MISC2- PILOT PROGRAMS FOR EMPLOYMENT ELIGIBILITY CONFIRMATION Pub. L. 104-208, div. C, title IV, subtitle A, Sept. 30, 1996, 110 Stat. 3009-655, as amended by Pub. L. 107-128, Sec. 2, Jan. 16, 2002, 115 Stat. 2407; Pub. L. 108-156, Secs. 2, 3, Dec. 3, 2003, 117 Stat. 1944, provided that:
  1. SEC. 401. ESTABLISHMENT OF PROGRAMS.
    1. (a) In General. - The Secretary of Homeland Security shall conduct 3 pilot programs of employment eligibility confirmation under this subtitle.
    2. (b) Implementation Deadline; Termination. - The Secretary of Homeland Security shall implement the pilot programs in a manner that permits persons and other entities to have elections under section 402 of this division made and in effect no later than 1 year after the date of the enactment of this Act [Sept. 30, 1996]. Unless the Congress otherwise provides, the Secretary of Homeland Security shall terminate a pilot program at the end of the 11-year period beginning on the first day the pilot program is in effect.
    3. (c) Scope of Operation of Pilot Programs. - The Secretary of Homeland Security shall provide for the operation -
      1. (1) of the basic pilot program (described in section 403(a) of this division) in, at a minimum, 5 of the 7 States with the highest estimated population of aliens who are not lawfully present in the United States, and the Secretary of Homeland Security shall expand the operation of the program to all 50 States not later than December 1, 2004;
      2. (2) of the citizen attestation pilot program (described in section 403(b) of this division) in at least 5 States (or, if fewer, all of the States) that meet the condition described in section 403(b)(2)(A) of this division; and
      3. (3) of the machine-readable-document pilot program (described in section 403(c) of this division) in at least 5 States (or, if fewer, all of the States) that meet the condition described in section 403(c)(2) of this division.
    4. (d) References in Subtitle. - In this subtitle -
      1. (1) Pilot program references. - The terms 'program' or 'pilot program' refer to any of the 3 pilot programs provided for under this subtitle.
      2. (2) Confirmation system. - The term 'confirmation system' means the confirmation system established under section 404 of this division.
      3. (3) References to section 274a. - Any reference in this subtitle to section 274A (or a subdivision of such section) is deemed a reference to such section (or subdivision thereof) of the Immigration and Nationality Act [8 U.S.C. 1324a].
      4. (4) I-9 or similar form. - The term 'I-9 or similar form' means the form used for purposes of section 274A(b)(1)(A) or such other form as the Secretary of Homeland Security determines to be appropriate.
      5. (5) Limited application to recruiters and referrers. - Any reference to recruitment or referral (or a recruiter or referrer) in relation to employment is deemed a reference only to such recruitment or referral (or recruiter or referrer) that is subject to section 274A(a)(1)(B)(ii).
      6. (6) United states citizenship. - The term 'United States citizenship' includes United States nationality.
      7. (7) State. - The term 'State' has the meaning given such term in section 101(a)(36) of the Immigration and Nationality Act [8 U.S.C. 1101(a)(36)].
  2. SEC. 402. VOLUNTARY ELECTION TO PARTICIPATE IN A PILOT PROGRAM.
    1. (a) Voluntary Election. - Subject to subsection (c)(3)(B), any person or other entity that conducts any hiring (or recruitment or referral) in a State in which a pilot program is operating may elect to participate in that pilot program. Except as specifically provided in subsection (e), the Secretary of Homeland Security may not require any person or other entity to participate in a pilot program.
    2. (b) Benefit of Rebuttable Presumption. -
      1. (1) In general. - If a person or other entity is participating in a pilot program and obtains confirmation of identity and employment eligibility in compliance with the terms and conditions of the program with respect to the hiring (or recruitment or referral) of an individual for employment in the United States, the person or entity has established a rebuttable presumption that the person or entity has not violated section 274A(a)(1)(A) with respect to such hiring (or such recruitment or referral).
      2. (2) Construction. - Paragraph (1) shall not be construed as preventing a person or other entity that has an election in effect under subsection (a) from establishing an affirmative defense under section 274A(a)(3) if the person or entity complies with the requirements of section 274A(a)(1)(B) but fails to obtain confirmation under paragraph (1).
    3. (c) General Terms of Elections. -
      1. 1) In general. - An election under subsection (a) shall be in such form and manner, under such terms and conditions, and shall take effect, as the Secretary of Homeland Security shall specify. The Secretary of Homeland Security may not impose any fee as a condition of making an election or participating in a pilot program.
      2. (2) Scope of election. -
        1. (A) In general. - Subject to paragraph (3), any electing person or other entity may provide that the election under subsection (a) shall apply (during the period in which the election is in effect) -
          1. (i) to all its hiring (and all recruitment or referral) in the State (or States) in which the pilot program is operating, or
          2. (ii) to its hiring (or recruitment or referral) in one or more pilot program States or one or more places of hiring (or recruitment or referral, as the case may be) in the pilot program States.
        2. (B) Application of programs in non-pilot program states. - In addition, the Secretary of Homeland Security may permit a person or entity electing the citizen attestation pilot program (described in 403(b) of this division) or the machine-readable- document pilot program (described in section 403(c) of this division) to provide that the election applies to its hiring (or recruitment or referral) in one or more States or places of hiring (or recruitment or referral) in which the pilot program is not otherwise operating but only if such States meet the requirements of 403(b)(2)(A) and 403(c)(2) of this division, respectively.
      3. (3) Termination of elections. - The Secretary of Homeland Security may terminate an election by a person or other entity under this section because the person or entity has substantially failed to comply with its obligations under the pilot program. A person or other entity may terminate an election in such form and manner as the Secretary of Homeland Security shall specify.
    4. (d) Consultation, Education, and Publicity. -
      1. (1) Consultation. - The Secretary of Homeland Security shall closely consult with representatives of employers (and recruiters and referrers) in the development and implementation of the pilot programs, including the education of employers (and recruiters and referrers) about such programs.
      2. (2) Publicity. - The Secretary of Homeland Security shall widely publicize the election process and pilot programs, including the voluntary nature of the pilot programs and the advantages to employers (and recruiters and referrers) of making an election under this section.
      3. (3) Assistance through district offices. - The Secretary of Homeland Security shall designate one or more individuals in each District office of the Immigration and Naturalization Service for a Service District in which a pilot program is being implemented -
        1. (A) to inform persons and other entities that seek information about pilot programs of the voluntary nature of such programs, and
        2. (B) to assist persons and other entities in electing and participating in any pilot programs in effect in the District, in complying with the requirements of section 274A, and in facilitating confirmation of the identity and employment eligibility of individuals consistent with such section.
    5. (e) Select Entities Required to Participate in a Pilot Program. -
      1. (1) Federal government. -
        1. (A) Executive departments. -
          1. (i) In general. - Each Department of the Federal Government shall elect to participate in a pilot program and shall comply with the terms and conditions of such an election.
          2. (ii) Election. - Subject to clause (iii), the Secretary of each such Department -
            1. (I) shall elect the pilot program (or programs) in which the Department shall participate, and
            2. (II) may limit the election to hiring occurring in certain States (or geographic areas) covered by the program (or programs) and in specified divisions within the Department, so long as all hiring by such divisions and in such locations is covered.
          3. (iii) Role of secretary of homeland security. - The Secretary of Homeland Security shall assist and coordinate elections under this subparagraph in such manner as assures that -
            1. (I) a significant portion of the total hiring within each Department within States covered by a pilot program is covered under such a program, and
            2. (II) there is significant participation by the Federal Executive branch in each of the pilot programs.
        2. (B) Legislative branch. - Each Member of Congress, each officer of Congress, and the head of each agency of the legislative branch, that conducts hiring in a State in which a pilot program is operating shall elect to participate in a pilot program, may specify which pilot program or programs (if there is more than one) in which the Member, officer, or agency will participate, and shall comply with the terms and conditions of such an election.
      2. (2) Application to certain violators. - An order under section 274A(e)(4) or section 274B(g) of the Immigration and Nationality Act [8 U.S.C. 1324a(e)(4), 1324b(g)] may require the subject of the order to participate in, and comply with the terms of, a pilot program with respect to the subject's hiring (or recruitment or referral) of individuals in a State covered by such a program.
      3. (3) Consequence of failure to participate. - If a person or other entity is required under this subsection to participate in a pilot program and fails to comply with the requirements of such program with respect to an individual -
        1. (A) such failure shall be treated as a violation of section 274A(a)(1)(B) with respect to that individual, and
        2. (B) a rebuttable presumption is created that the person or entity has violated section 274A(a)(1)(A). Subparagraph (B) shall not apply in any prosecution under section 274A(f)(1).
    6. (f) Construction. - This subtitle shall not affect the authority of the Secretary of Homeland Security under any other law (including section 274A(d)(4)) to conduct demonstration projects in relation to section 274A.
  3. SEC. 403. PROCEDURES FOR PARTICIPANTS IN PILOT PROGRAMS.
    1. (a) Basic Pilot Program. - A person or other entity that elects to participate in the basic pilot program described in this subsection agrees to conform to the following procedures in the case of the hiring (or recruitment or referral) for employment in the United States of each individual covered by the election:
      1. (1) Provision of additional information. - The person or entity shall obtain from the individual (and the individual shall provide) and shall record on the I-9 or similar form -
        1. (A) the individual's social security account number, if the individual has been issued such a number, and
        2. (B) if the individual does not attest to United States citizenship under section 274A(b)(2), such identification or authorization number established by the Immigration and Naturalization Service for the alien as the Secretary of Homeland Security shall specify, and shall retain the original form and make it available for inspection for the period and in the manner required of I-9 forms under section 274A(b)(3).
      2. (2) Presentation of documentation. -
        1. (A) In general. - The person or other entity, and the individual whose identity and employment eligibility are being confirmed, shall, subject to subparagraph (B), fulfill the requirements of section 274A(b) with the following modifications:
          1. (i) A document referred to in section 274A(b)(1)(B)(ii) (as redesignated by section 412(a) of this division) must be designated by the Secretary of Homeland Security as suitable for the purpose of identification in a pilot program.
          2. (ii) A document referred to in section 274A(b)(1)(D) must contain a photograph of the individual.
          3. (iii) The person or other entity has complied with the requirements of section 274A(b)(1) with respect to examination of a document if the document reasonably appears on its face to be genuine and it reasonably appears to pertain to the individual whose identity and work eligibility is being confirmed.
        2. (B) Limitation of requirement to examine documentation. - If the Secretary of Homeland Security finds that a pilot program would reliably determine with respect to an individual whether -
          1. (i) the person with the identity claimed by the individual is authorized to work in the United States, and
          2. (ii) the individual is claiming the identity of another person, if a person or entity could fulfill the requirement to examine documentation contained in subparagraph (A) of section 274A(b)(1) by examining a document specified in either subparagraph (B) or (D) of such section, the Secretary of Homeland Security may provide that, for purposes of such requirement, only such a document need be examined. In such case, any reference in section 274A(b)(1)(A) to a verification that an individual is not an unauthorized alien shall be deemed to be a verification of the individual's identity.
      3. (3) Seeking confirmation. -
        1. (A) In general. - The person or other entity shall make an inquiry, as provided in section 404(a)(1) of this division, using the confirmation system to seek confirmation of the identity and employment eligibility of an individual, by not later than the end of 3 working days (as specified by the Secretary of Homeland Security) after the date of the hiring (or recruitment or referral, as the case may be).
        2. (B) Extension of time period. - If the person or other entity in good faith attempts to make an inquiry during such 3 working days and the confirmation system has registered that not all inquiries were received during such time, the person or entity can make an inquiry in the first subsequent working day in which the confirmation system registers that it has received all inquiries. If the confirmation system cannot receive inquiries at all times during a day, the person or entity merely has to assert that the entity attempted to make the inquiry on that day for the previous sentence to apply to such an inquiry, and does not have to provide any additional proof concerning such inquiry.
      4. (4) Confirmation or nonconfirmation. -
        1. (A) Confirmation upon initial inquiry. - If the person or other entity receives an appropriate confirmation of an individual's identity and work eligibility under the confirmation system within the time period specified under section 404(b) of this division, the person or entity shall record on the I-9 or similar form an appropriate code that is provided under the system and that indicates a final confirmation of such identity and work eligibility of the individual.
        2. (B) Nonconfirmation upon initial inquiry and secondary verification. -
          1. (i) Nonconfirmation. - If the person or other entity receives a tentative nonconfirmation of an individual's identity or work eligibility under the confirmation system within the time period specified under 404(b) of this division, the person or entity shall so inform the individual for whom the confirmation is sought.
          2. (ii) No contest. - If the individual does not contest the nonconfirmation within the time period specified in section 404(c) of this division, the nonconfirmation shall be considered final. The person or entity shall then record on the I-9 or similar form an appropriate code which has been provided under the system to indicate a tentative nonconfirmation.
          3. (iii) Contest. - If the individual does contest the nonconfirmation, the individual shall utilize the process for secondary verification provided under section 404(c) of this division. The nonconfirmation will remain tentative until a final confirmation or nonconfirmation is provided by the confirmation system within the time period specified in such section. In no case shall an employer terminate employment of an individual because of a failure of the individual to have identity and work eligibility confirmed under this section until a nonconfirmation becomes final. Nothing in this clause shall apply to a termination of employment for any reason other than because of such a failure.
          4. (iv) Recording of conclusion on form. - If a final confirmation or nonconfirmation is provided by the confirmation system under section 404(c) of this division regarding an individual, the person or entity shall record on the I-9 or similar form an appropriate code that is provided under the system and that indicates a confirmation or nonconfirmation of identity and work eligibility of the individual.
        3. (C) Consequences of nonconfirmation. -
          1. (i) Termination or notification of continued employment. - If the person or other entity has received a final nonconfirmation regarding an individual under subparagraph (B), the person or entity may terminate employment (or recruitment or referral) of the individual. If the person or entity does not terminate employment (or recruitment or referral) of the individual, the person or entity shall notify the Secretary of Homeland Security of such fact through the confirmation system or in such other manner as the Secretary of Homeland Security may specify.
          2. (ii) Failure to notify. - If the person or entity fails to provide notice with respect to an individual as required under clause (i), the failure is deemed to constitute a violation of section 274A(a)(1)(B) with respect to that individual and the applicable civil monetary penalty under section 274A(e)(5) shall be (notwithstanding the amounts specified in such section) no less than $500 and no more than $1,000 for each individual with respect to whom such violation occurred.
          3. (iii) Continued employment after final nonconfirmation. - If the person or other entity continues to employ (or to recruit or refer) an individual after receiving final nonconfirmation, a rebuttable presumption is created that the person or entity has violated section 274A(a)(1)(A). The previous sentence shall not apply in any prosecution under section 274A(f)(1).
    2. (b) Citizen Attestation Pilot Program. -
      1. (1) In general. - Except as provided in paragraphs (3) through (5), the procedures applicable under the citizen attestation pilot program under this subsection shall be the same procedures as those under the basic pilot program under subsection (a).
      2. (2) Restrictions. -
        1. (A) State document requirement to participate in pilot program. - The Secretary of Homeland Security may not provide for the operation of the citizen attestation pilot program in a State unless each driver's license or similar identification document described in section 274A(b)(1)(D)(i) issued by the State -
          1. (i) contains a photograph of the individual involved, and
          2. (ii) has been determined by the Secretary of Homeland Security to have security features, and to have been issued through application and issuance procedures, which make such document sufficiently resistant to counterfeiting, tampering, and fraudulent use that it is a reliable means of identification for purposes of this section.
        2. (B) Authorization to limit employer participation. - The Secretary of Homeland Security may restrict the number of persons or other entities that may elect to participate in the citizen attestation pilot program under this subsection as the Secretary of Homeland Security determines to be necessary to produce a representative sample of employers and to reduce the potential impact of fraud.
      3. (3) No confirmation required for certain individuals attesting to u.s. citizenship. - In the case of a person or other entity hiring (or recruiting or referring) an individual under the citizen attestation pilot program, if the individual attests to United States citizenship (under penalty of perjury on an I-9 or similar form which form states on its face the criminal and other penalties provided under law for a false representation of United States citizenship) -
        1. (A) the person or entity may fulfill the requirement to examine documentation contained in subparagraph (A) of section 274A(b)(1) by examining a document specified in either subparagraph (B)(i) or (D) of such section; and
        2. (B) the person or other entity is not required to comply with respect to such individual with the procedures described in paragraphs (3) and (4) of subsection (a), but only if the person or entity retains the form and makes it available for inspection in the same manner as in the case of an I-9 form under section 274A(b)(3).
      4. (4) Waiver of document presentation requirement in certain cases. -
        1. (A) In general. - In the case of a person or entity that elects, in a manner specified by the Secretary of Homeland Security consistent with subparagraph (B), to participate in the pilot program under this paragraph, if an individual being hired (or recruited or referred) attests (in the manner described in paragraph (3)) to United States citizenship and the person or entity retains the form on which the attestation is made and makes it available for inspection in the same manner as in the case of an I-9 form under section 274A(b)(3), the person or entity is not required to comply with the procedures described in section 274A(b).
        2. (B) Restriction. - The Secretary of Homeland Security shall restrict the election under this paragraph to no more than 1,000 employers and, to the extent practicable, shall select among employers seeking to make such election in a manner that provides for such an election by a representative sample of employers.
      5. (5) Nonreviewable determinations. - The determinations of the Secretary of Homeland Security under paragraphs (2) and (4) are within the discretion of the Secretary of Homeland Security and are not subject to judicial or administrative review.
    3. (c) Machine-Readable-Document Pilot Program. -
      1. (1) In general. - Except as provided in paragraph (3), the procedures applicable under the machine-readable-document pilot program under this subsection shall be the same procedures as those under the basic pilot program under subsection (a).
      2. (2) State document requirement to participate in pilot program. - The Secretary of Homeland Security may not provide for the operation of the machine-readable-document pilot program in a State unless driver's licenses and similar identification documents described in section 274A(b)(1)(D)(i) issued by the State include a machine-readable social security account number.
      3. (3) Use of machine-readable documents. - If the individual whose identity and employment eligibility must be confirmed presents to the person or entity hiring (or recruiting or referring) the individual a license or other document described in paragraph (2) that includes a machine-readable social security account number, the person or entity must make an inquiry through the confirmation system by using a machine-readable feature of such document. If the individual does not attest to United States citizenship under section 274A(b)(2), the individual's identification or authorization number described in subsection (a)(1)(B) shall be provided as part of the inquiry.
    4. (d) Protection From Liability for Actions Taken on the Basis of Information Provided by the Confirmation System. - No person or entity participating in a pilot program shall be civilly or criminally liable under any law for any action taken in good faith reliance on information provided through the confirmation system.
  4. SEC. 404. EMPLOYMENT eligibility CONFIRMATION SYSTEM.
    1. (a) In General. - The Secretary of Homeland Security shall establish a pilot program confirmation system through which the Secretary of Homeland Security (or a designee of the Secretary of Homeland Security, which may be a nongovernmental entity) -
      1. (1) responds to inquiries made by electing persons and other entities (including those made by the transmittal of data from machine-readable documents under the machine-readable pilot program) at any time through a toll-free telephone line or other toll-free electronic media concerning an individual's identity and whether the individual is authorized to be employed, and
      2. (2) maintains records of the inquiries that were made, of confirmations provided (or not provided), and of the codes provided to inquirers as evidence of their compliance with their obligations under the pilot programs. To the extent practicable, the Secretary of Homeland Security shall seek to establish such a system using one or more nongovernmental entities.
    2. (b) Initial Response. - The confirmation system shall provide confirmation or a tentative nonconfirmation of an individual's identity and employment eligibility within 3 working days of the initial inquiry. If providing confirmation or tentative nonconfirmation, the confirmation system shall provide an appropriate code indicating such confirmation or such nonconfirmation.
    3. (c) Secondary Verification Process in Case of Tentative Nonconfirmation. - In cases of tentative nonconfirmation, the Secretary of Homeland Security shall specify, in consultation with the Commissioner of Social Security and the Commissioner of the Immigration and Naturalization Service, an available secondary verification process to confirm the validity of information provided and to provide a final confirmation or nonconfirmation within 10 working days after the date of the tentative nonconfirmation. When final confirmation or nonconfirmation is provided, the confirmation system shall provide an appropriate code indicating such confirmation or nonconfirmation.
    4. (d) Design and Operation of System. - The confirmation system shall be designed and operated -
      1. (1) to maximize its reliability and ease of use by persons and other entities making elections under section 402(a) of this division consistent with insulating and protecting the privacy and security of the underlying information;
      2. (2) to respond to all inquiries made by such persons and entities on whether individuals are authorized to be employed and to register all times when such inquiries are not received;
      3. (3) with appropriate administrative, technical, and physical safeguards to prevent unauthorized disclosure of personal information; and
      4. (4) to have reasonable safeguards against the system's resulting in unlawful discriminatory practices based on national origin or citizenship status, including -
        1. (A) the selective or unauthorized use of the system to verify eligibility ;
        2. (B) the use of the system prior to an offer of employment; or
        3. (C) the exclusion of certain individuals from consideration for employment as a result of a perceived likelihood that additional verification will be required, beyond what is required for most job applicants.
    5. (e) Responsibilities of the Commissioner of Social Security. - As part of the confirmation system, the Commissioner of Social Security, in consultation with the entity responsible for administration of the system, shall establish a reliable, secure method, which, within the time periods specified under subsections (b) and (c), compares the name and social security account number provided in an inquiry against such information maintained by the Commissioner in order to confirm (or not confirm) the validity of the information provided regarding an individual whose identity and employment eligibility must be confirmed, the correspondence of the name and number, and whether the individual has presented a social security account number that is not valid for employment. The Commissioner shall not disclose or release social security information (other than such confirmation or nonconfirmation).
    6. (f) Responsibilities of the Commissioner of the Immigration and Naturalization Service. - As part of the confirmation system, the Commissioner of the Immigration and Naturalization Service, in consultation with the entity responsible for administration of the system, shall establish a reliable, secure method, which, within the time periods specified under subsections (b) and (c), compares the name and alien identification or authorization number described in section 403(a)(1)(B) of this division which are provided in an inquiry against such information maintained by the Commissioner in order to confirm (or not confirm) the validity of the information provided, the correspondence of the name and number, and whether the alien is authorized to be employed in the United States.
    7. (g) Updating Information. - The Commissioners of Social Security and the Immigration and Naturalization Service shall update their information in a manner that promotes the maximum accuracy and shall provide a process for the prompt correction of erroneous information, including instances in which it is brought to their attention in the secondary verification process described in subsection (c).
    8. (h) Limitation on Use of the Confirmation System and Any Related Systems. -
    9. (1) In general. - Notwithstanding any other provision of law, nothing in this subtitle shall be construed to permit or allow any department, bureau, or other agency of the United States Government to utilize any information, data base, or other records assembled under this subtitle for any other purpose other than as provided for under a pilot program.
    10. (2) No national identification card. - Nothing in this subtitle shall be construed to authorize, directly or indirectly, the issuance or use of national identification cards or the establishment of a national identification card.
  5. NOT DISPLAYED: SEC. 405. REPORTS.
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