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[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 71 Introduced in Senate (IS)]

<DOC>

117th CONGRESS
  1st Session
                                 S. 71

 To expand the use of E-Verify to hold employers accountable, and for 
                            other purposes.

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

                            January 27, 2021

Mr. Grassley (for himself, Ms. Ernst, Mr. Inhofe, Mrs. Blackburn, Mrs. 
 Capito, Mr. Cotton, Mr. Lee, Mr. Boozman, Mrs. Hyde-Smith, Mr. Thune, 
and Mr. Wicker) introduced the following bill; which was read twice and 
               referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL

 
 To expand the use of E-Verify to hold employers accountable, and for 
                            other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Accountability 
Through Electronic Verification Act''.
    (b) Table of Contents.--The table of contents for this Act is as 
follows:

Sec. 1. Short title; table of contents.
Sec. 2. Permanent reauthorization.
Sec. 3. Mandatory use of E-Verify.
Sec. 4. Consequences of failure to participate.
Sec. 5. Preemption; liability.
Sec. 6. Expanded use of E-Verify.
Sec. 7. Reverification.
Sec. 8. Holding employers accountable.
Sec. 9. Information sharing.
Sec. 10. Form I-9 process.
Sec. 11. Algorithm.
Sec. 12. Identity theft.
Sec. 13. Small Business Demonstration Program.
Sec. 14. Employer Compliance Inspection Center.

SEC. 2. PERMANENT REAUTHORIZATION.

    Section 401(b) of the Illegal Immigration Reform and Immigrant 
Responsibility Act of 1996 (division C of Public Law 104-208; 8 U.S.C. 
1324a note) is amended by striking ``Unless the Congress otherwise 
provides, the Secretary of Homeland Security shall terminate a pilot 
program on September 30, 2015.''.

SEC. 3. MANDATORY USE OF E-VERIFY.

    (a) Federal Government.--Section 402(e)(1) of the Illegal 
Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 
1324a note) is amended--
            (1) by amending subparagraph (A) to read as follows:
                    ``(A) Executive departments and agencies.--Each 
                department and agency of the Federal Government shall 
                participate in E-Verify by complying with the terms and 
                conditions set forth in this section.''; and
            (2) in subparagraph (B), by striking ``, that conducts 
        hiring in a State'' and all that follows and inserting ``shall 
        participate in E-Verify by complying with the terms and 
        conditions set forth in this section.''.
    (b) Federal Contractors; Critical Employers.--Section 402(e) of 
such Act, as amended by subsection (a), is further amended--
            (1) by redesignating paragraphs (2) and (3) as paragraphs 
        (4) and (5), respectively; and
            (2) by inserting after paragraph (1) the following:
            ``(2) United states contractors.--Any person, employer, or 
        other entity that enters into a contract with the Federal 
        Government shall participate in E-Verify by complying with the 
        terms and conditions set forth in this section.
            ``(3) Designation of critical employers.--Not later than 7 
        days after the date of the enactment of this paragraph, the 
        Secretary of Homeland Security shall--
                    ``(A) conduct an assessment of employers that are 
                critical to the homeland security or national security 
                needs of the United States;
                    ``(B) designate and publish a list of employers and 
                classes of employers that are deemed to be critical 
                pursuant to the assessment conducted under subparagraph 
                (A); and
                    ``(C) require that critical employers designated 
                pursuant to subparagraph (B) participate in E-Verify by 
                complying with the terms and conditions set forth in 
                this section not later than 30 days after the Secretary 
                makes such designation.''.
    (c) All Employers.--Section 402 of such Act, as amended by this 
section, is further amended--
            (1) by redesignating subsection (f) as subsection (g); and
            (2) by inserting after subsection (e) the following:
    ``(f) Mandatory Participation in E-Verify.--
            ``(1) In general.--Subject to paragraphs (2) and (3), all 
        employers in the United States shall participate in E-Verify, 
        with respect to all employees recruited, referred, or hired by 
        such employer on or after the date that is 1 year after the 
        date of the enactment of this subsection.
            ``(2) Use of contract labor.--Any employer who uses a 
        contract, subcontract, or exchange to obtain the labor of an 
        individual in the United States shall certify in such contract, 
        subcontract, or exchange that the employer, and all parties to 
        such contract, subcontract, or exchange, use E-Verify. If such 
        certification is not included in a contract, subcontract, or 
        exchange, the employer shall be deemed to have violated 
        paragraph (1).
            ``(3) Interim mandatory participation.--
                    ``(A) In general.--Before the date set forth in 
                paragraph (1), the Secretary of Homeland Security shall 
                require any employer or class of employers to 
                participate in E-Verify, with respect to all employees 
                recruited, referred, or hired by such employer if the 
                Secretary has reasonable cause to believe that the 
                employer is or has been engaged in a material violation 
                of section 274A of the Immigration and Nationality Act 
                (8 U.S.C. 1324a).
                    ``(B) Notification.--Not later than 14 days before 
                an employer or class of employers is required to begin 
                participating in E-Verify pursuant to subparagraph (A), 
                the Secretary shall provide such employer or class of 
                employers with--
                            ``(i) written notification of such 
                        requirement; and
                            ``(ii) appropriate training materials to 
                        facilitate compliance with such requirement.''.

SEC. 4. CONSEQUENCES OF FAILURE TO PARTICIPATE.

    (a) In General.--Section 402(e)(5) of the Illegal Immigration 
Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note), 
as redesignated by section 3(b)(1), is amended to read as follows:
            ``(5) Consequences of failure to participate.--If a person 
        or other entity that is required to participate in E-Verify 
        fails to comply with the requirements under this title with 
        respect to an individual--
                    ``(A) such failure shall be treated as a violation 
                of section 274A(a)(1)(B) of the Immigration and 
                Nationality Act (8 U.S.C. 1324a) with respect to such 
                individual; and
                    ``(B) a rebuttable presumption is created that the 
                person or entity has violated section 274A(a)(1)(A) of 
                such Act.''.
    (b) Penalties.--Section 274A of the Immigration and Nationality Act 
(8 U.S.C. 1324a) is amended--
            (1) in subsection (e)--
                    (A) in paragraph (4)--
                            (i) in subparagraph (A)--
                                    (I) in the matter preceding clause 
                                (i), by inserting ``, subject to 
                                paragraph (10),'' after ``in an 
                                amount'';
                                    (II) in clause (i), by striking 
                                ``not less than $250 and not more than 
                                $2,000'' and inserting ``not less than 
                                $2,500 and not more than $5,000'';
                                    (III) in clause (ii), by striking 
                                ``not less than $2,000 and not more 
                                than $5,000'' and inserting ``not less 
                                than $5,000 and not more than 
                                $10,000''; and
                                    (IV) in clause (iii), by striking 
                                ``not less than $3,000 and not more 
                                than $10,000'' and inserting ``not less 
                                than $10,000 and not more than 
                                $25,000''; and
                            (ii) by amending subparagraph (B) to read 
                        as follows:
                    ``(B) may require the person or entity to take such 
                other remedial action as is appropriate.'';
                    (B) in paragraph (5)--
                            (i) by inserting ``, subject to paragraphs 
                        (10) through (12),'' after ``in an amount'';
                            (ii) by striking ``$100 and not more than 
                        $1,000'' and inserting ``$1,000 and not more 
                        than $25,000'';
                            (iii) by striking ``the size of the 
                        business of the employer being charged, the 
                        good faith of the employer'' and inserting 
                        ``the good faith of the employer being 
                        charged''; and
                            (iv) by adding at the end the following: 
                        ``Failure by a person or entity to utilize the 
                        employment eligibility verification system as 
                        required by law, or providing information to 
                        the system that the person or entity knows or 
                        reasonably believes to be false, shall be 
                        treated as a violation of subsection 
                        (a)(1)(A).''; and
                    (C) by adding at the end the following:
            ``(10) Exemption from penalty.--In the case of the 
        imposition of a civil penalty under paragraph (4)(A) with 
        respect to a violation of paragraph (1)(A) or (2) of subsection 
        (a) for hiring, continuation of employment, recruitment, or 
        referral by a person or entity and, in the case of the 
        imposition of a civil penalty under paragraph (5) for a 
        violation of subsection (a)(1)(B) for hiring, recruitment, or 
        referral by a person or entity, the penalty otherwise imposed 
        may be waived or reduced if the violator establishes that the 
        violator acted in good faith.
            ``(11) Authority to debar employers for certain 
        violations.--
                    ``(A) In general.--If a person or entity is 
                determined by the Secretary of Homeland Security to be 
                a repeat violator of paragraph (1)(A) or (2) of 
                subsection (a), or is convicted of a crime under this 
                section, the Secretary of Homeland Security shall debar 
                such person or entity from the receipt of Federal 
                contracts, grants, or cooperative agreements in 
                accordance with the debarment standards and pursuant to 
                the debarment procedures set forth in the Federal 
                Acquisition Regulation.
                    ``(B) Does not have contract, grant, agreement.--If 
                the Secretary of Homeland Security debars a person or 
                entity in accordance with this paragraph, and such 
                person or entity does not hold a Federal contract, 
                grant, or cooperative agreement, the Administrator of 
                General Services shall include the person or entity on 
                the List of Parties Excluded from Federal Procurement 
                for 5 years.
                    ``(C) Has contract, grant, agreement.--If the 
                Secretary of Homeland Security debars a person or 
                entity in accordance with this paragraph, and such 
                person or entity holds a Federal contract, grant, or 
                cooperative agreement, the Secretary--
                            ``(i) shall notify all agencies or 
                        departments holding a contract, grant, or 
                        cooperative agreement with the debarred person 
                        or entity of such debarment; and
                            ``(ii) after soliciting and considering the 
                        views of all such agencies and departments, may 
                        waive the operation of this paragraph.
                    ``(D) Review.--Any decision to debar a person or 
                entity under in accordance with this paragraph shall be 
                reviewable pursuant to part 9.4 of the Federal 
                Acquisition Regulation.''; and
            (2) in subsection (f)--
                    (A) by amending paragraph (1) to read as follows:
            ``(1) Criminal penalty.--Any person or entity which engages 
        in a pattern or practice of violations of subsection (a)(1) or 
        (2) shall be fined not more than $30,000 for each unauthorized 
        alien with respect to which such a violation occurs, imprisoned 
        for not less than 1 year and not more than 10 years, or both, 
        notwithstanding the provisions of any other Federal law 
        relating to fine levels.''; and
                    (B) in paragraph (2), by striking ``Attorney 
                General'' each place it appears and inserting 
                ``Secretary of Homeland Security''.

SEC. 5. PREEMPTION; LIABILITY.

    Section 402 of the Illegal Immigration Reform and Immigrant 
Responsibility Act of 1996 (8 U.S.C. 1324a note), as amended by this 
Act, is further amended by adding at the end the following:
    ``(h) Limitation on State Authority.--
            ``(1) Preemption.--A State or local government may not 
        prohibit a person or other entity from verifying the employment 
        authorization of new hires or current employees through E-
        Verify.
            ``(2) Liability.--A person or other entity that 
        participates in E-Verify may not be held liable under any 
        Federal, State, or local law for any employment-related action 
        taken with respect to the wrongful termination of an individual 
        in good faith reliance on information provided through E-
        Verify.''.

SEC. 6. EXPANDED USE OF E-VERIFY.

    Section 403(a)(3)(A) of the Illegal Immigration Reform and 
Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note) is amended 
to read as follows:
                    ``(A) In general.--
                            ``(i) Before hiring.--The person or other 
                        entity may verify the employment eligibility of 
                        an individual through E-Verify before the 
                        individual is hired, recruited, or referred if 
                        the individual consents to such verification. 
                        If an employer receives a tentative 
                        nonconfirmation for an individual, the employer 
                        shall comply with procedures prescribed by the 
                        Secretary of Homeland Security, including--
                                    ``(I) providing the individual 
                                employees with private, written 
                                notification of the finding and written 
                                referral instructions;
                                    ``(II) allowing the individual to 
                                contest the finding; and
                                    ``(III) not taking adverse action 
                                against the individual if the 
                                individual chooses to contest the 
                                finding.
                            ``(ii) After employment offer.--The person 
                        or other entity shall verify the employment 
                        eligibility of an individual through E-Verify 
                        not later than 3 days after the date of the 
                        hiring, recruitment, or referral, as the case 
                        may be.
                            ``(iii) Existing employees.--Not later than 
                        1 year after the date of the enactment of the 
                        Accountability Through Electronic Verification 
                        Act, the Secretary shall require all employers 
                        to use E-Verify to verify the identity and 
                        employment eligibility of any individual who 
                        has not been previously verified by the 
                        employer through E-Verify.''.

SEC. 7. REVERIFICATION.

    Section 403(a) of the Illegal Immigration Reform and Immigrant 
Responsibility Act of 1996 (8 U.S.C. 1324a note), as amended by section 
6, is further amended by adding at the end the following:
            ``(5) Reverification.--Each person or other entity 
        participating in E-Verify shall use the E-Verify confirmation 
        system to reverify the work authorization of any individual not 
        later than 3 days after the date on which such individual's 
        employment authorization is scheduled to expire (as indicated 
        by the Secretary or the documents provided to the employer 
        pursuant to section 274A(b) of the Immigration and Nationality 
        Act (8 U.S.C. 1324a(b))), in accordance with the procedures set 
        forth in this subsection and section 402.''.

SEC. 8. HOLDING EMPLOYERS ACCOUNTABLE.

    (a) Consequences of Nonconfirmation.--Section 403(a)(4)(C) of the 
Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 
U.S.C. 1324a note) is amended to read as follows:
                    ``(C) Consequences of nonconfirmation.--
                            ``(i) Termination and notification.--If the 
                        person or other entity receives a final 
                        nonconfirmation regarding an individual, the 
                        employer shall immediately--
                                    ``(I) terminate the employment, 
                                recruitment, or referral of the 
                                individual; and
                                    ``(II) submit to the Secretary any 
                                information relating to the individual 
                                that the Secretary determines would 
                                assist the Secretary in enforcing or 
                                administering United States immigration 
                                laws.
                            ``(ii) Consequence of continued 
                        employment.--If the person or other entity 
                        continues to employ, recruit, or refer the 
                        individual after receiving final 
                        nonconfirmation, a rebuttable presumption is 
                        created that the employer has violated section 
                        274A of the Immigration and Nationality Act (8 
                        U.S.C. 1324a).''.
    (b) Interagency Nonconfirmation Report.--Section 405 of the Illegal 
Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 
1324a note) is amended by adding at the end the following:
    ``(c) Interagency Nonconfirmation Report.--
            ``(1) In general.--The Director of U.S. Citizenship and 
        Immigration Services shall submit a weekly report to the 
        Assistant Secretary of Immigration and Customs Enforcement that 
        includes, for each individual who receives final 
        nonconfirmation through E-Verify--
                    ``(A) the name of such individual;
                    ``(B) his or her Social Security number or alien 
                file number;
                    ``(C) the name and contact information for his or 
                her current employer; and
                    ``(D) any other critical information that the 
                Assistant Secretary determines to be appropriate.
            ``(2) Use of weekly report.--The Secretary of Homeland 
        Security shall use information provided under paragraph (1) to 
        enforce compliance of the United States immigration laws.''.

SEC. 9. INFORMATION SHARING.

    Not later than 1 year after the date of the enactment of this Act, 
the Commissioner of Social Security, the Commissioner of Internal 
Revenue, the Secretary of Homeland Security, and the Secretary of the 
Treasury shall jointly establish a program to share information among 
such agencies that may or could lead to the identification of 
unauthorized aliens (as defined under section 274A(h)(3) of the 
Immigration and Nationality Act (8 U.S.C. 1324a(h)(3)), including no-
match letters and any information in the earnings suspense file.

SEC. 10. FORM I-9 PROCESS.

    Not later than 9 months after date of the enactment of this Act, 
the Secretary of Homeland Security shall submit a report to Congress 
that contains recommendations for--
            (1) modifying and simplifying the process by which 
        employers are required to complete and retain a Form I-9 for 
        each employee pursuant to section 274A of the Immigration and 
        Nationality Act (8 U.S.C. 1324a); and
            (2) eliminating the process described in paragraph (1).

SEC. 11. ALGORITHM.

    Section 404(d) of the Illegal Immigration Reform and Immigrant 
Responsibility Act of 1996 (8 U.S.C. 1324a note) is amended to read as 
follows:
    ``(d) Design and Operation of System.--E-Verify shall be designed 
and operated--
            ``(1) to maximize its reliability and ease of use by 
        employers;
            ``(2) to insulate and protect the privacy and security of 
        the underlying information;
            ``(3) to maintain appropriate administrative, technical, 
        and physical safeguards to prevent unauthorized disclosure of 
        personal information;
            ``(4) to respond accurately to all inquiries made by 
        employers on whether individuals are authorized to be employed;
            ``(5) to register any time when E-Verify is unable to 
        receive inquiries;
            ``(6) to allow for auditing use of the system to detect 
        fraud and identify theft;
            ``(7) to preserve the security of the information in all of 
        the system by--
                    ``(A) developing and using algorithms to detect 
                potential identity theft, such as multiple uses of the 
                same identifying information or documents;
                    ``(B) developing and using algorithms to detect 
                misuse of the system by employers and employees;
                    ``(C) developing capabilities to detect anomalies 
                in the use of the system that may indicate potential 
                fraud or misuse of the system; and
                    ``(D) auditing documents and information submitted 
                by potential employees to employers, including 
                authority to conduct interviews with employers and 
                employees;
            ``(8) to confirm identity and work authorization through 
        verification of records maintained by the Secretary, other 
        Federal departments, States, the Commonwealth of the Northern 
        Mariana Islands, or an outlying possession of the United 
        States, as determined necessary by the Secretary, including--
                    ``(A) records maintained by the Social Security 
                Administration;
                    ``(B) birth and death records maintained by vital 
                statistics agencies of any State or other jurisdiction 
                in the United States;
                    ``(C) passport and visa records (including 
                photographs) maintained by the Department of State; and
                    ``(D) State driver's license or identity card 
                information (including photographs) maintained by State 
                department of motor vehicles;
            ``(9) to electronically confirm the issuance of the 
        employment authorization or identity document; and
            ``(10) to display the digital photograph that the issuer 
        placed on the document so that the employer can compare the 
        photograph displayed to the photograph on the document 
        presented by the employee or, in exceptional cases, if a 
        photograph is not available from the issuer, to provide for a 
        temporary alternative procedure, specified by the Secretary, 
        for confirming the authenticity of the document.''.

SEC. 12. IDENTITY THEFT.

    Section 1028 of title 18, United States Code, is amended--
            (1) in subsection (a)(7), by striking ``of another person'' 
        and inserting ``that is not his or her own''; and
            (2) in subsection (b)(3)--
                    (A) in subparagraph (B), by striking ``or'' at the 
                end;
                    (B) in subparagraph (C), by adding ``or'' at the 
                end; and
                    (C) by adding at the end the following:
                    ``(D) to facilitate or assist in harboring or 
                hiring unauthorized workers in violation of section 
                274, 274A, or 274C of the Immigration and Nationality 
                Act (8 U.S.C. 1324, 1324a, and 1324c).''.

SEC. 13. SMALL BUSINESS DEMONSTRATION PROGRAM.

    Section 403 of the Illegal Immigration Reform and Immigrant 
Responsibility Act of 1996 (8 U.S.C. 1324a note), as amended by this 
Act, is further amended--
            (1) by redesignating subsection (d) as subsection (e); and
            (2) by inserting after subsection (c) the following:
    ``(d) Small Business Demonstration Program.--Not later than 9 
months after the date of the enactment of the Accountability Through 
Electronic Verification Act, the Director of U.S. Citizenship and 
Immigration Services shall establish a demonstration program that 
assists small businesses in rural areas or areas without internet 
capabilities to verify the employment eligibility of newly hired 
employees solely through the use of publicly accessible internet 
terminals.''.

SEC. 14. EMPLOYER COMPLIANCE INSPECTION CENTER.

    (a) Establishment.--There is established, within Homeland Security 
Investigations of U.S. Immigration and Customs Enforcement, the 
Employer Compliance Inspection Center (referred to in this section as 
the ``Center'').
    (b) Purposes.--The establishment of the Center is intended--
            (1) to create a culture of compliance for all United States 
        businesses by imposing more effective, efficient, and 
        standardized consequences, including civil and criminal 
        penalties, on employers who fail to comply with the employment 
        eligibility verification requirements; and
            (2) to consolidate worksite enforcement audits at a 
        centralized location to ensure a standardized process and 
        uniform application of the fine matrix.
    (c) Duties.--The Center shall--
            (1) carry out duties related to the processing of the 
        Employment Eligibility Verification Form I-9, including audits, 
        and related worksite enforcement investigations;
            (2) ensure that all United States businesses adhere to 
        existing laws and regulations regarding employment eligibility; 
        and
            (3) carry out such additional duties as may be assigned or 
        delegated by the Director of U.S. Immigration and Customs 
        Enforcement.
    (d) Response Time.--The Center shall respond as quickly as 
practicable to employer inquiries based on the facts and circumstances 
of the employer making the inquiry.
    (e) Task Force.--The Center shall establish a task force, utilizing 
existing information sharing agreements with other Federal agencies, 
including the Social Security Administration, U.S. Citizenship and 
Immigration Services, the Department of Labor, and the Internal Revenue 
Service, to serve as a force multiplier to proactively investigate 
crimes, including Social Security fraud, tax fraud, and wage and hour 
violations.
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