8 USC 1324a

Page 347

TITLE 8—ALIENS AND NATIONALITY

pilot, master, commanding officer, agent, or consignee
of any means of transportation who—
‘‘(1) brings into or lands in the United States, by
any means of transportation or otherwise, or attempts, by himself or through another, to bring into
or land in the United States, by any means of transportation or otherwise;
‘‘(2) knowing that he is in the United States in violation of law, and knowing or having reasonable
grounds to believe that his last entry into the United
States occurred less than three years prior thereto,
transports, or moves, or attempts to transport or
move, within the United States by means of transportation or otherwise, in furtherance of such violation
of law;
‘‘(3) willfully or knowingly conceals, harbors, or
shields from detection, or attempts to conceal, harbor, or shield from detection, in any place, including
any building or any means of transportation; or
‘‘(4) willfully or knowingly encourages or induces,
or attempts to encourage or induce, either directly or
indirectly, the entry into the United States of—
any alien, including an alien crewman, not duly admitted by an immigration officer or not lawfully entitled
to enter or reside within the United States under the
terms of this chapter or any other law relating to the
immigration or expulsion of aliens, shall be guilty of a
felony, and upon conviction thereof shall be punished
by a fine not exceeding $2,000 or by imprisonment for a
term not exceeding five years, or both, for each alien in
respect to whom any violation of this subsection occurs: Provided, however, That for the purposes of this
section, employment (including the usual and normal
practices incident to employment) shall not be deemed
to constitute harboring.’’
Subsec. (b)(1). Pub. L. 99–603, § 112(b)(1), (2), substituted ‘‘has been or is being used’’ for ‘‘is used’’ and
‘‘seized and subject to’’ for ‘‘subject to seizure and’’ in
provisions preceding subpar. (A).
Subsec. (b)(2). Pub. L. 99–603, § 112(b)(3), inserted ‘‘or
is being’’ after ‘‘has been’’.
Subsec. (b)(3). Pub. L. 99–603, § 112(b)(4), substituted
‘‘property’’ for ‘‘conveyances’’.
Subsec. (b)(4)(C). Pub. L. 99–603, § 112(b)(5), as amended
by Pub. L. 100–525, § 2(d)(2)(A), inserted ‘‘, or the Maritime Administration if appropriate under section 484(i)
of title 40,’’.
Subsec. (b)(4)(D). Pub. L. 99–603, § 112(b)(6), added subpar. (D).
Subsec. (b)(5). Pub. L. 99–603, § 112(b)(7)–(9), as amended by Pub. L. 100–525, § 2(d)(2)(B), substituted ‘‘, except
that’’ for ‘‘: Provided, That’’ in provisions preceding
subpar. (A), substituted ‘‘had not received prior official
authorization to come to, enter, or reside in the United
States or that such alien had come to, entered, or remained in the United States in violation of law’’ for
‘‘was not lawfully entitled to enter, or reside within,
the United States’’ wherever appearing, inserted ‘‘or of
the Department of State’’ in subpar. (B), and substituted ‘‘had not received prior official authorization
to come to, enter, or reside in the United States or that
such alien had come to, entered, or remained in the
United States in violation of law’’ for ‘‘was not entitled
to enter, or reside within, the United States’’ in subpar.
(C).
1981—Subsec. (b). Pub. L. 97–116 strengthened the seizure and forfeiture authority by striking out the ‘‘innocent owner’’ exemption and merely requiring the Government to show probable cause that the conveyance
seized has been used to illegally transport aliens, which
when demonstrated, shifts the burden of proof to the
owner or claimant to show by a preponderance of the
evidence that the conveyance was not illegally used, by
relieving the Government of the obligation to pay any
administrative and incidental costs incurred by a successful claimant provided probable cause for the original seizure was demonstrated, and by striking out the
requirement that the Government satisfy any valid lien
or third party interest in the conveyance without expense to the interest holder by providing the lien-

§ 1324a

holders interest be satisfied only after costs associated
with the seizure have been deducted.
1978—Subsecs. (b), (c). Pub. L. 95–582 added subsec. (b)
and redesignated former subsec. (b) as (c).
EFFECTIVE DATE OF 2000 AMENDMENT
Pub. L. 106–185, § 21, Apr. 25, 2000, 114 Stat. 225, provided that: ‘‘Except as provided in section 14(c) [set out
as an Effective Date note under section 2466 of title 28,
Judiciary and Judicial Procedure], this Act [see Short
Title of 2000 Amendment note set out under section 981
of Title 18, Crimes and Criminal Procedure] and the
amendments made by this Act shall apply to any forfeiture proceeding commenced on or after the date that
is 120 days after the date of the enactment of this Act
[Apr. 25, 2000].’’
EFFECTIVE DATE OF 1996 AMENDMENT
Section 203(f) of div. C of Pub. L. 104–208 provided
that: ‘‘This section [amending this section and enacting provisions set out as a note under section 994 of
Title 28, Judiciary and Judicial Procedure] and the
amendments made by this section shall apply with respect to offenses occurring on or after the date of the
enactment of this Act [Sept. 30, 1996].’’
Amendment by section 671(a)(1) of Pub. L. 104–208 effective as if included in the enactment of the Violent
Crime Control and Law Enforcement Act of 1994, Pub.
L. 103–322, see section 671(a)(7) of Pub. L. 104–208, set out
as a note under section 1101 of this title.
EFFECTIVE DATE OF 1988 AMENDMENT
Amendment by Pub. L. 100–525 effective as if included
in enactment of Immigration Reform and Control Act
of 1986, Pub. L. 99–603, see section 2(s) of Pub. L. 100–525,
set out as a note under section 1101 of this title.
EFFECTIVE DATE OF 1981 AMENDMENT
Amendment by Pub. L. 97–116 effective Dec. 29, 1981,
see section 21(a) of Pub. L. 97–116, set out as a note
under section 1101 of this title.
ABOLITION OF IMMIGRATION AND NATURALIZATION
SERVICE AND TRANSFER OF FUNCTIONS
For abolition of Immigration and Naturalization
Service, transfer of functions, and treatment of related
references, see note set out under section 1551 of this
title.

§ 1324a. Unlawful employment of aliens
(a) Making employment of unauthorized aliens
unlawful
(1) In general
It is unlawful for a person or other entity—
(A) to hire, or to recruit or refer for a fee,
for employment in the United States an
alien knowing the alien is an unauthorized
alien (as defined in subsection (h)(3) of this
section) with respect to such employment,
or
(B)(i) to hire for employment in the United
States an individual without complying with
the requirements of subsection (b) of this
section or (ii) if the person or entity is an
agricultural association, agricultural employer, or farm labor contractor (as defined
in section 1802 of title 29), to hire, or to recruit or refer for a fee, for employment in
the United States an individual without
complying with the requirements of subsection (b) of this section.
(2) Continuing employment
It is unlawful for a person or other entity,
after hiring an alien for employment in ac-

§ 1324a

TITLE 8—ALIENS AND NATIONALITY

cordance with paragraph (1), to continue to
employ the alien in the United States knowing
the alien is (or has become) an unauthorized
alien with respect to such employment.
(3) Defense
A person or entity that establishes that it
has complied in good faith with the requirements of subsection (b) of this section with respect to the hiring, recruiting, or referral for
employment of an alien in the United States
has established an affirmative defense that the
person or entity has not violated paragraph
(1)(A) with respect to such hiring, recruiting,
or referral.
(4) Use of labor through contract
For purposes of this section, a person or
other entity who uses a contract, subcontract,
or exchange, entered into, renegotiated, or extended after November 6, 1986, to obtain the
labor of an alien in the United States knowing
that the alien is an unauthorized alien (as defined in subsection (h)(3) of this section) with
respect to performing such labor, shall be considered to have hired the alien for employment
in the United States in violation of paragraph
(1)(A).
(5) Use of State employment agency documentation
For purposes of paragraphs (1)(B) and (3), a
person or entity shall be deemed to have complied with the requirements of subsection (b)
of this section with respect to the hiring of an
individual who was referred for such employment by a State employment agency (as defined by the Attorney General), if the person
or entity has and retains (for the period and in
the manner described in subsection (b)(3) of
this section) appropriate documentation of
such referral by that agency, which documentation certifies that the agency has complied with the procedures specified in subsection (b) of this section with respect to the
individual’s referral.
(6) Treatment of documentation for certain employees
(A) In general
For purposes of this section, if—
(i) an individual is a member of a collective-bargaining unit and is employed,
under a collective bargaining agreement
entered into between one or more employee organizations and an association of
two or more employers, by an employer
that is a member of such association, and
(ii) within the period specified in subparagraph (B), another employer that is a
member of the association (or an agent of
such association on behalf of the employer) has complied with the requirements of subsection (b) of this section with
respect to the employment of the individual,
the subsequent employer shall be deemed to
have complied with the requirements of subsection (b) of this section with respect to the
hiring of the employee and shall not be liable for civil penalties described in subsection
(e)(5) of this section.

Page 348

(B) Period
The period described in this subparagraph
is 3 years, or, if less, the period of time that
the individual is authorized to be employed
in the United States.
(C) Liability
(i) In general
If any employer that is a member of an
association hires for employment in the
United States an individual and relies
upon the provisions of subparagraph (A) to
comply with the requirements of subsection (b) of this section and the individual is an alien not authorized to work in
the United States, then for the purposes of
paragraph (1)(A), subject to clause (ii), the
employer shall be presumed to have known
at the time of hiring or afterward that the
individual was an alien not authorized to
work in the United States.
(ii) Rebuttal of presumption
The presumption established by clause
(i) may be rebutted by the employer only
through the presentation of clear and convincing evidence that the employer did not
know (and could not reasonably have
known) that the individual at the time of
hiring or afterward was an alien not authorized to work in the United States.
(iii) Exception
Clause (i) shall not apply in any prosecution under subsection (f)(1) of this section.
(7) Application to Federal Government
For purposes of this section, the term ‘‘entity’’ includes an entity in any branch of the
Federal Government.
(b) Employment verification system
The requirements referred to in paragraphs
(1)(B) and (3) of subsection (a) of this section
are, in the case of a person or other entity hiring, recruiting, or referring an individual for
employment in the United States, the requirements specified in the following three paragraphs:
(1) Attestation after examination of documentation
(A) In general
The person or entity must attest, under
penalty of perjury and on a form designated
or established by the Attorney General by
regulation, that it has verified that the individual is not an unauthorized alien by examining—
(i) a document described in subparagraph
(B), or
(ii) a document described in subparagraph (C) and a document described in subparagraph (D).
Such attestation may be manifested by either a hand-written or an electronic signature. A person or entity has complied with
the requirement of this paragraph with respect to examination of a document if the
document reasonably appears on its face to
be genuine. If an individual provides a document or combination of documents that rea-

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TITLE 8—ALIENS AND NATIONALITY

sonably appears on its face to be genuine and
that is sufficient to meet the requirements
of the first sentence of this paragraph, nothing in this paragraph shall be construed as
requiring the person or entity to solicit the
production of any other document or as requiring the individual to produce such another document.
(B) Documents establishing both employment
authorization and identity
A document described in this subparagraph
is an individual’s—
(i) United States passport; 1
(ii) resident alien card, alien registration
card, or other document designated by the
Attorney General, if the document—
(I) contains a photograph of the individual and such other personal identifying information relating to the individual as the Attorney General finds, by
regulation, sufficient for purposes of this
subsection,
(II) is evidence of authorization of employment in the United States, and
(III) contains security features to
make it resistant to tampering, counterfeiting, and fraudulent use.
(C) Documents evidencing employment authorization
A document described in this subparagraph
is an individual’s—
(i) social security account number card
(other than such a card which specifies on
the face that the issuance of the card does
not authorize employment in the United
States); or
(ii) other documentation evidencing authorization of employment in the United
States which the Attorney General finds,
by regulation, to be acceptable for purposes of this section.
(D) Documents establishing identity of individual
A document described in this subparagraph
is an individual’s—
(i) driver’s license or similar document
issued for the purpose of identification by
a State, if it contains a photograph of the
individual or such other personal identifying information relating to the individual
as the Attorney General finds, by regulation, sufficient for purposes of this section;
or
(ii) in the case of individuals under 16
years of age or in a State which does not
provide for issuance of an identification
document (other than a driver’s license)
referred to in clause (i), documentation of
personal identity of such other type as the
Attorney General finds, by regulation, provides a reliable means of identification.
(E) Authority to prohibit use of certain documents
If the Attorney General finds, by regulation, that any document described in subparagraph (B), (C), or (D) as establishing em1 So

in original. Probably should be followed by ‘‘or’’.

§ 1324a

ployment authorization or identity does not
reliably establish such authorization or
identity or is being used fraudulently to an
unacceptable degree, the Attorney General
may prohibit or place conditions on its use
for purposes of this subsection.
(2) Individual attestation of employment authorization
The individual must attest, under penalty of
perjury on the form designated or established
for purposes of paragraph (1), that the individual is a citizen or national of the United
States, an alien lawfully admitted for permanent residence, or an alien who is authorized
under this chapter or by the Attorney General
to be hired, recruited, or referred for such employment. Such attestation may be manifested by either a hand-written or an electronic signature.
(3) Retention of verification form
After completion of such form in accordance
with paragraphs (1) and (2), the person or entity must retain a paper, microfiche, microfilm, or electronic version of the form and
make it available for inspection by officers of
the Service, the Special Counsel for Immigration-Related Unfair Employment Practices, or
the Department of Labor during a period beginning on the date of the hiring, recruiting,
or referral of the individual and ending—
(A) in the case of the recruiting or referral
for a fee (without hiring) of an individual,
three years after the date of the recruiting
or referral, and
(B) in the case of the hiring of an individual—
(i) three years after the date of such hiring, or
(ii) one year after the date the individual’s employment is terminated,
whichever is later.
(4) Copying of documentation permitted
Notwithstanding any other provision of law,
the person or entity may copy a document presented by an individual pursuant to this subsection and may retain the copy, but only (except as otherwise permitted under law) for the
purpose of complying with the requirements of
this subsection.
(5) Limitation on use of attestation form
A form designated or established by the Attorney General under this subsection and any
information contained in or appended to such
form, may not be used for purposes other than
for enforcement of this chapter and sections
1001, 1028, 1546, and 1621 of title 18.
(6) Good faith compliance
(A) In general
Except as provided in subparagraphs (B)
and (C), a person or entity is considered to
have complied with a requirement of this
subsection notwithstanding a technical or
procedural failure to meet such requirement
if there was a good faith attempt to comply
with the requirement.
(B) Exception if failure to correct after notice
Subparagraph (A) shall not apply if—

§ 1324a

TITLE 8—ALIENS AND NATIONALITY

(i) the Service (or another enforcement
agency) has explained to the person or entity the basis for the failure,
(ii) the person or entity has been provided a period of not less than 10 business
days (beginning after the date of the explanation) within which to correct the failure, and
(iii) the person or entity has not corrected the failure voluntarily within such
period.
(C) Exception for pattern or practice violators
Subparagraph (A) shall not apply to a person or entity that has or is engaging in a
pattern or practice of violations of subsection (a)(1)(A) or (a)(2) of this section.
(c) No authorization of national identification
cards
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.
(d) Evaluation and changes in employment verification system
(1) Presidential monitoring and improvements
in system
(A) Monitoring
The President shall provide for the monitoring and evaluation of the degree to
which the employment verification system
established under subsection (b) of this section provides a secure system to determine
employment eligibility in the United States
and shall examine the suitability of existing
Federal and State identification systems for
use for this purpose.
(B) Improvements to establish secure system
To the extent that the system established
under subsection (b) of this section is found
not to be a secure system to determine employment eligibility in the United States,
the President shall, subject to paragraph (3)
and taking into account the results of any
demonstration projects conducted under
paragraph (4), implement such changes in
(including additions to) the requirements of
subsection (b) of this section as may be necessary to establish a secure system to determine employment eligibility in the United
States. Such changes in the system may be
implemented only if the changes conform to
the requirements of paragraph (2).
(2) Restrictions on changes in system
Any change the President proposes to implement under paragraph (1) in the verification
system must be designed in a manner so the
verification system, as so changed, meets the
following requirements:
(A) Reliable determination of identity
The system must be capable of reliably determining whether—
(i) a person with the identity claimed by
an employee or prospective employee is eligible to work, and
(ii) the employee or prospective employee is claiming the identity of another
individual.

Page 350

(B) Using of counterfeit-resistant documents
If the system requires that a document be
presented to or examined by an employer,
the document must be in a form which is resistant to counterfeiting and tampering.
(C) Limited use of system
Any personal information utilized by the
system may not be made available to Government agencies, employers, and other persons except to the extent necessary to verify
that an individual is not an unauthorized
alien.
(D) Privacy of information
The system must protect the privacy and
security of personal information and identifiers utilized in the system.
(E) Limited denial of verification
A verification that an employee or prospective employee is eligible to be employed
in the United States may not be withheld or
revoked under the system for any reason
other than that the employee or prospective
employee is an unauthorized alien.
(F) Limited use for law enforcement purposes
The system may not be used for law enforcement purposes, other than for enforcement of this chapter or sections 1001, 1028,
1546, and 1621 of title 18.
(G) Restriction on use of new documents
If the system requires individuals to
present a new card or other document (designed specifically for use for this purpose)
at the time of hiring, recruitment, or referral, then such document may not be required
to be presented for any purpose other than
under this chapter (or enforcement of sections 1001, 1028, 1546, and 1621 of title 18) nor
to be carried on one’s person.
(3) Notice to Congress before implementing
changes
(A) In general
The President may not implement any
change under paragraph (1) unless at least—
(i) 60 days,
(ii) one year, in the case of a major
change described in subparagraph (D)(iii),
or
(iii) two years, in the case of a major
change described in clause (i) or (ii) of subparagraph (D),
before the date of implementation of the
change, the President has prepared and
transmitted to the Committee on the Judiciary of the House of Representatives and to
the Committee on the Judiciary of the Senate a written report setting forth the proposed change. If the President proposes to
make any change regarding social security
account number cards, the President shall
transmit to the Committee on Ways and
Means of the House of Representatives and
to the Committee on Finance of the Senate
a written report setting forth the proposed
change. The President promptly shall cause
to have printed in the Federal Register the

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TITLE 8—ALIENS AND NATIONALITY

substance of any major change (described in
subparagraph (D)) proposed and reported to
Congress.
(B) Contents of report
In any report under subparagraph (A) the
President shall include recommendations for
the establishment of civil and criminal sanctions for unauthorized use or disclosure of
the information or identifiers contained in
such system.
(C) Congressional review of major changes
(i) Hearings and review
The Committees on the Judiciary of the
House of Representatives and of the Senate shall cause to have printed in the Congressional Record the substance of any
major change described in subparagraph
(D), shall hold hearings respecting the feasibility and desirability of implementing
such a change, and, within the two year
period before implementation, shall report
to their respective Houses findings on
whether or not such a change should be
implemented.
(ii) Congressional action
No major change may be implemented
unless the Congress specifically provides,
in an appropriations or other Act, for
funds for implementation of the change.
(D) Major changes defined
As used in this paragraph, the term
‘‘major change’’ means a change which
would—
(i) require an individual to present a new
card or other document (designed specifically for use for this purpose) at the time
of hiring, recruitment, or referral,
(ii) provide for a telephone verification
system under which an employer, recruiter, or referrer must transmit to a
Federal official information concerning
the immigration status of prospective employees and the official transmits to the
person, and the person must record, a verification code, or
(iii) require any change in any card used
for accounting purposes under the Social
Security Act [42 U.S.C. 301 et seq.], including any change requiring that the only social security account number cards which
may be presented in order to comply with
subsection (b)(1)(C)(i) of this section are
such cards as are in a counterfeit-resistant
form consistent with the second sentence
of section 205(c)(2)(D) of the Social Security Act [42 U.S.C. 405(c)(2)(D)].
(E) General revenue funding of social security card changes
Any costs incurred in developing and implementing any change described in subparagraph (D)(iii) for purposes of this subsection
shall not be paid for out of any trust fund established under the Social Security Act [42
U.S.C. 301 et seq.].
(4) Demonstration projects
(A) Authority
The President may undertake demonstration projects (consistent with paragraph (2))

§ 1324a

of different changes in the requirements of
subsection (b) of this section. No such
project may extend over a period of longer
than five years.
(B) Reports on projects
The President shall report to the Congress
on the results of demonstration projects
conducted under this paragraph.
(e) Compliance
(1) Complaints and investigations
The Attorney General shall establish procedures—
(A) for individuals and entities to file written, signed complaints respecting potential
violations of subsection (a) or (g)(1) of this
section,
(B) for the investigation of those complaints which, on their face, have a substantial probability of validity,
(C) for the investigation of such other violations of subsection (a) or (g)(1) of this section as the Attorney General determines to
be appropriate, and
(D) for the designation in the Service of a
unit which has, as its primary duty, the
prosecution of cases of violations of subsection (a) or (g)(1) of this section under this
subsection.
(2) Authority in investigations
In conducting investigations and hearings
under this subsection—
(A) immigration officers and administrative law judges shall have reasonable access
to examine evidence of any person or entity
being investigated,
(B) administrative law judges, may, if necessary, compel by subpoena the attendance
of witnesses and the production of evidence
at any designated place or hearing, and
(C) immigration officers designated by the
Commissioner may compel by subpoena the
attendance of witnesses and the production
of evidence at any designated place prior to
the filing of a complaint in a case under
paragraph (2).
In case of contumacy or refusal to obey a subpoena lawfully issued under this paragraph
and upon application of the Attorney General,
an appropriate district court of the United
States may issue an order requiring compliance with such subpoena and any failure to
obey such order may be punished by such
court as a contempt thereof.
(3) Hearing
(A) In general
Before imposing an order described in
paragraph (4), (5), or (6) against a person or
entity under this subsection for a violation
of subsection (a) or (g)(1) of this section, the
Attorney General shall provide the person or
entity with notice and, upon request made
within a reasonable time (of not less than 30
days, as established by the Attorney General) of the date of the notice, a hearing respecting the violation.
(B) Conduct of hearing
Any hearing so requested shall be conducted before an administrative law judge.

§ 1324a

TITLE 8—ALIENS AND NATIONALITY

The hearing shall be conducted in accordance with the requirements of section 554 of
title 5. The hearing shall be held at the nearest practicable place to the place where the
person or entity resides or of the place where
the alleged violation occurred. If no hearing
is so requested, the Attorney General’s imposition of the order shall constitute a final
and unappealable order.
(C) Issuance of orders
If the administrative law judge determines, upon the preponderance of the evidence received, that a person or entity
named in the complaint has violated subsection (a) or (g)(1) of this section, the administrative law judge shall state his findings of fact and issue and cause to be served
on such person or entity an order described
in paragraph (4), (5), or (6).
(4) Cease and desist order with civil money
penalty for hiring, recruiting, and referral
violations
With respect to a violation of subsection
(a)(1)(A) or (a)(2) of this section, the order
under this subsection—
(A) shall require the person or entity to
cease and desist from such violations and to
pay a civil penalty in an amount of—
(i) not less than $250 and not more than
$2,000 for each unauthorized alien with respect to whom a violation of either such
subsection occurred,
(ii) not less than $2,000 and not more
than $5,000 for each such alien in the case
of a person or entity previously subject to
one order under this paragraph, or
(iii) not less than $3,000 and not more
than $10,000 for each such alien in the case
of a person or entity previously subject to
more than one order under this paragraph;
and
(B) may require the person or entity—
(i) to comply with the requirements of
subsection (b) of this section (or subsection (d) of this section if applicable)
with respect to individuals hired (or recruited or referred for employment for a
fee) during a period of up to three years,
and
(ii) to take such other remedial action as
is appropriate.
In applying this subsection in the case of a
person or entity composed of distinct, physically separate subdivisions each of which
provides separately for the hiring, recruiting, or referring for employment, without
reference to the practices of, and not under
the control of or common control with, another subdivision, each such subdivision
shall be considered a separate person or entity.
(5) Order for civil money penalty for paperwork violations
With respect to a violation of subsection
(a)(1)(B) of this section, the order under this
subsection shall require the person or entity
to pay a civil penalty in an amount of not less
than $100 and not more than $1,000 for each in-

Page 352

dividual with respect to whom such violation
occurred. In determining the amount of the
penalty, due consideration shall be given to
the size of the business of the employer being
charged, the good faith of the employer, the
seriousness of the violation, whether or not
the individual was an unauthorized alien, and
the history of previous violations.
(6) Order for prohibited indemnity bonds
With respect to a violation of subsection
(g)(1) of this section, the order under this subsection may provide for the remedy described
in subsection (g)(2) of this section.
(7) Administrative appellate review
The decision and order of an administrative
law judge shall become the final agency decision and order of the Attorney General unless
either (A) within 30 days, an official delegated
by regulation to exercise review authority
over the decision and order modifies or vacates the decision and order, or (B) within 30
days of the date of such a modification or vacation (or within 60 days of the date of decision and order of an administrative law judge
if not so modified or vacated) the decision and
order is referred to the Attorney General pursuant to regulations, in which case the decision and order of the Attorney General shall
become the final agency decision and order
under this subsection. The Attorney General
may not delegate the Attorney General’s authority under this paragraph to any entity
which has review authority over immigrationrelated matters.
(8) Judicial review
A person or entity adversely affected by a
final order respecting an assessment may,
within 45 days after the date the final order is
issued, file a petition in the Court of Appeals
for the appropriate circuit for review of the
order.
(9) Enforcement of orders
If a person or entity fails to comply with a
final order issued under this subsection
against the person or entity, the Attorney
General shall file a suit to seek compliance
with the order in any appropriate district
court of the United States. In any such suit,
the validity and appropriateness of the final
order shall not be subject to review.
(f) Criminal penalties and injunctions for pattern
or practice violations
(1) Criminal penalty
Any person or entity which engages in a pattern or practice of violations of subsection
(a)(1)(A) or (a)(2) of this section shall be fined
not more than $3,000 for each unauthorized
alien with respect to whom such a violation
occurs, imprisoned for not more than six
months for the entire pattern or practice, or
both, notwithstanding the provisions of any
other Federal law relating to fine levels.
(2) Enjoining of pattern or practice violations
Whenever the Attorney General has reasonable cause to believe that a person or entity is
engaged in a pattern or practice of employment, recruitment, or referral in violation of

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paragraph (1)(A) or (2) of subsection (a) of this
section, the Attorney General may bring a
civil action in the appropriate district court of
the United States requesting such relief, including a permanent or temporary injunction,
restraining order, or other order against the
person or entity, as the Attorney General
deems necessary.
(g) Prohibition of indemnity bonds
(1) Prohibition
It is unlawful for a person or other entity, in
the hiring, recruiting, or referring for employment of any individual, to require the individual to post a bond or security, to pay or agree
to pay an amount, or otherwise to provide a financial guarantee or indemnity, against any
potential liability arising under this section
relating to such hiring, recruiting, or referring
of the individual.
(2) Civil penalty
Any person or entity which is determined,
after notice and opportunity for an administrative hearing under subsection (e) of this
section, to have violated paragraph (1) shall be
subject to a civil penalty of $1,000 for each violation and to an administrative order requiring the return of any amounts received in violation of such paragraph to the employee or, if
the employee cannot be located, to the general
fund of the Treasury.
(h) Miscellaneous provisions
(1) Documentation
In providing documentation or endorsement
of authorization of aliens (other than aliens
lawfully admitted for permanent residence)
authorized to be employed in the United
States, the Attorney General shall provide
that any limitations with respect to the period
or type of employment or employer shall be
conspicuously stated on the documentation or
endorsement.
(2) Preemption
The provisions of this section preempt any
State or local law imposing civil or criminal
sanctions (other than through licensing and
similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.
(3) Definition of unauthorized alien
As used in this section, the term ‘‘unauthorized alien’’ means, with respect to the employment of an alien at a particular time, that the
alien is not at that time either (A) an alien
lawfully admitted for permanent residence, or
(B) authorized to be so employed by this chapter or by the Attorney General.
(June 27, 1952, ch. 477, title II, ch. 8, § 274A, as
added Pub. L. 99–603, title I, § 101(a)(1), Nov. 6,
1986, 100 Stat. 3360; amended Pub. L. 100–525,
§ 2(a)(1), Oct. 24, 1988, 102 Stat. 2609; Pub. L.
101–649, title V, §§ 521(a), 538(a), Nov. 29, 1990, 104
Stat. 5053, 5056; Pub. L. 102–232, title III,
§§ 306(b)(2), 309(b)(11), Dec. 12, 1991, 105 Stat. 1752,
1759; Pub. L. 103–416, title II, §§ 213, 219(z)(4), Oct.
25, 1994, 108 Stat. 4314, 4318; Pub. L. 104–208, div.
C, title III, § 379(a), title IV, §§ 411(a), 412(a)–(d),
416, Sept. 30, 1996, 110 Stat. 3009–649, 3009–666 to

§ 1324a

3009–669; Pub. L. 108–390, § 1(a), Oct. 30, 2004, 118
Stat. 2242.)
REFERENCES IN TEXT
This chapter, referred to in subsecs. (b)(2), (5),
(d)(2)(F), (G), and (h)(3), was in the original, ‘‘this Act’’,
meaning act June 27, 1952, ch. 477, 66 Stat. 163, known
as the Immigration and Nationality Act, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note
set out under section 1101 of this title and Tables.
The Social Security Act, referred to in subsec.
(d)(3)(D)(iii), (E), is act Aug. 14, 1935, ch. 531, 49 Stat.
620, as amended, which is classified generally to chapter 7 (§ 301 et seq.) of Title 42, The Public Health and
Welfare. For complete classification of this Act to the
Code, see section 1305 of Title 42 and Tables.
AMENDMENTS
2004—Subsec. (b)(1)(A). Pub. L. 108–390, § 1(a)(1), inserted ‘‘Such attestation may be manifested by either
a hand-written or an electronic signature.’’ before ‘‘A
person or entity has complied’’ in concluding provisions.
Subsec. (b)(2). Pub. L. 108–390, § 1(a)(2), inserted at end
‘‘Such attestation may be manifested by either a handwritten or an electronic signature.’’
Subsec. (b)(3). Pub. L. 108–390, § 1(a)(3), inserted ‘‘a
paper, microfiche, microfilm, or electronic version of’’
after ‘‘must retain’’ in introductory provisions.
1996—Subsec. (a)(6). Pub. L. 104–208, § 412(b), added par.
(6).
Subsec. (a)(7). Pub. L. 104–208, § 412(d), added par. (7).
Subsec. (b)(1)(B). Pub. L. 104–208, § 412(a)(1)(A), (B), redesignated cl. (v) as (ii), substituted ‘‘, alien registration card, or other document designated by the Attorney General, if the document’’ for ‘‘or other alien registration card, if the card’’ in introductory provisions
of that cl., and struck out former cls. (ii) to (iv) which
read as follows:
‘‘(ii) certificate of United States citizenship;
‘‘(iii) certificate of naturalization;
‘‘(iv) unexpired foreign passport, if the passport has
an appropriate, unexpired endorsement of the Attorney
General authorizing the individual’s employment in
the United States; or’’.
Subsec. (b)(1)(B)(ii). Pub. L. 104–208, § 412(a)(1)(C), in
subcl. (I), substituted ‘‘and’’ for ‘‘or’’ before ‘‘such
other personal’’ and struck out ‘‘and’’ at end, in subcl.
(II), substituted ‘‘, and’’ for the period at end, and
added subcl. (III).
Subsec. (b)(1)(C). Pub. L. 104–208, § 412(a)(2), inserted
‘‘or’’ at end of cl. (i), redesignated cl. (iii) as (ii), and
struck out former cl. (ii) which read as follows: ‘‘certificate of birth in the United States or establishing
United States nationality at birth, which certificate
the Attorney General finds, by regulation, to be acceptable for purposes of this section; or’’.
Subsec. (b)(1)(E). Pub. L. 104–208, § 412(a)(3), added subpar. (E).
Subsec. (b)(6). Pub. L. 104–208, § 411(a), added par. (6).
Subsec. (e)(2)(C). Pub. L. 104–208, § 416, added subpar.
(C).
Subsec. (e)(7). Pub. L. 104–208, § 379(a)(2), substituted
‘‘the final agency decision and order under this subsection’’ for ‘‘a final order under this subsection’’.
Pub. L. 104–208, § 379(a)(1), substituted ‘‘unless either
(A) within 30 days, an official delegated by regulation
to exercise review authority over the decision and
order modifies or vacates the decision and order, or (B)
within 30 days of the date of such a modification or vacation (or within 60 days of the date of decision and
order of an administrative law judge if not so modified
or vacated) the decision and order is referred to the Attorney General pursuant to regulations’’ for ‘‘unless,
within 30 days, the Attorney General modifies or vacates the decision and order’’.
Subsecs. (i) to (n). Pub. L. 104–208, § 412(c), struck out
subsec. (i) which provided effective dates for implemen-

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TITLE 8—ALIENS AND NATIONALITY

tation of this section, subsec. (j) which required General Accounting Office reports on implementation of
this section, subsec. (k) which established a taskforce
to review reports, subsec. (l) which provided a termination date for employer sanctions under this section
upon finding of widespread discrimination in implementing this section, and subsecs. (m) and (n) which
provided for expedited procedures in House of Representatives and Senate for considering resolutions to
approve findings in the reports.
1994—Subsec. (b)(3). Pub. L. 103–416, § 219(z)(4), made
technical correction to Pub. L. 102–232, § 306(b)(2). See
1991 Amendment note below.
Subsec. (d)(4)(A). Pub. L. 103–416, § 213, substituted
‘‘five’’ for ‘‘three’’ in second sentence.
1991—Subsec. (b)(1)(D)(ii). Pub. L. 102–232, § 309(b)(11),
substituted ‘‘clause (i)’’ for ‘‘clause (ii)’’.
Subsec. (b)(3). Pub. L. 102–232, § 306(b)(2), as amended
by Pub. L. 103–416, § 219(z)(4), made technical correction
to Pub. L. 101–649, § 538(a). See 1990 Amendment note
below.
1990—Subsec. (a)(1). Pub. L. 101–649, § 521(a), struck
out ‘‘to hire, or to recruit or refer for a fee, for employment in the United States’’ after ‘‘or other entity’’ in
introductory provisions, inserted ‘‘to hire, or to recruit
or refer for a fee, for employment in the United States’’
after ‘‘(A)’’ in subpar. (A), and inserted ‘‘(i) to hire for
employment in the United States an individual without
complying with the requirements of subsection (b) of
this section or (ii) if the person or entity is an agricultural association, agricultural employer, or farm labor
contractor (as defined in section 1802 of title 29), to
hire, or to recruit or refer for a fee, for employment in
the United States’’ after ‘‘(B)’’ in subpar. (B).
Subsec. (b)(3). Pub. L. 101–649, § 538(a), as amended by
Pub. L. 102–232, § 306(b)(2), as amended by Pub. L.
103–416, § 219(z)(4), inserted ‘‘, the Special Counsel for
Immigration-Related Unfair Employment Practices,’’
after ‘‘officers of the Service’’.
1988—Subsec. (b)(1)(A). Pub. L. 100–525, § 2(a)(1)(A),
substituted ‘‘the first sentence of this paragraph’’ for
‘‘such sentence’’ and ‘‘such another document’’ for
‘‘such a document’’.
Subsec. (d)(3)(D). Pub. L. 100–525, § 2(a)(1)(B), in heading substituted ‘‘defined’’ for ‘‘requiring two years notice and congressional review’’.
Subsec. (e)(1). Pub. L. 100–525, § 2(a)(1)(C)(i), inserted
reference to subsec. (g)(1) in three places.
Subsec. (e)(3). Pub. L. 100–525, § 2(a)(1)(C)(i), (ii), inserted reference to subsec. (g)(1) in two places and reference to par. (6) in two places.
Subsec. (e)(4)(A)(ii), (iii). Pub. L. 100–525, § 2(a)(1)(D),
substituted ‘‘paragraph’’ for ‘‘subparagraph’’.
Subsec. (e)(6) to (9). Pub. L. 100–525, § 2(a)(1)(C)(iii),
(iv), added par. (6) and redesignated former pars. (6) to
(8) as (7) to (9), respectively.
Subsec. (g)(2). Pub. L. 100–525, § 2(a)(1)(E), inserted reference to subsec. (e) of this section.
Subsec. (i)(3)(B)(iii). Pub. L. 100–525, § 2(a)(1)(F), substituted ‘‘an order’’ for ‘‘a order’’ and ‘‘subsection
(a)(1)(A) of this section’’ for ‘‘paragraph (1)(A)’’.
Subsec. (j)(1). Pub. L. 100–525, § 2(a)(1)(G), made technical amendment to provision of original act which was
translated as ‘‘November 6, 1986,’’ and struck out ‘‘of
the United States’’ after ‘‘Comptroller General’’.
Subsec. (j)(2). Pub. L. 100–525, § 2(a)(1)(H), substituted
‘‘this section’’ for ‘‘that section’’.
EFFECTIVE DATE OF 2004 AMENDMENT
Pub. L. 108–390, § 1(b), Oct. 30, 2004, 118 Stat. 2242, provided that: ‘‘The amendments made by subsection (a)
[amending this section] shall take effect on the earlier
of—
‘‘(1) the date on which final regulations implementing such amendments take effect; or
‘‘(2) 180 days after the date of the enactment of this
Act [Oct. 30, 2004].’’
EFFECTIVE DATE OF 1996 AMENDMENT
Section 379(b) of div. C of Pub. L. 104–208 provided
that: ‘‘The amendments made by subsection (a)

Page 354

[amending this section and section 1324c of this title]
shall apply to orders issued on or after the date of the
enactment of this Act [Sept. 30, 1996].’’
Section 411(b) of div. C of Pub. L. 104–208 provided
that: ‘‘The amendment made by subsection (a) [amending this section] shall apply to failures occurring on or
after the date of the enactment of this Act [Sept. 30,
1996].’’
Section 412(e) of div. C of Pub. L. 104–208, as amended
by Pub. L. 105–54, § 3(a), Oct. 6, 1997, 111 Stat. 1175; Pub.
L. 108–156, § 3(d), Dec. 3, 2003, 117 Stat. 1945, provided
that:
‘‘(1) The amendments made by subsection (a) [amending this section] shall apply with respect to hiring (or
recruitment or referral) occurring on or after such date
(not later than 18 months after the date of the enactment of this Act [Sept. 30, 1996]) as the Secretary of
Homeland Security shall designate.
‘‘(2) The amendment made by subsection (b) [amending this section] shall apply to individuals hired on or
after 60 days after the date of the enactment of this
Act.
‘‘(3) The amendment made by subsection (c) [amending this section] shall take effect on the date of the enactment of this Act.
‘‘(4) The amendment made by subsection (d) [amending this section] applies to hiring occurring before, on,
or after the date of the enactment of this Act, but no
penalty shall be imposed under subsection (e) or (f) of
section 274A of the Immigration and Nationality Act
[subsecs. (e) and (f) of this section] for such hiring occurring before such date.’’
[Section 3(b) of Pub. L. 105–54 provided that: ‘‘The
amendment made by subsection (a) [amending section
412(e) of div. C of Pub. L. 104–208, set out above] shall
take effect as if included in the enactment of the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 [div. C of Pub. L. 104–208].’’]
EFFECTIVE DATE OF 1994 AMENDMENT
Section 219(z) of Pub. L. 103–416 provided that the
amendment made by subsec. (z)(4) of that section is effective as if included in the Miscellaneous and Technical Immigration and Naturalization Amendments of
1991, Pub. L. 102–232.
EFFECTIVE DATE OF 1991 AMENDMENT
Amendment by section 306(b)(2) of Pub. L. 102–232 effective as if included in the enactment of the Immigration Act of 1990, Pub. L. 101–649, see section 310(1) of
Pub. L. 102–232, set out as a note under section 1101 of
this title.
EFFECTIVE DATE OF 1990 AMENDMENT
Section 521(b) of Pub. L. 101–649 provided that: ‘‘The
amendments made by subsection (a) [amending this
section] shall apply to recruiting and referring occurring on or after the date of the enactment of this Act
[Nov. 29, 1990].’’
Section 538(b) of Pub. L. 101–649 provided that: ‘‘The
amendment made by subsection (a) [amending this section] shall take effect on the date of the enactment of
this Act [Nov. 29, 1990].’’
EFFECTIVE DATE OF 1988 AMENDMENT
Amendment by Pub. L. 100–525 effective as if included
in enactment of Immigration Reform and Control Act
of 1986, Pub. L. 99–603, see section 2(s) of Pub. L. 100–525,
set out as a note under section 1101 of this title.
DATE OF ENACTMENT OF THIS SECTION FOR ALIENS
EMPLOYED UNDER SECTION 8704 OF TITLE 46, SHIPPING
Date of enactment of this section with respect to
aliens deemed employed under section 8704 of Title 46,
Shipping, as the date 180 days after Jan. 11, 1988, see
section 5(f)(3) of Pub. L. 100–239, set out as a Construction note under section 8704 of Title 46.

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ABOLITION OF IMMIGRATION AND NATURALIZATION
SERVICE AND TRANSFER OF FUNCTIONS
For abolition of Immigration and Naturalization
Service, transfer of functions, and treatment of related
references, see note set out under section 1551 of this
title.
DELEGATION OF AUTHORITY
Memorandum of President of the United States, Feb.
10, 1992, 57 F.R. 24345, provided:
Memorandum for the Secretary of Health and Human
Services
Section 205(c)(2)(F) of the Social Security Act (section 405(c)(2)(F) of title 42 of the United States Code)
directs the Secretary of Health and Human Services to
issue Social Security number cards to individuals who
are assigned Social Security numbers.
By the authority vested in me as President by the
Constitution and the laws of the United States of
America, including section 274A(d)(3)(A) of the Immigration and Nationality Act (the ‘‘Act’’) (section
1324a(d)(3)(A) of title 8 of the United States Code) and
section 301 of title 3 of the United States Code, and in
order to provide for the delegation of certain functions
under the Act [8 U.S.C. 1101 et seq.], I hereby:
(1) Authorize you to prepare and transmit, to the
Committee on the Judiciary and the Committee on
Ways and Means of the House of Representatives and to
the Committee on the Judiciary and the Committee on
Finance of the Senate, a written report regarding the
substance of any proposed change in Social Security
number cards, to the extent required by section
274A(d)(3)(A) of the Act, and
(2) Authorize you to cause to have printed in the Federal Register the substance of any change in the Social
Security number card so proposed and reported to the
designated congressional committees, to the extent required by section 274A(d)(3)(A) of the Act.
The authority delegated by this memorandum may be
further redelegated within the Department of Health
and Human Services.
You are hereby authorized and directed to publish
this memorandum in the Federal Register.
GEORGE BUSH.
Authority of President under subsec. (d)(4) of this
section to undertake demonstration projects of different changes in requirements of employment verification system delegated to Attorney General by section
2 of Ex. Ord. No. 12781, Nov. 20, 1991, 56 F.R. 59203, set
out as a note under section 301 of Title 3, The President.
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,
§ 2, Jan. 16, 2002, 115 Stat. 2407; Pub. L. 108–156, §§ 2, 3,
Dec. 3, 2003, 117 Stat. 1944; Pub. L. 111–83, title V, §§ 547,
551, Oct. 28, 2009, 123 Stat. 2177, provided that:
‘‘SEC. 401. ESTABLISHMENT OF PROGRAMS.
‘‘(a) IN GENERAL.—The Secretary of Homeland Security shall conduct 3 pilot programs of employment eligibility confirmation under this subtitle.
‘‘(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 on September 30, 2012.
‘‘(c) SCOPE OF OPERATION OF PILOT PROGRAMS.—The
Secretary of Homeland Security shall provide for the
operation—
‘‘(1) of the E-Verify Program (described in section
403(a) of this division) in, at a minimum, 5 of the 7

§ 1324a

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) 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) 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.
‘‘(d) REFERENCES IN SUBTITLE.—In this subtitle—
‘‘(1) PILOT PROGRAM REFERENCES.—The terms ‘program’ or ‘pilot program’ refer to any of the 3 pilot
programs provided for under this subtitle.
‘‘(2) CONFIRMATION SYSTEM.—The term ‘confirmation system’ means the confirmation system established under section 404 of this division.
‘‘(3) REFERENCES TO SECTION 274A.—Any reference in
this subtitle to section 274A (or a subdivision of such
section) is deemed a reference to such section (or subdivision thereof) of the Immigration and Nationality
Act [8 U.S.C. 1324a].
‘‘(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) LIMITED APPLICATION TO RECRUITERS AND REFERRERS.—Any reference to recruitment or referral (or a
recruiter or referrer) in relation to employment is
deemed a reference only to such recruitment or referral (or recruiter or referrer) that is subject to section
274A(a)(1)(B)(ii).
‘‘(6) UNITED STATES CITIZENSHIP.—The term ‘United
States citizenship’ includes United States nationality.
‘‘(7) STATE.—The term ‘State’ has the meaning
given such term in section 101(a)(36) of the Immigration and Nationality Act [8 U.S.C. 1101(a)(36)].
‘‘SEC. 402. VOLUNTARY ELECTION TO PARTICIPATE
IN A PILOT PROGRAM.
‘‘(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.
‘‘(b) BENEFIT OF REBUTTABLE PRESUMPTION.—
‘‘(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) CONSTRUCTION.—Paragraph (1) shall not be construed as preventing a person or other entity that has
an election in effect under subsection (a) from establishing an affirmative defense under section
274A(a)(3) if the person or entity complies with the
requirements of section 274A(a)(1)(B) but fails to obtain confirmation under paragraph (1).
‘‘(c) GENERAL TERMS OF ELECTIONS.—
‘‘(1) IN GENERAL.—An election under subsection (a)
shall be in such form and manner, under such terms
and conditions, and shall take effect, as the 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.

§ 1324a

TITLE 8—ALIENS AND NATIONALITY

‘‘(2) SCOPE OF ELECTION.—
‘‘(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)—
‘‘(i) to all its hiring (and all recruitment or referral) in the State (or States) in which the pilot
program is operating, or
‘‘(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.
‘‘(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-readabledocument 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) 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.
‘‘(d) CONSULTATION, EDUCATION, AND PUBLICITY.—
‘‘(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) 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) 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—
‘‘(A) to inform persons and other entities that
seek information about pilot programs of the voluntary nature of such programs, and
‘‘(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.
‘‘(e) SELECT ENTITIES REQUIRED TO PARTICIPATE IN A
PILOT PROGRAM.—
‘‘(1) FEDERAL GOVERNMENT.—
‘‘(A) EXECUTIVE DEPARTMENTS.—
‘‘(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.
‘‘(ii) ELECTION.—Subject to clause (iii), the Secretary of each such Department—
‘‘(I) shall elect the pilot program (or programs) in which the Department shall participate, and
‘‘(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.

Page 356

‘‘(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—
‘‘(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
‘‘(II) there is significant participation by the
Federal Executive branch in each of the pilot
programs.
‘‘(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) 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) 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—
‘‘(A) such failure shall be treated as a violation of
section 274A(a)(1)(B) with respect to that individual, and
‘‘(B) a rebuttable presumption is created that the
person or entity has violated section 274A(a)(1)(A).
Subparagraph (B) shall not apply in any prosecution
under section 274A(f)(1).
‘‘(f) CONSTRUCTION.—This subtitle shall not affect the
authority of the Secretary of Homeland Security under
any other law (including section 274A(d)(4)) to conduct
demonstration projects in relation to section 274A.
‘‘SEC. 403. PROCEDURES FOR PARTICIPANTS IN
PILOT PROGRAMS.
‘‘(a) E-VERIFY PROGRAM.—A person or other entity
that elects to participate in the E-Verify 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) PROVISION OF ADDITIONAL INFORMATION.—The
person or entity shall obtain from the individual (and
the individual shall provide) and shall record on the
I–9 or similar form—
‘‘(A) the individual’s social security account number, if the individual has been issued such a number, and
‘‘(B) if the individual does not attest to United
States citizenship under section 274A(b)(2), such
identification or authorization number established
by the Immigration and Naturalization Service for
the alien as the 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) PRESENTATION OF DOCUMENTATION.—
‘‘(A) IN GENERAL.—The person or other entity, and
the individual whose identity and employment eligibility are being confirmed, shall, subject to subparagraph (B), fulfill the requirements of section
274A(b) with the following modifications:
‘‘(i) A document referred to in section
274A(b)(1)(B)(ii) (as redesignated by section 412(a)
of this division) must be designated by the Secretary of Homeland Security as suitable for the
purpose of identification in a pilot program.

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TITLE 8—ALIENS AND NATIONALITY

‘‘(ii) A document referred to in section
274A(b)(1)(D) must contain a photograph of the individual.
‘‘(iii) The person or other entity has complied
with the requirements of section 274A(b)(1) with
respect to examination of a document if the document reasonably appears on its face to be genuine
and it reasonably appears to pertain to the individual whose identity and work eligibility is
being confirmed.
‘‘(B) LIMITATION OF REQUIREMENT TO EXAMINE DOCUMENTATION.—If the Secretary of Homeland Security finds that a pilot program would reliably determine with respect to an individual whether—
‘‘(i) the person with the identity claimed by the
individual is authorized to work in the United
States, and
‘‘(ii) the individual is 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) SEEKING CONFIRMATION.—
‘‘(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).
‘‘(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) CONFIRMATION OR NONCONFIRMATION.—
‘‘(A) CONFIRMATION UPON INITIAL INQUIRY.—If the
person or other entity receives an appropriate confirmation of an individual’s identity and work eligibility under the confirmation system within the
time period specified under section 404(b) of this division, the person or entity shall record on the I–9
or similar form an appropriate code that is provided
under the system and that indicates a final confirmation of such identity and work eligibility of
the individual.
‘‘(B) NONCONFIRMATION UPON INITIAL INQUIRY AND
SECONDARY VERIFICATION.—
‘‘(i) NONCONFIRMATION.—If the person or other
entity receives a tentative nonconfirmation of an
individual’s identity or work eligibility under the
confirmation system within the time period specified under 404(b) of this division, the person or
entity shall so inform the individual for whom
the confirmation is sought.
‘‘(ii) NO CONTEST.—If the individual does not
contest the nonconfirmation within the time period specified in section 404(c) of this division, the
nonconfirmation shall be considered final. The
person or entity shall then record on the I–9 or
similar form an appropriate code which has been

§ 1324a

provided under the system to indicate a tentative
nonconfirmation.
‘‘(iii) CONTEST.—If the individual does contest
the nonconfirmation, the individual shall utilize
the process for secondary verification provided
under section 404(c) of this division. The nonconfirmation will remain tentative until a final confirmation or nonconfirmation is provided by the
confirmation system within the time period specified in such section. In no case shall an employer
terminate employment of an individual because
of a failure of the individual to have identity and
work eligibility confirmed under this section
until a nonconfirmation becomes final. Nothing
in this clause shall apply to a termination of employment for any reason other than because of
such a failure.
‘‘(iv) RECORDING OF CONCLUSION ON FORM.—If a
final confirmation or nonconfirmation is provided
by the confirmation system under section 404(c)
of this division regarding an individual, the person or entity shall record on the I–9 or similar
form an appropriate code that is provided under
the system and that indicates a confirmation or
nonconfirmation of identity and work eligibility
of the individual.
‘‘(C) CONSEQUENCES OF NONCONFIRMATION.—
‘‘(i) TERMINATION OR NOTIFICATION OF CONTINUED
EMPLOYMENT.—If the person or other entity has
received a final nonconfirmation regarding an individual under subparagraph (B), the person or
entity may terminate employment (or recruitment or referral) of the individual. If the person
or entity does not terminate employment (or recruitment or referral) of the individual, the person or entity shall notify the Secretary of Homeland Security of such fact through the confirmation system or in such other manner as the Secretary of Homeland Security may specify.
‘‘(ii) FAILURE TO NOTIFY.—If the person or entity
fails to provide notice with respect to an individual as required under clause (i), the failure is
deemed to constitute a violation of section
274A(a)(1)(B) with respect to that individual and
the applicable civil monetary penalty under section 274A(e)(5) shall be (notwithstanding the
amounts specified in such section) no less than
$500 and no more than $1,000 for each individual
with respect to whom such violation occurred.
‘‘(iii) CONTINUED EMPLOYMENT AFTER FINAL NONCONFIRMATION.—If the person or other entity continues to employ (or to recruit or refer) an individual after receiving final nonconfirmation, a rebuttable presumption is created that the person
or entity has violated section 274A(a)(1)(A). The
previous sentence shall not apply in any prosecution under section 274A(f)(1).
‘‘(b) CITIZEN ATTESTATION PILOT PROGRAM.—
‘‘(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 E-Verify Program under subsection (a).
‘‘(2) RESTRICTIONS.—
‘‘(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—
‘‘(i) contains a photograph of the individual involved, and
‘‘(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.

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TITLE 8—ALIENS AND NATIONALITY

‘‘(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) 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)—
‘‘(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
‘‘(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) WAIVER OF DOCUMENT PRESENTATION REQUIREMENT IN CERTAIN CASES.—
‘‘(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).
‘‘(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) 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.
‘‘(c) MACHINE-READABLE-DOCUMENT PILOT PROGRAM.—
‘‘(1) IN GENERAL.—Except as provided in paragraph
(3), the procedures applicable under the machinereadable-document pilot program under this subsection shall be the same procedures as those under
the E-Verify Program under subsection (a).
‘‘(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) 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

Page 358

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.
‘‘(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.
‘‘SEC. 404. EMPLOYMENT ELIGIBILITY CONFIRMATION SYSTEM.
‘‘(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) 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) 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.
‘‘(b) INITIAL RESPONSE.—The confirmation system
shall provide confirmation or a tentative nonconfirmation of an individual’s identity and employment eligibility within 3 working days of the initial inquiry. If
providing confirmation or tentative nonconfirmation,
the confirmation system shall provide an appropriate
code indicating such confirmation or such nonconfirmation.
‘‘(c) SECONDARY VERIFICATION PROCESS IN CASE OF
TENTATIVE NONCONFIRMATION.—In cases of tentative
nonconfirmation, the 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.
‘‘(d) DESIGN AND OPERATION OF SYSTEM.—The confirmation system shall be designed and operated—
‘‘(1) to maximize its reliability and ease of use by
persons and other entities making elections under
section 402(a) of this division consistent with insulating and protecting the privacy and security of the underlying information;
‘‘(2) to respond to all inquiries made by such persons and entities on whether individuals are authorized to be employed and to register all times when
such inquiries are not received;
‘‘(3) with appropriate administrative, technical, and
physical safeguards to prevent unauthorized disclosure of personal information; and
‘‘(4) to have reasonable safeguards against the system’s resulting in unlawful discriminatory practices
based on national origin or citizenship status, including—
‘‘(A) the selective or unauthorized use of the system to verify eligibility;
‘‘(B) the use of the system prior to an offer of employment; or
‘‘(C) the exclusion of certain individuals from
consideration for employment as a result of a perceived likelihood that additional verification will

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TITLE 8—ALIENS AND NATIONALITY

be required, beyond what is required for most job
applicants.
‘‘(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).
‘‘(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.
‘‘(g) UPDATING INFORMATION.—The Commissioners of
Social Security and the Immigration and Naturalization Service shall update their information in a manner that promotes the maximum accuracy and shall
provide a process for the prompt correction of erroneous information, including instances in which it is
brought to their attention in the secondary verification
process described in subsection (c).
‘‘(h) LIMITATION ON USE OF THE CONFIRMATION SYSTEM
AND ANY RELATED SYSTEMS.—
‘‘(1) IN GENERAL.—Notwithstanding any other provision of law, nothing in this subtitle shall be construed to permit or allow any department, bureau, or
other agency of the United States Government to utilize any information, data base, or other records assembled under this subtitle for any other purpose
other than as provided for under this subtitle.
‘‘(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.
‘‘SEC. 405. REPORTS.
‘‘(a) IN GENERAL.—The Secretary of Homeland Security shall submit to the Committees on the Judiciary
of the House of Representatives and of the Senate reports on the pilot programs within 3 months after the
end of the third and fourth years in which the programs
are in effect. Such reports shall—
‘‘(1) assess the degree of fraudulent attesting of
United States citizenship,
‘‘(2) include recommendations on whether or not
the pilot programs should be continued or modified,
and
‘‘(3) assess the benefits of the pilot programs to employers and the degree to which they assist in the enforcement of section 274A.
‘‘(b) REPORT ON EXPANSION.—Not later than June 1,
2004, the Secretary of Homeland Security shall submit
to the Committees on the Judiciary of the House of
Representatives and the Senate a report—
‘‘(1) evaluating whether the problems identified by
the report submitted under subsection (a) have been
substantially resolved; and
‘‘(2) describing what actions the Secretary of Homeland Security shall take before undertaking the ex-

§ 1324a

pansion of the E-Verify Program to all 50 States in
accordance with section 401(c)(1), in order to resolve
any outstanding problems raised in the report filed
under subsection (a).’’
[Pub. L. 110–329, div. A, § 143, Sept. 30, 2008, 122 Stat.
3580, as amended by Pub. L. 111–8, div. J, § 101, Mar. 11,
2009, 123 Stat. 988, provided that: ‘‘Section 401(b) of the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996 [Pub. L. 104–208] (8 U.S.C. 1324a note)
shall be applied by substituting [‘]September 30, 2009[’]
for ‘the 11-year period beginning on the first day the
pilot program is in effect’.’’]
[Pub. L. 107–128, § 3, Jan. 16, 2002, 115 Stat. 2407, provided that: ‘‘The amendment made by this Act [amending section 401(b) of Pub. L. 104–208, set out above] shall
take effect on the date of the enactment of this Act
[Jan. 16, 2002].’’]
REPORT ON ADDITIONAL AUTHORITY OR RESOURCES
NEEDED FOR ENFORCEMENT OF EMPLOYER SANCTIONS
PROVISIONS
Pub. L. 104–208, div. C, title IV, § 413(a), Sept. 30, 1996,
110 Stat. 3009–668, as amended by Pub. L. 108–156, § 3(d),
Dec. 3, 2003, 117 Stat. 1945, provided that not later than
1 year after Sept. 30, 1996, the Secretary of Homeland
Security was to submit to the Committees on the Judiciary of the House of Representatives and of the Senate
a report on any additional authority or resources needed by the Immigration and Naturalization Service in
order to enforce section 1324a of this title, or by Federal agencies in order to carry out Ex. Ord. No. 12989,
set out below, and to expand the restrictions in such
order to cover agricultural subsidies, grants, job training programs, and other Federally subsidized assistance
programs.
PILOT PROJECTS FOR SECURE DOCUMENTS
Pub. L. 101–238, § 5, Dec. 18, 1989, 103 Stat. 2104, provided that:
‘‘(a) CONSULTATION.—Before June 1, 1991, the Attorney
General shall consult with State governments on any
proper State initiative to improve the security of State
or local documents which would satisfy the requirements of section 274A(b)(1) of the Immigration and Nationality Act (8 U.S.C. 1324a). The result of such consultations shall be reported, before September 1, 1991,
to the Committees on the Judiciary of the Senate and
House of Representatives of the United States.
‘‘(b) ASSISTANCE FOR STATE INITIATIVES.—After such
consultation described in subsection (a), the Attorney
General shall make grants to, and enter into contracts
with (to such extent or in such amounts as are provided
in an appropriation Act), the State of California and at
least 2 other States with large immigrant populations
to promote any State initiatives to improve the security of State or local documents which would satisfy
the requirements of section 274A(b)(1) of the Immigration and Nationality Act [8 U.S.C. 1324a(b)(1)].
‘‘(c) AUTHORIZATION OF APPROPRIATIONS.—There are
authorized to be appropriated to the Attorney General
$10,000,000 for fiscal year 1992 to carry out subsection
(b).
‘‘(d) REPORT REQUIRED.—The Attorney General shall
report to the Committees on the Judiciary of the Senate and House of Representatives not later than August
1, 1993, on the security of State or local documents
which would satisfy the requirements of section
274A(b)(1) of the Immigration and Nationality Act (8
U.S.C. 1324a), and any improvements in such documents
that have occurred as a result of this section.’’
INTERIM REGULATIONS
Section 101(a)(2) of Pub. L. 99–603 provided that: ‘‘The
Attorney General shall, not later than the first day of
the seventh month beginning after the date of the enactment of this Act [Nov. 6, 1986], first issue, on an interim or other basis, such regulations as may be necessary in order to implement this section [enacting this
section, amending sections 1802, 1813, 1816, and 1851 of

§ 1324a

TITLE 8—ALIENS AND NATIONALITY

Title 29, Labor, and enacting provisions set out as
notes under this section, section 1802 of Title 29, and
section 405 of Title 42, The Public Health and Welfare].’’
GRANDFATHER PROVISION FOR CURRENT EMPLOYEES
Section 101(a)(3) of Pub. L. 99–603 provided that:
‘‘(A) Section 274A(a)(1) of the Immigration and Nationality Act [8 U.S.C. 1324a(a)(1)] shall not apply to
the hiring, or recruiting or referring of an individual
for employment which has occurred before the date of
the enactment of this Act [Nov. 6, 1986].
‘‘(B) Section 274A(a)(2) of the Immigration and Nationality Act shall not apply to continuing employment of an alien who was hired before the date of the
enactment of this Act.’’
STUDY OF USE OF TELEPHONE
FOR DETERMINING EMPLOYMENT

VERIFICATION SYSTEM
ELIGIBILITY OF ALIENS

Section 101(d) of Pub. L. 99–603 provided that:
‘‘(1) The Attorney General, in consultation with the
Secretary of Labor and the Secretary of Health and
Human Services, shall conduct a study for use by the
Department of Justice in determining employment eligibility of aliens in the United States. Such study shall
concentrate on those data bases that are currently
available to the Federal Government which through
the use of a telephone and computation capability
could be used to verify instantly the employment eligibility status of job applicants who are aliens.
‘‘(2) Such study shall be conducted in conjunction
with any existing Federal program which is designed
for the purpose of providing information on the resident or employment status of aliens for employers. The
study shall include an analysis of costs and benefits
which shows the differences in costs and efficiency of
having the Federal Government or a contractor perform this service. Such comparisons should include reference to such technical capabilities as processing
techniques and time, verification techniques and time,
back up safeguards, and audit trail performance.
‘‘(3) Such study shall also concentrate on methods of
phone verification which demonstrate the best safety
and service standards, the least burden for the employer, the best capability for effective enforcement,
and procedures which are within the boundaries of the
Privacy Act of 1974 [5 U.S.C. 552a, 552a note].
‘‘(4) Such study shall be conducted within twelve
months of the date of enactment of this Act [Nov. 6,
1986].
‘‘(5) The Attorney General shall prepare and transmit
to the Congress a report—
‘‘(A) not later than six months after the date of enactment of this Act, describing the status of such
study; and
‘‘(B) not later than twelve months after such date,
setting forth the findings of such study.’’
FEASIBILITY STUDY OF SOCIAL SECURITY NUMBER
VALIDATION SYSTEM
Section 101(e) of Pub. L. 99–603 provided that: ‘‘The
Secretary of Health and Human Services, acting
through the Social Security Administration and in cooperation with the Attorney General and the Secretary
of Labor, shall conduct a study of the feasibility and
costs of establishing a social security number validation system to assist in carrying out the purposes of
section 274A of the Immigration and Nationality Act [8
U.S.C. 1324a], and of the privacy concerns that would be
raised by the establishment of such a system. The Secretary shall submit to the Committees on Ways and
Means and Judiciary of the House of Representatives
and to the Committees on Finance and Judiciary of the
Senate, within 2 years after the date of the enactment
of this Act [Nov. 6, 1986], a full and complete report on
the results of the study together with such recommendations as may be appropriate.’’
REPORTS ON UNAUTHORIZED ALIEN EMPLOYMENT
Section 402 of Pub. L. 99–603 provided that: ‘‘The
President shall transmit to Congress annual reports on

Page 360

the implementation of section 274A of the Immigration
and Nationality Act [8 U.S.C. 1324a] (relating to unlawful employment of aliens) during the first three years
after its implementation. Each report shall include—
‘‘(1) an analysis of the adequacy of the employment
verification system provided under subsection (b) of
that section;
‘‘(2) a description of the status of the development
and implementation of changes in that system under
subsection (d) of that section, including the results of
any demonstration projects conducted under paragraph (4) of such subsection; and
‘‘(3) an analysis of the impact of the enforcement of
that section on—
‘‘(A) the employment, wages, and working conditions of United States workers and on the economy
of the United States,
‘‘(B) the number of aliens entering the United
States illegally or who fail to maintain legal status
after entry, and
‘‘(C) the violation of terms and conditions of nonimmigrant visas by foreign visitors.’’
[Functions of President under section 402 of Pub. L.
99–603 delegated to Secretary of Homeland Security, except functions in section 402(3)(A) which were delegated
to Secretary of Labor, by sections 1(b) and 2(a) of Ex.
Ord. No. 12789, Feb. 10, 1992, 57 F.R. 5225, as amended,
set out as a note under section 1364 of this title.]
EX. ORD. NO. 12989. ECONOMY AND EFFICIENCY IN GOVERNMENT PROCUREMENT THROUGH COMPLIANCE WITH
CERTAIN IMMIGRATION AND NATIONALITY ACT PROVISIONS AND USE OF AN ELECTRONIC EMPLOYMENT ELIGIBILITY VERIFICATION SYSTEM
Ex. Ord. No. 12989, Feb. 13, 1996, 61 F.R. 6091, as
amended by Ex. Ord. No. 13286, § 19, Feb. 28, 2003, 68 F.R.
10623; Ex. Ord. No. 13465, §§ 1–6, June 6, 2008, 73 F.R.
33285–33287, provided:
This order is designed to promote economy and efficiency in Federal Government procurement. Stability
and dependability are important elements of economy
and efficiency. A contractor whose workforce is less
stable will be less likely to produce goods and services
economically and efficiently than a contractor whose
workforce is more stable. It is the policy of the executive branch to enforce fully the immigration laws of
the United States, including the detection and removal
of illegal aliens and the imposition of legal sanctions
against employers that hire illegal aliens. Because of
the worksite enforcement policy of the United States
and the underlying obligation of the executive branch
to enforce the immigration laws, contractors that employ illegal aliens cannot rely on the continuing availability and service of those illegal workers, and such
contractors inevitably will have a less stable and less
dependable workforce than contractors that do not employ such persons. Where a contractor assigns illegal
aliens to work on Federal contracts, the enforcement of
Federal immigration laws imposes a direct risk of disruption, delay, and increased expense in Federal contracting. Such contractors are less dependable procurement sources, even if they do not knowingly hire or
knowingly continue to employ unauthorized workers.
Contractors that adopt rigorous employment eligibility confirmation policies are much less likely to face
immigration enforcement actions, because they are
less likely to employ unauthorized workers, and they
are therefore generally more efficient and dependable
procurement sources than contractors that do not employ the best available measures to verify the work eligibility of their workforce. It is the policy of the executive branch to use an electronic employment verification system because, among other reasons, it provides
the best available means to confirm the identity and
work eligibility of all employees that join the Federal
workforce. Private employers that choose to contract
with the Federal Government should meet the same
standard.
I find, therefore, that adherence to the general policy
of contracting only with providers that do not know-

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TITLE 8—ALIENS AND NATIONALITY

ingly employ unauthorized alien workers and that have
agreed to utilize an electronic employment verification
system designated by the Secretary of Homeland Security to confirm the employment eligibility of their
workforce will promote economy and efficiency in Federal procurement.
NOW, THEREFORE, to ensure the economical and efficient administration and completion of Federal Government contracts, and by the authority vested in me
as President by the Constitution and the laws of the
United States of America, including subsection 121(a)
of title 40 and section 301 of title 3, United States Code,
it is hereby ordered as follows:
SECTION 1. (a) It is the policy of the executive branch
in procuring goods and services that, to ensure the economical and efficient administration and completion of
Federal Government contracts, contracting agencies
should not contract with employers that have not complied with section 274A(a)(1)(A) and 274A(a)(2) of the
Immigration
and
Nationality
Act
(8
U.S.C.
1324a(a)(1)(A), 1324a(a)(2)) (the ‘‘INA employment provisions’’) prohibiting the unlawful employment of aliens.
(b) It is the policy of the executive branch in procuring goods and services that, to ensure the economical
and efficient administration and completion of Federal
Government contracts, contracting agencies may not
enter into contracts with employers that do not use the
best available means to confirm the work authorization
of their workforce.
(c) It is the policy of the executive branch to enforce
fully the antidiscrimination provisions of the INA.
Nothing in this order relieves employers of antidiscrimination obligations under section 274B of the
INA (8 U.S.C. 1324b) or any other law.
(d) All discretion under this order shall be exercised
consistent with the policies set forth in this section.
SEC. 2. Contractor, as used in this Executive order,
shall have the same meaning as defined in subpart 9.4
of the Federal Acquisition Regulation.
SEC. 3. Using the procedures established pursuant to
8 U.S.C. 1324a(e): (a) the Secretary of Homeland Security may investigate to determine whether a contractor or an organizational unit thereof is not in compliance with the INA employment provisions;
(b) the Secretary of Homeland Security shall receive
and may investigate complaints by employees of any
entity covered under section 3(a) of this order where
such complaints allege noncompliance with the INA
employment provisions; and
(c) the Attorney General shall hold such hearings as
are required under 8 U.S.C. 1324a(e) to determine
whether an entity covered under section 3(a) is not in
compliance with the INA employment provisions.
SEC. 4. (a) Whenever the Secretary of Homeland Security or the Attorney General determines that a contractor or an organizational unit thereof is not in compliance with the INA employment provisions, the Secretary of Homeland Security or the Attorney General
shall transmit that determination to the appropriate
contracting agency and such other Federal agencies as
the Secretary of Homeland Security or the Attorney
General may determine. Upon receipt of such determination from the Secretary of Homeland Security or
the Attorney General, the head of the appropriate contracting agency shall consider the contractor or an organizational unit thereof for debarment as well as for
such other action as may be appropriate in accordance
with the procedures and standards prescribed by the
Federal Acquisition Regulation.
(b) The head of the contracting agency may debar the
contractor or an organizational unit thereof based on
the determination of the Secretary of Homeland Security or the Attorney General that it is not in compliance with the INA employment provisions. Such determination shall not be reviewable in the debarment proceedings.
(c) The scope of the debarment generally should be
limited to those organizational units of a Federal contractor that the Secretary of Homeland Security or the
Attorney General finds are not in compliance with the
INA employment provisions.

§ 1324a

(d) The period of the debarment shall be for 1 year
and may be extended for additional periods of 1 year if,
using the procedures established pursuant to 8 U.S.C.
1324a(e), the Secretary of Homeland Security or the Attorney General determines that the organizational unit
of the Federal contractor continues to be in violation
of the INA employment provisions.
(e) The Administrator of General Services shall list a
debarred contractor or an organizational unit thereof
on the List of Parties Excluded from Federal Procurement and Nonprocurement Programs and the contractor or an organizational unit thereof shall be ineligible
to participate in any procurement or nonprocurement
activities.
SEC. 5. (a) Executive departments and agencies that
enter into contracts shall require, as a condition of
each contract, that the contractor agree to use an electronic employment eligibility verification system designated by the Secretary of Homeland Security to verify the employment eligibility of: (i) all persons hired
during the contract term by the contractor to perform
employment duties within the United States; and (ii)
all persons assigned by the contractor to perform work
within the United States on the Federal contract.
(b) The Secretary of Homeland Security:
(i) shall administer, maintain, and modify as necessary and appropriate the electronic employment eligibility verification system designated by the Secretary under subsection (a) of this section; and
(ii) may establish with respect to such electronic employment verification system:
(A) terms and conditions for use of the system; and
(B) procedures for monitoring the use, failure to
use, or improper use of the system.
(c) The Secretary of Defense, the Administrator of
General Services, and the Administrator of the National Aeronautics and Space Administration shall
amend the Federal Acquisition Regulation to the extent necessary and appropriate to implement the debarment responsibility, the employment eligibility verification responsibility, and other related responsibilities assigned to heads of departments and agencies
under this order.
(d) Except to the extent otherwise specified by law or
this order, the Secretary of Homeland Security and the
Attorney General:
(i) shall administer and enforce this order; and
(ii) may, after consultation to the extent appropriate
with the Secretary of Defense, the Secretary of Labor,
the Administrator of General Services, the Administrator of the National Aeronautics and Space Administration, the Administrator for Federal Procurement
Policy, and the heads of such other departments or
agencies as may be appropriate, issue such rules, regulations, or orders, or establish such requirements, as
may be necessary and appropriate to implement this
order.
SEC. 6. Each contracting department and agency shall
cooperate with and provide such information and assistance to the Secretary of Homeland Security and the
Attorney General as may be required in the performance of their respective functions under this order.
SEC. 7. The Secretary of Homeland Security, the Attorney General, the Secretary of Defense, the Administrator of General Services, the Administrator of the
National Aeronautics and Space Administration, and
the heads of contracting departments and agencies may
delegate any of their functions or duties under this
order to any officer or employee of their respective departments or agencies.
SEC. 8. (a) This order shall be implemented in a manner intended to minimize the burden on participants in
the Federal procurement process.
(b) This order shall be implemented in a manner consistent with the protection of intelligence and law enforcement sources, methods, and activities from unauthorized disclosure.
SEC. 9. (a) Nothing in this order shall be construed to
impair or otherwise affect:
(i) authority granted by law to a department or agency or the head thereof; or

§ 1324b

TITLE 8—ALIENS AND NATIONALITY

(ii) functions of the Director of the Office of Management and Budget relating to budget, administrative, or
legislative proposals.
(b) This order shall be implemented consistent with
applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create
any right or benefit, substantive or procedural, enforceable at law or in equity, by any party against the
United States, its departments, agencies or entities, its
officers, employees, or agents, or any other person.

§ 1324b. Unfair immigration-related employment
practices
(a) Prohibition of discrimination based on national origin or citizenship status
(1) General rule
It is an unfair immigration-related employment practice for a person or other entity to
discriminate against any individual (other
than an unauthorized alien, as defined in section 1324a(h)(3) of this title) with respect to
the hiring, or recruitment or referral for a fee,
of the individual for employment or the discharging of the individual from employment—
(A) because of such individual’s national
origin, or
(B) in the case of a protected individual (as
defined in paragraph (3)), because of such individual’s citizenship status.
(2) Exceptions
Paragraph (1) shall not apply to—
(A) a person or other entity that employs
three or fewer employees,
(B) a person’s or entity’s discrimination
because of an individual’s national origin if
the discrimination with respect to that person or entity and that individual is covered
under section 703 of the Civil Rights Act of
1964 [42 U.S.C. 2000e–2], or
(C) discrimination because of citizenship
status which is otherwise required in order
to comply with law, regulation, or executive
order, or required by Federal, State, or local
government contract, or which the Attorney
General determines to be essential for an
employer to do business with an agency or
department of the Federal, State, or local
government.
(3) ‘‘Protected individual’’ defined
As used in paragraph (1), the term ‘‘protected individual’’ means an individual who—
(A) is a citizen or national of the United
States, or
(B) is an alien who is lawfully admitted for
permanent residence, is granted the status
of an alien lawfully admitted for temporary
residence under section 1160(a) or 1255a(a)(1)
of this title, is admitted as a refugee under
section 1157 of this title, or is granted asylum under section 1158 of this title; but does
not include (i) an alien who fails to apply for
naturalization within six months of the date
the alien first becomes eligible (by virtue of
period of lawful permanent residence) to
apply for naturalization or, if later, within
six months after November 6, 1986, and (ii)
an alien who has applied on a timely basis,
but has not been naturalized as a citizen
within 2 years after the date of the applica-

Page 362

tion, unless the alien can establish that the
alien is actively pursuing naturalization, except that time consumed in the Service’s
processing the application shall not be
counted toward the 2-year period.
(4) Additional exception providing right to prefer equally qualified citizens
Notwithstanding any other provision of this
section, it is not an unfair immigration-related employment practice for a person or other
entity to prefer to hire, recruit, or refer an individual who is a citizen or national of the
United States over another individual who is
an alien if the two individuals are equally
qualified.
(5) Prohibition of intimidation or retaliation
It is also an unfair immigration-related employment practice for a person or other entity
to intimidate, threaten, coerce, or retaliate
against any individual for the purpose of
interfering with any right or privilege secured
under this section or because the individual
intends to file or has filed a charge or a complaint, testified, assisted, or participated in
any manner in an investigation, proceeding, or
hearing under this section. An individual so
intimidated, threatened, coerced, or retaliated
against shall be considered, for purposes of
subsections (d) and (g) of this section, to have
been discriminated against.
(6) Treatment of certain documentary practices as employment practices
A person’s or other entity’s request, for purposes of satisfying the requirements of section
1324a(b) of this title, for more or different documents than are required under such section
or refusing to honor documents tendered that
on their face reasonably appear to be genuine
shall be treated as an unfair immigration-related employment practice if made for the
purpose or with the intent of discriminating
against an individual in violation of paragraph
(1).
(b) Charges of violations
(1) In general
Except as provided in paragraph (2), any person alleging that the person is adversely affected directly by an unfair immigration-related employment practice (or a person on
that person’s behalf) or an officer of the Service alleging that an unfair immigration-related employment practice has occurred or is occurring may file a charge respecting such
practice or violation with the Special Counsel
(appointed under subsection (c) of this section). Charges shall be in writing under oath
or affirmation and shall contain such information as the Attorney General requires. The
Special Counsel by certified mail shall serve a
notice of the charge (including the date, place,
and circumstances of the alleged unfair immigration-related employment practice) on the
person or entity involved within 10 days.
(2) No overlap with EEOC complaints
No charge may be filed respecting an unfair
immigration-related employment practice described in subsection (a)(1)(A) of this section if