Accountability Through Electronic Verification Act

II 116TH CONGRESS 1ST SESSION S. 556 To expand the use of E-Verify, to hold employers accountable, and for other purposes. IN THE SENATE OF THE UNITED STATES FEBRUARY 26, 2019 Mr. GRASSLEY (for himself, Mr. COTTON, Mrs. CAPITO, Ms. ERNST, Mrs. BLACKBURN, Mr. INHOFE, Mr. LANKFORD, Mr. BOOZMAN, Mr. PERDUE, Mr. ENZI, Mrs. HYDE-SMITH, Mr. LEE, Mr. WICKER, and Mr. THUNE) 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. VerDate Sep 11 2014 05:37 Mar 01, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6211 E:\BILLS\S556.IS S556 kjohnson on DSK79L0C42 with BILLS 2 •S 556 IS Sec. 5. Preemption; liability. 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 VerDate Sep 11 2014 05:37 Mar 01, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S556.IS S556 kjohnson on DSK79L0C42 with BILLS 3 •S 556 IS inserting ‘‘shall participate in E-Verify by complying 1 with the terms and conditions set forth in this sec- 2 tion.’’. 3 (b) FEDERAL CONTRACTORS; CRITICAL EMPLOY- 4 ERS.—Section 402(e) of such Act, as amended by sub- 5 section (a), is further amended— 6 (1) by redesignating paragraphs (2) and (3) as 7 paragraphs (4) and (5), respectively; and 8 (2) by inserting after paragraph (1) the fol- 9 lowing: 10 ‘‘(2) UNITED STATES CONTRACTORS.—Any per- 11 son, employer, or other entity that enters into a con- 12 tract with the Federal Government shall participate 13 in E-Verify by complying with the terms and condi- 14 tions set forth in this section. 15 ‘‘(3) DESIGNATION OF CRITICAL EMPLOYERS.— 16 Not later than 7 days after the date of the enact- 17 ment of this paragraph, the Secretary of Homeland 18 Security shall— 19 ‘‘(A) conduct an assessment of employers 20 that are critical to the homeland security or na- 21 tional security needs of the United States; 22 ‘‘(B) designate and publish a list of em- 23 ployers and classes of employers that are 24 VerDate Sep 11 2014 05:37 Mar 01, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S556.IS S556 kjohnson on DSK79L0C42 with BILLS 4 •S 556 IS deemed to be critical pursuant to the assess- 1 ment conducted under subparagraph (A); and 2 ‘‘(C) require that critical employers des- 3 ignated pursuant to subparagraph (B) partici- 4 pate in E-Verify by complying with the terms 5 and conditions set forth in this section not later 6 than 30 days after the Secretary makes such 7 designation.’’. 8 (c) ALL EMPLOYERS.—Section 402 of such Act, as 9 amended by this section, is further amended— 10 (1) by redesignating subsection (f) as sub- 11 section (g); and 12 (2) by inserting after subsection (e) the fol- 13 lowing: 14 ‘‘(f) MANDATORY PARTICIPATION IN E-VERIFY.— 15 ‘‘(1) IN GENERAL.—Subject to paragraphs (2) 16 and (3), all employers in the United States shall 17 participate in E-Verify, with respect to all employees 18 recruited, referred, or hired by such employer on or 19 after the date that is 1 year after the date of the 20 enactment of this subsection. 21 ‘‘(2) USE OF CONTRACT LABOR.—Any employer 22 who uses a contract, subcontract, or exchange to ob- 23 tain the labor of an individual in the United States 24 shall certify in such contract, subcontract, or ex- 25 VerDate Sep 11 2014 05:37 Mar 01, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S556.IS S556 kjohnson on DSK79L0C42 with BILLS 5 •S 556 IS change that the employer, and all parties to such 1 contract, subcontract, or exchange, use E-Verify. If 2 such certification is not included in a contract, sub- 3 contract, or exchange, the employer shall be deemed 4 to have violated paragraph (1). 5 ‘‘(3) INTERIM MANDATORY PARTICIPATION.— 6 ‘‘(A) IN GENERAL.—Before the date set 7 forth in paragraph (1), the Secretary of Home- 8 land Security shall require any employer or 9 class of employers to participate in E-Verify, 10 with respect to all employees recruited, referred, 11 or hired by such employer if the Secretary has 12 reasonable cause to believe that the employer is 13 or has been engaged in a material violation of 14 section 274A of the Immigration and Nation- 15 ality Act (8 U.S.C. 1324a). 16 ‘‘(B) NOTIFICATION.—Not later than 14 17 days before an employer or class of employers 18 is required to begin participating in E-Verify 19 pursuant to subparagraph (A), the Secretary 20 shall provide such employer or class of employ- 21 ers with— 22 ‘‘(i) written notification of such re- 23 quirement; and 24 VerDate Sep 11 2014 05:37 Mar 01, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S556.IS S556 kjohnson on DSK79L0C42 with BILLS 6 •S 556 IS ‘‘(ii) appropriate training materials to 1 facilitate compliance with such require- 2 ment.’’. 3 SEC. 4. CONSEQUENCES OF FAILURE TO PARTICIPATE. 4 (a) IN GENERAL.—Section 402(e)(5) of the Illegal 5 Immigration Reform and Immigrant Responsibility Act of 6 1996 (8 U.S.C. 1324a note), as redesignated by section 7 3(b)(1), is amended to read as follows: 8 ‘‘(5) CONSEQUENCES OF FAILURE TO PARTICI- 9 PATE.—If a person or other entity that is required 10 to participate in E-Verify fails to comply with the 11 requirements under this title with respect to an indi- 12 vidual— 13 ‘‘(A) such failure shall be treated as a vio- 14 lation of section 274A(a)(1)(B) of the Immigra- 15 tion and Nationality Act (8 U.S.C. 1324a) with 16 respect to such individual; and 17 ‘‘(B) a rebuttable presumption is created 18 that the person or entity has violated section 19 274A(a)(1)(A) of such Act.’’. 20 (b) PENALTIES.—Section 274A of the Immigration 21 and Nationality Act (8 U.S.C. 1324a) is amended— 22 (1) in subsection (e)— 23 (A) in paragraph (4)— 24 (i) in subparagraph (A)— 25 VerDate Sep 11 2014 05:37 Mar 01, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S556.IS S556 kjohnson on DSK79L0C42 with BILLS 7 •S 556 IS (I) in the matter preceding clause 1 (i), by inserting ‘‘, subject to para- 2 graph (10),’’ after ‘‘in an amount’’; 3 (II) in clause (i), by striking ‘‘not 4 less than $250 and not more than 5 $2,000’’ and inserting ‘‘not less than 6 $2,500 and not more than $5,000’’; 7 (III) in clause (ii), by striking 8 ‘‘not less than $2,000 and not more 9 than $5,000’’ and inserting ‘‘not less 10 than $5,000 and not more than 11 $10,000’’; and 12 (IV) in clause (iii), by striking 13 ‘‘not less than $3,000 and not more 14 than $10,000’’ and inserting ‘‘not less 15 than $10,000 and not more than 16 $25,000’’; and 17 (ii) by amending subparagraph (B) to 18 read as follows: 19 ‘‘(B) may require the person or entity to 20 take such other remedial action as is appro- 21 priate.’’; 22 (B) in paragraph (5)— 23 VerDate Sep 11 2014 05:37 Mar 01, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S556.IS S556 kjohnson on DSK79L0C42 with BILLS 8 •S 556 IS (i) by inserting ‘‘, subject to para- 1 graphs (10) through (12),’’ after ‘‘in an 2 amount’’; 3 (ii) by striking ‘‘$100 and not more 4 than $1,000’’ and inserting ‘‘$1,000 and 5 not more than $25,000’’; 6 (iii) by striking ‘‘the size of the busi- 7 ness of the employer being charged, the 8 good faith of the employer’’ and inserting 9 ‘‘the good faith of the employer being 10 charged’’; and 11 (iv) by adding at the end the fol- 12 lowing: ‘‘Failure by a person or entity to 13 utilize the employment eligibility 14 verification system as required by law, or 15 providing information to the system that 16 the person or entity knows or reasonably 17 believes to be false, shall be treated as a 18 violation of subsection (a)(1)(A).’’; and 19 (C) by adding at the end the following: 20 ‘‘(10) EXEMPTION FROM PENALTY.—In the 21 case of the imposition of a civil penalty under para- 22 graph (4)(A) with respect to a violation of para- 23 graph (1)(A) or (2) of subsection (a) for hiring, con- 24 tinuation of employment, recruitment, or referral by 25 VerDate Sep 11 2014 05:37 Mar 01, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S556.IS S556 kjohnson on DSK79L0C42 with BILLS 9 •S 556 IS a person or entity and, in the case of the imposition 1 of a civil penalty under paragraph (5) for a violation 2 of subsection (a)(1)(B) for hiring, recruitment, or 3 referral by a person or entity, the penalty otherwise 4 imposed may be waived or reduced if the violator es- 5 tablishes that the violator acted in good faith. 6 ‘‘(11) AUTHORITY TO DEBAR EMPLOYERS FOR 7 CERTAIN VIOLATIONS.— 8 ‘‘(A) IN GENERAL.—If a person or entity 9 is determined by the Secretary of Homeland Se- 10 curity to be a repeat violator of paragraph 11 (1)(A) or (2) of subsection (a), or is convicted 12 of a crime under this section, the Secretary of 13 Homeland Security shall debar such person or 14 entity from the receipt of Federal contracts, 15 grants, or cooperative agreements in accordance 16 with the debarment standards and pursuant to 17 the debarment procedures set forth in the Fed- 18 eral Acquisition Regulation. 19 ‘‘(B) DOES NOT HAVE CONTRACT, GRANT, 20 AGREEMENT.—If the Secretary of Homeland 21 Security debars a person or entity in accord- 22 ance with this paragraph, and such person or 23 entity does not hold a Federal contract, grant 24 or cooperative agreement, the Administrator of 25 VerDate Sep 11 2014 05:37 Mar 01, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S556.IS S556 kjohnson on DSK79L0C42 with BILLS 10 •S 556 IS General Services shall include the person or en- 1 tity on the List of Parties Excluded from Fed- 2 eral Procurement for 5 years. 3 ‘‘(C) HAS CONTRACT, GRANT, AGREE- 4 MENT.—If the Secretary of Homeland Security 5 debars a person or entity in accordance with 6 this paragraph, and such person or entity holds 7 a Federal contract, grant or cooperative agree- 8 ment, the Secretary— 9 ‘‘(i) shall notify all agencies or depart- 10 ments holding a contract, grant, or cooper- 11 ative agreement with the debarred person 12 or entity of such debarment; and 13 ‘‘(ii) after soliciting and considering 14 the views of all such agencies and depart- 15 ments, may waive the operation of this 16 paragraph. 17 ‘‘(D) REVIEW.—Any decision to debar a 18 person or entity under in accordance with this 19 paragraph shall be reviewable pursuant to part 20 9.4 of the Federal Acquisition Regulation.’’; 21 and 22 (2) in subsection (f)— 23 (A) by amending paragraph (1) to read as 24 follows: 25 VerDate Sep 11 2014 05:37 Mar 01, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S556.IS S556 kjohnson on DSK79L0C42 with BILLS 11 •S 556 IS ‘‘(1) CRIMINAL PENALTY.—Any person or enti- 1 ty which engages in a pattern or practice of viola- 2 tions of subsection (a)(1) or (2) shall be fined not 3 more than $30,000 for each unauthorized alien with 4 respect to which such a violation occurs, imprisoned 5 for not less than 1 year and not more than 10 years, 6 or both, notwithstanding the provisions of any other 7 Federal law relating to fine levels.’’; and 8 (B) in paragraph (2), by striking ‘‘Attor- 9 ney General’’ each place it appears and insert- 10 ing ‘‘Secretary of Homeland Security’’. 11 SEC. 5. PREEMPTION; LIABILITY. 12 Section 402 of the Illegal Immigration Reform and 13 Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a 14 note), as amended by this Act, is further amended by add- 15 ing at the end the following: 16 ‘‘(h) LIMITATION ON STATE AUTHORITY.— 17 ‘‘(1) PREEMPTION.—A State or local govern- 18 ment may not prohibit a person or other entity from 19 verifying the employment authorization of new hires 20 or current employees through E-Verify. 21 ‘‘(2) LIABILITY.—A person or other entity that 22 participates in E-Verify may not be held liable under 23 any Federal, State, or local law for any employment- 24 related action taken with respect to the wrongful 25 VerDate Sep 11 2014 05:37 Mar 01, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S556.IS S556 kjohnson on DSK79L0C42 with BILLS 12 •S 556 IS termination of an individual in good faith reliance on 1 information provided through E-Verify.’’. 2 SEC. 6. EXPANDED USE OF E-VERIFY. 3 Section 403(a)(3)(A) of the Illegal Immigration Re- 4 form and Immigrant Responsibility Act of 1996 (8 U.S.C. 5 1324a note) is amended to read as follows: 6 ‘‘(A) IN GENERAL.— 7 ‘‘(i) BEFORE HIRING.—The person or 8 other entity may verify the employment eli- 9 gibility of an individual through E-Verify 10 before the individual is hired, recruited, or 11 referred if the individual consents to such 12 verification. If an employer receives a ten- 13 tative nonconfirmation for an individual, 14 the employer shall comply with procedures 15 prescribed by the Secretary of Homeland 16 Security, including— 17 ‘‘(I) providing the individual em- 18 ployees with private, written notifica- 19 tion of the finding and written refer- 20 ral instructions; 21 ‘‘(II) allowing the individual to 22 contest the finding; and 23 VerDate Sep 11 2014 05:37 Mar 01, 2019 Jkt 089200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S556.IS S556 k [Text truncated for display. 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