Accountability Through Electronic Verification Act

II 117TH CONGRESS 1ST SESSION S. 71 To expand the use of E-Verify to hold employers accountable, and for other purposes. IN THE SENATE OF THE UNITED STATES JANUARY 27, 2021 Mr. GRASSLEY (for himself, Ms. ERNST, Mr. INHOFE, Mrs. BLACKBURN, Mrs. CAPITO, Mr. COTTON, Mr. LEE, Mr. BOOZMAN, Mrs. HYDE-SMITH, Mr. THUNE, and Mr. WICKER) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To expand the use of E-Verify to hold employers accountable, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 3 (a) SHORT TITLE.—This Act may be cited as the 4 ‘‘Accountability Through Electronic Verification Act’’. 5 (b) TABLE OF CONTENTS.—The table of contents for 6 this Act is as follows: 7 Sec. 1. Short title; table of contents. Sec. 2. Permanent reauthorization. Sec. 3. Mandatory use of E-Verify. Sec. 4. Consequences of failure to participate. Sec. 5. Preemption; liability. VerDate Sep 11 2014 19:18 Feb 07, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6211 E:\BILLS\S71.IS S71 pbinns on DSKJLVW7X2PROD with BILLS 2 •S 71 IS Sec. 6. Expanded use of E-Verify. Sec. 7. Reverification. Sec. 8. Holding employers accountable. Sec. 9. Information sharing. Sec. 10. Form I–9 process. Sec. 11. Algorithm. Sec. 12. Identity theft. Sec. 13. Small Business Demonstration Program. Sec. 14. Employer Compliance Inspection Center. SEC. 2. PERMANENT REAUTHORIZATION. 1 Section 401(b) of the Illegal Immigration Reform and 2 Immigrant Responsibility Act of 1996 (division C of Pub- 3 lic Law 104–208; 8 U.S.C. 1324a note) is amended by 4 striking ‘‘Unless the Congress otherwise provides, the Sec- 5 retary of Homeland Security shall terminate a pilot pro- 6 gram on September 30, 2015.’’. 7 SEC. 3. MANDATORY USE OF E-VERIFY. 8 (a) FEDERAL GOVERNMENT.—Section 402(e)(1) of 9 the Illegal Immigration Reform and Immigrant Responsi- 10 bility Act of 1996 (8 U.S.C. 1324a note) is amended— 11 (1) by amending subparagraph (A) to read as 12 follows: 13 ‘‘(A) EXECUTIVE DEPARTMENTS AND 14 AGENCIES.—Each department and agency of 15 the Federal Government shall participate in E- 16 Verify by complying with the terms and condi- 17 tions set forth in this section.’’; and 18 (2) in subparagraph (B), by striking ‘‘, that 19 conducts hiring in a State’’ and all that follows and 20 inserting ‘‘shall participate in E-Verify by complying 21 VerDate Sep 11 2014 19:18 Feb 07, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S71.IS S71 pbinns on DSKJLVW7X2PROD with BILLS 3 •S 71 IS with the terms and conditions set forth in this sec- 1 tion.’’. 2 (b) FEDERAL CONTRACTORS; CRITICAL EMPLOY- 3 ERS.—Section 402(e) of such Act, as amended by sub- 4 section (a), is further amended— 5 (1) by redesignating paragraphs (2) and (3) as 6 paragraphs (4) and (5), respectively; and 7 (2) by inserting after paragraph (1) the fol- 8 lowing: 9 ‘‘(2) UNITED STATES CONTRACTORS.—Any per- 10 son, employer, or other entity that enters into a con- 11 tract with the Federal Government shall participate 12 in E-Verify by complying with the terms and condi- 13 tions set forth in this section. 14 ‘‘(3) DESIGNATION OF CRITICAL EMPLOYERS.— 15 Not later than 7 days after the date of the enact- 16 ment of this paragraph, the Secretary of Homeland 17 Security shall— 18 ‘‘(A) conduct an assessment of employers 19 that are critical to the homeland security or na- 20 tional security needs of the United States; 21 ‘‘(B) designate and publish a list of em- 22 ployers and classes of employers that are 23 deemed to be critical pursuant to the assess- 24 ment conducted under subparagraph (A); and 25 VerDate Sep 11 2014 19:18 Feb 07, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S71.IS S71 pbinns on DSKJLVW7X2PROD with BILLS 4 •S 71 IS ‘‘(C) require that critical employers des- 1 ignated pursuant to subparagraph (B) partici- 2 pate in E-Verify by complying with the terms 3 and conditions set forth in this section not later 4 than 30 days after the Secretary makes such 5 designation.’’. 6 (c) ALL EMPLOYERS.—Section 402 of such Act, as 7 amended by this section, is further amended— 8 (1) by redesignating subsection (f) as sub- 9 section (g); and 10 (2) by inserting after subsection (e) the fol- 11 lowing: 12 ‘‘(f) MANDATORY PARTICIPATION IN E-VERIFY.— 13 ‘‘(1) IN GENERAL.—Subject to paragraphs (2) 14 and (3), all employers in the United States shall 15 participate in E-Verify, with respect to all employees 16 recruited, referred, or hired by such employer on or 17 after the date that is 1 year after the date of the 18 enactment of this subsection. 19 ‘‘(2) USE OF CONTRACT LABOR.—Any employer 20 who uses a contract, subcontract, or exchange to ob- 21 tain the labor of an individual in the United States 22 shall certify in such contract, subcontract, or ex- 23 change that the employer, and all parties to such 24 contract, subcontract, or exchange, use E-Verify. If 25 VerDate Sep 11 2014 19:18 Feb 07, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S71.IS S71 pbinns on DSKJLVW7X2PROD with BILLS 5 •S 71 IS such certification is not included in a contract, sub- 1 contract, or exchange, the employer shall be deemed 2 to have violated paragraph (1). 3 ‘‘(3) INTERIM MANDATORY PARTICIPATION.— 4 ‘‘(A) IN GENERAL.—Before the date set 5 forth in paragraph (1), the Secretary of Home- 6 land Security shall require any employer or 7 class of employers to participate in E-Verify, 8 with respect to all employees recruited, referred, 9 or hired by such employer if the Secretary has 10 reasonable cause to believe that the employer is 11 or has been engaged in a material violation of 12 section 274A of the Immigration and Nation- 13 ality Act (8 U.S.C. 1324a). 14 ‘‘(B) NOTIFICATION.—Not later than 14 15 days before an employer or class of employers 16 is required to begin participating in E-Verify 17 pursuant to subparagraph (A), the Secretary 18 shall provide such employer or class of employ- 19 ers with— 20 ‘‘(i) written notification of such re- 21 quirement; and 22 ‘‘(ii) appropriate training materials to 23 facilitate compliance with such require- 24 ment.’’. 25 VerDate Sep 11 2014 19:18 Feb 07, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S71.IS S71 pbinns on DSKJLVW7X2PROD with BILLS 6 •S 71 IS SEC. 4. CONSEQUENCES OF FAILURE TO PARTICIPATE. 1 (a) IN GENERAL.—Section 402(e)(5) of the Illegal 2 Immigration Reform and Immigrant Responsibility Act of 3 1996 (8 U.S.C. 1324a note), as redesignated by section 4 3(b)(1), is amended to read as follows: 5 ‘‘(5) CONSEQUENCES OF FAILURE TO PARTICI- 6 PATE.—If a person or other entity that is required 7 to participate in E-Verify fails to comply with the 8 requirements under this title with respect to an indi- 9 vidual— 10 ‘‘(A) such failure shall be treated as a vio- 11 lation of section 274A(a)(1)(B) of the Immigra- 12 tion and Nationality Act (8 U.S.C. 1324a) with 13 respect to such individual; and 14 ‘‘(B) a rebuttable presumption is created 15 that the person or entity has violated section 16 274A(a)(1)(A) of such Act.’’. 17 (b) PENALTIES.—Section 274A of the Immigration 18 and Nationality Act (8 U.S.C. 1324a) is amended— 19 (1) in subsection (e)— 20 (A) in paragraph (4)— 21 (i) in subparagraph (A)— 22 (I) in the matter preceding clause 23 (i), by inserting ‘‘, subject to para- 24 graph (10),’’ after ‘‘in an amount’’; 25 VerDate Sep 11 2014 19:18 Feb 07, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S71.IS S71 pbinns on DSKJLVW7X2PROD with BILLS 7 •S 71 IS (II) in clause (i), by striking ‘‘not 1 less than $250 and not more than 2 $2,000’’ and inserting ‘‘not less than 3 $2,500 and not more than $5,000’’; 4 (III) in clause (ii), by striking 5 ‘‘not less than $2,000 and not more 6 than $5,000’’ and inserting ‘‘not less 7 than $5,000 and not more than 8 $10,000’’; and 9 (IV) in clause (iii), by striking 10 ‘‘not less than $3,000 and not more 11 than $10,000’’ and inserting ‘‘not less 12 than $10,000 and not more than 13 $25,000’’; and 14 (ii) by amending subparagraph (B) to 15 read as follows: 16 ‘‘(B) may require the person or entity to 17 take such other remedial action as is appro- 18 priate.’’; 19 (B) in paragraph (5)— 20 (i) by inserting ‘‘, subject to para- 21 graphs (10) through (12),’’ after ‘‘in an 22 amount’’; 23 VerDate Sep 11 2014 19:18 Feb 07, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S71.IS S71 pbinns on DSKJLVW7X2PROD with BILLS 8 •S 71 IS (ii) by striking ‘‘$100 and not more 1 than $1,000’’ and inserting ‘‘$1,000 and 2 not more than $25,000’’; 3 (iii) by striking ‘‘the size of the busi- 4 ness of the employer being charged, the 5 good faith of the employer’’ and inserting 6 ‘‘the good faith of the employer being 7 charged’’; and 8 (iv) by adding at the end the fol- 9 lowing: ‘‘Failure by a person or entity to 10 utilize the employment eligibility 11 verification system as required by law, or 12 providing information to the system that 13 the person or entity knows or reasonably 14 believes to be false, shall be treated as a 15 violation of subsection (a)(1)(A).’’; and 16 (C) by adding at the end the following: 17 ‘‘(10) EXEMPTION FROM PENALTY.—In the 18 case of the imposition of a civil penalty under para- 19 graph (4)(A) with respect to a violation of para- 20 graph (1)(A) or (2) of subsection (a) for hiring, con- 21 tinuation of employment, recruitment, or referral by 22 a person or entity and, in the case of the imposition 23 of a civil penalty under paragraph (5) for a violation 24 of subsection (a)(1)(B) for hiring, recruitment, or 25 VerDate Sep 11 2014 19:18 Feb 07, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S71.IS S71 pbinns on DSKJLVW7X2PROD with BILLS 9 •S 71 IS referral by a person or entity, the penalty otherwise 1 imposed may be waived or reduced if the violator es- 2 tablishes that the violator acted in good faith. 3 ‘‘(11) AUTHORITY TO DEBAR EMPLOYERS FOR 4 CERTAIN VIOLATIONS.— 5 ‘‘(A) IN GENERAL.—If a person or entity 6 is determined by the Secretary of Homeland Se- 7 curity to be a repeat violator of paragraph 8 (1)(A) or (2) of subsection (a), or is convicted 9 of a crime under this section, the Secretary of 10 Homeland Security shall debar such person or 11 entity from the receipt of Federal contracts, 12 grants, or cooperative agreements in accordance 13 with the debarment standards and pursuant to 14 the debarment procedures set forth in the Fed- 15 eral Acquisition Regulation. 16 ‘‘(B) DOES NOT HAVE CONTRACT, GRANT, 17 AGREEMENT.—If the Secretary of Homeland 18 Security debars a person or entity in accord- 19 ance with this paragraph, and such person or 20 entity does not hold a Federal contract, grant, 21 or cooperative agreement, the Administrator of 22 General Services shall include the person or en- 23 tity on the List of Parties Excluded from Fed- 24 eral Procurement for 5 years. 25 VerDate Sep 11 2014 19:18 Feb 07, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S71.IS S71 pbinns on DSKJLVW7X2PROD with BILLS 10 •S 71 IS ‘‘(C) HAS CONTRACT, GRANT, AGREE- 1 MENT.—If the Secretary of Homeland Security 2 debars a person or entity in accordance with 3 this paragraph, and such person or entity holds 4 a Federal contract, grant, or cooperative agree- 5 ment, the Secretary— 6 ‘‘(i) shall notify all agencies or depart- 7 ments holding a contract, grant, or cooper- 8 ative agreement with the debarred person 9 or entity of such debarment; and 10 ‘‘(ii) after soliciting and considering 11 the views of all such agencies and depart- 12 ments, may waive the operation of this 13 paragraph. 14 ‘‘(D) REVIEW.—Any decision to debar a 15 person or entity under in accordance with this 16 paragraph shall be reviewable pursuant to part 17 9.4 of the Federal Acquisition Regulation.’’; 18 and 19 (2) in subsection (f)— 20 (A) by amending paragraph (1) to read as 21 follows: 22 ‘‘(1) CRIMINAL PENALTY.—Any person or enti- 23 ty which engages in a pattern or practice of viola- 24 tions of subsection (a)(1) or (2) shall be fined not 25 VerDate Sep 11 2014 19:18 Feb 07, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S71.IS S71 pbinns on DSKJLVW7X2PROD with BILLS 11 •S 71 IS more than $30,000 for each unauthorized alien with 1 respect to which such a violation occurs, imprisoned 2 for not less than 1 year and not more than 10 years, 3 or both, notwithstanding the provisions of any other 4 Federal law relating to fine levels.’’; and 5 (B) in paragraph (2), by striking ‘‘Attor- 6 ney General’’ each place it appears and insert- 7 ing ‘‘Secretary of Homeland Security’’. 8 SEC. 5. PREEMPTION; LIABILITY. 9 Section 402 of the Illegal Immigration Reform and 10 Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a 11 note), as amended by this Act, is further amended by add- 12 ing at the end the following: 13 ‘‘(h) LIMITATION ON STATE AUTHORITY.— 14 ‘‘(1) PREEMPTION.—A State or local govern- 15 ment may not prohibit a person or other entity from 16 verifying the employment authorization of new hires 17 or current employees through E-Verify. 18 ‘‘(2) LIABILITY.—A person or other entity that 19 participates in E-Verify may not be held liable under 20 any Federal, State, or local law for any employment- 21 related action taken with respect to the wrongful 22 termination of an individual in good faith reliance on 23 information provided through E-Verify.’’. 24 VerDate Sep 11 2014 19:18 Feb 07, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S71.IS S71 pbinns on DSKJLVW7X2PROD with BILLS 12 •S 71 IS SEC. 6. EXPANDED USE OF E-VERIFY. 1 Section 403(a)(3)(A) of the Illegal Immigration Re- 2 form and Immigrant Responsibility Act of 1996 (8 U.S.C. 3 1324a note) is amended to read as follows: 4 ‘‘(A) IN GENERAL.— 5 ‘‘(i) BEFORE HIRING.—The person or 6 other entity may verify the employment eli- 7 gibility of an individual through E-Verify 8 before the individual is hired, recruited, or 9 referred if the individual consents to such 10 verification. If an employer receives a ten- 11 tative nonconfirmation for an individual, 12 the employer shall comply with procedures 13 prescribed by the Secretary of Homeland 14 Security, including— 15 ‘‘(I) providing the individual em- 16 ployees with private, written notifica- 17 tion of the finding and written refer- 18 ral instructions; 19 ‘‘(II) allowing the individual to 20 contest the finding; and 21 ‘‘(III) not taking adverse action 22 against the individual if the individual 23 chooses to contest the finding. 24 ‘‘(ii) AFTER EMPLOYMENT OFFER.— 25 The per [Text truncated for display. Full text available on Congress.gov.]