The Legal Workforce Act 1 Section-by-Section

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1 The Legal Workforce Act 1 Section-by-Section Sec. 1: Short Title Legal Workforce Act. PROCESS FOR EMPLOYMENT ELIGBILITY VERIFICATION Sec. 2: Employment Eligibility Verification Process Amends INA 274A(b) [Employment verification system] by replacing all of section (b) with provisions governing the verification of individuals for employment in the United States. Requirements for New Hires, Recruitment, and Referral o Attestation after Examination of Documentation During the verification period as defined in this Act, a person or entity hiring, recruiting, or referring an individual for employment in the U.S. must attest under penalty of perjury on a form established by regulation that it has verified that the individual is not an unauthorized alien by (1) obtaining and recording the prospective employee s social security number (SSN) or U.S. passport number (if he or she claims to have one), or if the individual does not attest to be a U.S. citizen, recording the identification (ID) or authorization number for the alien designated by the Department of Homeland Security (DHS); and (2) examining the documents relating to the individual that establish identity and employment authorization. o Documents Evidencing Employment Authorization and Establishing Identity Documents that demonstrate both employment authorization and identify include (1) a valid U.S. passport or passport card; (2) valid lawful 1 On September 8, 2017, Representative Lamar Smith (R-TX) introduced the Legal Workforce Act (H.R. 3711) in the U.S. House of Representatives. Subsequently, on October 19, 2017, Representative Smith offered an amendment in the nature of a substitution to H.R This section-by-section analyzes Mr. Smith s substitute bill which was introduced by amendment on October 19, 2017 and was the focus of the House Judiciary Committee s markup on October 24, 2017 and October 25, On October 25, 2017, the House Judiciary Committee approved H.R on a vote, as amended by Representative Smith. 1

2 permanent resident (LPR) card with a photo; (3) valid employment authorization card with a photo; (4) in the case of a nonimmigrant alien authorized to work for a specific employer incident to status, a foreign passport with Form I-94, Form I-94A, or documents designated by DHS with certain limitations; (5) passport from Micronesia or the Marshall Islands with Form I-94, Form I-94A, or documents designated by DHS; or (6) other documentation as designated by DHS if it contains a photo, biometric data as specified by DHS, is evidence of employment authorization, and contains fraud resistant security features. o Documents Evidencing Employment Authorization A document that evidences employment authorization is an individual s SS card (other than a card that specifies that the issuance of the card does not authorize employment in the U.S.). o Documents Establishing Identity of Individual A document establishing identity of individual is (1) a valid driver s license or ID card issued by a State or American Samoa that contains a photo and other identifying personal data; (2) unexpired U.S. military ID card; (3) unexpired Native American tribal ID card issued by a recognized tribal entity; or (4) attestation by a parent or legal guardian for minors under 18 years-old of the individual s identity and age. o Authority to Prohibit Use of Certain Documents The DHS Secretary [hereinafter the Secretary] may prohibit or place conditions on the use of any of the documents outlined above to establish employment authorization or identity if the Secretary finds that such document does not reliably establish such authorization or identify, or is being used fraudulently to an unacceptable degree. o Signature The person or entity s attestation may be made by either a hand-written or electronic signature. o Individual Attestation of Employment Authorization During the verification period as defined in this Act, the individual must attest under penalty of perjury on a designated form that the individual is a U.S. citizen, LPR, or alien authorized to work in the U.S. Such attestation may be by a hand-written or electronic signature. The individual is also required to provide the individual s SS or U.S. passport number (if he or she claims to have one) or if the individual does not attest to be a U.S. citizen, such ID or authorization number established by DHS for the alien. o Retention of Verification Form and Verification After completion of such verification form, the person or entity shall retain a paper copy or electronic version of the form and make it available for inspection by DHS, Department of Justice (DOJ) or the Department of 2

3 Labor (DOL) 3 years after the date of the recruiting or referral. For hires, the form must be retained for either 3 years after the date the verification is completed or 1 year after the date the individual s employment is terminated, whichever is later. During the verification period, the employer or entity shall make an inquiry using the verification system to seek verification of the identity and employment eligibility of an individual. Confirmation o Confirmation Received If the person or other entity receives confirmation of the individual s identity and work authorization under the verification system within the time period specified, the person or entity shall record on the form an appropriate code that is provided under the system and that indicates a final confirmation of such identity and work eligibility. o Tentative Nonconfirmation If a tentative nonconfirmation of an individual s identity or work eligibility is received, the person or entity shall inform the individual. If the individual does not contest the nonconfirmation, it shall be considered final. If the individual does contest the nonconfirmation, the individual shall utilize the process for secondary verification. The nonconfirmation will remain tentative until a final confirmation or nonconfirmation is provided by the verification system. An employer shall not terminate employment of an individual nor shall an employer rescind the offer of employment because of a failure to confirm identify and work eligibility until a nonconfirmation becomes final. o Final Confirmation or Nonconfirmation received If a final confirmation or nonconfirmation is provided by the verification system regarding an individual, the person or entity must record on the form an appropriate code that is provided under the system and that indicates a confirmation or nonconfirmation of the individual. o Extension of Time If the person or entity makes a good faith attempt to make an inquiry but the verification system registers that not all inquiries were received within the specified time frame, the person or entity may make an inquiry in the first subsequent working day in which the verification system registers that it has received all inquiries. o Consequence of Nonconfirmation If the person or other entity has received a final nonconfirmation regarding an individual, the person or entity may terminate employment. If the person or entity does not terminate employment of the individual, the person or entity must notify the Secretary of such fact. Failure to notify the 3

4 Secretary is a violation of INA 274A(a)(1)(A) [hiring, recruiting or referring for a fee an alien for employment in the U.S. knowing the alien is unauthorized]. Continued employment after receiving final nonconfirmation creates a rebuttable presumption of a violation of 274A(a)(1)(A). Effective Dates of New Procedures o The Act establishes the following timeline for compliance: Employers with 10,000 or more employees: 6 months after enactment Employers with 500-9,999 employees: 12 months after enactment Employers with employees: 18 months after enactment Employers with 1-19 employees: 24 months after enactment Companies that recruit and refer: 12 months after enactment Employees performing agricultural labor or services (as defined in the Act): 18 months after enactment. o Extensions: Upon request by an employer with 50 or fewer employees, the DHS Secretary shall allow a one-time 6 month extension of the effective date. Transition Rule o Until the electronic employment verification system (EEVS) takes effect on the effective dates listed above, 274A(b) as currently written shall remain in effect. Subtitle A of Title IV of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) [Pilot Programs for Employment Eligibility Confirmation] and any other law requiring a person or entity to participate in the E-Verify program as described in 403(b) of IIRAIRA will remain in effect until 3 years after enactment of the Act (including Executive Order relating to government procurement). Definition of Verification Period o For cases of recruitment or referral, the verification period is the period ending on the date recruiting or referring commences. o For the case of hiring, verification period is the period beginning on the date on which an offer of employment is extended and ending on the date that is three business days after the date of hire. Special Rule: In the case of an individual who is authorized to work and who provides evidence from the SS Administration (SSA) that the alien has applied for a SSN, the verification period ends 3 business days after the alien receives the social security number. Conditional Job Offers o A person or other entity may make an offer of employment that is conditioned on final verification. Reverification for Individuals with Limited Work authorization o Using the same effective dates outlined above in the phased-in implementation plan for EEVS, the Act requires the reverification of all individuals who have a 4

5 limited period of work authorization during the three business days after the date on which the individual s work authorization expires. o The process for reverification is the same as for verification of new hires, recruits, or referrals, except that employers shall use a form designated by regulation and retain electronic or paper copies for 3 years after reverification or 1 year after the date of termination (whichever is later). Previously Hired Individuals: o Within 6 months of enactment, verification is required for the following employees if they have not already been verified under existing E-Verify: all employees of federal, state, and local governments. all employees who require a Federal security clearance working in a federal, state or local government building, military base, nuclear energy or weapons site, airport or other site that requires a Transportation Worker ID Credential. all employees assigned to perform work in the U.S. under certain federal contracts over $100,000 who do not hold federal security clearances, are not administrative or overhead personnel, and are not working solely on contracts that provide Commercial Off The Shelf goods or services as defined in the Federal Acquisition Regulation (FAR). o The SSA is required to annually notify employees who submit SSNs to more than one employer each of whom reports income to such number if there is a pattern of unusual multiple use. The notification shall include information on how to contact the SSA Fraud Hotline in the event the employee s identity has been stolen. If the individual indicates to the SSA that their SSN was used without their knowledge, the SSA shall lock the SSN for verification purposes and shall notify employers of the individuals who wrongfully submitted the SSN that the employee may not be eligible to work. Employers receiving such notification of an incorrect social security number are required to verify the employee within 10 business days of receipt of the notice. Voluntary Reverification o 30 days after enactment, an employer may voluntarily verify any employee, however, in carrying out such voluntary verification, the employer shall seek verification of all individuals employed at the same location or all individuals employed within the same job category. An employer s decision whether or not to voluntarily verify its current workforce shall not be considered by the government in any proceedings, investigation, or review. Verification o The process for reverifications and voluntary verifications is the same as for verifications of new hires except that employers shall use a form designated by regulation and retain electronic or paper copies for 3 years after reverification or 1 year after date of termination (whichever is later). Early Compliance 5

6 o Notwithstanding the effective dates set forth in the roll-out of EEVS, on the date of enactment, the Secretary is authorized to require certain employers to comply with EEVS while complying with any additional requirements of the Federal Acquisition laws and regulations. During this time, these employers will no longer be required to comply with the current E-Verify system. The specified employers are those that are required to participate in E-Verify as described in IIRIRA 403(a) and employers who are required to participate in E-Verify under the Federal acquisition laws and regulations. Copying of Documentation Permitted o A person or entity may copy and retain documents presented by employees or prospective employees for the purpose of complying with EEVS. Limitation on use of Forms o The form designated by the Secretary for use with EEVS may only be used for the purpose of enforcing this Act and any other provision of Federal criminal law. Good Faith Compliance o A person or entity is considered to have complied with the Act notwithstanding a technical or procedural failure to meet such requirement if there is a good faith attempt to comply with the requirement. o The good faith defense does not apply if (1) the failure is not de minimis; (2) the Secretary has explained the basis for the failure and why it is not de minimis; (3) the person or entity has been provided a period to correct the failure and has not corrected the failure within such period. o The good faith defense shall not apply to those that have engaged or are engaging in a pattern or practice of violations of INA 274A(a)(1)(A) or (a)(2). Single Extension of Deadlines Upon Certification o If the Secretary certifies to Congress that the verification system will not be fully operational 6 months after enactment of the Act, each deadline for an employer to make an inquiry under the system shall be extended by 6 months. Date of Hire o The term date of hire means the actual commencement of employment for wages or other remuneration, unless otherwise specified. EMPLOYMENT ELIGBILITY VERIFICATION SYSTEM (EEVS) Sec. 3: Employment Eligibility Verification System Amends INA 274A(d) [Evaluation and changes in employment verification system] to establish the EEVS which is to be patterned on the current E-Verify system. EEVS will respond to inquiries made at any time by phone or electronic media concerning an individual s identity and work authorization. EEVS will also maintain records of inquiries made, verifications provided, and codes provided to inquirers as evidence of their compliance. 6

7 Within three working days of an initial inquiry, EEVS will provide confirmation or tentative nonconfirmation (TN). Where there is a TN, the Secretary and SSA Commissioner shall specify a secondary verification process that will provide final confirmation or nonconfirmation within 10 working days of the TN. The Secretary in consultation with the Commissioner may extend this deadline once on a case-by-case basis for a period of 10 working days. If time is extended, it must be documented in the system and the employee and employers must be notified of such extension. EEVS system shall be designed and operated to (1) maximize reliability and ease of use while insulating and protecting the privacy and security of the information; (2) respond to all inquiries and register all times when such inquiries are not received; (3) with safeguards to prevent unauthorized disclosure of personal information; (4) have safeguards against the system s resulting in unlawful discrimination practices based on national origin or citizenship status; (5) maximize the prevention of identity theft use in the system; (6) limit those verified to certain individuals, including those hired, referred, or recruited, employees designated under INA 274(A)(b), and individuals voluntarily seeking to confirm their own employment eligibility. The Commissioner and Secretary shall establish a reliable, secure method, within the time periods specified, which compares the name and SSN provided to information maintained by the Commissioner and Secretary in order to validate the information. The Commissioner and Secretary must update their information to maximize accuracy and provide a process to correct erroneous information, including during the secondary verification process. This section may not be construed as authorizing the establishment of a national ID card. The Secretary may authorize or direct any person or entity responsible for granting access to, protecting, securing, operating, administering, or regulating part of the critical infrastructure, to use EEVS provided such use will assist in the protection of the infrastructure. For an individual alleging that he or she would not have been dismissed from a job but for an error in the verification system, the individual may seek compensation only through the Federal Tort Claims Act, and seek injunctive relief to correct the error. Class actions are not permitted. CHANGES TO RULES FOR RECRUITMENT, REFERRAL AND CONTINUATION OF EMPLOYMENT Sec. 4: Recruitment, Referral, and Continuation of Employment Amends INA 274(A)(a) [Making employment of unauthorized aliens unlawful] to address changes to the rules for recruitment, referral, and continuation of employment. The term refer is defined as sending or directing a person who is in the U.S. or transmitting documents to another with the intent of obtaining employment for that person. The term recruit means the act of soliciting a person who is in the U.S., directly or indirectly, and referring that person with the intent of obtaining employment for that person. 7

8 The definitions of refer and recruit include only persons or entities referring for remuneration (the Act strikes for a fee from INA 274(A)(a)(1)(A). However, union hiring halls that refer union or nonunion individuals who pay union dues are also included in the definition whether or not they receive remuneration, as are various labor service entities or agencies. This section takes effect one year after enactment, with some exceptions. GOOD FAITH DEFENSE Sec. 5: Good Faith Defense Amends INA 274(a)(3) to provide an employer (or a person or entity that hires, employs, recruits or refers an individual) a good faith defense when information from EEVS was relied upon in good faith for an employment-related action taken. Absent a showing of clear and convincing evidence by the Secretary that the employer had knowledge that the employee is an unauthorized alien, the employer shall not be liable to a job applicant, an employee, or a government entity under civil or criminal law for any employment-related action taken. If an employer proves by a preponderance of the evidence that the employer uses a reasonable, secure, and established technology to authenticate the identity of the employee, that fact shall be taken into account for purposes of determining good faith use of the system. Subject to the effective dates and deadlines set forth in the Act, a person or entity in the U.S. that hires, or continues to employ an individual, or recruits or refers an individual for employment, and who fails to seek verification may not use the good faith defense with respect to any employment. o Special rule: If the person or entity in good faith attempts to make an inquiry and the EEVS registers that not all inquiries were responded to during the relevant time, an inquiry can be made until the end of the first subsequent working day in which the EEVS registers no nonresponses to preserve the good faith defense. PREEMPTION Sec. 6: Preemption and States Rights Amends INA 274A(h)(2) [Preemption] to provide that any state or local law, ordinance, policy or rule, including any criminal or civil fine, as they relate to the hiring, continued employment, or status verification for employment eligibility of unauthorized aliens are preempted. A state or local political subdivision may exercise its authority over business licensing and similar laws as a penalty for failure to use EEVS to verify employment eligibility when and as required. 8

9 A state may enforce the provisions of this section provided that the state follows the federal regulations, federal penalty structure, and all federal rules and guidance concerning implementation of this section. An employer may not be subject to enforcement by both a federal agency and a state agency for the same violation under this section. Whichever entity is the first to initiate the enforcement action has the right of first refusal to proceed with the enforcement action. REPEAL OF PILOT PROGRAMS UNDER IIRAIRA Sec. 7: Repeal Repeals Subtitle A of Title IV of IIRAIRA [Pilot Programs for Employment Eligibility Confirmation] Any reference of the E-Verify program is deemed to refer to the EEVS established under this Act. This section takes effect 2 years after the date of enactment of the Act. EMPLOYER PENALTIES Sec. 8: Penalties Amends INA 274(A)(e)(4) [Cease and desist order with civil money penalty for hiring, recruiting, and referral violations] by increasing the fines for persons or entities who hire, recruit or refer an alien for employment in the U.S., or continue to employ that alien, knowing the alien is unauthorized for employment. The fines are as follows: o Not less than $2,500 and not more than $5,000 for each unauthorized alien with respect to whom a violation or occurred. o Not less than $5,000 and not more than $10,000 for each such alien in the case of a person or entity who has been subject to one violation order under this paragraph. o Not less than $10,000 and not more than $25,000 for each such alien in the case of a person or entity who has been subject to more than one violation order under this paragraph. Amends INA 274(A)(e)(5) [Order for civil money penalty for paperwork violations] by increasing the fines for paperwork violations of 274(A)(a)(1)(B) to not less than $1,000 and not more than $25,000 for each individual with respect to whom such violation occurred. Makes not using EEVs or providing information to the system that the person or entity knows or reasonably believes to be false as a violation under 274A(a)(1)(A). Authorizes DHS to waive or reduce a civil penalty for a violation of INA 274A (a)(1)(a), (a)(2), or (a)(1)(b) if the violator acted in good faith. Provides that the size of the business shall be taken into account when assessing the level of a civil penalty. 9

10 Provides authority to debar repeat violators of 274A(a)(1)(A) or (2) or those convicted of a crime under this section, from the receipt of Federal contracts, grants, or cooperative agreements pursuant to the Federal Acquisition Regulation (FAR). If an entity does not have a federal contract, the DHS Secretary or AG can refer the matter to GSA to determine whether the person or entity should be placed on the list of those excluded from federal procurement. Any decision to debar shall be reviewable. The Secretary shall establish an office to which state and local government agencies may submit information indicating potential violations of subsection (a), (b), or (g)(1). The office must indicate within 5 business days of the complaint whether the Secretary will further investigate the information. The office is required to investigate complaints that, on their face, have a substantial probability of validity, notify complaining State or local agencies of the results, and report to Congress annually the total complaints filed and resolution of complaints investigated. Any person or entity that engages in a pattern or practice of violating subsection (a)(1) or (2) shall be fined not more than $5,000 for each unauthorized alien, imprisoned for not more than 18 months, or both. FRAUD AND MISUSE Sec. 9: Fraud and Misuse of Documents Amends 1546(b) of Title 18 [Fraud and misuse of visas, permits, and other documents] by replacing identification document in paragraphs (1) and (2) with identification document or document meant to establish work authorization (including the documents described in section 274(b) of the Immigration and Nationality Act. FUNDING FOR SOCIAL SECURITY ADMINISTRATION Sec. 10: Protection of Social Security Administration Programs For FY 2019, the Secretary and Commissioner shall enter into and maintain an agreement which shall provide funds to the Commissioner to carry out its duties and responsibilities under the Act. If an agreement fails to be reached for a particular FY, the latest agreement shall be deemed in effect on an interim basis for such FY until an agreement is reached. FRAUD PREVENTION Sec. 11: Fraud Prevention The Secretary, in consultation with the Commissioner, shall establish programs: o in which SSNs that have been identified as subject to unusual multiple use or suspected or determined to have been compromised by identity fraud, shall be blocked from use in EEVS, unless the user of the SSN is able to establish that the SSN is his or hers; 10

11 o which provide a reliable, secure method by which victims of identify fraud and others may suspend or limit the use of their SSN for purposes of EEVS; and o which provide a reliable, secure method by which parents/legal guardians may suspend or limit the use of the SSN of a minor for purposes of EEVS. PHOTO MATCHING TOOL Sec. 12: Use of Employment Eligibility Verification Photo Tool An employer or entity using a photo matching tool shall match either visually, or using facial recognition or other verification technology approved by the Secretary, the photo matching tool photograph to the photograph on the document provided by the individual, or to the face of the employee submitting the document. PILOT PROGRAMS Sec. 13: Identity Authentication Employment Eligibility Verification Pilot Programs Within 48 months of enactment, the Secretary shall establish not less than 2 Identity Automation EEV pilot programs, each using separate and distinct technology, to provide for identity authentication and employment eligibility verification with respect to enrolled new employees. Participation in the pilot program is voluntary for employers, and employers can cancel participation 1 year after opting in. The Secretary shall report to Congress findings on the Authentication Pilot, including the technologies chosen within 12 months after commencement of pilot program. AUDITS Sec. 14: Inspector General Audits o Within 1 year of enactment, the SSA Inspector General (IG) shall complete audits of the following categories to uncover evidence of those not authorized to work in the U.S.: o Workers who dispute wages reported on their SSN when they believe someone else has used such number/name to report wages. o Children s SSNs used for work purposes o Employers whose workers present significant numbers of mismatched SSNs or names for wage reporting. o Completed audits shall be submitted to the House Ways and Means Committee and to the Senate Finance Committee. Chairmen of these Committees shall then determine information to be shared with the Secretary to investigate. 11