Date: July 15, 2013
House Judiciary Committee Reports H.R. 1772,
Legal Workforce Act
On April 26, 2013, Representative Lamar Smith (R-TX) introduced H.R 1772, the Legal Workforce Act. On June 26, 2013, the House Judiciary Committee reported the bill with amendments, by a vote of 22-9. The bill would make electronic employment eligibility verification mandatory for all new hires—and some current workers—across the Nation. The bill was also referred to the House Ways and Means and House Education and the Workforce Committees. No other action has been scheduled on the bill yet.
H.R. 1772, as reported by the House Judiciary Committee, includes the following provisions of interest to the Social Security Administration (SSA).
Social Security Card
- Would establish the Social Security card—other than one that states on its face that it does not authorize employment—as the only acceptable proof of work authorization.
Phase-in of Mandatory Employment Eligibility Verification
- Would phase-in mandatory use of employment eligibility verification as follows:
- For new hires and individuals with expiring work authorization:
- Within 6 months for employers with 10,000 or more employees;
- Within 12 months for employers with 500 or more employees;
- Within 18 months for employers with 20 or more employees;
- Within 24 months for employers with 1 or more employees; and,
- Within 24 month for employers of agricultural workers.
- For entities already required to participate in E-Verify, including Federal contractors, would allow the Department of Homeland Security (DHS) to require participation upon enactment.
- For current employees in Federal, State and local governments; certain critical infrastructure sites; and, certain Federal contractors, would require use within 6 months, unless previously verified through E-Verify.
- For entities recruiting or referring individuals1, would require use within 12 months.
- For new hires and individuals with expiring work authorization:
Phase-in of Voluntary Employment Eligibility Verification
- Would phase-in voluntary use as follows:
- Upon enactment for new hires of employers already participating in E-Verify and employers who choose to participate before being required to do so.
- 30 days after enactment for current employees of employers that wish to participate. Would require an employer that uses the system for one current employee to use it for all employees at the same geographic location, or within the same job category.
One-Time Extension of Verification Deadlines
- Would allow for a one-time 6-month extension of each of the phase-in deadlines if DHS certifies to Congress that the system will not be fully operational within 6 months of enactment.
Unusual Multiple Use
- Would require SSA to notify annually, using addresses from Wage and Tax Statements, employees who submit SSNs to which more than one employer reports income and for which there is a pattern of unusual multiple use. Would provide that the notices:
- Identify the number of employers to which income is being reported;
- Include information about contacting SSA’s Fraud Hotline if identity theft is suspected; and,
- Must not include information “protected as private,” in order to avoid additional possible identity theft.
- Would require DHS and SSA to lock these SSNs for purposes of verification in the system, and notify employers that the employees who submitted the SSNs may not be work eligible. This provision would apply when SSA has “identified and confirmed” the person to whom the SSN was assigned and the person indicates the SSN was used without his knowledge.
- Would require employers receiving notification to re-verify the employees who submitted these SSNs within 10 business days. This provision would apply to employers beginning on the date they are required, or volunteer, to use the system.
Employment Verification System and Process
- Would require DHS to establish a verification system patterned on E-Verify, and would require DHS—or a designee, which may be a nongovernmental entity—to respond to verification inquiries.
- Would require the system be designed and operated to, among other things, limit verifications to:
- Individuals referred, recruited, or hired;
- Prospective employees 2;
- The universe of current employees described above; and,
- Individuals voluntarily seeking to confirm their own employment eligibility.
- Would require employers to submit queries as follows:
- For individuals being recruited or referred, ending on the date recruiting or referring commences.
- For new hires, beginning on the date an offer of employment is extended and ending 3 business days after the date of hire. Would allow employers of noncitizen new hires who present evidence from SSA of having applied for a Social Security Number (SSN) to delay verification until 3 business days after the new hire’s receipt of the SSN.
- For individuals with expiring work authorization, within 3 business days of such expiration.
- Would require SSA, in consultation with DHS, to establish a reliable, secure method to compare names and SSNs submitted to the system to SSA records in order to validate the information and determine whether the SSNs are valid for employment. Would prohibit SSA from disclosing Social Security information except for confirmation or nonconfirmation.
- Would require the system to provide a confirmation or tentative nonconfirmation of identity and employment eligibility within 3 working days.
- Would require DHS, in consultation with SSA, to specify a secondary confirmation process, and provide a final confirmation or nonconfirmation within 10 working days of the date on which the notice of tentative nonconfirmation is received by the employee.
- Would allow DHS, in consultation with SSA, to extend the timeframe one time by an additional 10 days and on a case-by-case basis. Would require DHS, in consultation with SSA, to notify the employee and employer of the extension, create a standard process for the extension, and make public a description of the standard process.
- Would require SSA and DHS to update their information in a manner that promotes maximum accuracy, and to provide a process for prompt correction of erroneous information.
Employment Verification System Enhancements
- Would require DHS, in consultation with SSA, to establish programs to:
- Block SSNs subject to unusual multiple use in the system, or SSNs that are otherwise suspected or determined to have been compromised by identify fraud or other misuse, unless the individual using the number can establish that he is the legitimate numberholder.
- Allow individuals to suspend or limit the use of their SSNs or other identifying information.
- Allow parents and legal guardians to suspend or limit the use of the SSNs or other identifying information of minors in their care.
- Would repeal E-Verify, effective 36 months after enactment.
Reimbursable Agreement between SSA and DHS
- Would require DHS and SSA to enter into and maintain a reimbursable agreement, effective for fiscal years beginning on or after October 1, 2013, which would provide funds for the full costs of the Commissioner’s responsibilities in carrying out the system, including systems and operational costs.
- Would require advance reimbursement on a quarterly basis, as well as annual cost accounting and reconciliation, which would be reviewed by the Inspectors General of DHS and SSA.
- Would deem a previous year’s agreement to be in effect, on an interim basis, if a new agreement has not been reached by October 1. Would allow the Director of the Office of Management and Budget to adjust the agreement for inflation, as well as for changes in the volume of requests.
- Would require SSA and DHS to notify the House Committees on Ways and Means, Judiciary, and Appropriations, as well as the Senate Committees on Finance, Judiciary, and Appropriations, not later than October 1, of failure to reach agreement, and until agreement has been reached, provide update every 90 days on the status of negotiations.
Photo Tool Matching
- Would require an employer who uses the photo matching tool in the E-Verify system to match the photo tool photograph to the individual submitting the document and the photograph on the identity or employment eligibility document. 3
Identity Authentication Employment Eligibility Verification Pilot Program
- Would require DHS, after consultation with SSA and the National Institute of Standards and Technology, to establish at least two Identity Authentication Employment Eligibility Pilots, within 48 months of enactment. The purpose of the pilots would be to provide identity authentication and employment eligibility verification for enrolled new employees. Would allow employers to voluntarily participate and to withdraw, without penalty, after 1 year.
- Would require DHS to report to the House and Senate Judiciary Committees on the pilot programs’ findings and the authentication technologies chosen, not later than 12 months after the pilots commence.
SSA Inspector General Audits
- Would require SSA’s Inspector General (IG) to complete, within 1 year of enactment, audits on the following subjects in order to uncover evidence of individuals unauthorized to work:
- Workers who dispute wages reported on their SSNs when they believe someone has used their names and numbers to report wages;
- Children’s SSNs used for work purposes; and,
- Employers who present significant numbers of mismatched wage reports.
- Would require the IG to submit these audits to the House Ways and Means and Senate Finance Committees, which would then determine information to be shared with DHS for investigations of unauthorized employment.
1 Generally, only entities receiving fees for their services would be included in the bill’s definition of the terms “recruit” and “refer.”
2 Prospective employees are not included in the bill’s description of the phase-in. Under current law, prospective employees cannot be verified through E-Verify, only employees who have accepted an offer of employment. Under the bill, employers would be able to verify prospective employees as soon as the employer extends an offer of employment.
3 This provision, which the Committee added to the bill, specifically references E-Verify, which the bill would repeal 3 years after enactment. This may be a drafting error. Under the bill, the new system would be “patterned on” E-Verify, but the new system is not specifically required to have a photo tool.