In order to prevent future waves of illegal immigration, this proposal recognizes that no matter what we do on the border, our ports of entry, and in the interior, we will not be completely effective unless we can prevent the hiring, recruitment, or referral of unauthorized aliens in America’s workplaces. Jobs are what draw illegal immigrants to the United States.
Not later than 18 months after the date of enactment of this proposal, the Social Security Administration will begin issuing biometric social security cards. These cards will be fraud-resistant, tamper-resistant, wear resistant, and machine-readable social security cards containing a photograph and an electronically coded micro-processing chip which possesses a unique biometric identifier for the authorized card-bearer.
The card will also possess the following characteristics: (1) biometric identifiers, in the form of templates, that definitively tie the individual user to the identity credential; (2) electronic authentication capability; (3) ability to verify the individual locally without requiring every employer to access a biometric database; (4) offline verification capability (eliminating the need for 24-hour, 7-days-per-week online databases); (5) security features that protect the information stored on the card; (6) privacy protections that allow the user to control who is able to access the data on the card; (7) compliance with authentication and biometric standards recognized by domestic and international standards organizations. The new biometric social security card shall enable the following outcomes: (1) permit the individual cardholder to control who can access their information; (2) allow electronic authentication of the credential to determine work authorization; and (3) possession of scalability of authentication capability depending on the requirement of the application.
Possession of a fraud-proof social security card will only serve as evidence of lawful work-authorization but will in no way be permitted to serve—or shall be required to be shown—as proof of citizenship or lawful immigration status. It will be unlawful for any person, corporation; organization local, state, or federal law enforcement officer; local or state government; or any other entity to require or even ask an individual cardholder to produce their social security card for any purpose other than electronic verification of employment eligibility and verification of identity for Social Security Administration purposes. No personal information will be stored on the electronic chip contained within the social security card other than the individual’s name, date of birth, social security number, and unique biometric identifier. Under no circumstances will any other information, including medical information or position-tracking information, be contained within the card.
The Secretary of Homeland Security shall work with other agencies to secure enrollment locations at sites operated by the federal government.
Prior to issuing an individual a new fraud-proof social security card, the Social Security Administration will be required to verify the individual’s identity and employment eligibility by asking for production of acceptable documents to be provided by the individual as proof of identity and employment eligibility. The Secretary of Homeland Security will work with the Commissioner of the Social Security Administration to verify non-citizens’ employment authorization. SSA will also be required to engage in background screening verification techniques currently used by private corporations that use publicly available information that can be derived from the individual’s social security number. An administrative adjudication process can be invoked in the event that an individual is unable to establish his or her identity or lawful immigration status. Adverse decisions can be reviewed in the federal courts. There will be a multi-stage process of re-verification if an individual claims he lost his previously issued fraud-proof social security card to ensure that there is no identity-theft or unlawful collaboration of identity. There will also be a multi-stage process for resolution of proper identity if an individual claims an identity tied to a social security number that has been claimed by another individual. Tough penalties will be put in place for fraud in procurement of a fraud-proof social security card. The same penalties shall apply for conspiracy to commit fraud if false information is intentionally provided.
Employers hiring workers in the future will be required to use the newly created Biometric Enrollment, Locally-stored Information, and Electronic Verification of Employment (BELIEVE) System as a means of verification. There will be strict employer penalties for failure to participate in the BELIEVE system after being notified of a requirement to do so by the Secretary of Homeland Security or after the BELIEVE system has been fully implemented nationwide such that it is required to be used by all employers. Prospective employees will present a machine-readable, fraud proof, biometric Social Security card to their employers, who will swipe the cards through a card-reader to confirm the cardholder’s identity and work authorization. The cardholder’s work authorization will be verified by matching a digital encryption key contained within the card to a digital encryption key contained within the work authorization database being searched. The cardholder’s identity will be verified by matching the biometric identifier stored within the micro-processing chip on the card to the identifier provided by the cardholder that shall be read by the scanner used by the employer.
During the transition period from the current employment verification system to the BELIEVE System, all current employment verification laws applying to employers, including all laws currently pertaining to E-Verify, will be extended until such time as a particular employer is notified of a requirement to verify their employees using the BELIEVE system or until after the BELIEVE system has been implemented nationwide such that it is required to be used by all employers. When the BELIEVE system is deployed nationwide current employment verification laws will sunset. This date is estimated to occur six (6) years after the date of enactment.
Employers will be permitted to voluntarily verify their employees by using the BELIEVE system, even if it is before the date they are required by law to use the system. DHS shall require expedited participation in the BELIEVE system for certain employers who: (1) are in an industry which the Secretary knows or has reason to believe has a high rate of employment of aliens who are not authorized for employment in the United States; (2) have access to locations or information directly related to national security; or (3) who have engaged in material violations of the law. DHS will provide ample notice to those employers required to participate on an expedited basis and will provide clear guidance to employers as to the process for informing employees of the need to obtain a new social security card and the process for enrolling in the BELIEVE system. DHS will provide a reasonable time period for employers to verify that all employees have been confirmed as authorized for employment by the BELIEVE system. The federal government will be required to use the BELIEVE system as the sole employment verification system within three (3) years after the date of enactment and federal contractors will be required to use the BELIEVE system within four (4) years after the date of enactment.
Within five (5) years of the date of enactment, the fraud-proof social security card will serve as the sole acceptable document to be produced by an employee to an employer for employment verification purposes. This requirement will exist even if the employer does not yet possess the capability to electronically verify the employee by scanning the card through a card reader. In that circumstance, the employer’s sole responsibility shall be to obtain a photocopy of both sides of the card and maintain that document for inspection by the Secretary. But all businesses will be required to possess electronic scanning capability within six (6) years after the date of enactment. If a business is unwilling or unable to scan an employee on its own, government-certified, private sector providers will be permitted to conduct verification of an employer’s employees. All private sector providers will be required to post a $150,000 financial bond to the Secretary as a requirement for certification. There will be annual auditing and undercover investigations of private sector providers to ensure that they are operating as required by law. For businesses that do not want to use a private provider, DHS and SSA shall promulgate regulations authorizing the use of United States Post Offices or other local government offices as locations where individuals may be verified for employment eligibility.
The following procedures will govern the employment verification process for a particular worker. Employers will swipe the biometric society security card through a card reader for all new hires no sooner than the date of hire and no later than the third business day after the employee has reported for duty, or no later than the first day following recruitment for employment or any time an employee requests to provide self-verification. The BELIEVE system will respond to each inquiry as soon as possible but no later than 24 hours after receiving the inquiry. Employers will notify the employee of the response within 24 hours of receiving the system response. If there is a denial, employers will provide employees with a notice, in written form developed by the Commissioner, which states the reason for the denial, the right to contest the denial, and contact information for initiating a contest of the denial. Employees may contest any initial disapproval within 10 days of its receipt. If the system is unable to confirm the employee’s work authorization, employees will have 30 days to file an administrative review of a work disapproval under procedures developed by SSA and DHS. They will also have an opportunity to seek judicial review within 30 days of receiving the final determination of the administrative review. Employees will be provided lost wages when a determination is reached that the disapproval was caused by erroneous system information and not by an act or omission of the employee. Employees will be provided with a private right of action against the employer when a determination is reached that the disapproval was caused by an act or negligence on the part of the employer.
SSA and DHS will be required to establish procedures to maintain the accuracy and integrity of the system. Also, a public education campaign and registrant training will be developed in consultation with the Department of Health and Human Services and the States –within 6 months before the first date of registration. Minimum system requirements will be established to ensure efficiency, accuracy, and privacy. Several of those measures include: a mechanism for employers to attest to their compliance; audits of employer use of the system; timely entry and access of all data; a method to correct relevant data held within the system; secure procedures for individuals to examine their records, request expedited corrections of errors, and appeal disapprovals; procedures limiting agency and contractor personnel to enter data; and 24-hour Internet and telephone help desk.
An annual report will be submitted to Congress by SSA, no later than 24 months following full implementation of the BELIEVE System, which provides a certified determination of the percentage of inquiries that result in an initial or final disapproval within the applicable timeframe and that were not overturned on appeal. If the percentage is less than 99 percent the Commissioner must detail the steps being taken to bring the percentage to 99 percent, with specified timeframes. Further, the Commissioner must provide an assessment of the privacy and security of the BELIEVE system and employer compliance with the system’s rules. Only the absolute minimum amount of data necessary to accomplish employment verification and detect and prevent employment related identity theft shall be stored in the database. Storing of biometric data stored in the fraud-proof social security card in any government database will be prohibited under all circumstances. Any office, employee, or contractor shall be punished for willfully and knowingly using information in a manner other than prescribed in the law. SSA will establish procedures whereby an individual may block and remove a block on the use of their Social Security Card for any employment verification purpose until such time as they unblock their card.
Protections will be put in place to prevent misuse of the system. Employers will be prohibited from using the BELIEVE system to selectively verify a class, level, or category of new employees and we will allow employers with multiple locations to verify employees at selected locations without verifying at all locations. Officers, employees, and contractors will face strict penalties for willfully and knowingly using information in a manner other than prescribed in the law. Restitution will be available to victims of a violation of the BELIEVE system, including those who have suffered a financial loss due to an improper disclosure of information. Restitution issued to the Commissioner shall be deposited in the Social Security trust funds. It will be an unfair immigration-related employment practice to: terminate or to take any adverse employment related action unless authorized or required to do so by this Act or by the Secretary; screen an applicant prior to an offer of employment; to use the system on current employees unless required to do so by the Secretary; or to require an individual to self-verify unless permitted by the Secretary. There will be substantial civil monetary penalties for violations of this section.
Employers will be protected from liability for employment related actions taken with respect to an employee in response to information provided by the BELIEVE system. SSA in conjunction with DHS will provide proof of verification via the BELIEVE system to employers that they can produce to the Secretary to show compliance upon request. In addition, all state and local immigration or employment verification laws will be preempted by federal immigration law. There will be an Employment Verification Advisory Panel consisting of experts and representatives from affected industries, including human resources, employer and employee organizations, and those in the database and biometric technology industries that will advise the Government on the implementation, deployment, and security of the BELIEVE System. The Government Accountability Office will also be required to conduct a study and submit a report every two years following the date of enactment in order to evaluate the accuracy, efficiency, integrity and impact of the BELIEVE system.
To make the system air tight, the proposal substantially increases civil monetary penalties by 300 percent for violations of knowingly hiring someone not authorized for employment or hiring without verifying employment eligibility, continuing to employ an unauthorized alien knowing the alien is or has become unauthorized to work or violating the anti-discrimination protections related to employment authorization. It also increases penalties of any person or entity that engages in a pattern or practice of violations and requires imprisonment for repeat offenders. There will be mitigation of certain increased penalties for small employers and an exemption from penalties if the employer proves it was the first of such a violation and that they acted in good faith. There will also be a safe harbor for employers who hire or continue to employ unauthorized workers through a subcontractor, unless the employer knew or recklessly disregarded that the subcontractor hired or continued to employ an unauthorized worker. Employers will be able to include in a written contract or subcontract an effective and enforceable requirement that the contractor or subcontractor adhere to the immigration laws, including the use of the BELIEVE system.
Enforcement will also be made more effective by the requirement that the Secretary of Health and Human Services, Commissioner of Social Security, and Secretary of Homeland Security establish a national birth and death registration system. The system will ensure fraud prevention and uniformity for all states. The Department of Defense will process information regarding the death of military personnel and their dependants within one year. The Department of State will improve registration and notification for births and deaths abroad. States will be required to retain birth and death data within three years of enactment. Moreover, employers who hire unauthorized workers will be prohibited from deducting wages paid to unauthorized workers. Employers will be required to provide a list of employees whose wages are being deducted and the date in which their employment eligibility was verified. The Internal Revenue Service will perform random inspections to determine if employees were verified as claimed by the employer.
In order to pay for implementation of the BELIEVE System, funding will be obtained in whole or in part by collecting the following fees and fines: (1) an employment authorization fee that will be charged only to non-citizens in order to obtain the biometric social security card required for employment—under no circumstances will a fee be charged to United States citizens for obtaining an initial biometric Social Security Card; (2) an employment authorization system fee to be paid by all employers who seek to petition for an employment-related immigration benefit for a non-citizen worker; (3) fees charged to business entities who seek pre-certification as authorized private employment eligibility screeners under regulations provided for pursuant to this Act; (4) fines charged to every person or other entity subject to the Immigration and Nationality Act who fails to comply with the provisions of this law; and (5) fees charged to U.S. citizens for obtaining replacement Social Security Cards. This proposal also requires that neither backpay nor any other monetary remedy for unlawful employment practices, workplace injuries or other causes of action giving rise to liability shall be denied to a present or former employee on account of: the employer's or the employee's failure to comply with the requirements of the policy in establishing or maintaining the employment relationship; the employee’s violation of the provisions of federal law related to the employment verification system set forth in the proposal; or the employee’s continuing status as an unauthorized alien both during and after termination of employment.
