8 U.S.C. § 1324a : US Code - Section 1324A: Unlawful employment of aliens

Search 8 U.S.C. § 1324a : US Code - Section 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 accordance 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.
        (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 reasonably 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 employment 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 - 
            (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.
        (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 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)) 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. 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 individual 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 immigration-related 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 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.