H.R. 3429 (106th): Legal Employment Authentication Program (LEAP) Act of 1999

106th Congress, 1999–2000. Text as of Nov 17, 1999 (Introduced).

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HR 3429 IH1S

106th CONGRESS

1st Session

H. R. 3429

To amend the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 to authorize the establishment of a voluntary legal employment authentication program (LEAP) as a successor to the current pilot programs for employment eligibility confirmation.

IN THE HOUSE OF REPRESENTATIVES

November 17, 1999

Mr. BARRETT of Nebraska (for himself, Mr. BEREUTER, Mr. LATHAM, and Mr. BILBRAY) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committee on Education and the Workforce, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned


A BILL

To amend the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 to authorize the establishment of a voluntary legal employment authentication program (LEAP) as a successor to the current pilot programs for employment eligibility confirmation.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ‘Legal Employment Authentication Program (LEAP) Act of 1999’.

SEC. 2. AUTHORIZING LEGAL EMPLOYMENT AUTHENTICATION PROGRAM (LEAP) AS A SUCCESSOR TO CURRENT PILOT PROGRAMS.

    (a) ESTABLISHMENT OF LEGAL EMPLOYMENT AUTHENTICATION PROGRAM (LEAP)- Subtitle A of title IV of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (division C of Public Law 104-208) is amended to read as follows:

‘Subtitle A--Legal Employment Authentication Program (LEAP) for Employment Eligibility Confirmation

‘SEC. 401. ESTABLISHMENT OF PROGRAM.

    ‘(a) IN GENERAL- The Attorney General, in close consultation with the Secretary of Labor and the Commissioner of Social Security, shall establish a legal employment authentication program for employment eligibility confirmation under this subtitle.

    ‘(b) IMPLEMENTATION- The Attorney General shall implement such program 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 Legal Employment Authentication Program (LEAP) Act of 1999.

    ‘(c) REFERENCES IN SUBTITLE- In this subtitle--

      ‘(1) PROGRAM AND LEAP REFERENCES- The terms ‘program’ and ‘LEAP’ refer to the legal employment authentication program 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.

      ‘(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 Attorney General 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.

‘SEC. 402. VOLUNTARY ELECTION TO PARTICIPATE IN THE PROGRAM.

    ‘(a) VOLUNTARY ELECTION- Subject to subsection (c)(3)(B), any person or other entity that conducts any hiring (or recruitment or referral) may elect to participate in the program. Except as specifically provided in subsection (e), the Attorney General may not require any person or other entity to participate in the program.

    ‘(b) BENEFIT OF REBUTTABLE PRESUMPTION-

      ‘(1) IN GENERAL- If a person or other entity is participating in the 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 Attorney General shall specify. The Attorney General may not impose any fee as a condition of making an election or participating in the program.

      ‘(2) SCOPE OF ELECTION- Any electing person or the entity may provide that the election under subsection (a) shall apply (during the period in which the election is in effect)--

        ‘(A) to all its hiring (and all recruitment or referral); or

        ‘(B) to its hiring (or recruitment and referral) in one or more places of hiring (or recruitment or referral, as the case may be).

      ‘(3) ACCEPTANCE OF ELECTIONS- The Attorney General shall accept all elections made under subsection (a).

      ‘(4) TERMINATION OF ELECTIONS- The Attorney General 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 program. A person or other entity may terminate an election in such form and manner as the Attorney General shall specify.

    ‘(d) CONSULTATION, EDUCATION, AND PUBLICITY-

      ‘(1) CONSULTATION- The Attorney General, the Secretary of Labor, and the Commissioner of Social Security shall closely consult with representatives of employers (and recruiters and referrers) in the development and implementation of the program, including the education of employers (and recruiters and referrers) about such programs.

      ‘(2) PUBLICITY- The Attorney General shall widely publicize the election process and program, including the voluntary nature of the program and the advantages to employers (and recruiters and referrers) of making an election under this section.

      ‘(3) ASSISTANCE THROUGH DISTRICT OFFICES- The Attorney General shall designate one or more individuals in each District office of the Immigration and Naturalization Service for a Service District in which the program is being implemented--

        ‘(A) to inform persons and other entities that seek information about the program of the voluntary nature of such programs, and

        ‘(B) to assist persons and other entities in electing and participating in the program 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 THE PROGRAM-

      ‘(1) FEDERAL GOVERNMENT AND INDEPENDENT AGENCIES-

        ‘(A) EXECUTIVE DEPARTMENTS-

          ‘(i) IN GENERAL- Each Department and independent agency of the Federal Government shall elect to participate in the 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 and head of each such independent agency may limit the election to hiring occurring in certain areas and in specified divisions within the Department or agency in the same manner as is permitted under subsection (c)(2).

          ‘(iii) ROLE OF ATTORNEY GENERAL- The Attorney General 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 and independent agency is covered under the program, and

            ‘(II) there is significant participation by the Federal Executive branch in the program.

        ‘(B) LEGISLATIVE BRANCH- Each Member of Congress, each officer of Congress, and the head of each agency of the legislative branch, that conducts hiring shall elect to participate in the program and 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 may require the subject of the order to participate in, and comply with the terms of, the program with respect to the subject’s hiring (or recruitment or referral) of individuals in a State covered by the program.

      ‘(3) CONSEQUENCE OF FAILURE TO PARTICIPATE- If a person or other entity is required under this subsection to participate in the 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 Attorney General under any other law (including section 274A(d)(4)) to conduct demonstration projects in relation to section 274A.

‘SEC. 403. PROCEDURES FOR PARTICIPANTS IN THE PROGRAM.

    ‘(a) IN GENERAL- A person or other entity that elects to participate in the program 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 Attorney General 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 Attorney General as suitable for the purpose of identification in the 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 Attorney General finds that the 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 fraudulently using the social security account number 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 Attorney General 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- Subject to subparagraph (C), 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 Attorney General) 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.

        ‘(C) PERMITTING 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 section 274A(b)(1)(D)(i) that includes a machine-readable social security account number, the person or entity may make an inquiry through the confirmation system by using a machine-readable feature of such document.

        ‘(D) LIMITED DISCLOSURE- The confirmation system shall disclose to the person or entity making the inquiry only a confirmation or nonconfirmation of the individual’s eligibility to be employed and shall not disclose any social security account number or any other social security account information.

        ‘(E) USE OF ELECTRONIC INQUIRY SYSTEM- The confirmation system shall permit, not later than 2 years after the date of the enactment of this subparagraph, for inquiries to be made, and confirmation and nonconfirmation to be made transmitted, through electronic media (such as a modem or telephone).

      ‘(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 Attorney General of such fact through the confirmation system or in such other manner as the Attorney General 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) PROTECTION FROM LIABILITY FOR ACTIONS TAKEN ON THE BASIS OF INFORMATION PROVIDED BY THE CONFIRMATION SYSTEM- No person or entity participating in the 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 Attorney General, in cooperation with the Secretary of Labor and the Commissioner of Social Security, shall establish the program confirmation system through which the Attorney General (or a designee of the Attorney General, which may be a nongovernmental entity)--

      ‘(1) responds to inquiries made by electing persons and other entities 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 program.

    To the extent practicable, the Attorney General 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 Attorney General shall specify, in consultation with the Commissioner of Social Security, Secretary of Labor, 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;

        ‘(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; or

        ‘(D) the authority of the Immigration and Naturalization Service to impose a civil money penalty of not less than $500 and no more than $1,000 for each individual with respect to whom such a violation occurred.

    ‘(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, whether the individual has presented a social security account number that is not valid for employment, and whether the individual is fraudulently using the social security account number of another person. The Commissioner shall not disclose or release social security information (other than such confirmation or nonconfirmation), except that if an officer or employee in connection with conducting activities under the program discovers evidence of criminal activity, the officer or employee may report such activity to authorized law enforcement officials.

    ‘(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, whether the alien is authorized to be employed in the United States, and whether the individual is fraudulently using the social security account number of another person.

    ‘(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 the 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.

    ‘(i) AUTHORIZATION- The Attorney General shall enter into a cooperative agreement with the Secretary of Labor and the Commissioner of Social Security for the purpose of carrying out this subtitle. Under the agreement, officers and employees of the Immigration and Naturalization Service and of the Department of Labor, in cooperation with the Social Security Administration, are authorized to confirm the eligibility of individuals to be employed in the United States. In confirming such eligibility, such officers and employees may use records that include Social Security account numbers to determine with respect to an individual whether the person with the identity claimed by the individual is authorized to be employed in the United States and whether the individual is fraudulently using the social security account number of another person. Under the agreement, the Social Security Administration is authorized to release to employees of the Immigration and Naturalization Service information, including (but not limited to) the following:

      ‘(1) The name, date of birth, and social security account number of individuals.

      ‘(2) All records relating to any alien.

      ‘(3) All records relating to any individual whom the Attorney General suspects is fraudulently using the social security account number of another person, including records that indicate that an individual has requested a high number of replacement social security account number cards.

‘SEC. 405. ANNUAL REPORTS.

    ‘The Attorney General shall submit to the Committees on the Judiciary of the House of Representatives and of the Senate reports on the program. Such reports shall--

      ‘(1) assess the degree of fraudulent attesting of United States citizenship,

      ‘(2) include recommendations on whether or not the program should be modified, and

      ‘(3) assess the benefits of the program to employers and the degree to which they assist in the enforcement of section 274A.

‘SEC. 406. AUTHORIZATION OF APPROPRIATIONS.

    ‘There are authorized to be appropriated, for fiscal year 2000 and each succeeding fiscal year, such sums as may be necessary to carry out this subtitle.’.

    (b) CLERICAL AMENDMENT- The items in the table of contents in section 1(d) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (division C of Public Law 104-208) relating to subtitle A of title IV are amended to read as follows:

‘Subtitle A--Legal Employment Authentication Program (LEAP) for Employment Eligibility Confirmation

      ‘Sec. 401. Establishment of program.

      ‘Sec. 402. Voluntary election to participate in the program.

      ‘Sec. 403. Procedures for participants in the program.

      ‘Sec. 404. Employment eligibility confirmation system.

      ‘Sec. 405. Annual reports.

      ‘Sec. 406. Authorization of appropriations.’.

    (c) SUNSET OF CURRENT CITIZEN ATTESTATION AND MACHINE-READABLE-DOCUMENT PILOT PROGRAMS- The pilot programs under subsections (b) and (c) of section 403 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (division C of Public Law 104-208) (as in effect before the date of the enactment of this Act) shall terminate when the program under section 404(a) of such Act (as amended by this Act) becomes effective and any reference in such subsections to a pilot program under subsection (a) shall be to such program as in effect before the date of the enactment of this Act.