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[Congressional Bills 113th Congress]
[From the U.S. Government Publishing Office]
[S. 202 Introduced in Senate (IS)]

113th CONGRESS
  1st Session
                                 S. 202

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

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

                            January 31, 2013

 Mr. Grassley (for himself, Mr. Boozman, Mr. Corker, Mr. Johanns, Mr. 
Lee, Mr. Sessions, Mr. Vitter, Mr. Wicker, Mrs. Fischer, Mr. Hatch, and 
   Mr. Enzi) 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. 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 the 
Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 
U.S.C. 1324a note) is 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 the Illegal Immigration Reform 
and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note) is 
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 uses 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) with respect to such 
                individual; and
                    ``(B) a rebuttable presumption is created that the 
                person or entity has violated section 274A(a)(1)(A).''.
    (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), in the matter 
                        preceding clause (i), by inserting ``, subject 
                        to paragraph (10),'' after ``in an amount'';
                            (ii) in subparagraph (A)(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 subparagraph (A)(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'';
                            (iv) in subparagraph (A)(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
                            (v) 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 inserting 
                        ``$1,000'';
                            (iii) by striking ``$1,000'' and inserting 
                        ``$25,000'';
                            (iv) 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
                            (v) 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 imposition 
        of a civil penalty under paragraph (4)(A) with respect to a 
        violation of subsection (a)(1)(A) or (a)(2) for hiring or 
        continuation of employment or recruitment or referral by person 
        or entity and in the case of imposition of a civil penalty 
        under paragraph (5) for a violation of subsection (a)(1)(B) for 
        hiring or 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, such person or entity may be considered for 
                debarment 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 or the Attorney 
                General wishes to have a person or entity considered 
                for debarment in accordance with this paragraph, and 
                such an person or entity does not hold a Federal 
                contract, grant or cooperative agreement, the Secretary 
                or Attorney General shall refer the matter to the 
                Administrator of General Services to determine whether 
                to list the person or entity on the List of Parties 
                Excluded from Federal Procurement, and if so, for what 
                duration and under what scope.
                    ``(C) Has contract, grant, agreement.--If the 
                Secretary of Homeland Security or the Attorney General 
                wishes to have a person or entity considered for 
                debarment in accordance with this paragraph, and such 
                person or entity holds a Federal contract, grant or 
                cooperative agreement, the Secretary or Attorney 
                General shall advise all agencies or departments 
                holding a contract, grant, or cooperative agreement 
                with the person or entity of the Government's interest 
                in having the person or entity considered for 
                debarment, and after soliciting and considering the 
                views of all such agencies and departments, the 
                Secretary or Attorney General may waive the operation 
                of this paragraph or refer the matter to any 
                appropriate lead agency to determine whether to list 
                the person or entity on the List of Parties Excluded 
                from Federal Procurement, and if so, for what duration 
                and under what scope.
                    ``(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 $15,000 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, 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 
                        3 years 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) is 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.

    The Commissioner of Social Security, 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), including any no-
match letter 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 times 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) is 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.''.
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