From the U.S. Code Online via GPO Access
[www.gpoaccess.gov]
[Laws in effect as of January 3, 2007]
[CITE: 8USC1324a]

 
                     TITLE 8--ALIENS AND NATIONALITY
 
                 CHAPTER 12--IMMIGRATION AND NATIONALITY
 
                       SUBCHAPTER II--IMMIGRATION
 
                  Part VIII--General Penalty Provisions

 
Sec. 1324a. Unlawful employment of aliens


(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\
---------------------------------------------------------------------------
    \1\ So in original. Probably should be followed by ``or''.
---------------------------------------------------------------------------
                (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.

(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.]

  Ex. Ord. No. 12989. Economy and Efficiency in Government Procurement 
    Through Compliance With Certain Immigration and Nationality Act 
                               Provisions

    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, provided:
    This order is designed to promote economy and efficiency in 
Government procurement. Stability and dependability are important 
elements of economy and efficiency. A contractor whose work force is 
less stable will be less likely to produce goods and services 
economically and efficiently than a contractor whose work force is more 
stable. It remains the policy of this Administration to enforce the 
immigration laws to the fullest extent, including the detection and 
deportation of illegal aliens. In these circumstances, contractors 
cannot rely on the continuing availability and service of illegal 
aliens, and contractors that choose to employ unauthorized aliens 
inevitably will have a less stable and less dependable work force than 
contractors that do not employ such persons. Because of this 
Administration's vigorous enforcement policy, contractors that employ 
unauthorized alien workers are necessarily less stable and dependable 
procurement sources than contractors that do not hire such persons. I 
find, therefore, that adherence to the general policy of not contracting 
with providers that knowingly employ unauthorized alien workers 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 40 U.S.C. 486(a) [now 40 
U.S.C. 121(a)] and 3 U.S.C. 301, 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. 
All discretion under this Executive order shall be exercised consistent 
with this policy.
    (b) It remains the policy of this Administration to fully and 
aggressively enforce the antidiscrimination provisions of the 
Immigration and Nationality Act [8 U.S.C. 1101 et seq.] to the fullest 
extent. Nothing in this order relieves employers from their obligation 
to avoid unfair immigration-related employment practices as required by 
the antidiscrimination provisions of section 1324(b) [274B] of the INA 
(8 U.S.C. 1324b) and all other antidiscrimination requirements of 
applicable law, including the requirements of 8 U.S.C. 1324b(a)(6) 
concerning the treatment of certain documentary practices as unfair 
immigration-related employment practices.
    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) The Secretary of Homeland Security and Attorney General 
shall be responsible for the administration and enforcement of this 
order, except for the debarment procedures. The Secretary of Homeland 
Security and Attorney General may adopt such additional rules and 
regulations and issue such orders as may be deemed necessary and 
appropriate to carry out their respective responsibilities under this 
order. If the Secretary of Homeland Security or the Attorney General 
proposes to issue rules, regulations, or orders that affect the 
contracting departments and agencies, the Secretary of Homeland Security 
or the Attorney General shall consult 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 such other agencies as 
may be appropriate.
    (b) 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 and other related responsibilities assigned to heads of 
contracting departments and agencies under 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 agencies.
    Sec. 8. This order shall be implemented in a manner intended to 
least burden the procurement process. This order neither authorizes nor 
requires any additional certification provision, clause, or requirement 
to be included in any contract or contract solicitation.
    Sec. 9. This order is not intended, and should not be construed, to 
create any right or benefit, substantive or procedural, enforceable at 
law by a party against the United States, its agencies, its officers, or 
its employees. This order is not intended, however, to preclude judicial 
review of final agency decisions in accordance with the Administrative 
Procedure Act, 5 U.S.C. 701 et seq.