Core Provisions: This legislation would amend the Immigration and Nationality Act to require the Secretary of Homeland Security (”Secretary”) to establish and administer a secure electronic system to verify employment eligibility using individuals’ Social Security numbers. Employers would be required to verify employment eligibility for all new hires. For most employers, verification of the eligibility of existing employees would be required within six years of enactment of the legislation, but verification of existing employees would be required within three years of enactment for federal, state, and government employers, and for employers of individuals working in a government building, military base, nuclear energy site, airport, or other “critical infrastructure” employers.

The verification system would provide verification or a tentative nonverification of an individual’s identity and employment eligibility within three working days. In the cases of tentative nonverification, a secondary process would provide a final eligibility determination within ten working days of the tentative nonverification. Where there is a final nonverification, the employer would be required to terminate the individual and provide the Secretary with any information that would be helpful in the enforcement or administration of immigration laws. If an employer received a tentative nonverification notice, the employer would be required to inform the individual in writing within three days. An individual would then have ten days to contest the nonverification. An employer may not terminate an individual based on a tentative nonverification unless the individual does not contest the eligibility determination within ten days or the individual refuses to acknowledge receipt of the notice of their tentative ineligibility.

An employee who is terminated from employment as a result of a final nonverification notice would be able to file an appeal within 60 days. If the Secretary determined the final nonverification was erroneous due to no act or omission of the individual, the Secretary would compensate the individual for lost wages from the Employment Verification Compensation Fund, which would be funded by fines and penalties assessed against violators.  An individual would be able to appeal a final determination in the administrative review process within 60 days in federal district court.

Continuing to employ someone after receiving a final nonverification would create a rebuttable presumption of a statutory violation.  Failing to use the employment eligibility system as required by the legislation would be treated as a violation of the Immigration and Nationality Act’s prohibition against knowingly hiring an unauthorized worker. The legislation would provide employers with a defense if they submitted a verification request in a timely fashion, but the verification system did not respond in a timely manner.

The legislation would raise the fines and other criminal penalties for violations.  In determining the amount of a penalty, the size of the employer would be removed as a consideration, but the legislation adds a provision mitigating civil money penalties for smaller employers.

Contractors would be liable for hiring or employing an unauthorized alien through a subcontractor unless the contractor verified through the eligibility verification system that all subcontractor employees were eligible. An employer classified as a “repeat violator” by the Secretary would be debarred from receiving federal contracts, grants, or cooperative agreements for five years. Subcontractors and labor brokers that engaged in a pattern or practice of violations would face heightened criminal penalties.  The Department of Homeland Security would be required to create and maintain a publicly available online database of contractors and subcontractors that would disclose the number of employment eligibility violations, employment eligibility verification rejections, and the total number of verification attempts made by each entity.

The legislation would require several reports to the Inspector General and to Congress about elements of the proposed revised employment eligibility verification system, which would examine cost and administrability and the potential effects on employers, employees (citizens and non-citizens), tax revenue, and privacy.

Status: On August 1, 2008, Rep. Marshall (D-GA) introduced the Electronic Employment Eligibility Verification and Illegal Immigration Control Act of 2008, which was referred to the House Judiciary, Ways and Means, and Education and Labor Committees.