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§ 1324a. Unlawful employment of aliens*The following is an exact duplicate of the law taken from http://www.law.cornell.edu/uscode/
(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
(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
(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)].
(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.
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