Number:  113-3
Date:  June 5, 2013

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

On April 16, 2013, Senator Schumer (D-NY) introduced S. 744, the Border Security, Economic Opportunity, and Immigration Modernization Act.  On May 21, 2013, the Senate Judiciary Committee reported the bill with amendments, by a vote of 13-5.  The bill now moves to the full Senate for consideration.  

S. 744, as reported by the Senate Judiciary Committee, includes the following provisions of interest to the Social Security Administration (SSA).

Title I—Border Security

This title does not contain any SSA-related provisions. 

Title II—Immigrant Visas

Registered Provisional Immigrants

The bill would establish a new “Registered Provisional Immigrant (RPI) Status” for aliens present in the United States on or before December 31, 2011.  RPI status would be valid for 6 years, and would be renewable.  In addition, the bill would:

  • Authorize RPI individuals to work in the United States.  Further, under the bill, RPI individuals would be considered lawfully present. Thus, they would be eligible for Social Security numbers (SSNs) and cards, and would meet the lawful presence requirements for title II of the Social Security Act.
  • Prohibit RPI eligibility for Federal means-tested public benefits, including Supplemental Security Income (SSI).
  • Allow RPIs to transition to legal permanent resident (LPR) status, provided they meet certain requirements, such as proving regular employment during RPI status.  SSA records, among others, would constitute evidence of employment.
  • Exempt RPIs (and LPRs who transitioned from RPI status) from criminal liability for deceiving SSA about their true identities or for using SSNs on the basis of false information given to SSA. 
  • Require SSA, in coordination with the Department of Homeland Security (DHS), to implement a system for assigning SSNs and issuing Social Security cards to RPIs.
  • Would require DHS to provide SSA information (from RPI applications) necessary to assign SSNs to such individuals; the Commissioner would also be permitted to use this information to administer SSA programs, as permitted under the Privacy Act and other applicable Federal laws.

Blue Card Status

The bill would establish a new “Blue Card Status” for current undocumented workers who perform agricultural work.  In addition, the bill would:

  • Authorize Blue Card holders to work in the United States and would consider them lawfully present on a temporary basis.  Thus, they would be eligible for SSNs and cards, and would meet the lawful presence requirements for title II of the Social Security Act.
  • Prohibit Blue Card holders from receiving Federal means-tested public benefits, including SSI.
  • Exempt Blue Card holders from criminal liability for deceiving SSA about their true identities or for using SSNs on the basis of false information given to SSA. 

Nonimmigrant Agricultural Visas

The bill would create a new visa category—the W visa—for nonimmigrant agricultural workers coming to the United States to perform temporary work (essentially the current  H-2A visa category), and would repeal the current H-2A visa category.  In addition, the bill would:

  • Grant work authorization to W visa holders, who would thus be eligible for SSNs and cards.
  • Make W visa holders ineligible for Federal means-tested public benefits, including SSI. 

Other Nonimmigrant Visa Categories

The bill 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.

Title III—Interior Enforcement

Mandatory Employment Verification

The bill would require DHS, in consultation with SSA, to establish a mandatory system of employment eligibility verification (the System).  The bill would repeal the current E-Verify system effective upon enactment, but would provide for its continued use until the System is fully functional. 

In addition, the bill would: 

  • Require DHS to issue interim regulations implementing the System no later than 1 year after enactment; such regulations would be effective immediately upon publication.  DHS, in consultation with SSA and the Attorney General (AG), would publish final regulations “within a reasonable time” after the interim regulations.
  • Phase-in mandatory participation as follows:

    • Current Workforce
      • Would require Federal contractors to use the System, as already required under the 2008 Federal Acquisition Regulation.
      • Would grant DHS discretionary authority to require verification of the current workforce for employers—
        • in critical infrastructures (which are required to participate in the System no later than 1 year after regulations are published); and
        • who demonstrate a pattern or practice of violations of immigration laws, and who are already required to participate in the System with respect to newly hired employees.

    • New Hires and Employees with Expiring Work Authorization
      • Would require all employers to use the System for new hires and employees with expiring work authorization using 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 early participation by an employer who has violated certain immigration laws. 
      • Would allow early voluntary participation by any employer.

Initial Verification Process

The bill would require DHS, in consultation with SSA, to establish a mandatory verification System. The System would work as follows:

  • Allow (but not require) DHS, in consultation with SSA, to either develop protocols to notify individuals via email or mail when his or her information is processed through the System, or develop other electronic processes to help prevent potential identity fraud.
  • Require employers to confirm the identity and employment authorized status of an individual via the System within 3 business days of employment, or, for noncitizens with expiring work authorization, within 3 business days of the expiration of work authority.
  • Require the System to immediately provide the employer (1) a confirmation of an individual’s identity and employment authorized status, or (2) a further action notice. 

Contesting a Further Action Notice

The bill would establish the following further action notice resolution process: 

  • Within 3 days—The employer would notify the individual of the further action notice and any procedures specified by DHS for contesting such notice.
  • Within 10 business days—The individual may contact the appropriate Federal agency to contest the further action notice.  DHS may require the individual to appear in person to verify his or her identity and employment eligibility.  An employer may not terminate employment during this period.  DHS, in consultation with SSA and other appropriate Federal agencies, shall specify procedures to verify information provided to contest a further action notice.
  • Within 10 business days of contesting the further action notice—The System shall provide a confirmation or nonconfirmation.  DHS may extend this time period for good cause. 

Authority to Modify the System and Document Verification Requirements

The bill would:

  • Authorize DHS, in consultation with SSA and the AG, to issue regulations implementing, clarifying, and supplementing the requirements related to the System.
  • Allow DHS, in consultation with SSA, and after providing an opportunity for public comment on the notice published in the Federal Register, 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.
  • Require DHS to notify employers of all changes made to documentation requirements and the System.

Employment Verification System Enhancements

The bill would:

  • Require DHS, in consultation with SSA, to establish a secure self-verification procedure (similar to the already extant E-Verify Self Check) 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.
  • Require DHS, in consultation with SSA to establish, within 18 months of enactment, a program to allow an individual to temporarily suspend or limit the use of his or her SSN or other identifying information under the System (similar to the planned E-Verify Self Lock), and to notify each individual being verified in the System that he or she can limit the use of his or her SSN, and how to do so.
  • 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 (similar to the planned E-Verify Fraud Alert).

Administrative Appeals

The bill would establish a process for appealing a nonconfirmation of employment eligibility.  This process would:

  • Allow individuals to file an administrative appeal with DHS or SSA, as appropriate, within 10 business days of being notified of a nonconfirmation.
  • 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.
  • Require DHS and SSA to develop procedures for resolving administrative appeals.
  • Specify that DHS and SSA accept additional evidence if submitted within 10 business days of filing the appeal.
  • Require DHS and SSA to resolve appeals within 20 business days after the individual has submitted all evidence and arguments.
  • Authorize DHS and SSA to extend the appeal filing and evidence submission periods.
  • Not authorize the award of any damages, fees, or costs.

ALJ and Court Review

The bill would:

  • Permit individuals to file a complaint with a Department of Justice Administrative Law Judge (ALJ) within 30 days of an adverse final determination by SSA or DHS, which would stay the nonconfirmation.
  • Authorize the ALJ 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.
  • Authorize the ALJ to order SSA (or DHS) to pay an individual lost wages and reasonable costs and attorneys’ fees if he or she finds that the final nonconfirmation determination was erroneous based on agency negligence.  Such payments would not come out of the OASDI trust funds.
  • Permit individuals to seek review in the U.S. Court of Appeals within 45 days of the ALJ decision.   

Public Campaign and Funding

The bill would:

  • Require DHS, in consultation with SSA, the AG, and others, to conduct a public information campaign to educate employers, employees, and the general public about rights and responsibilities related to the System.  Requires action not later than              3 months after enactment.
  • 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 is not earmarked for any specific agency or department.

Miscellaneous Provisions Related to the System

The bill 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 (PII) contained in the records associated with the System, and develop and deploy privacy and security training for Federal and State employees accessing these records.
  • Require DHS to make arrangements allowing employers and employees to use Federal government facilities or other available locations to access the System.
  • 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.
  • Prohibit use of records or information contained in the System for any purpose other than employment verification, or to ensure appropriate use of the System.
  • 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

The bill would:

  • Codify SSA’s role in the System.
  • Require SSA to compare name, date of birth, SSN, and available citizenship data to confirm their validity; determine the correspondence of the name, date of birth, and SSN; determine whether the name and SSN belong to an individual who is deceased according to SSA records; determine whether the individual is a U.S. national; and determine whether the SSN is not valid for employment.
  • Prohibit SSA from releasing an individual’s Social Security information to employers, except for notices of confirmation/nonconfirmation and the reason for a further action notice.
  • Restrict the issuance of replacement Social Security cards to 3 per year and 10 per lifetime, codifying in the Social Security Act requirements now contained in the Intelligence Reform and Terrorism Prevention Act of 2004.

Social Security Card Changes

The bill would:

  • Require SSA to make changes to the Social Security card to make it “fraud-resistant, tamper-resistant, wear-resistant, and identity theft-resistant.”  (These terms are not defined in the legislation, and are thus subject to the Commissioner’s interpretation.)  Related provisions would:
    • Require SSA to begin preliminary work to administer such cards within 180 days of enactment and only issue Social Security cards conforming to such guidelines within 5 years of enactment.
    • 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.
    • Appropriate, from the Comprehensive Immigration Reform Trust Fund established by the bill, such sums as may be necessary to SSA for FY 2014 for the purpose of implementing changes to the card—designated as exempt from statutory PAYGO—to remain available until expended.

SSN and Card Criminal Penalties

The bill would:

  • Establish new criminal penalties for Social Security number 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.
  • Require SSA to disclose certain information from SSA records to Federal law enforcement agencies investigating social criminal violations related to Social Security card and number fraud.  Such requests must be in writing. 

Reimbursable Agreement between SSA and DHS

The bill 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.
  • 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.

Title IV—Reforms to Nonimmigrant Visa Programs

This title does not contain any SSA-related provisions.