Number:  113-5
Date:  June 28, 2013

Senate Judiciary Committee Reports S. 744,
Border Security, Economic Opportunity, and Immigration Modernization Act

On June 27, 2013, the Senate passed S. 744, the Border Security, Economic Opportunity, and Immigration Modernization Act, by a vote of 68-32.  The bill, which was reported out of the Senate Judiciary Committee on May 21, would increase border and interior security, and would make electronic employment eligibility verification mandatory for all new hires—and some current workers—across the Nation.  The bill now moves to the House for consideration.  

During debate on floor amendments, the Senate adopted one new provision of interest to SSA: 

Preclusion of Social Security Credits for Periods without Work Authorization

• Would prohibit, for purposes of determining insured status and benefit amount, crediting quarters of coverage based on work performed during the period beginning January 1, 2004 and ending December 31, 2013, and performed by individuals granted registered provisional immigrant (RPI) status or with expired nonimmigrant visas.
• Would not apply to individuals assigned Social Security Numbers (SSN) prior to January 1, 2004.
• Would not apply to individuals who can provide evidence of work authorization, or who attest under threat of criminal penalty that they were authorized to work during such quarter.
• Would be effective for benefit applications—
• Filed on or after 180 days after enactment; and,
• Based the earnings record of an individual for whom no Primary Insurance Amount had been previously determined.

The Senate-passed bill also includes the following provisions affecting SSA, which remain unchanged from the Committee-reported bill by floor amendments:

Mandatory Employment Verification

• Would require DHS, in consultation with SSA, to establish a mandatory employment eligibility verification system (the System), and would repeal E-Verify but provide for its continued use until the System is fully functional. 

• Would require DHS to issue interim regulations, no later than 1 year after enactment and effective upon publication, implementing the System.

• Would require DHS, in consultation with SSA and the Attorney General (AG), to publish final regulations “within a reasonable time.”

• Would phase-in mandatory participation as follows:

For the Current Workforce

• Would require Federal contractor use in accordance with the 2008 Federal Acquisition Regulation.
• Would provide DHS discretionary authority to require current workforce verification for employers—
  • In critical infrastructures; and
  • That demonstrate a pattern or practice of immigration law violations and that are already required to participate in the System with respect to newly hired employees

For New Hires and Employees with Expiring Work Authorization

• Would phrase-in use according to the following schedule:
  • Effective upon enactment and as already implemented, or no later than 90 days after enactment, whichever is earlier—Federal agencies and departments in the executive, legislative, or judicial branches.
  • 1 year after regulations are published—Critical infrastructures.
  • 2 years after regulations are published—Employers with more than 5,000 employees. 
  • 3 years after regulations are published—Employers with more than 500 employees. 
  • 4 years after regulations are published—All other non-tribal employers.
  • 5 years after regulations are published—All employers owned by, or entities of, the government of a Federal-recognized Indian tribe.
• Would permit DHS to require immigration law violators to participate early. 
• Would permit employers to volunteer to participate early.

Initial Verification Process

• Would require DHS, in consultation with SSA, to develop—
  • Protocols to notify individuals by electronic correspondence or mail when their information is queried through the System, or
• A process for individuals to submit additional queries to the System or notify DHS of potential identity fraud.
• Would require employers to confirm identity and employment authorization within 3 business days of—
• Hire, or
• Expiration of temporary authorization to work.

• Would require the System to provide an immediate confirmation of identity/employment authorization or further action notice. 

Contesting a Further Action Notice 1

• Would require employers to notify individuals of further action notices within 3 business days.

• Would require individuals to contact the appropriate Federal agency to contest further action notices within 10 business days. 

• Would require DHS, in consultation with SSA and other appropriate Federal agencies, to specify procedures to verify information provided to contest further action notices.

• Would require the System to provide a final confirmation or nonconfirmation within 10 business days, which may be extended by DHS for good cause, of contesting the further action notice.

Authority to Modify the System and Document Verification Requirements

• Would authorize DHS, in consultation with SSA and the AG, to issue regulations implementing, clarifying, and supplementing requirements related to the System.

• Would allow DHS, in consultation with SSA, and after providing an opportunity for public comment, to modify:
  • The information an employee must present to an employer;
  • The information an employer must present to the System; and,
  • Procedures followed by employers with respect to verification.

Employment Verification System Enhancements

• Would require DHS, in consultation with SSA, to establish a secure self-verification procedure to allow a worker seeking to verify his or her employment eligibility to contact the appropriate agency and, in a timely manner, correct or update his or her information.

• Would require DHS, in consultation with SSA to establish, within 18 months of enactment, a program to allow individuals to temporarily suspend or limit the use of their SSNs or other identifying information in the System, and to notify individuals being verified in the System that they can limit the use of their SSNs and how to do so.

• Would require DHS and SSA to establish procedures for identifying and handling situations in which an SSN is subject to “unusual” multiple use in the System, or is suspected to have been compromised by identity fraud.

Administrative Appeals

• Would allow individuals to file administrative appeals with DHS or SSA, as appropriate, within 10 business days of being notified of a nonconfirmation.

• Would provide that filing an appeal would stay the nonconfirmation and employment termination unless DHS or SSA determines that the appeal is frivolous or filed for purposes of delay.

• Would require DHS and SSA to—
  • Develop procedures for resolving administrative appeals;
  • Accept additional evidence if submitted within 10 business days; and,
  • Resolve appeals within 20 business days of submission of all evidence and arguments.

• Would authorize DHS and SSA to extend the appeal filing and evidence submission periods.

• Would not authorize the award of any damages, fees, or costs.

ALJ and Court Review

• Would permit individuals to file complaints with Department of Justice Administrative Law Judges (ALJ) within 30 days of adverse final determinations by SSA or DHS.  Such complaints would stay the nonconfirmation.

• Would authorize ALJs to—
  • Terminate the nonconfirmation stay; resolve claims of identity theft; compel by subpoena the attendance of witnesses and presentation of evidence; and, reverse the decision of DHS or SSA.
  • Order SSA (or DHS) to pay an individual lost wages and reasonable costs and attorneys’ fees if the ALJ finds that the nonconfirmation was erroneous based on agency negligence.  Such payments would not come out of the OASDI trust funds.

• Would permit individuals to seek review in the U.S. Court of Appeals within 45 days of the ALJ decision.  

Public Campaign and Funding

• Would require DHS, in consultation with SSA, the AG, and others, to conduct a public information campaign not later than 3 months after enactment.  This campaign would educate employers, employees, and the public about rights and responsibilities related to the System. 

• Would authorize appropriations of $40 million for each of the fiscal years 2014 through 2016 for the System and the required public education campaign.  This appropriation would not be earmarked for any specific agency or department.

Miscellaneous Provisions Related to the System

• Would require DHS, in consultation with SSA and other Federal and State agencies, to develop policies and procedures to ensure protection of personally identifiable information contained in the records associated with the System, and develop and deploy privacy and security training for Federal and State employees accessing these records.

• Would require DHS to make arrangements to allow employers and employees to use Federal government facilities or other available locations to access the System.

• Would require SSA, DHS, and the Secretary of State to update their information “in a manner that promotes maximum accuracy” and provide for prompt correction of erroneous information in the System.

• Would prohibit use of records or information contained in the System for any purpose other than to verify employment eligibility or to ensure appropriate use of the System.

• Would require DHS, in cooperation with SSA, the AG and other relevant agencies, to establish a Joint Employment Fraud Task Force, which would include personnel of various agencies, including SSA’s Office of the Inspector General.

Social Security Act Amendments

• Would codify within the Social Security Act, SSA’s role in the System, which would be to compare names, dates of birth, SSNs, and available citizenship data to confirm their validity; and, to determine—

• The correspondence of the name, date of birth, and SSN;
• Whether the name and SSN belong to an individual who is deceased according to SSA records;
• Whether the individual is a U.S. national; and,
• Whether the SSN is not valid for employment.

• Would prohibit SSA from releasing an individual’s Social Security information to employers, except for notices of confirmation or nonconfirmation and the reason for further action notice.

Social Security Card Changes

• Would require SSA to issue “fraud-resistant, tamper-resistant, wear-resistant, and identity theft-resistant” Social Security cards.  Preliminary work to issue such cards would begin no later than180 days after enactment, and no later than 5 years after enactment, all newly issued cards must meet this requirement.  Under related provisions, the bill would— 
  
  
  • Would require DHS, in consultation with the AG and the Secretary of Defense, to submit an expenditure plan to Congress that would describe the steps SSA plans to take to create the new card, including the type of equipment needed to produce it; total estimated costs for completion and a fiscal year breakout of detailed costs; the number and type of personnel needed; a detailed production schedule; and, operations and maintenance costs.
  • Would appropriate, from the Comprehensive Immigration Reform Trust Fund established by the bill, such sums as may be necessary to implement changes to the card.

• Would restrict the issuance of replacement Social Security cards to 3 per year and 10 per lifetime.

SSN and Card Criminal Penalties

• Would establish new criminal penalties for SSN and card fraud, including fines, imprisonment for not more than 5 years, or both, for—
  
  
  • Possessing or using a number or card obtained from the Commissioner fraudulently;
  • Falsely representing a number as one’s own; buying or selling numbers or cards;
  • Altering, counterfeiting, or forging a card or using or distributing such a card; and,
  • Acquiring or producing a number or card that purports to be an SSN or card.

• Would require SSA to disclose, upon written request, certain information from SSA records to Federal law enforcement agencies investigating criminal violations related to SSN and card fraud. 

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 the date of enactment, which would provide funds for the full costs of the Commissioner’s responsibilities, including systems and operational costs. 2

• Would require advance reimbursement on a quarterly basis, as well as annual cost accounting and reconciliation, which would be reviewed by DHS and SSA’s OIG.

Registered Provisional Immigrants

• Would establish an “RPI” status for undocumented workers present in the United States on or before December 31, 2011.  Such status would be valid for 6 years, and would be renewable. 

• Would authorize individuals in RPI status to work; provide that they are lawfully present in the United States; and, prohibit their eligibility for Federal means-tested public benefits, including Supplemental Security Income (SSI).

• Would require SSA, in coordination with the Department of Homeland Security (DHS), to implement a system for assigning SSNs and issuing Social Security cards to these individuals. Would require DHS to provide SSA the information, from RPI applications, necessary to assign the number, and would permit SSA to use the information to administer SSA programs and as permitted under the Privacy Act and other applicable Federal laws.

• Would allow these individuals to transition to legal permanent resident (LPR) status, provided they prove, among other things, regular employment during RPI status.  SSA records, among others, would constitute evidence of employment.

• Would exempt these individuals (and LPRs who transitioned from RPI status) from criminal liability under section 208(e) of the Social Security Act for deceiving SSA about their true identities or for using SSNs on the basis of false information given to SSA. 

Blue Card Status

• Would establish a new “Blue Card” status for undocumented workers who perform agricultural work. 

• Would authorize individuals in Blue Card status to work; provide that they are lawfully present in the United States; and, prohibit their eligibility for Federal means-tested public benefits, including SSI.

• Exempt these individuals from criminal liability under section 208(e) of the Social Security Act for deceiving SSA about their true identities or for using SSNs on the basis of false information given to SSA. 

Nonimmigrant Agricultural Visas

• Would create a new visa category—the W visa—for nonimmigrant agricultural workers coming to the United States to perform temporary work. 

• Would repeal the current H-2A visa program. 

• Would authorize W visa holders to work and would prohibit their eligibility for Federal means-tested public benefits, including SSI.

Other Nonimmigrant Visa Categories

• Would make changes to numerical visa limits as well as the V and K visas, among others, and would extend the Iraqi and Afghan special immigrant visa programs.