House Passes H.R. 4437, the Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005

No: 109-10
Date: December 22, 2005

House Passes H.R. 4437, the Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005

On December 16, 2005, the House passed H.R. 4437, the Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005 by a recorded vote of 239 to 182. The bill was introduced by Representative Sensenbrenner (R-WI) on December 6, 2005. The House Judiciary Committee approved the bill on December 8 by a vote of 23-15. H.R. 4437 was received in the Senate for consideration on December 17, 2005.

H.R. 4437 would make mandatory an employment eligibility verification system. This system would replace the current verification system, the Basic Pilot, which employers may use voluntarily. This bill would require employers to verify all new hires beginning two years after enactment and all existing employees not previously verified no later than six years after enactment.

The House passed bill includes the following provisions of interest to SSA:

Section 207. Clarifying Changes

Would allow the Secretary of Homeland Security to access any information in any records maintained by any department or agency of the Government concerning any person seeking any benefit or privilege under the immigration laws. This section would be effective upon enactment.

Section 701. Employment Eligibility Verification System

Would require the Department of Homeland Security (DHS)—or a designee—to establish and administer an employment eligibility verification system (system) that would respond to inquiries concerning individual’s identity and work authorization.
DHS’ system would be designed to:
- Respond to inquiries at any time through a toll-free telephone line and through other toll-free electronic media;
- Maintain records of the inquiries made;
- Provide a confirmation or tentative nonconfirmation of individuals’ identity and work authorization within three working days of the employer’s initial inquiry;
- Use an available secondary verification process that would provide a final confirmation or final nonconfirmation within ten working days of the initial nonverification. DHS would specify the secondary verification process in consultation with the Commissioner of Social Security (Commissioner);
- Maximize the system’s reliability and ease of use, to protect the underlying data, to respond to all inquiries and to have safeguards to prevent the unauthorized disclosure of the information; and
- Safeguard against discriminatory practices.
Would require the Commissioner, in consultation with DHS, to confirm within three working days whether the name and Social Security number (SSN) submitted in the employer’s initial inquiry to the system matches Social Security’s records and to verify whether the SSN submitted is valid for employment. During this employment eligibility verification process, the Commissioner would be required not to disclose or release Social Security information other than as required by this section. Would require DHS to validate the name and alien identification or authorization number and confirm whether the alien is authorized to be employed in the U.S.
Would require DHS to keep track of the SSNs submitted to the system in order to identify when an employer submits the same SSN more than once and when multiple employers submit the same SSN.
Would require DHS to investigate when the system has identified an employer who submitted the same SSN more than once or has identified multiple employers who submitted the same SSN to determine whether SSN fraud has occurred.
Would require the Commissioner and DHS to update their respective records in a manner that promotes accuracy and provides a process for the prompt correction of erroneous information.
Would repeal section 274A(d) of the Immigration and Nationality Act (INA) which includes protections such as a restriction on the use of employment verification systems for law enforcement purposes and a requirement to notify Congress before implementing changes to the employment verification system. Of particular interest to SSA, section 274A(d)(3)(E) of the INA, requiring that funding for changes to the SSN card for work authorization purposes must come from general revenue rather than from the trust funds, would be repealed.
This section would be effective upon enactment.

Section 702. Employment Eligibility Verification Process

Beginning two years after enactment, would require employers to obtain and record an employee’s SSN.
Beginning two years after enactment, would require employers to begin using the system described in section 701 to verify the identity and work authorization of all new hires within three working days of the date of hire.

Section 703. Expansion of Employment Eligibility Verification System to Previously Hired Individuals and Recruiting and Referring

Would allow employers to use the system to verify the identity and work authorization of current employees who have not yet been verified through the system on a voluntary basis beginning two years after the date of enactment.
Would require employers to verify the identity and work authorization of all current employees who have not yet been verified through the system and who are employees of the Federal, State or local government, or are employees of a non-government entity but work at a Federal, State or local government building, a military base, a nuclear energy site, a weapon site, an airport or a site that contains critical infrastructure. Employers would be required to make all such verifications by three years after the date of enactment.
Would require all employers who hire or continue to employ (or who recruit or refer for employment in the United States), by six years after the date of enactment to use the system to verify all current employees who have not yet been verified through the system.

Section 704. Basic Pilot Program

Would repeal the Basic Pilot Program, established by section 401(b) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, two years after enactment.

Section 707. Report on Social Security Card-Based Employment Eligibility Verification

Would require the Commissioner, in consultation with the Department of Treasury, DHS and the Attorney General, to submit a report to Congress, no later than 9 months after the date of enactment,that includes an evaluation of the following:
- A requirement that SSN cards be made of durable plastic, contain an encrypted machine-readable electronic identification strip and digital photograph of the individual, and be issued to each individual who is authorized to work, seeking employment or who files an application for a card;
- The creation of a database maintained by DHS, comprised of SSA and DHS data, that would provide the work authorization status of citizens and noncitizens for the purpose of conducting employment eligibility verifications; and
- A requirement that all employers verify the work authorization of new hires by accessing the employment verification system by using the SSN card and a phone, an electronic card-reader or other mechanism.
The report would have to include: The projected costs; the administrability; the potential effects on employers, employees, tax revenue and privacy; the extent to which compliance with immigration laws would improve; and alternatives that would achieve the same goals but that are less costly or more user-friendly.
Would require the SSA Inspector General, in consultation with the Inspector Generals of the Department of Treasury, the Department of Justice and DHS, to submit to Congress an evaluation of SSA’s report, no later than three months after SSA’s report is submitted.

Section 710. Limitation on Verification Responsibilities of Commissioner of Social Security

Would authorize SSA to perform activities with respect to carrying out this Title, but only to the extent (except for the purpose of carrying out section 707) that DHS had provided funds in advance for such activities. This section would prohibit using funds from the Federal Old-Age and Survivors Insurance Trust Fund or the Federal Disability Insurance Trust Fund to carry out such activities.

Social Security Legislative Bulletin