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.