H.R. 2028 (111th): New Employee Verification Act of 2009

111th Congress, 2009–2010. Text as of Apr 22, 2009 (Introduced).

Status & Summary | PDF | Source: GPO

I

111th CONGRESS

1st Session

H. R. 2028

IN THE HOUSE OF REPRESENTATIVES

April 22, 2009

(for himself, Ms. Giffords, Mr. Brady of Texas, Mr. Moore of Kansas, Mr. Ryan of Wisconsin, and Mr. Mitchell) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committees on Education and Labor, Rules, and Ways and Means, 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 Social Security Act to prevent unauthorized earnings from being credited toward benefits under title II of such Act and to make improvements in provisions governing totalization agreements, to amend the Social Security Act and the Immigration and Nationality Act to prevent unauthorized employment, and to improve coordination of the provisions of such Acts, and for other purposes.

1.

Short title

This Act may be cited as the New Employee Verification Act of 2009.

I

Electronic Employment Verification

A

Implementation of new systems

101.

Extenstion of basic pilot until new systems operating

Section 401(b) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note) is amended—

(1)

by striking 11-year period and inserting 16-year period; and

(2)

by striking the period at the end and inserting the following: , except that this subtitle is repealed effective on the date that is 36 months after the date of the enactment of the New Employee Verification Act of 2009..

102.

Amendments to immigration laws to improve employment authorization verification

(a)

In general

(1)

Change in employment eligibility verification process

Section 274A of the Immigration and Nationality Act (8 U.S.C. 1324a) is amended—

(A)

in subsection (a)(1)(B)—

(i)

in clause (i), by striking subsection (b) and inserting (b), (c), or (d); and

(ii)

in clause (ii), by striking subsection (b). and inserting subsection (b), (c), or (d).; and

(B)

in subsection (b), in the matter preceding paragraph (1), by striking United States, and inserting United States who is subject to compliance with this subsection,.

(2)

Verification via EEVS and SEEVS systems

Subsections (c) and (d) of section 274A of the Immigration and Nationality Act (8 U.S.C. 1324a) are amended to read as follows:

(c)

Electronic Employment Verification System

(1)

Enrollment

(A)

In general

Every person or other entity subject to subsection (a)(1)(B), and that is not in compliance with such subsection by reason of compliance with subsection (d), shall participate in the Electronic Employment Verification System established under section 235(a) of the Social Security Act (the EEVS) on a schedule established in accordance with section 235(a)(4) of the Social Security Act with respect to all hiring, recruitment, and referral described in subsection (a)(1)(B) occurring after the earlier of the date on which the entity—

(i)

is required to register under this paragraph; or

(ii)

voluntarily registers.

(B)

Voluntary participation

The Secretary of Homeland Security, in consultation with the Commissioner of Social Security, may permit any person or other entity subject to subsection (a)(1)(B), and that is not yet required to participate in the EEVS under section 235(a)(4) of the Social Security Act to participate in the EEVS on a voluntary basis.

(C)

Expedited participation

The Secretary of Homeland Security, on a case-by-case or classwide basis, may require any person or other entity subject to subsection (a)(1)(B), and that is not yet required to participate in the EEVS under section 235(a)(4) of the Social Security Act, to participate in the EEVS (or, alternatively, the Secure Employment Eligibility Verification System established under section 235(b) of the Social Security Act (the SEEVS)) on an expedited basis if the Secretary designates such person or entity as—

(i)

employing individuals having access to locations or information that have a direct impact on the security of the United States; or

(ii)

having engaged in material violations of this section.

(D)

Requirement to notify

The Secretary of Homeland Security shall notify persons or entities required to register not less than 60 days prior to the effective date of such requirement through publication in the Federal Register regarding the requirement for participation in the EEVS under subparagraphs (A) and (C)(i) and by mail regarding the requirement for participation in the EEVS under subparagraph (C)(ii). Such notice shall include the training materials described in section 235(a)(5) of the Social Security Act.

(E)

Registration

A person or other entity shall register to participate in the EEVS or the SEEVS in the manner prescribed by the Commissioner of Social Security prior to the date the person or entity is required or permitted to submit information with respect to an individual under this subsection.

(F)

Consequence of failure to participate

If a person or other entity is required or has elected to participate in the EEVS or the SEEVS and fails to comply with the requirements thereof, such failure—

(i)

shall be treated as a violation of subsection (a)(1)(B) punishable under subsection (e)(5); and

(ii)

shall create a rebuttable presumption that the person or other entity has violated subsection (a)(1)(A), except that such presumption shall not apply to a prosecution under subsection (f)(1).

(G)

Protection from liability

No person or other entity that participates in the EEVS or the SEEVS shall be liable under any law for any employment-related action taken with respect to an individual in reliance on information provided by the EEVS or the SEEVS (as applicable) in connection with such participation, if such action is taken in accordance with the requirements of this subsection, section 235 of the Social Security Act, and applicable regulations prescribed thereunder.

(H)

Exclusive means of verification

If a person or other entity is required or has elected to participate in the EEVS, subsections (b) and (d) shall not apply to the person or other entity.

(2)

Obtaining documents for EEVS

(A)

Information required

A person or other entity registered to participate in the EEVS shall, with respect to the hiring, or recruiting or referring for a fee, any individual for employment in the United States, obtain from the individual—

(i)

the individual's name and date of birth;

(ii)

the individual's social security account number; and

(iii)

in the case of an individual who does not claim to be a national of the United States, such alien identification or authorization number as the Secretary shall require.

(B)

Documents required

The person or entity shall require that the individual produce one of the following documents consistent with the status claimed by the individual and bearing identifying information consistent with that obtained from the individual:

(i)

In the case of an individual who is a national of the United States—

(I)

a United States passport; or

(II)

a driver's license or identity card, issued by a State, the Commonwealth of the Northern Mariana Islands, or an outlying possession of the United States, that contains a photograph of the individual, other identifying information (including the individual’s name, date of birth, gender, and address) and security features to make the license or card resistant to tampering, counterfeiting, and fraudulent use.

(ii)

In the case of an alien lawfully admitted for permanent residence in the United States, a permanent resident card, as specified by the Secretary, that contains a photograph of the individual, other identifying information (including name, date of birth, gender, and address), and contains security features to make the document resistant to tampering, counterfeiting, and fraudulent use.

(iii)

In the case of an alien who is authorized under the Immigration and Nationality Act or by the Secretary of Homeland Security to be employed in the United States, an employment authorization card, issued by the Secretary that contains a photograph of the individual, other identifying information (including name, date of birth, gender, and address), and security features to make the document resistant to tampering, counterfeiting, and fraudulent use.

(iv)

In the case of an individual who is unable to obtain a document described in clause (i), (ii), or (iii), a document designated by the Secretary that contains a photograph of the individual, other identifying information (including name, date of birth, gender, and address) and security features to make the document resistant to tampering, counterfeiting, and fraudulent use.

(C)

Unacceptable documents

If the Secretary finds that a document or class of documents described in clause (ii) is not reliable to establish identity or is being used fraudulently to an unacceptable degree, the Secretary shall prohibit, or impose conditions, on the use of such documents or class of documents for purposes of this subsection. The Secretary shall publish notice of any findings under this clause in the Federal Register.

(3)

Attestation

A person or other entity registered to participate in the EEVS shall attest, under penalty of perjury using an electronic signature or code approved by the Commissioner of Social Security through an internet or telephonic connection prescribed by the Commissioner, that registrant has obtained the information required by paragraph (2)(A) and examined a consistent document required by paragraph (2)(B).

(4)

Consequences of certain EEVS determinations

(A)

Mandatory dismissal if no contest of initial disapproval

If an individual does not contest the initial disapproval notice described in section 235(a)(3)(C)(ii) of the Social Security Act by the end of the 10-day period beginning on the date on which the notice is received from the employer, the disapproval shall become final, and the employer shall, within 3 business days after the end of such 10-day period, terminate the employment, recruitment, or referral of the individual by the employer.

(B)

Mandatory dismissal if disapproval notice issued after contest

In any case in which a disapproval notice described in section 235(a)(3)(C)(v) of the Social Security Act is issued, the employer shall, within 3 business days after receipt of such notice, terminate the employment, recruitment, or referral of the individual who is the subject of the notice.

(C)

Rule on dismissal

An employer shall not terminate an employee until receiving a final disapproval notice, unless there is good cause for dismissal for a reason other than the failure to obtain approval of employment eligibility.

(5)

Presumption of violation

If a person or other entity registered to participate in the EEVS continues, in violation of this subparagraph, to employ, recruit, or refer an individual, a rebuttable presumption is created that the registrant has violated subsections (a)(1)(A) and (a)(2) of this section, except that such presumption shall not apply to a prosecution under subsection (f)(1) of this section.

(d)

Secure Employment Eligibility Verification System

(1)

In general

Beginning with the first day of operation of the SEEVS a person or other entity subject to subsection (a)(1)(B) of this section may elect to comply with such subsection by participating in the SEEVS. Such participation shall be in lieu of participation in the EEVS established under section 235(a) of the Social Security Act. Such participation shall be subject to the requirements of section 235(b) of such Act and the regulations issued under such section.

(2)

Requirement to notify

The Secretary of Homeland Security shall notify persons or entities subject to subsection (a)(1)(B) about the opportunity to participate in the SEEVS not less than 60 days prior to the first day of operation of the system.

(3)

Presumption

Participation in SEEVS by an employer that follows the required procedures of the system shall create a presumption that the employer has not violated the requirements of this Act with respect to its hiring decisions, which presumption shall only be overcome by clear and convincing evidence of willful noncompliance resulting in the hiring of an unauthorized employee.

(4)

Exclusive means of verification

If a person or other entity is required or has elected to participate in the SEEVS, subsections (b) and (c) shall not apply to the person or other entity.

(5)

Compliance with EEVS requirements upon termination of election

If a person or other entity terminates its election to participate in the SEEVS, the person or entity shall be subject to compliance with subsection (c) with respect to all employment actions beginning on the date of such termination.

.

(b)

Enhancement of Federal preemption standards

Section 274A(h)(2) of the Immigration and Nationality Act (8 U.S.C. 1324a(h)(2)) is amended to read as follows:

(2)

Preemption; no national identification card

(A)

Preemption

The provisions of this section preempt any provision of any law of any State or political subdivision thereof or any contract entered into by any State or political subdivision thereof which—

(i)

imposes civil or criminal sanctions upon employers for actions governed by the Act;

(ii)

requires, authorizes or permits a system of verification of the immigration status of employees or employment applicants;

(iii)

requires, authorizes, or permits the use of a federally mandated employment verification system for any purpose other than that required by Federal law, including verifying status of renters, determining eligibility for receipt of benefits, enrollment in school, obtaining or retaining a business or other license provided by the unit of government, or conducting a background check; or

(iv)

requires or prohibits the use of an immigration status employment verification system for any purpose, except as required by Federal law, including without limitation, such purposes as—

(I)

a condition of receiving a government contract;

(II)

a condition of receiving a business license; or

(III)

the basis of assessing a penalty.

(B)

No authorization of national identification card

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.

.

(c)

Authorization of appropriations

There are authorized to be appropriated to the Secretary of Homeland Security such sums as may be necessary to carry out the amendments made by this section.

103.

Amendments to Social Security Act to improve employment authorization verification

(a)

Amendment to title II

(1)

In general

Title II of the Social Security Act (42 U.S.C. 401 et seq.) is amended by adding at the end the following new section:

235.

Electronic employment verification

(a)

Electronic Employment Verification System

(1)

In general

The Commissioner of Social Security, in cooperation and consultation with the Secretary of Health and Human Services, Secretary of Homeland Security, the States, and the Advisory Panel created in subsection (c) of this section, shall establish an Electronic Employment Verification System (the EEVS) using the employer data entry infrastructure of the National Directory of New Hires (established pursuant to section 453(i)). The EEVS—

(A)

shall, as is appropriate and effective, utilize elements of the employment eligibility confirmation system infrastructure established under section 404 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (Public Law 104–208; 110 Stat. 3009–664);

(B)

shall be accessible over the Internet and a toll-free telephone line maintained by the Commissioner; and

(C)

shall have the capacity to determine whether—

(i)

identifying information with respect to an individual, submitted by the subject employer, is consistent with the information maintained by the Commissioner (with respect to both citizens and nationals of the United States) and by the Secretary of Homeland Security (solely with respect to aliens); and

(ii)

the individual is a citizen or national or is not an unauthorized alien (as defined in section 274A(h)(3) of the Immigration and Nationality Act (8 U.S.C. 1324a(h)(3))) with respect to the employment.

(2)

Subject employer

For purposes of this section, the term subject employer means, in connection with any individual, an employer (within the meaning of section 453A(a)(2)(B)(i)) of such individual and includes any person who recruits or refers for employment such individual for a fee.

(3)

Verification of employment authorization

(A)

In general

The Commissioner shall, through the EEVS—

(i)

respond to each inquiry regarding an individual's identifying information and eligibility for employment in the United States for the subject employer, as recorded in the information maintained by the Commissioner or the Secretary of Homeland Security as appropriate, and include in the response the time period (which may be unlimited) for which the individual is authorized to be employed in the United States by such employer, as so recorded; and

(ii)

maintain a record of each such inquiry and the information provided in response to such inquiry.

(B)

Submission to system

(i)

In general

A subject employer shall submit an inquiry through the EEVS to seek confirmation of an individual's identifying information and eligibility for employment in the United States—

(I)

in the case of hiring subject to clause (i) of section 274A(a)(1)(B) of the Immigration and Nationality Act (8 U.S.C. 1324a(a)(1)(B)), during the period beginning on the date of hire and ending at the end of the third business day after the employee has reported for duty; and

(II)

in the case of recruitment or referral for a fee subject to clause (ii) of such section, not later than the first day of such recruitment or referral.

(ii)

Required information

Such inquiry shall include—

(I)

the individual's name and date of birth;

(II)

the individual's social security account number;

(III)

in the case of an individual who does not claim to be a national of the United States, such alien identification or authorization number as the Secretary shall require.

(C)

EEVS screening of employment eligibility

(i)

In general

As soon as possible, but not later than 3 business days after a subject employer submits an inquiry to the EEVS regarding an individual, the EEVS shall provide to the subject employer, through the EEVS, approval or initial disapproval of the employment of the individual in the United States.

(ii)

Initial disapproval

If a subject employer receives an initial disapproval from the system for an individual, the subject employer shall notify such individual of the issuance of such disapproval in writing, on the form described in paragraph (5)(E), not later than 3 business days after receiving such notice. Such individual shall acknowledge receipt of such notice in writing on a form prescribed by the Commissioner. The Commissioner shall provide the individual an opportunity to contest the initial disapproval, and the notification of the individual by the subject employer shall include a description of the individual’s right to contest such disapproval.

(iii)

Contest

If the individual contests the initial disapproval, the individual shall submit appropriate information to contest such notice under the procedures established by the Commissioner, in consultation with the Secretary of Homeland Security, not later than 10 business days after receiving the notice from the subject employer.

(iv)

No contest

If the individual does not contest the initial disapproval notice by the end of the 10-day period beginning on the date on which the notice is received from the subject employer, the disapproval shall become final, and the subject employer shall record on the system the appropriate code, in accordance with regulations of the Commissioner, to indicate the individual did not contest the initial disapproval. An individual's failure to contest an initial disapproval shall not be considered an admission of any fact with respect to any violation of this title, the Immigration and Nationality Act, or any other provision of law.

(v)

Approval or disapproval

The Commissioner, in consultation with the Secretary of Homeland Security, shall ensure prompt resolution of the individual’s contest of the initial disapproval and issue either an approval or disapproval notice to the subject employer through the EEVS not later than 10 business days after the date on which the individual contests their initial disapproval.

(D)

Administrative review of disapprovals

(i)

In general

An individual who is terminated from employment pursuant to subparagraph (B) or (C) of section 274A(c)(4) of the Immigration and Nationality Act may, not later than 30 business days after the date of such termination, file an appeal of the disapproval notice resulting in such termination.

(ii)

Procedures

The Commissioner and the Secretary of Homeland Security shall jointly develop procedures to review appeals filed under clause (i) and—

(I)

with respect to disapprovals based on information maintained by the Commissioner, the appeal shall be filed with the Commissioner and the Commissioner shall make the final determinations; and

(II)

with respect to disapprovals based on information maintained by the Secretary of Homeland Security, the appeal shall be filed with the Secretary of Homeland Security and the Secretary shall make the final determinations on such appeals and provide certification of such final determinations to the Commissioner.

(iii)

Review for errors

If a final determination on an appeal filed under clause (i) results in approval of an individual's eligibility to work in the United States, the Commissioner (in the case of a final determination under clause (ii)(I)) or the Secretary of Homeland Security (in the case of a final determination under clause (ii)(II)) shall determine if the final disapproval notice issued for the individual was the result of an act or omission that was the responsibility of the individual or from another cause.

(iv)

Compensation for errors

(I)

In general

In any case in which the Commissioner makes a determination under this subparagraph that the disapproval notice issued for an individual was caused by a negligent, reckless, willful, or malicious act of the Government and was not caused by an act or omission that was the responsibility of the individual, or the Secretary of Homeland Security provides to the Commissioner certification of such a determination pursuant to clause (ii)(II), the Commissioner shall certify to the Treasury the amount of the lost wages and the Secretary of the Treasury shall compensate the individual for such lost wages from the general fund of the Treasury.

(II)

Calculation of lost wages

Lost wages shall be calculated based on the wage rate and work schedule that prevailed prior to termination. The individual shall be compensated for wages lost beginning on the first scheduled work day after employment was terminated and ending 180 days after completion of the administrative review process described in this paragraph or the day after the individual is reinstated or obtains employment elsewhere, whichever occurs first.

(III)

Limitation on compensation

For purposes of determining an individual's compensation for the loss of employment, such compensation shall be reduced by any compensation earned from any employment during such period and shall not include any period in which the individual was ineligible for employment in the United States.

(E)

Judicial review of disapprovals

(i)

In general

An individual described in subparagraph (D)(i) may obtain judicial review of a final determination under subparagraph (D) by a civil action commenced not later than 30 days after the date of such determination.

(ii)

Jurisdiction

A civil action for such judicial review shall be brought in the district court of the United States for the judicial district in which the plaintiff resides, or has a principal place of business, or, if the plaintiff does not reside or have a principal place of business within any such judicial district, in the District Court of the United States for the District of Columbia.

(iii)

Answer

A certified copy of the administrative record compiled during the administrative review under subparagraph (D), including the evidence received during such review, shall be filed in such civil action. The court shall have power to enter, upon the pleadings and administrative record, a judgment affirming, modifying or reversing such administrative decision, with or without remanding the matter for further proceedings.

(iv)

Compensation for error

In cases in which such judicial review results in a determination that compensation for lost wages is due, such compensation shall be computed and paid in accordance with subparagraph (D)(iv).

(4)

Implementation of the EEVS

(A)

In general

The Commissioner shall establish a schedule for implementation of the EEVS that is designed to assure that the capacity of all aspects of the EEVS, including the equipment and personnel required to complete reviews of contested initial disapprovals and corrections of erroneous records, within the time limits established by subparagraphs (C) and (D) of paragraph (3).

(B)

Priorities

The schedule established pursuant to subparagraph (A) shall be established based on the priority of maximizing the deterrent effect on illegal migration and unauthorized employment on the most expeditious basis possible.

(C)

Basic pilot participants

The schedule established pursuant to subparagraph (A) shall assure that all participants in the basic pilot program for employment eligibility verification described in section 403(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note) are registered in the EEVS as soon as feasible after the date of the enactment of the New Employee Verification Act of 2009.

(D)

All others

Every person that is a subject employer with respect to one or more individuals as of the date of enactment of the New Employee Verification Act of 2009 shall be required to register in the EEVS, or be compliant under subsection (b) of this section, not later than 36 months after such date.

(5)

Standards for operation

(A)

Policies and procedures

The Commissioner, the Secretary of Homeland Security, and the Secretary of Health and Human Services shall establish procedures for collecting, updating, removing, and adding data to the EEVS to ensure the accuracy and integrity of the data and to limit access to the data to authorized personnel.

(B)

Public education

Not later than 6 months before the first registration date, the Commissioner, in cooperation with the Secretary of Health and Human Services, the Secretary of Homeland Security, and the States, shall develop a public education campaign regarding the obligations imposed by this section, as well as instructional materials provided without cost to the public regarding how to use the EEVS.

(C)

Registrant training

Not later than 6 months before the first registration date, the Commissioner, in cooperation with the Secretary of Homeland Security, the Secretary of Health and Human Services, and the States, shall institute a comprehensive program of outreach and training for employers regarding the operation and benefits of using the verification systems described in this section and informing them of ongoing assistance resources for the implementation and use of such systems.

(D)

EEVS design and technology standards

The Commissioner and the Secretary of Homeland Security shall ensure the following with respect to the development and operation of the EEVS:

(i)

The development and implementation of the system in accordance with technology standards that are sufficiently comprehensive and robust to verify the employment eligibility of all persons applying for employment in the United States at all times.

(ii)

The dependable operation of a cross-agency, cross-platform electronic system that is a cost-effective, efficient, fully integrated means to share identifying information, immigration information, and Social Security information necessary to confirm the employment eligibility of all persons seeking employment.

(iii)

The real-time data entry of employment eligibility with respect to all individuals that is accomplished on a contemporaneous basis with the establishment or change of immigration, citizenship, work authorization, or identifying information maintained by the Commissioner, such that this information is immediately available to be accessed through the EEVS.

(iv)

The operation of EEVS on a fully electronic basis that shall not require the creation or maintenance of paper records or electronic copies of documents other than a log of inquiries and responses for those employers that employ telephonic access to the system.

(v)

The accessibility to all employers via the Internet and telephone through a system that permits a subject employer to utilize any appropriate technology to access the EEVS, including technology that is maintained or operated by the private sector vendors.

(vi)

The provision of an expeditious method exists for correcting errors regarding immigration, citizenship, work authorization, and identifying information maintained by the Commissioner, or any other relevant data in a timely and effective manner, for determining the source of data to ascertain its accuracy and correcting procedures known to lead to errors in such data.

(vii)

The enforcement of strict limitations on agency and contractor personnel authorized to input data into the EEVS, and identify classes of prejudicial information requiring authorization of supervisory personnel before entry into the System.

(viii)

The operation of a centralized system through which individuals who have been notified of ineligibility for employment or benefits based on their immigration, citizenship, work authorization, or identifying information maintained by the Commissioner can seek to correct erroneous or inaccurate information within specific time schedules for reviewing data correction requests, rendering decisions on such requests, and implementing appropriate corrective action in a timely manner.

(ix)

The provision of a 24-hour Internet and telephonic help-desk available to respond to questions about the use of the system as well as to resolve questions about employment status.

(x)

The Commissioner and the Secretary of Homeland Security shall conduct a study of the feasibility of a mechanism to update all Social Security records on a continuous basis with immigration and work authorization status to permit the Commissioner to respond to employer inquiries pursuant to subparagraph (C) without the necessity of accessing of other data bases. Study findings shall be provided to the Committees of jurisdiction in the Congress not later than one year after the date of the enactment of this section.

(E)

Notices to employees

The Commissioner, in consultation with the Secretary of Homeland Security, shall develop a written form for employers to provide to individuals for whom they receive an initial disapproval and disapproval notices that shall include—

(i)

in the case of an initial disapproval—

(I)

the right to contest such initial disapproval; and

(II)

contact information for initiating such contest, including the appropriate agency to contact and the procedures to follow in doing so; and

(ii)

in the case of a disapproval, the right to appeal the disapproval, including the appropriate agency to contact and the procedures to follow in doing so.

(F)

Additional responsibilities of Commissioner in support of the EEVS

The Commissioner shall establish—

(i)

a reliable, secure method for determining, through the EEVS—

(I)

whether the name, date of birth, and social security account number of an individual provided in an inquiry made to the EEVS by an employer is consistent with such information maintained by the Commissioner;

(II)

the citizenship status associated with such name and social security account number, according to the records maintained by the Commissioner;

(III)

whether the name and number belongs to an individual who is deceased or a child, according to the records maintained by the Commissioner;

(IV)

whether the name belongs to an individual whose record has a fraud indicator; and

(V)

whether the name and number is blocked in accordance with paragraph (7); and

(ii)

in consultation with the Secretary of Homeland Security, a reliable, secure method for an individual to verify such individual’s own eligibility for employment in the United States.

(G)

Annual report and certification

Not later than 24 months after the date of the enactment of the New Employee Verification Act of 2009, and annually thereafter, the Commissioner, in cooperation with the Secretary of Homeland Security, shall submit to the Congress a report that includes—

(i)

a certified determination of the percentage of inquiries to the EEVS and SEEVS that result in a final approval or disapproval notice, within the applicable period described in paragraph (3)(C), that are not overturned in a subsequent appeal, and if that percentage is less than 99 percent of the cases, the steps being taken to bring the percentage to 99 percent or higher within specified time frames; and

(ii)

an assessment of the privacy and security of the EEVS and SEEVS.

(H)

Enumeration

The Commissioner shall seek to assign social security account numbers to all aliens who are authorized to work in the United States, at the time of entry to the United States or at the time of acquisition of work authorized status in accordance with section 205(c)(2)(B)(i)(I) by employing enumeration procedures administered jointly by the Commissioner, the Secretary of State, and the Secretary of Homeland Security.

(6)

Limitation on collection and use of data

(A)

Collection

(i)

In general

The EEVS shall collect and maintain only the minimum data necessary to facilitate the successful operation of the EEVS, and in no case shall the data be other than information necessary—

(I)

to register subject employers;

(II)

to initiate and respond to inquiries or contests;

(III)

to establish and enforce compliance with paragraphs (3) and (4); or

(IV)

to detect and prevent employment related identity fraud.

(ii)

Penalties

Any officer, employee, or contractor who willfully and knowingly collects and maintains data in the EEVS other than data described in clause (i) shall be, for each such violation, guilty of a misdemeanor and, upon conviction, fined as provided in title 18, United States Code, imprisoned for not more than 1 year, or both.

(B)

Use

Whoever willfully and knowingly accesses, discloses, or uses any information obtained or maintained by the EEVS—

(i)

for the purpose of committing identity fraud, or assisting another person in committing identity fraud, as defined in section 1028 of title 18, United States Code;

(ii)

for the purpose of unlawfully obtaining employment in the United States or unlawfully obtaining employment in the United States for any other person; or

(iii)

for any purpose other than as provided for under any provision of law,

shall be guilty of a felony and upon conviction shall be fined under title 18, United States Code, or be imprisoned for not more than 5 years, or both.
(C)

Exceptions

Nothing in subparagraph (A) or (B) may be construed to limit the collection, maintenance, or use of data by the Commissioner of Internal Revenue or the Commissioner of Social Security as provided by law.

(7)

Right to block use of number

The Commissioner shall establish secure procedures under which an individual who has been assigned a social security account number may block the use of such number under the EEVS and may remove any such block. Such procedures shall ensure the authentication of the identity of such individual.

(b)

Secure Employment Eligibility Verification System

(1)

In general

Not later than 18 months after the date of the enactment of the New Employee Verification Act of 2009, the Commissioner shall, after consultation with the Secretary of Homeland Security, the Director of the National Institute of Standards and Technology, and the Employment Verification Advisory Panel established under paragraph (5), establish by regulation a Secure Employment Eligibility Verification System (referred to in this subsection as the SEEVS). The purpose of the SEEVS shall be to provide for identity authentication and employment eligibility verification with respect to enrolled new employees which shall be available to subject employers who elect to participate in the SEEVS in lieu of the EEVS. Any subject employer may cancel the employer’s participation in the SEEVS after one year after electing to participate without prejudice to future participation.

(2)

Minimum Requirements

In accordance with the regulations prescribed by the Commissioner pursuant to paragraph (1)—

(A)

Identity authentication and employment eligibility verification by enrollment providers

The SEEVS shall utilize the services of private sector entities (hereinafter in this subsection referred to as enrollment providers), with appropriate expertise, which shall be subject to initial and periodic certification by the Commissioner, to provide—

(i)

enrollment under the SEEVS of new employees by means of identity authentication in a manner that provides a high level of certainty as to their true identities, using immigration and identifying information maintained by the Social Security Administration and the Department of Homeland Security, review of identity documents, and background screening verification techniques using publicly available information;

(ii)

protection of the authenticated information through biometric technology; and

(iii)

verification of employment eligibility of such new employees.

(B)

Database management

The SEEVS shall provide for databases of identifying information which may be retained by the enrollment providers. Databases controlled by the Commissioner and Secretary of Homeland Security shall be maintained in a manner to capture new entries and new status information in a timely manner and to interact with the private enrollment databases to keep employment authorization status and identifying information current on a daily basis. The information maintained in such databases shall be subject to the requirements established pursuant to paragraph (5), except that—

(i)

use of the data shall be limited to obtaining employment eligibility verification only, unless the new employee consents to use the data for other purposes, as provided in regulations prescribed by the Commissioner, and

(ii)

other identifying traits of the new employees shall be stored through an encoding process that keeps their accurate names, dates of birth, social security numbers, and immigration identification numbers (if any) separate, except during electronic verification.

(C)

Accessibility to employers

Availability of data maintained in the SEEVS shall be managed so that any subject employer who participates in the SEEVS can obtain verification with respect to any new employee enrolled with any enrollment provider serving in the SEEVS.

(D)

Limitations relating to biometric data

Any biometric data maintained in the SEEVS relating to any new employee shall be—

(i)

encrypted and segregated from identifying information relating to the new employee, and

(ii)

maintained and linked to identifying information relating to the new employee only by consent of the new employee for the purpose of verifying employment eligibility or approved correction processes or for other purposes specifically authorized by the employee as provided in regulations prescribed by the Commissioner.

(E)

Accuracy of association of data with enrolled new employees

The enrollment process under the SEEVS shall be managed, in the case of each new employee enrolled in the SEEVS, so as to result in the accurate association of data consisting of name, date of birth, Social Security number, and immigration identification number (if any) with the established identity of the new employee.

(F)

Limitations on accessibility of information

Data stored in SEEVS relating to any enrolled new employee shall not be accessible to any person other than those operating the SEEVS and for the sole purpose of identity authentication and employment eligibility verification in connection with the new employee, except—

(i)

by the written consent of the new employee given specifically for each instance or category of disclosure for any other purpose as provided in regulations prescribed by the Commissioner, or

(ii)

in response to a warrant issued by a judicial authority of competent jurisdiction in a criminal proceeding.

(G)

Public education

The Commissioner shall conduct a program of ongoing, comprehensive public education campaign relating to the SEEVS.

(3)

Employer responsibilities

Under the regulations prescribed by the Commissioner pursuant to paragraph (1)—

(A)

Use limited to enrolled new employees

Use of the SEEVS by subject employers participating in the SEEVS shall be limited to use in connection with the hiring of new employees occurring after their enrollment in the SEEVS.

(B)

Use for limited period

Use of the SEEVS by any subject employer participating in the SEEVS in connection with any new employee may occur only during the period beginning on the date of hire and ending at the end of the third business day after the employee has reported for duty. Use of the SEEVS with respect to recruitment or referral for a fee may occur only until the first day of such recruitment or referral.

(C)

Responsibility of employers to enroll new employees

In connection with the hiring by any subject employer of a new employee who has not been previously enrolled in the SEEVS, enrollment of the new employee shall occur only upon application by the subject employer submitted to an enrollment provider, together with payment of any costs associated with the enrollment.

(D)

Limitations on selective use

No subject employer may use the SEEVS selectively to verify any class, level, or category of new employees. Nothing in this subparagraph shall be construed to preclude subject employers from utilizing the SEEVS in connection with hiring at selected employment locations without implementing such usage at all locations of the employer.

(4)

Employee protections

Under regulations prescribed by the Commissioner pursuant to paragraph (1)—

(A)

Access for employees to correct and update information

Employees enrolled in the SEEVS shall be provided access to the SEEVS to verify information relating to their employment authorization and readily available processes to correct and update their enrollment information and information relating to employment authorization.

(B)

Same rights and protections as those provided under the EEVS

Employees shall be provided the same rights and protections in connection with responses to inquiries under the SEEVS relating to identity authentication or employment eligibility verification as are afforded under subsection (a).

(C)

Right to cancel enrollment

Each employee enrolled in the SEEVS shall have the right to cancel such employee’s enrollment at any time after the identity authentication and employment eligibility verification processes are completed by the subject employer described in paragraph (3)(C). Such cancellation shall remove from the SEEVS all identifying information and biometrics in connection with such employee without prejudice to future enrollments.

(5)

Maintenance of security and confidentiality of information

(A)

In general

Every person who is a subject employer participating in the SEEVS or an officer or contractor of such a subject employer and who has access to any information obtained at any time from the Social Security Administration shall maintain the security and confidentiality of such information. No such person may disclose any file, record, report, paper, or other item containing information so obtained at any time by any such person from the Commissioner of Social Security or from any officer or employee of the Social Security Administration except as the Commissioner of Social Security may by regulations prescribe or as otherwise provided by Federal law.

(B)

Penalty for disclosure in violation of subparagraph (A)

Any person described in subparagraph (A) who violates subparagraph (A) shall be guilty of a felony and, upon conviction thereof, shall be punished by a fine not exceeding $10,000 for each occurrence of a violation, or by imprisonment not exceeding 5 years, or both.

(C)

Penalty for knowing disclosure of fraudulent information

Any person who willfully and knowingly accesses, discloses, or uses any information which such person purports to be information obtained as described in subparagraph (A) knowing such information to be false shall be guilty of a felony and, upon conviction thereof, shall be punished by a fine not exceeding $10,000 for each occurrence of a violation, or by imprisonment not exceeding 5 years, or both.

(D)

Restitution

(i)

In general

Any Federal court, when sentencing a defendant convicted of an offense under this paragraph, may order, in addition to or in lieu of any other penalty authorized by law, that the defendant make restitution to the victims of such offense specified in clause (ii). Sections 3612, 3663, and 3664 of title 18, United States Code, shall apply with respect to the issuance and enforcement of orders of restitution to victims of such offense under this subparagraph. If the court does not order restitution, or orders only partial restitution, under this subsection, the court shall state on the record the reasons therefor.

(ii)

Victims specified

The victims specified in this clause are the following:

(I)

Any individual who suffers a financial loss as a result of the disclosure described in subparagraph (B) or (C).

(II)

The Commissioner of Social Security, to the extent that the disclosure described in subparagraph (B) or (C) results in the inappropriate payment of a benefit by the Commissioner.

(iii)

Deposit in the Trust Funds of amounts paid as restitution to the Commissioner

Funds paid to the Commissioner as restitution pursuant to a court order under this subparagraph shall be deposited in the Federal Old-Age and Survivors Insurance Trust Fund or the Federal Disability Insurance Trust Fund, as appropriate.

(c)

Creation of Employment Verification Advisory Panel

(1)

In general

Not later than 180 days after the date of the enactment of the New Employee Verification Act of 2009, the Commissioner shall establish an Employment Verification Advisory Panel (hereinafter in this subsection referred to as the Advisory Panel).

(2)

Membership

The Advisory Panel should consist of members appointed by the Commissioner, after consulting with the Secretary of Homeland Secretary, the Secretary of the Treasury, the Director of National Institutes of Standards and Technology, and other appropriate Federal agencies. Such members should include representatives from appropriate Federal agencies and private sector representatives of affected industries and groups, including immigration policy, human resource, employer and employee organizations, experts in fields including database security, biometrics, and privacy.

(3)

Functions

The Advisory Panel shall advise the Commissioner and the Secretary of Homeland Security on the implementation and deployment of the verification systems established under this section, including—

(A)

the best means of promoting efficiency, responsiveness, accuracy, public education, user support, interoperability, and cost-effectiveness of the systems established under this section;

(B)

best practices and procedures in order to protect the privacy and identities of individuals enrolled in the systems established under this section;

(C)

standards of database accuracy, error rates, privacy, and measurable compliance that should be met before implementation begins and before each additional phase of implementation; and

(D)

the best means by which data obtained through the EEVS and the SEEVS may be used to timely improve the accuracy of databases maintained by the Commissioner and the Secretary of Homeland Security.

(4)

Termination

The Advisory Panel shall terminate 5 years after the date of the enactment of this Act.

.

(2)

Authorization of appropriations and limitation of responsibilities

(A)

Authorization

There are authorized to be appropriated to the Commissioner of Social Security such sums as may be necessary to carry out the amendments made by this section.

(B)

Limitation

The Commissioner of Social Security may carry out the Commissioner’s responsibilities under the amendment made by paragraph (1) only to the extent that funds are appropriated in advance to cover the Commissioner’s full costs in carrying out such responsibilities. In no case shall funds from the Federal Old-Age and Survivors Insurance Trust Fund or the Federal Disability Insurance Trust Fund be used to carry out such responsibilities.

(b)

Amendments relating to provision of information by employers to the State Directory of New Hires

Section 453A(b) of the Social Security Act (42 U.S.C. 653a(b)) is amended—

(1)

in paragraph (1)(A), by striking and social security number of the employee and inserting date of birth, and social security number (or such alien identification or authorization number as the Secretary of Homeland Security shall require) of the employee, the date the employee first reported for duty; and

(2)

in paragraph (2), by striking and all that follows and inserting not later than the 3rd business day after the employee first reported for duty..

104.

Antidiscrimination protections

(a)

Application of Prohibition of Discrimination to Verification System

Section 274B(a) of the Immigration and Nationality Act (8 U.S.C. 1324b(a)) is amended—

(1)

in paragraph (1)—

(A)

in the matter preceding subparagraph (A), by inserting , the verification of the individual’s work authorization through the Electronic Employment Verification System described in section 235(a) of the Social Security Act or the Secure Employment Eligibility Verification System described in section 235(b) of such Act, after the individual for employment; and

(B)

in subparagraph (B), by striking in the case of a protected individual (as defined in paragraph (3)),; and

(2)

by amending paragraph (3) to read as follows:

(3)

Antidiscrimination requirements of the Electronic Employment Verification System and the Secure Employment Eligibility Verification System

(A)

In general

It is an unfair immigration-related employment practice for a person or other entity, in the course of participating in the Electronic Employment Verification System described in section 235(a) of the Social Security Act or the Secure Employment Eligibility Verification System described in section 235(b) of such Act—

(i)

to terminate or undertake any adverse employment action due to an initial disapproval or disapproval unless authorized or required under such sections;

(ii)

to use the verification system for screening of an applicant prior to an offer of employment;

(iii)

except as described in subsections (a)(3)(C) and (b)(4)(A) of section 235 of such Act, to use the verification system for a current employee after the first day of employment, or for the re-verification of an employee after the employee has satisfied the process described in subsection (a) or (b) of section 235 of such Act; or

(iv)

to require an individual to make an inquiry under the self-verification procedures established under section 235(b)(5)(A) of such Act.

(B)

Preemployment screening and background check

Nothing in subparagraph (A) shall be construed to preclude a preemployment screening or background check that is required or permitted under any other provision of law.

(C)

Re-verification

A person or other entity, in the course of participating in the Electronic Employment Verification System described in section 235(a) of the Social Security Act, shall not repeat the verification process established by such section unless—

(i)

the previously approved period of employment provided by the system has expired, or

(ii)

if such person or other entity is the most recent such person or other entity in connection with the employee, the Commissioner of Social Security, in cooperation with the Secretary of Homeland Security, has provided specific notice to re-verify the employee based on specific information about the employee’s authorization to be employed by such person or entity.

.

(b)

Increase in Civil Money Penalties

Section 274B(g)(2)(B)(iv) of such Act (8 U.S.C. 1324b(g)(2)(B)(iv)) is amended—

(1)

in subclause (I), by striking $250 and not more than $2,000 and inserting $1,000 and not more than $4,000;

(2)

in subclause (II), by striking $2,000 and not more than $5,000 and inserting $4,000 and not more than $10,000;

(3)

in subclause (III), by striking $3,000 and not more than $10,000 and inserting $6,000 and not more than $20,000; and

(4)

in subclause (IV), by striking $100 and not more than $1,000 and inserting $500 and not more than $5,000.

(c)

Effective Date

The amendments made by this section shall take effect on the date of the enactment of this Act and shall apply to violations occurring on or after such date.

105.

Penalties

Section 274A of the Immigration and Nationality Act (8 U.S.C. 1324a) is amended—

(1)

in subsection (e)(4)—

(A)

in subparagraph (A), in the matter before clause (i), by inserting , subject to paragraphs (10) through (12), after in an amount;

(B)

in subparagraph (A)(i), by striking not less than $250 and not more than $2,000 and inserting not less than $5,000 and not more than $7,500;

(C)

in subparagraph (A)(ii), by striking not less than $2,000 and not more than $5,000 and inserting not less than $10,000 and not more than $15,000;

(D)

in subparagraph (A)(iii), by striking not less than $3,000 and not more than $10,000 and inserting not less than $25,000 and not more than $40,000; and

(E)

by amending subparagraph (B) to read as follows:

(B)

may require the person or entity to take such other remedial action as is appropriate.

;

(2)

in subsection (e)(5)—

(A)

by inserting , subject to paragraphs (10) through (12), after in an amount;

(B)

by striking $100 and inserting $1,000;

(C)

by striking $1,000 and inserting $25,000;

(D)

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

(E)

by adding at the end the following sentence: 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).;

(3)

by adding at the end of subsection (e) the following new paragraphs:

(10)

Mitigation of civil money penalties for smaller employers

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 by an employer and in the case of imposition of a civil penalty under paragraph (5) for a violation of subsection (a)(1)(B) for hiring by an employer, the dollar amounts otherwise specified in the respective paragraph shall be reduced as follows:

(A)

In the case of an employer with an average of fewer than 26 full-time equivalent employees (as defined by the Secretary of Homeland Security), the amounts shall be reduced by 60 percent.

(B)

In the case of an employer with an average of at least 26, but fewer than 101, full-time equivalent employees (as so defined), the amounts shall be reduced by 40 percent.

(C)

In the case of an employer with an average of at least 101, but fewer than 251, full-time equivalent employees (as so defined), the amounts shall be reduced by 20 percent.

The last sentence of paragraph (4) shall apply under this paragraph in the same manner as it applies under such paragraph.
(11)

Exemption from penalty for initial good faith violation

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 shall be waived if the violator establishes that it was the first such violation of such provision by the violator and the violator acted in good faith.

(12)

Safe harbor for contractors

A person or other entity shall not be liable for a penalty under paragraph (4)(A) with respect to the violation of subsection (a)(1)(A), (a)(1)(B), or (a)(2) with respect to the hiring or continuation of employment of an unauthorized alien by a subcontractor of that person or entity unless the person or entity knew that the subcontractor hired or continued to employ such alien in violation of such subsection.

;

(4)

by amending paragraph (1) of subsection (f) 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 $50,000 for each unauthorized alien with respect to which such a violation occurs, imprisoned for not less than one year, or both, notwithstanding the provisions of any other Federal law relating to fine levels.

; and

(5)

in subsection (f)(2), by striking Attorney General each place it appears and inserting Secretary of Homeland Security.

106.

Annual GAO study and report

(a)

Requirement

The Comptroller General of the United States shall conduct an annual study of the Employment Eligibility Verification System described in section 235(a) of the Social Security Act as added by this Act (hereinafter in the Act referred to as the EEVS) and the Secure Employment Eligibility Verification System described in section 235(b) of such Act as added by this Act (hereinafter in the Act referred to as the SEEVS).

(b)

Purpose

The study shall evaluate the accuracy, efficiency, integrity, and impact of the EEVS and the SEEVS.

(c)

Report

Not later than the date that is 15 months after the date of the enactment of this Act, and annually thereafter, ending once the System has been fully implemented for 5 years, the Comptroller General shall submit to the Congress a report containing the findings of the study carried out under this section. Each such report shall include, at a minimum, the following:

(1)

An assessment of the EEVS and SEEVS performance with respect to the rate at which individuals who are eligible for employment in the United States are correctly approved within the time periods specified in section 235(a)(3)(B) of the Social Security Act.

(2)

An assessment of the privacy and security of the EEVS and the SEEVS and its effects on identity fraud or the misuse of personal data.

(3)

An assessment of the effects of the EEVS and SEEVS on the employment of unauthorized aliens (as defined in section 274A(h)(3) of the Immigration and Nationality Act).

(4)

An assessment of the effects of the EEVS and the SEEVS, including the effects of initial disapprovals on unfair immigration-related employment practices, and employment discrimination based on national origin or citizenship status.

(5)

An assessment of the effects of the EEVS and SEEVS on employers.

(6)

An assessment of whether the Secretary and the Commissioner of Social Security have adequate resources to carry out the duties and responsibilities set forth in section 235 of the Social Security Act.

107.

Disclosure to the Secretary of Homeland Security of information in the National Directory of New Hires about employers with the greatest number or percentage of employees with mismatched social security information

(a)

In general

Section 453(j) of the Social Security Act (42 U.S.C. 653(j)) is amended by adding at the end the following:

(11)

Disclosure to Secretary of Homeland Security of information about employers with the greatest number or percentage of employees with mismatched social security information

(A)

Disclosure requirement

(i)

In general

Within 4 months after the Secretary receives from the Secretary of Homeland Security, in accordance with clause (ii) of this subparagraph, a written request for the information described in subparagraph (B), the Secretary shall disclose the information to the Secretary of Homeland Security, based on the information available on new hires for the 12 months preceding compilation of information in response to the request.

(ii)

Sunset

A request is received in accordance with this clause if the request is received in the 3-year period that begins with the date of the enactment of this paragraph.

(B)

Information to be disclosed

The information described in this subparagraph is the following:

(i)

Top 1,000 employers with greatest number of employees with mismatched social security information

The name, taxpayer identification number, and address of each employer who is among the 1,000 employers ranked highest under subparagraph (C)(i), and the total number of mismatches with respect to the employees of each such employer. If there is more than 1 employer so ranked 1,000th, then such information with respect to all employers so ranked shall be included.

(ii)

Top 1,000 employers with greatest percentage of employees with mismatched social security information

The name, taxpayer identification number, and address of each employer who is among the 1,000 employers ranked highest under subparagraph (C)(ii), the total number of mismatches with respect to the employees of each such employer, and the total percentage of the employees of each such employer with respect to whom there is a mismatch. If there is more than 1 employer so ranked 1,000th, then such information with respect to all employers so ranked shall be included.

(iii)

Top 500 employers with greatest number of employees with same reported social security numbers

The name, taxpayer identification number, and address of each employer who is among the 500 employers ranked highest under subparagraph (C)(iii), and the total number of employees of each such employer who have the same social security account number as another employee of the employer. If there is more than 1 employer so ranked 500th, then such information with respect to all employers so ranked shall be included.

(C)

Rankings of employers

(i)

Ranking by number of mismatched employees

The Secretary shall assign a rank to each employer with respect to whom there is new hire information which has been submitted to the National Directory of New Hires, based on the number of employees of the employer with respect to whom there is a mismatch, as described in clause (iv). The Secretary shall assign a rank of 1 to the employer with the greatest number of such employees, and a lower rank to employers with lesser numbers of such employees. The Secretary shall assign the same rank to employers with the same number of such employees.

(ii)

Ranking by percentage of mismatched employees

The Secretary shall assign a rank to each employer with respect to whom there is new hire information which has been submitted to the National Directory of New Hires, based on the percentage of employees of the employer with respect to whom there is a mismatch, as described in clause (iv). The Secretary shall assign a rank of 1 to the employer with the greatest percentage of such employees, and a lower rank to employers with lesser percentages of such employees. The Secretary shall assign the same rank to employers with the same percentage of such employees.

(iii)

Ranking by number of employees with same social security account number

The Secretary shall assign a rank to each employer with respect to whom there is new hire information which has been submitted to the National Directory of New Hires, based on the number of employees of the employer whose social security account number reported to the National Directory of New Hires is the same as the social security account number of another employee of the employer, so reported. The Secretary shall assign a rank of 1 to the employer with the greatest number of such employees, and a lower rank to employers with lesser numbers of such employees. The Secretary shall assign the same rank to employers with the same number of such employees.

(iv)

Mismatches

For purposes of this paragraph, there is a mismatch with respect to an employee if the Secretary determines that—

(I)

the social security account number of the employee, as reported to the National Directory of New Hires (taking into account possible correction by the Social Security Administration), is invalid; or

(II)

the name and social security account number of the employee, as so reported (taking into account such possible correction), do not match the name and social security account number of the employee in the records of the Social Security Administration.

(D)

Limitation on use of disclosed information

The Secretary of Homeland Security may use the information disclosed pursuant to subparagraph (A) of this paragraph only for the purpose of establishing and enforcing compliance with the Immigration and Nationality Act.

(E)

Condition on disclosure

The Secretary shall make a disclosure in accordance with subparagraph (A) only to the extent that the Secretary determines that the disclosure would not interfere with the effective operation of the program under this part.

(F)

Reimbursement of HHS costs

The Secretary of Homeland Security shall reimburse the Secretary, in accordance with subsection (k)(3), for the costs incurred by the Secretary in making the disclosures required by subparagraph (A) of this paragraph.

.

(b)

Conforming amendment to IEVS

(1)

In general

Section 1137(a)(3) of such Act (42 U.S.C. 1320b–7(a)(3)) is amended by inserting (including the full name and social security account number of, and the aggregate wages paid to, each employee during the reporting period, and the name, address, and Federal employer identification number of each employer reporting wages) after quarterly wage reports.

(2)

Effective date

The amendment made by paragraph (1) shall take effect 180 days after the date of the enactment of this Act.

B

Transition provisions

111.

Protection of Social Security Administration programs

(a)

Funding under agreement

Effective for fiscal years beginning on or after October 1, 2009, the Commissioner of Social Security and the Secretary of Homeland Security shall enter into and maintain an agreement which shall—

(1)

provide funds to the Commissioner for the full costs of the responsibilities of the Commissioner under section 404 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note), including (but not limited to)—

(A)

acquiring, installing, and maintaining technological equipment and systems necessary for the fulfillment of the responsibilities of the Commissioner under such section 404, but only that portion of such costs that are attributable exclusively to such responsibilities; and

(B)

responding to individuals who contest a tentative nonconfirmation provided by the basic pilot confirmation system established under such section;

(2)

provide such funds quarterly in advance of the applicable quarter based on estimating methodology agreed to by the Commissioner and the Secretary (except in such instances where the delayed enactment of an annual appropriation may preclude such quarterly payments); and

(3)

require an annual accounting and reconciliation of the actual costs incurred and the funds provided under the agreement, which shall be reviewed by the Office of Inspector General of the Social Security Administration and the Department of Homeland Security.

(b)

Continuation of employment verification in absence of timely agreement

In any case in which the agreement required under subsection (a) for any fiscal year beginning on or after October 1, 2009, has not been reached as of October 1 of such fiscal year, the latest agreement between the Commissioner and the Secretary of Homeland Security providing for funding to cover the costs of the responsibilities of the Commissioner under section 404 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note) shall be deemed in effect on an interim basis for such fiscal year until such time as an agreement required under subsection (a) is subsequently reached, except that the terms of such interim agreement shall be modified by the Director of the Office of Management and Budget to adjust for inflation and any increase or decrease in the volume of requests under the basic pilot confirmation system. In any case in which an interim agreement applies for any fiscal year under this subsection, the Commissioner and the Secretary shall, not later than October 1 of such fiscal year, notify the Committee on Ways and Means, the Committee on the Judiciary, and the Committee on Appropriations of the House of Representatives and the Committee on Finance, the Committee on the Judiciary, and the Committee on Appropriations of the Senate of the failure to reach the agreement required under subsection (a) for such fiscal year. Until such time as the agreement required under subsection (a) has been reached for such fiscal year, the Commissioner and the Secretary shall, not later than the end of each 90-day period after October 1 of such fiscal year, notify such Committees of the status of negotiations between the Commissioner and the Secretary in order to reach such an agreement.

112.

GAO study of basic pilot confirmation system

(a)

In general

As soon as practicable after the date of the enactment of this Act, the Comptroller General of the United States shall conduct a study regarding erroneous tentative nonconfirmations under the basic pilot confirmation system established under section 404(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note). The results of the study shall be taken into account in the implementation of the amendments made by subtitle A.

(b)

Matters To be studied

In the study required under subsection (a), the Comptroller General shall determine and analyze—

(1)

the causes of erroneous tentative nonconfirmations under the basic pilot confirmation system;

(2)

the processes by which such erroneous tentative nonconfirmations are remedied; and

(3)

the effect of such erroneous tentative nonconfirmations on individuals, employers, and Federal agencies.

(c)

Report

Not later than 2 years after the date of the enactment of this Act, the Comptroller General shall submit the results of the study required under subsection (a) to the Committee on Ways and Means and the Committee on the Judiciary of the House of Representatives and the Committee on Finance and the Committee on the Judiciary of the Senate.

113.

GAO study of effects of basic pilot program on small entities

(a)

In general

Not later than 2 years after the date of the enactment of this Act, the Comptroller General of the United States shall submit to the Committees on the Judiciary of the United States House of Representatives and the Senate a report containing the Comptroller General’s analysis of the effects of the basic pilot program described in section 403(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note) on small entities (as defined in section 601 of title 5, United States Code). The analysis shall be taken into account in the implementation of the amendments made by subtitle A. The report shall detail—

(1)

the costs of compliance with such program on small entities;

(2)

a description and an estimate of the number of small entities enrolled and participating in such program or an explanation of why no such estimate is available;

(3)

the projected reporting, recordkeeping and other compliance requirements of such program on small entities;

(4)

factors that impact small entities’ enrollment and participation in such program, including access to appropriate technology, geography, entity size, and class of entity; and

(5)

the steps, if any, the Secretary of Homeland Security has taken to minimize the economic impact of participating in such program on small entities.

(b)

Direct and indirect effects

The report shall cover, and treat separately, direct effects (such as wages, time, and fees spent on compliance) and indirect effects (such as the effect on cash flow, sales, and competitiveness).

(c)

Specific contents

The report shall provide specific and separate details with respect to—

(1)

small businesses (as defined in section 601 of title 5, United States Code) with fewer than 50 employees; and

(2)

small entities operating in States that have mandated use of the basic pilot program.

II

OASDI Benefits

201.

Denial of credit toward benefits for earnings from unauthorized work

(a)

In general

Section 214 of the Social Security Act (42 U.S.C. 414) is amended by adding at the end the following:

(d)
(1)

No quarters of coverage shall be credited for purposes of this section or section 223(a)(1)(A) for any calender year in the case of any individual if—

(A)

on the last day of such year, such individual is not a citizen or national of the United States, and

(B)

the Secretary of Homeland Security determines, pursuant to paragraph (2), that such individual was not authorized to be employed in the United States during any portion of such calender year.

(2)
(A)

The Secretary of Homeland Security shall enter into an agreement with the Commissioner to provide, in a form and manner specified by the Commissioner, such information as the Commissioner determines necessary to carry out the limitations on crediting quarters of coverage for years under paragraph (1).

(B)

For the purpose of carrying out the Secretary’s duties under subparagraph (A), the Secretary of Homeland Security shall, in consultation with the Commissioner, develop and maintain the following information:

(i)

The name, social security account number, and date of birth of each individual who is authorized by the Secretary of Homeland Security or the Secretary of State to be employed in the United States.

(ii)

The date on which each such authorization is granted.

(iii)

The date on which each such authorization is revoked or terminated.

(iv)

The date of naturalization for each individual who becomes a naturalized citizen of the United States.

(C)

The information provided to the Commissioner under subparagraph (A) relating to years in which an individual was not authorized to be employed in the United States during any portion of a year shall be the final determination of the Secretary of Homeland Security after an opportunity for review or appeal under procedures which shall be established by the Secretary of Homeland Security and shall not be reviewable by the Commissioner.

(3)

Paragraph (1) shall not apply with respect to an individual who was assigned a social security account number prior to the date of the enactment of the New Employee Verification Act of 2009.

.

(b)

Disregard of earnings for years for which no quarter of coverage may be credited

Section 215(e) of such Act (42 U.S.C. 415(e)) is amended—

(1)

by striking and at the end of paragraph (1);

(2)

by striking the period at the end of paragraph (2) and inserting ; and; and

(3)

by adding at the end the following new paragraph:

(3)

in computing the average indexed monthly earnings of an individual, there shall not be counted any annual wages or self-employment income for any year for which no quarter of coverage may be credited to such individual as a result of the application of section 214(d)(1).

.

(c)

Transmission of information from Commissioner to Secretary

Section 205(c)(2) of such Act (42 U.S.C. 405(c)(2)) is amended by adding at the end the following new subparagraph:

(I)

The Commissioner and the Secretary of Homeland Security shall enter into an agreement to establish a system to transmit to the Secretary of Homeland Security any social security account number assigned to an individual after the date of the enactment of the New Employee Verification Act of 2009, and other identifying information relating to such individual, in any case in which such individual is not a citizen or national of the United States at the time of the assignment of such number to such individual. The Secretary of Homeland Security shall incorporate such number and other identifying information into all records of the Department of Homeland Security maintained with respect to such individual.

.

(d)

Effective dates

(1)

Section 214(d)(1) of the Social Security Act (added by subsection (a)) shall be effective with respect to quarters of coverage credited for calendar years commencing after the date on which the Secretary of Homeland Security and the Commissioner certify, by publication in the Federal Register, that the system for developing and maintaining information pursuant to section 214(d)(2)(B) of the Social Security Act (added by subsection (a)) is operational.

(2)

The Commissioner of Social Security and the Secretary of Homeland Security shall enter into the agreement described in section 205(c)(2) of the Social Security Act (added by subsection (c)) not later than 180 days after the date of the enactment of this Act.

202.

Improvements in provisions governing totalization agreements

(a)

Additional information required in document transmitting totalization agreements to the Congress

(1)

In general

Section 233(e)(1) of the Social Security Act (42 U.S.C. 433(e)(1)) is amended to read as follows:

(e)(1)

Any agreement to establish a totalization arrangement entered into pursuant to this section (and any such agreement to amend a totalization arrangement) shall be transmitted by the President to each House of the Congress together with a report by the President in support of such agreement. The President’s report shall include the following:

(A)

an identification and assessment by the Commissioner of Social Security of the major risks associated with entering into such an agreement with such other country, including an assessment of—

(i)

the integrity of such other country’s data and records on births, deaths, marriages, divorces, earnings, and other information affecting eligibility for benefits or benefit amounts, and

(ii)

the potential for fraudulent receipt of benefits under this title and how any such potential fraud would be mitigated;

(B)

the number of individuals who are United States citizens estimated by the Chief Actuary of the Social Security Administration to be affected by the agreement;

(C)

the number of individuals who are not United States citizens estimated by the Chief Actuary to be affected by the agreement;

(D)

the Chief Actuary’s estimate of any resulting reduction in liability for taxes or contributions and increases in benefit payments, under the social security system established by this title and the social security system of such other country, of—

(i)

individuals who are United States citizens and their employers, and

(ii)

individuals who are not United States citizens and their employers;

(E)

the Chief Actuary’s estimate of the effect of the agreement, in the short-term and in the long-term, on the receipts and disbursements under the social security system established by this title; and

(F)

an analysis by the Chief Actuary of the sensitivity of the estimates of the Chief Actuary to alternative assumptions with respect to economic and demographic variables.

.

(2)

Effective date

The amendment made by this subsection shall apply with respect to agreements, establishing totalization arrangements pursuant to section 233 of the Social Security Act, which are transmitted to the Congress on or after the date of the enactment of this Act.

(b)

Approval of totalization agreements by joint resolution

(1)

In general

Section 233(e) of such Act (42 U.S.C. 433(e)) is amended by striking paragraph (2) and inserting the following new paragraphs:

(2)
(A)

Except as provided in paragraph (4) or (5), the agreement transmitted to the Congress pursuant to paragraph (1) may enter into force according to its terms or upon the expiration of the period of 60 calendar days following the date of its transmittal to each House of the Congress (excluding Saturdays, Sundays, holidays, and days on which either House of Congress is not in session), whichever is later.

(B)

Whenever a document setting forth an agreement entered into under this section and the President’s report in support of the agreement is transmitted to the Congress pursuant to paragraph (1), copies of such document shall be delivered to both Houses of Congress on the same day and shall be delivered to the Clerk of the House of Representatives if the House is not in session and to the Secretary of the Senate if the Senate is not in session.

(3)
(A)

Any document setting forth an agreement entered into under this section and transmitted to each House of the Congress pursuant to paragraph (1) shall set forth a determination of the Chief Actuary of the Social Security Administration as to whether there is expected, over the 75-year period following the date of the entry into force of the agreement, a net reduction in any positive actuarial balance for such period of the social security system established by this title (or a net increase in any negative actuarial balance for such period for such system) attributable to the operation of such agreement equal to at least 0.005 percent of the present value of taxable payroll for such period.

(B)

For purposes of this paragraph—

(i)

The term actuarial balance means, with respect to a period, the difference between the adjusted summarized income rate over such period and the adjusted summarized cost rate over such period.

(ii)

The term taxable payroll means, for a period, the total wages (as defined in section 209) to be paid, and self-employment income (as defined in section 211(b)) to be derived, during such period.

(iii)

The term adjusted summarized income rate means, over a period, the ratio (expressed as a percentage) of the sum of the trust fund balance at the beginning of the period plus the present value of the total income from taxes during such period, to the present value of the taxable payroll for such period.

(iv)

The term adjusted summarized cost rate means, over a period, the ratio (expressed as a percentage) of the sum of the present value of the cost during such period plus the present value of the targeted trust fund balance, to the present value of the taxable payroll for the years for such period.

(v)

The term trust fund balance means the combined balance of the Federal Old-Age and Survivors Insurance Trust Fund and the Federal Disability Insurance Trust Fund (hereinafter in this subparagraph referred to as the Trust Funds).

(vi)

The term income from taxes means, during a period, the amounts deposited in the Trust Funds as appropriations during the period based on taxes under chapters 2 and 21 and section 86 of the Internal Revenue Code of 1986.

(vii)

The term cost means, during a period, disbursements from the Trust Funds during such period, including scheduled benefit payments, special monthly payments to certain uninsured persons who have 3 or more quarters of coverage (and whose payments are therefore not reimbursable from the general fund of the Treasury), administrative expenses, net transfers from the Trust Funds to the Railroad Retirement program under financial-interchange provisions, and payments for vocational rehabilitation services for disabled beneficiaries, and excluding special monthly payments to certain uninsured persons whose payments are reimbursable from the general fund of the Treasury, and transfers under the interfund borrowing provisions of section 201(l).

(viii)

The term target trust fund balance means the trust fund balance, as of the end of the 75-year period described in subparagraph (A), necessary to support an OASDI trust fund ratio (as defined in section 201(l)(3)(B)(iii)) of 100 percent for the year following the last year of such period.

(C)

In making determinations under this paragraph, the Chief Actuary shall employ the intermediate assumptions of the Board of Trustees of the Federal Old-Age and Survivors Insurance Trust Fund and the Federal Disability Insurance Trust Fund in its most recent annual report issued pursuant to section 201.

(4)

An agreement entered into under this section shall not enter into force if there is enacted into law, during the period of 60 calendar days specified in paragraph (2)(A), a bill or joint resolution disapproving such agreement.

(5)

In any case in which the determination of the Chief Actuary described in subparagraph (A) of paragraph (3) in connection with an agreement entered into under this section is that, with respect to the 75-year period described in such subparagraph, there is expected a net reduction, in the actuarial balance for such period of the social security system established by this title, which—

(A)

is attributable to the operation of such agreement, and

(B)

is equal to at least 0.005 percent of the present value of taxable payroll for such period,

such agreement shall not enter into force unless, during the period of 60 calendar days specified in paragraph (2)(A), there is enacted into law a bill or joint resolution approving such agreement.
(6)
(A)

The provisions of this paragraph are enacted by the Congress—

(i)

as an exercise of the rulemaking power of the House of Representatives and the Senate, respectively, and as such they are deemed a part of the rules of each House, respectively, but applicable only with respect to the procedure to be followed in that House in the case of disapproval resolutions and approval resolutions, and they supersede other rules only to the extent that they are inconsistent therewith; and

(ii)

with full recognition of the constitutional right of either House to change the rules (so far as relating to the procedure of that House) at any time, in the same manner and to the same extent as in the case of any other rule of that House.

(B)

During the period of 60 calendar days specified in paragraph (2)(A), it shall be in order as a matter of highest privilege in each House of the Congress to consider a bill or joint resolution described in paragraph (4) or (5) providing solely for the disapproval or approval of an agreement entered into under this section, if offered by the majority leader or minority leader of such House (or a designee).

(C)

For purposes of consideration of a bill or joint resolution described in paragraph (4) or (5) providing solely for approval or disapproval of an agreement under this section, the agreement shall not be subject to amendment after the transmittal to each House of the Congress pursuant to paragraph (1).

.

(2)

Effective date

The amendment made by this subsection shall apply with respect to agreements, establishing totalization arrangements pursuant to section 233 of the Social Security Act, which are transmitted to the Congress on or after the date of the enactment of this Act.

(3)

Special rule

Notwithstanding subsection (e) of section 233 of the Social Security Act (as in effect prior to the amendments made by this section), any agreement entered into pursuant to such section 233, establishing totalization arrangements between the social security system established by title II of such Act and the social security system of another country, which—

(A)

was signed by the Commissioner of Social Security in June 2004, and

(B)

was transmitted to the Congress pursuant to such subsection (e) on or after September 1, 2007, and before the date of the enactment of this Act,

shall be deemed not to have entered into force as of the date of the enactment of this Act and shall be deemed to enter into force after such date only as provided in section 233(e) of such Act (as amended by this section) as if such agreement had been transmitted to the Congress on the date on which the President transmits to the Congress on or after such date, pursuant to section 233(e)(1) of such Act (as amended by this section), a report in support of such agreement meeting the requirements of such section 233(e)(1) (as so amended).
(c)

Biennial reports to the Congress regarding ongoing operation of totalization agreements

(1)

In general

Section 233 of such Act (42 U.S.C. 433) is amended by adding at the end the following new subsection:

(f)

Biennial oversight reports

The Commissioner of Social Security shall submit biennially to the Committee on Ways and Means of the House of Representatives and the Committee on Finance of the Senate a report evaluating the operation, during the preceding 2-year period covered by the report, of each agreement entered into pursuant to this section. Such report shall include—

(1)

if the report is submitted during the 10-year period following the date on which the agreement enters into force, the change in benefit costs under the social security system established by this title which is attributable to the agreement, as estimated as of the date of the report, and the change in contributions under such system which is attributable to such agreement, as so estimated,

(2)

information relating to actual, or perceived potential, fraudulent receipt of benefits attributable to the operation of the agreement under the social security system established by this title,

(3)

information relating to perceived problems with the integrity of the other country’s data and records used in determining eligibility for benefits or benefit amounts, and

(4)

if the report is submitted during the 10-year period following the date on which the agreement enters into force, information relating to demographic or other trends that may cause future deviations from the original estimates of costs to each social security system which are attributable to the agreement.

.

(2)

Initial report

The Commissioner of Social Security shall submit the initial report pursuant to section 233(f) of the Social Security Act (added by this subsection) not later than December 31, 2009.

203.

Suspension of benefits for individuals removed from the United States

(a)

In general

Section 202(n)(1) of the Social Security Act (42 U.S.C. 402(n)(1)) is amended—

(1)

in subparagraph (A), by striking , on the basis of his wages and self-employment income,;

(2)

in subparagraph (B), by striking and at the end;

(3)

in subparagraph (C), by striking the period and inserting , and; and

(4)

by adding at the end the following new subparagraph:

(D)

no lump sum death payment shall be made to such individual after the Commissioner of Social Security is notified by the Attorney General or the Secretary of Homeland Security that such individual has been so removed.

.

(b)

Effective date

The amendments made by this section shall apply to any individual with respect to whose removal from the United States the Commissioner of Social Security receives notification from the Attorney General or the Secretary of Homeland Security after the twelfth month that begins after the date of the enactment of this Act.