II 117TH CONGRESS 1ST SESSION S. 418 To enforce work authorization requirements for immigrants. IN THE SENATE OF THE UNITED STATES FEBRUARY 24, 2021 Mr. PORTMAN introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To enforce work authorization requirements for immigrants. 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. 3 This Act may be cited as the ‘‘E-Verify Act’’. 4 SEC. 2. UNLAWFUL EMPLOYMENT OF UNAUTHORIZED 5 ALIENS. 6 Section 274A of the Immigration and Nationality Act 7 (8 U.S.C. 1324a) is amended to read as follows: 8 ‘‘SEC. 274A. UNLAWFUL EMPLOYMENT OF ALIENS. 9 ‘‘(a) MAKING EMPLOYMENT OF UNAUTHORIZED 10 ALIENS UNLAWFUL.— 11 VerDate Sep 11 2014 02:44 Mar 18, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S418.IS S418 kjohnson on DSK79L0C42PROD with BILLS 2 •S 418 IS ‘‘(1) IN GENERAL.—It is unlawful for an em- 1 ployer— 2 ‘‘(A) to hire, recruit, or refer for a fee an 3 alien for employment in the United States 4 knowing that the alien is an unauthorized alien 5 with respect to such employment; or 6 ‘‘(B) to hire, recruit, or refer for a fee for 7 employment in the United States an individual 8 without complying with the requirements under 9 subsections (c) and (d). 10 ‘‘(2) CONTINUING EMPLOYMENT.— 11 ‘‘(A) PROHIBITION ON CONTINUED EM- 12 PLOYMENT OF UNAUTHORIZED ALIENS.—It is 13 unlawful for an employer, after hiring an alien 14 for employment, to continue to employ the alien 15 in the United States knowing that the alien is 16 (or has become) an unauthorized alien with re- 17 spect to such employment. 18 ‘‘(B) PROHIBITION ON CONSIDERATION OF 19 PREVIOUS UNAUTHORIZED STATUS.—Nothing 20 in this section may be construed to prohibit the 21 employment of an individual who is authorized 22 for employment in the United States if such in- 23 dividual was previously an unauthorized alien. 24 VerDate Sep 11 2014 02:44 Mar 18, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S418.IS S418 kjohnson on DSK79L0C42PROD with BILLS 3 •S 418 IS ‘‘(3) USE OF LABOR THROUGH CONTRACT.— 1 For purposes of this section, any employer that uses 2 a contract, subcontract, or exchange to obtain the 3 labor of an alien in the United States while knowing 4 that the alien is an unauthorized alien with respect 5 to performing such labor shall be considered to have 6 hired the alien for employment in the United States 7 in violation of paragraph (1)(A). 8 ‘‘(4) USE OF STATE EMPLOYMENT AGENCY 9 DOCUMENTATION.—For purposes of paragraphs 10 (1)(B), (5), and (6), an employer shall be deemed to 11 have complied with the requirements under sub- 12 section (c) with respect to the hiring of an individual 13 who was referred for such employment by a State 14 employment agency (as defined by the Secretary) if 15 the employer has and retains (for the period and in 16 the manner described in subsection (c)(3)) appro- 17 priate documentation of such referral by such agen- 18 cy, certifying that such agency has complied with the 19 procedures described in subsection (c) with respect 20 to the individual’s referral. An employer that relies 21 on a State agency’s certification of compliance with 22 subsection (c) under this paragraph may utilize and 23 retain the State agency’s certification of compliance 24 VerDate Sep 11 2014 02:44 Mar 18, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S418.IS S418 kjohnson on DSK79L0C42PROD with BILLS 4 •S 418 IS with the procedures described in subsection (d), if 1 any, in the manner provided under this paragraph. 2 ‘‘(5) GOOD FAITH DEFENSE.— 3 ‘‘(A) DEFENSE.—An employer, person, or 4 entity that hires, employs, recruits, or refers in- 5 dividuals for employment in the United States, 6 or is otherwise obligated to comply with the re- 7 quirements under this section and establishes 8 good faith compliance with the requirements 9 under paragraphs (1) through (4) of subsection 10 (c) and subsection (d)— 11 ‘‘(i) has established an affirmative de- 12 fense that the employer, person, or entity 13 has not violated paragraph (1)(A) with re- 14 spect to hiring and employing; and 15 ‘‘(ii) has established compliance with 16 its obligations under subparagraph (A) and 17 (B) of paragraph (1) and subsection (c) 18 unless the Secretary demonstrates by clear 19 and convincing evidence that the employer 20 had knowledge that an individuals hired, 21 employed, recruited, or referred by the em- 22 ployer, person, or entity is an unauthorized 23 alien. 24 VerDate Sep 11 2014 02:44 Mar 18, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S418.IS S418 kjohnson on DSK79L0C42PROD with BILLS 5 •S 418 IS ‘‘(B) EXCEPTION FOR CERTAIN EMPLOY- 1 ERS.—An employer who is not required to par- 2 ticipate in the System or who is participating in 3 the System on a voluntary basis pursuant to 4 subsection (d)(2)(J) has established an affirma- 5 tive defense under subparagraph (A) and need 6 not demonstrate compliance with the require- 7 ments under subsection (d). 8 ‘‘(6) GOOD FAITH COMPLIANCE.— 9 ‘‘(A) IN GENERAL.—Except as otherwise 10 provided in this subsection, an employer, per- 11 son, or entity is considered to have complied 12 with a requirement under this subsection not- 13 withstanding a technical or procedural failure 14 to meet such requirement if there was a good 15 faith attempt to comply with the requirement. 16 ‘‘(B) EXCEPTION IF FAILURE TO CORRECT 17 AFTER NOTICE.—Subparagraph (A) shall not 18 apply if— 19 ‘‘(i) the failure is not de minimis; 20 ‘‘(ii) the Secretary has explained to 21 the employer, person, or entity the basis 22 for the failure and why it is not de mini- 23 mis; 24 VerDate Sep 11 2014 02:44 Mar 18, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S418.IS S418 kjohnson on DSK79L0C42PROD with BILLS 6 •S 418 IS ‘‘(iii) the employer, person, or entity 1 has been provided a period of not less than 2 30 days (beginning after the date of the 3 explanation) to correct the failure; and 4 ‘‘(iv) the employer, person, or entity 5 has not corrected the failure voluntarily 6 within such period. 7 ‘‘(C) EXCEPTION FOR PATTERN OR PRAC- 8 TICE VIOLATORS.—Subparagraph (A) shall not 9 apply to an employer, person, or entity that has 10 engaged or is engaging in a pattern or practice 11 of violations of paragraph (1)(A) or (2). 12 ‘‘(7) PRESUMPTION.—After the date on which 13 an employer is required to participate in the System 14 under subsection (d), the employer is presumed to 15 have acted with knowledge for purposes of para- 16 graph (1)(A) if the employer hires, employs, re- 17 cruits, or refers an employee for a fee and fails to 18 make an inquiry to verify the employment authoriza- 19 tion status of the employee through the System. 20 ‘‘(8) CONTINUED APPLICATION OF WORKFORCE 21 AND LABOR PROTECTION REMEDIES DESPITE UNAU- 22 THORIZED EMPLOYMENT.— 23 ‘‘(A) IN GENERAL.—Subject only to sub- 24 paragraph (B), all rights and remedies provided 25 VerDate Sep 11 2014 02:44 Mar 18, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S418.IS S418 kjohnson on DSK79L0C42PROD with BILLS 7 •S 418 IS under any Federal, State, or local law relating 1 to workplace rights, including back pay, are 2 available to an employee despite— 3 ‘‘(i) the employee’s status as an unau- 4 thorized alien during or after the period of 5 employment; or 6 ‘‘(ii) the employer’s or employee’s fail- 7 ure to comply with the requirements of 8 this section. 9 ‘‘(B) REINSTATEMENT.—Reinstatement 10 shall be available to individuals who— 11 ‘‘(i) are authorized to work in the 12 United States at the time such relief is or- 13 dered or effectuated; or 14 ‘‘(ii) lost employment-authorized sta- 15 tus due to the unlawful acts of the em- 16 ployer under this section. 17 ‘‘(b) DEFINITIONS.—In this section: 18 ‘‘(1) COMMISSIONER.—The term ‘Commis- 19 sioner’ means the Commissioner of Social Security. 20 ‘‘(2) DEPARTMENT.—Except as otherwise pro- 21 vided, the term ‘Department’ means the Department 22 of Homeland Security. 23 ‘‘(3) EMPLOYER.—The term ‘employer’ means 24 any person or entity, including an agency or depart- 25 VerDate Sep 11 2014 02:44 Mar 18, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S418.IS S418 kjohnson on DSK79L0C42PROD with BILLS 8 •S 418 IS ment of a Federal, State, or local government, an 1 agent, or a System service provider acting on behalf 2 of an employer, that hires, employs, recruits, or re- 3 fers for a fee an individual for employment in the 4 United States that is not casual, sporadic, irregular, 5 or intermittent (as defined by the Secretary). 6 ‘‘(4) EMPLOYMENT AUTHORIZED STATUS.—The 7 term ‘employment authorized status’ means, with re- 8 spect to an individual, that the individual is author- 9 ized to be employed in the United States under the 10 immigration laws of the United States. 11 ‘‘(5) SECRETARY.—Except as otherwise specifi- 12 cally provided, the term ‘Secretary’ means the Sec- 13 retary of Homeland Security. 14 ‘‘(6) SYSTEM.—The term ‘System’ means the 15 Employment Verification System established under 16 subsection (d). 17 ‘‘(7) UNAUTHORIZED ALIEN.—The term ‘unau- 18 thorized alien’ means an alien who, with respect to 19 employment in the United States at a particular 20 time— 21 ‘‘(A) is not lawfully admitted for perma- 22 nent residence; or 23 ‘‘(B) is not authorized to be employed 24 under this Act or by the Secretary. 25 VerDate Sep 11 2014 02:44 Mar 18, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S418.IS S418 kjohnson on DSK79L0C42PROD with BILLS 9 •S 418 IS ‘‘(8) WORKPLACE RIGHTS.—The term ‘work- 1 place rights’ means rights guaranteed under Fed- 2 eral, State, or local labor or employment laws, in- 3 cluding laws concerning wages and hours, benefits 4 and employment standards, labor relations, work- 5 place health and safety, work-related injuries, non- 6 discrimination, and retaliation for exercising rights 7 under such laws. 8 ‘‘(c) DOCUMENT VERIFICATION REQUIREMENTS.— 9 Any employer hiring an individual for employment in the 10 United States shall comply with the following require- 11 ments and the requirements under subsection (d) to verify 12 that the individual has employment authorized status. 13 ‘‘(1) ATTESTATION AFTER EXAMINATION OF 14 DOCUMENTATION.— 15 ‘‘(A) IN GENERAL.— 16 ‘‘(i) EXAMINATION BY EMPLOYER.— 17 An employer shall attest, under penalty of 18 perjury on a form prescribed by the Sec- 19 retary, that the employer has verified the 20 identity and employment authorization sta- 21 tus of the individual— 22 ‘‘(I) by examining— 23 ‘‘(aa) a document specified 24 in subparagraph (C); or 25 VerDate Sep 11 2014 02:44 Mar 18, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S418.IS S418 kjohnson on DSK79L0C42PROD with BILLS 10 •S 418 IS ‘‘(bb) a document specified 1 in subparagraph (D) and a docu- 2 ment specified in subparagraph 3 (E); and 4 ‘‘(II) by using an identity au- 5 thentication mechanism described in 6 clause (iii) or (iv) of subparagraph 7 (F). 8 ‘‘(ii) PUBLICATION OF DOCUMENTS.— 9 The Secretary shall publish a picture of 10 each document specified in subparagraphs 11 (C) and (E) on the U.S. Citizenship and 12 Immigration Services website. 13 ‘‘(B) REQUIREMENTS.— 14 ‘‘(i) FORM.—The form referred to in 15 subparagraph (A)(i)— 16 ‘‘(I) shall be prescribed by the 17 Secretary not later than 6 months 18 after the date of the enactment of the 19 E-Verify Act; 20 ‘‘(II) shall be available as— 21 ‘‘(aa) a paper form; 22 ‘‘(bb) a form that may be 23 completed by an employer via 24 telephone or video conference; 25 VerDate Sep 11 2014 02:44 Mar 18, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S418.IS S418 kjohnson on DSK79L0C42PROD with BILLS 11 •S 418 IS ‘‘(cc) an electronic form; or 1 ‘‘(dd) a form that is inte- 2 grated electronically with the re- 3 quirements under subparagraph 4 (F) and subsection (d). 5 ‘‘(ii) ATTESTATION.—Each such form 6 shall require the employer to sign an attes- 7 tation with a handwritten, electronic, or 8 digital signature, according to standards 9 prescribed by the Secretary. 10 ‘‘(iii) COMPLIANCE.—An employer has 11 complied with the requirements under this 12 paragraph with respect to examination of 13 the documents included in subclauses (I) 14 and (II) of subparagraph (A)(i) if— 15 ‘‘(I) the employer has, in good 16 faith, followed applicable regulations 17 and any written procedures or instruc- 18 tions provided by the Secretary; and 19 ‘‘(II) a reasonable person would 20 conclude that the documentation is 21 genuine and relates to the individual 22 presenting such documentation. 23 ‘‘(C) DOCUMENTS ESTABLISHING IDEN- 24 TITY AND EMPLOYMENT AUTHORIZED STA- 25 VerDate Sep 11 2014 02:44 Mar 18, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S418.IS S418 kjohnson on DSK79L0C42PROD with BILLS 12 •S 418 IS TUS.—A document is specified in this subpara- 1 graph if the document is unexpired (unless the 2 validity of the document is extended by law) 3 and is one of the following: 4 ‘‘(i) A United States passport or pass- 5 port card issued to an individual pursuant 6 to the Secretary of State’s authority under 7 the Act entitled ‘An Act to regulate the 8 issue and validity of passports, and for 9 other purposes’, approved July 3, 1926 (22 10 U.S.C. 211a). 11 ‘‘(ii) A document issued to an alien 12 evidencing that the alien is lawfully admit- 13 ted for permanent residence or another 14 document issued to an individual evidenc- 15 ing the individual’s employment authorized 16 status, as designated by the Secretary, if 17 the document— 18 ‘‘(I) contains a photograph of the 19 individual, or such other personal 20 identifying information relating to the 21 individual as the Secretary deter- 22 mines, by regulation, to be sufficient 23 for the purposes of this subparagraph; 24 VerDate Sep 11 2014 02:44 Mar 18, 2021 Jkt 019200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S418.IS S418 kjohnson on DSK79L0C42PROD with BILLS 13 •S 418 IS ‘‘(II) is evidence of employment 1 authorized status; and 2 ‘‘(III) contains security features 3 to make the document resistant to 4 tampering, counterfeiting, and fraudu- 5 lent use. 6 ‘‘(iii) An enhanced driver’s license or 7 identification card issued to a national of 8 the United States by a State, an outlying 9 possession of the United States, or a feder- 10 ally recognized Indian tribe that— 11 ‘‘(I) meets the requirements 12 under section 202 of the REAL ID 13 Act of 2005 (division B of Public Law 14 109–13; 49 U.S.C. 30301 note); and 15 ‘‘(II) the Secretary has certifie [Text truncated for display. Full text available on Congress.gov.]