departments or agencies as may
be appropriate, issue such rules, regulations, or orders, or
establish such requirements, as may be necessary and appropriate to
implement this order.
Sec. 6. Each contracting department and agency shall cooperate
with and provide such information and assistance to the Secretary
of Homeland Security and the Attorney General as may be required in
the performance of their respective functions under this order.
Sec. 7. The Secretary of Homeland Security, the Attorney General,
the Secretary of Defense, the Administrator of General Services,
the Administrator of the National Aeronautics and Space
Administration, and the heads of contracting departments and
agencies may delegate any of their functions or duties under this
order to any officer or employee of their respective departments or
agencies.
Sec. 8. (a) This order shall be implemented in a manner intended
to minimize the burden on participants in the Federal procurement
process.
(b) This order shall be implemented in a manner consistent with
the protection of intelligence and law enforcement sources,
methods, and activities from unauthorized disclosure.
Sec. 9. (a) Nothing in this order shall be construed to impair or
otherwise affect:
(i) authority granted by law to a department or agency or the
head thereof; or
(ii) functions of the Director of the Office of Management and
Budget relating to budget, administrative, or legislative
proposals.
(b) This order shall be implemented consistent with applicable
law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right
or benefit, substantive or procedural, enforceable at law or in
equity, by any party against the United States, its departments,
agencies or entities, its officers, employees, or agents, or any
other person.
FOOTNOTE
(!1) So in original. Probably should be followed by "or".
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