It shall be the duty of every person, including the owners, masters, officers, and agents of vessels, aircraft, transportation lines, or international bridges or toll roads, other than transportation lines which may enter into a contract as provided in section 1223 of this title, bringing an alien to, or providing a means for an alien to come to, the United States (including an alien crewman whose case is not covered by section 1284(a) of this title) to prevent the landing of such alien in the United States at a port of entry other than as designated by the Attorney General or at any time or place other than as designated by the immigration officers. Any such person, owner, master, officer, or agent who fails to comply with the foregoing requirements shall be liable to a penalty to be imposed by the Attorney General of $3,000 for each such violation, which may, in the discretion of the Attorney General, be remitted or mitigated by him in accordance with such proceedings as he shall by regulation prescribe. Such penalty shall be a lien upon the vessel or aircraft whose owner, master, officer, or agent violates the provisions of this section, and such vessel or aircraft may be libeled therefor in the appropriate United States court.
Proof that the alien failed to present himself at the time and place designated by the immigration officers shall be prima facie evidence that such alien has landed in the United States at a time or place other than as designated by the immigration officers.
(1) Any owner or operator of a railroad line, international bridge, or toll road who establishes to the satisfaction of the Attorney General that the person has acted diligently and reasonably to fulfill the duty imposed by subsection (a) of this section shall not be liable for the penalty described in such subsection, notwithstanding the failure of the person to prevent the unauthorized landing of any alien.
(2)(A) At the request of any person described in paragraph (1), the Attorney General shall inspect any facility established, or any method utilized, at a point of entry into the United States by such person for the purpose of complying with subsection (a) of this section. The Attorney General shall approve any such facility or method (for such period of time as the Attorney General may prescribe) which the Attorney General determines is satisfactory for such purpose.
(B) Proof that any person described in paragraph (1) has diligently maintained any facility, or utilized any method, which has been approved by the Attorney General under subparagraph (A) (within the period for which the approval is effective) shall be prima facie evidence that such person acted diligently and reasonably to fulfill the duty imposed by subsection (a) of this section (within the meaning of paragraph (1) of this subsection).
(June 27, 1952, ch. 477, title II, ch. 8, §271, 66 Stat. 226; Pub. L. 99–603, title I, §114, Nov. 6, 1986, 100 Stat. 3383; Pub. L. 101–649, title V, §543(a)(8), Nov. 29, 1990, 104 Stat. 5058; Pub. L. 104–208, div. C, title III, §308(g)(1), Sept. 30, 1996, 110 Stat. 3009–622.)
1996—Subsec. (a). Pub. L. 104–208 substituted “section 1223” for “section 1228”.
1990—Subsec. (a). Pub. L. 101–649 substituted “$3,000” for “$1,000”.
1986—Subsec. (c). Pub. L. 99–603 added subsec. (c).
Amendment by Pub. L. 104–208 effective, with certain transitional provisions, on the first day of the first month beginning more than 180 days after Sept. 30, 1996, see section 309 of Pub. L. 104–208, set out as a note under section 1101 of this title.
Amendment by Pub. L. 101–649 applicable to actions taken after Nov. 29, 1990, see section 543(c) of Pub. L. 101–649, set out as a note under section 1221 of this title.
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under section 1551 of this title.
(a) Any person who shall bring to the United States an alien (other than an alien crewman) who is inadmissible under section 1182(a)(1) of this title shall pay to the Commissioner for each and every alien so afflicted the sum of $3,000 unless (1) the alien was in possession of a valid, unexpired immigrant visa, or (2) the alien was allowed to land in the United States, or (3) the alien was in possession of a valid unexpired nonimmigrant visa or other document authorizing such alien to apply for temporary admission to the United States or an unexpired reentry permit issued to him, and (A) such application was made within one hundred and twenty days of the date of issuance of the visa or other document, or in the case of an alien in possession of a reentry permit, within one hundred and twenty days of the date on which the alien was last examined and admitted by the Service, or (B) in the event the application was made later than one hundred and twenty days of the date of issuance of the visa or other document or such examination and admission, if such person establishes to the satisfaction of the Attorney General that the existence of the condition causing inadmissibility could not have been detected by the exercise of due diligence prior to the alien's embarkation.
(b) No vessel or aircraft shall be granted clearance papers pending determination of the question of liability to the payment of any fine under this section, or while the fines remain unpaid, nor shall such fines be remitted or refunded; but clearance may be granted prior to the determination of such question upon the deposit of a sum sufficient to cover such fines or of a bond with sufficient surety to secure the payment thereof, approved by the Commissioner.
(c) Nothing contained in this section shall be construed to subject transportation companies to a fine for bringing to ports of entry in the United States aliens who are entitled by law to exemption from the provisions of section 1182(a) of this title.
(d) As used in this section, the term “person” means the owner, master, agent, commanding officer, charterer, or consignee of any vessel or aircraft.
(June 27, 1952, ch. 477, title II, ch. 8, §272, 66 Stat. 226; Pub. L. 89–236, §18, Oct. 3, 1965, 79 Stat. 920; Pub. L. 101–649, title V, §543(a)(9), title VI, §603(a)(15), Nov. 29, 1990, 104 Stat. 5058, 5083; Pub. L. 102–232, title III, §307(l)(7), Dec. 12, 1991, 105 Stat. 1757; Pub. L. 103–416, title II, §219(o), Oct. 25, 1994, 108 Stat. 4317; Pub. L. 104–208, div. C, title III, §308(d)(3)(A), (4)(I)(i), Sept. 30, 1996, 110 Stat. 3009–617, 3009–618.)
1996—Pub. L. 104–208, §308(d)(4)(I)(i)(I), amended section catchline.
Subsec. (a). Pub. L. 104–208, §308(d)(3)(A), (4)(I)(i)(II), substituted “inadmissible” for “excludable” and “condition causing inadmissibility” for “excluding condition”.
Subsec. (c). Pub. L. 104–208, §308(d)(4)(I)(i)(III), struck out “excluding” after “exemption from the”.
1994—Subsec. (a). Pub. L. 103–416 struck out comma after “every alien so afflicted”.
1991—Subsec. (a). Pub. L. 102–232 struck out comma before “shall pay”.
1990—Pub. L. 101–649, §603(a)(15)(D), substituted “exclusion on a health-related ground” for “disability or afflicted with disease” in section catchline.
Subsec. (a). Pub. L. 101–649, §603(a)(15)(A), substituted “excludable under section 1182(a)(1) of this title” for “(1) mentally retarded, (2) insane, (3) afflicted with psychopathic personality, or with sexual deviation, (4) a chronic alcoholic, (5) afflicted with any dangerous contagious disease, or (6) a narcotic drug addict” and “the excluding condition” for “such disease or disability”.
Pub. L. 101–649, §543(a)(9)(A), substituted “Commissioner” for “collector of customs of the customs district in which the place of arrival is located” and “$3,000” for “$1,000”.
Subsec. (b). Pub. L. 101–649, §603(a)(15)(B), (C), redesignated subsec. (c) as (b) and struck out former subsec. (b) which read as follows: “Any person who shall bring to the United States an alien (other than an alien crewman) afflicted with any mental defect other than those enumerated in subsection (a) of this section, or any physical defect of a nature which may affect his ability to earn a living, as provided in section 1182(a)(7) of this title, shall pay to the Commissioner for each and every alien so afflicted, the sum of $3,000, unless (1) the alien was in possession of a valid, unexpired immigrant visa, or (2) the alien was allowed to land in the United States, or (3) the alien was in possession of a valid unexpired nonimmigrant visa or other document authorizing such alien to apply for temporary admission to the United States or an unexpired reentry permit issued to him, and (A) such application was made within one hundred and twenty days of the date of issuance of the visa or other document, or in the case of an alien in possession of a reentry permit, within one hundred and twenty days of the date on which the alien was last examined and admitted by the Service, or (B) in the event the application was made later than one hundred and twenty days of the date of issuance of the visa or other document or such examination and admission, if such person establishes to the satisfaction of the Attorney General that the existence of such disease or disability could not have been detected by the exercise of due diligence prior to the alien's embarkation.”
Pub. L. 101–649, §543(a)(9)(B), substituted “Commissioner” for “collector of customs of the customs district in which the place of arrival is located” and “$3,000” for “$250”.
Subsec. (c). Pub. L. 101–649, §603(a)(15)(C), redesignated subsec. (d) as (c). Former subsec. (c) redesignated (b).
Pub. L. 101–649, §543(a)(9)(C), substituted “Commissioner” for “collector of customs”.
Subsecs. (d), (e). Pub. L. 101–649, §603(a)(15)(C), redesignated subsec. (e) as (d). Former subsec. (d) redesignated (c).
1965—Subsec. (a). Pub. L. 89–236 substituted “mentally retarded” for “feeble-minded”, struck out references to epileptics and persons afflicted with tuberculosis and leprosy, and inserted reference to persons afflicted with sexual deviation.
Amendment by Pub. L. 104–208 effective, with certain transitional provisions, on the first day of the first month beginning more than 180 days after Sept. 30, 1996, see section 309 of Pub. L. 104–208, set out as a note under section 1101 of this title.
Amendment by Pub. L. 103–416 effective as if included in the enactment of the Immigration Act of 1990, Pub. L. 101–649, see section 219(dd) of Pub. L. 103–416, set out as a note under section 1101 of this title.
Section 307(l) of Pub. L. 102–232 provided that the amendment made by that section is effective as if included in section 603(a) of the Immigration Act of 1990, Pub. L. 101–649.
Amendment by section 543(a)(9) of Pub. L. 101–649 applicable to actions taken after Nov. 29, 1990, see section 543(c) of Pub. L. 101–649, set out as a note under section 1221 of this title.
Amendment by section 603(a)(15) of Pub. L. 101–649 applicable to individuals entering United States on or after June 1, 1991, see section 601(e)(1) of Pub. L. 101–649, set out as a note under section 1101 of this title.
Amendment by Pub. L. 89–236 effective, except as otherwise provided, on first day of first month after expiration of thirty days following date of enactment of Pub. L. 89–236, which was approved on Oct. 3, 1965, see section 20 of Pub. L. 89–236, set out as a note under section 1151 of this title.
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under section 1551 of this title.
(1) It shall be unlawful for any person, including any transportation company, or the owner, master, commanding officer, agent, charterer, or consignee of any vessel or aircraft, to bring to the United States from any place outside thereof (other than from foreign contiguous territory) any alien who does not have a valid passport and an unexpired visa, if a visa was required under this chapter or regulations issued thereunder.
(2) It is unlawful for an owner, agent, master, commanding officer, person in charge, purser, or consignee of a vessel or aircraft who is bringing an alien (except an alien crewmember) to the United States to take any consideration to be kept or returned contingent on whether an alien is admitted to, or ordered removed from, the United States.
If it appears to the satisfaction of the Attorney General that any alien has been so brought, such person, or transportation company, or the master, commanding officer, agent, owner, charterer, or consignee of any such vessel or aircraft, shall pay to the Commissioner a fine of $3,000 for each alien so brought and, except in the case of any such alien who is admitted, or permitted to land temporarily, in addition, an amount equal to that paid by such alien for his transportation from the initial point of departure, indicated in his ticket, to the port of arrival, such latter fine to be delivered by the Commissioner to the alien on whose account the assessment is made. No vessel or aircraft shall be granted clearance pending the determination of the liability to the payment of such fine or while such fine remains unpaid, except that clearance may be granted prior to the determination of such question upon the deposit of an amount sufficient to cover such fine, or of a bond with sufficient surety to secure the payment thereof approved by the Commissioner.
Except as provided in subsection (e) of this section, such fine shall not be remitted or refunded, unless it appears to the satisfaction of the Attorney General that such person, and the owner, master, commanding officer, agent, charterer, and consignee of the vessel or aircraft, prior to the departure of the vessel or aircraft from the last port outside the United States, did not know, and could not have ascertained by the exercise of reasonable diligence, that the individual transported was an alien and that a valid passport or visa was required.
A fine under this section may be reduced, refunded, or waived under such regulations as the Attorney General shall prescribe in cases in which—
(1) the carrier demonstrates that it had screened all passengers on the vessel or aircraft in accordance with procedures prescribed by the Attorney General, or
(2) circumstances exist that the Attorney General determines would justify such reduction, refund, or waiver.
(June 27, 1952, ch. 477, title II, ch. 8, §273, 66 Stat. 227; Pub. L. 101–649, title II, §201(b), title V, §543(a)(10), Nov. 29, 1990, 104 Stat. 5014, 5058; Pub. L. 102–232, title III, §306(c)(4)(D), Dec. 12, 1991, 105 Stat. 1752; Pub. L. 103–416, title II, §§209(a), 216, 219(p), Oct. 25, 1994, 108 Stat. 4312, 4315, 4317; Pub. L. 104–208, div. C, title III, §§308(c)(3), (e)(13), 371(b)(8), title VI, §671(b)(6), (7), Sept. 30, 1996, 110 Stat. 3009–616, 3009–620, 3009–645, 3009–722.)
This chapter, referred to in subsec. (a)(1), was in the original, “this Act”, meaning act June 27, 1952, ch. 477, 66 Stat. 163, known as the Immigration and Nationality Act, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 1101 of this title and Tables.
1996—Subsec. (a). Pub. L. 104–208, §308(c)(3), designated existing provisions as par. (1) and added par. (2).
Subsec. (b). Pub. L. 104–208, §671(b)(7), made technical amendment to directory language of Pub. L. 103–416, §209(a)(1). See 1994 Amendment note below.
Pub. L. 104–208, §671(b)(6), substituted “remains” for “remain”.
Subsec. (d). Pub. L. 104–208, §371(b)(8), substituted “immigration judges” for “special inquiry officers”.
Pub. L. 104–208, §308(e)(13), struck out subsec. (d) which read as follows: “The owner, charterer, agent, consignee, commanding officer, or master of any vessel or aircraft arriving at the United States from any place outside the United States who fails to deport any alien stowaway on the vessel or aircraft on which such stowaway arrived or on another vessel or aircraft at the expense of the vessel or aircraft on which such stowaway arrived when required to do so by an immigration officer, shall pay to the Commissioner a fine of $3,000 for each alien stowaway, in respect of whom any such failure occurs. Pending final determination of liability for such fine, no such vessel or aircraft shall be granted clearance, except that clearance may be granted upon the deposit of an amount sufficient to cover such fine, or of a bond with sufficient surety to secure the payment thereof approved by the Commissioner. The provisions of section 1225 of this title for detention of aliens for examination before immigration judges and the right of appeal provided for in section 1226 of this title shall not apply to aliens who arrive as stowaways and no such alien shall be permitted to land in the United States, except temporarily for medical treatment, or pursuant to such regulations as the Attorney General may prescribe for the ultimate departure or removal or deportation of such alien from the United States.”
1994—Subsec. (b). Pub. L. 103–416, §219(p), in first sentence substituted “Commissioner” for “collector of customs” before “to the alien”.
Pub. L. 103–416, §209(a)(1), as amended by Pub. L. 104–208, §671(b)(7), substituted “a fine of $3,000” for “the sum of $3,000”.
Pub. L. 103–416, §209(a)(2), (4), in first sentence substituted “an amount equal to” for “a sum equal to” and “such latter fine” for “such latter sum”, and in second sentence substituted “such fine or while such fine” for “such sums or while such sums” and “cover such fine” for “cover such sums”.
Subsec. (c). Pub. L. 103–416, §209(a)(4), (5), substituted “Except as provided in subsection (e) of this section, such fine” for “Such sums”.
Subsec. (d). Pub. L. 103–416, §216, amended first sentence generally. Prior to amendment, first sentence read as follows: “The owner, charterer, agent, consignee, commanding officer, or master of any vessel or aircraft arriving at the United States from any place outside thereof who fails to detain on board or at such other place as may be designated by an immigration officer any alien stowaway until such stowaway has been inspected by an immigration officer, or who fails to detain such stowaway on board or at such other designated place after inspection if ordered to do so by an immigration officer, or who fails to deport such stowaway on the vessel or aircraft on which he arrived or on another vessel or aircraft at the expense of the vessel or aircraft on which he arrived when required to do so by an immigration officer, shall pay to the Commissioner the sum of $3,000 for each alien stowaway, in respect of whom any such failure occurs.”
Pub. L. 103–416, §209(a)(1), which directed that subsec. (d) be amended by substituting “a fine of $3,000” for “the sum of $3000”, was executed in the first sentence by making the substitution for “the sum of $3,000”, to reflect the probable intent of Congress.
Pub. L. 103–416, §209(a)(3), in second sentence substituted “an amount” for “a sum” before “sufficient to cover such fine”.
Subsec. (e). Pub. L. 103–416, §209(a)(6), added subsec. (e).
1991—Subsec. (b). Pub. L. 102–232 substituted “Commissioner” for “collector of customs” before period at end of second sentence.
1990—Subsec. (a). Pub. L. 101–649, §201(b)(1), inserted “a valid passport and” before “an unexpired visa”.
Subsec. (b). Pub. L. 101–649, §543(a)(10)(A), substituted “Commissioner the sum of $3,000” for “collector of customs of the customs district in which the port of arrival is located the sum of $1,000”.
Subsec. (c). Pub. L. 101–649, §201(b)(2), inserted “valid passport or” before “visa was required”.
Subsec. (d). Pub. L. 101–649, §543(a)(10)(B), substituted “Commissioner the sum of $3,000” for “collector of customs of the customs district in which the port of arrival is located the sum of $1,000” in first sentence and “Commissioner” for “collector of customs” in second sentence.
Amendment by section 308(c)(3), (e)(13) of Pub. L. 104–208 effective, with certain transitional provisions, on the first day of the first month beginning more than 180 days after Sept. 30, 1996, see section 309 of Pub. L. 104–208, set out as a note under section 1101 of this title.
Amendment by section 371(b)(8) of Pub. L. 104–208 effective Sept. 30, 1996, see section 371(d)(1) of Pub. L. 104–208, set out as a note under section 1101 of this title.
Amendment by section 671(b)(6), (7) of Pub. L. 104–208 effective as if included in the enactment of the Immigration and Nationality Technical Corrections Act of 1994, Pub. L. 103–416, see section 671(b)(14) of Pub. L. 104–208, set out as a note under section 1101 of this title.
Section 209(b) of Pub. L. 103–416, as amended by Pub. L. 104–208, div. C, title VI, §671(b)(8), Sept. 30, 1996, 110 Stat. 3009–722, provided that: “The amendments made by this section [amending this section] shall apply with respect to aliens brought to the United States more than 60 days after the date of enactment of this Act [Oct. 25, 1994].”
Amendment by section 219(p) of Pub. L. 103–416 effective as if included in the enactment of the Immigration Act of 1990, Pub. L. 101–649, see section 219(dd) of Pub. L. 103–416, set out as a note under section 1101 of this title.
Amendment by Pub. L. 102–232 effective as if included in the enactment of the Immigration Act of 1990, Pub. L. 101–649, see section 310(1) of Pub. L. 102–232, set out as a note under section 1101 of this title.
Amendment by section 543(a)(10) of Pub. L. 101–649 applicable to actions taken after Nov. 29, 1990, see section 543(c) of Pub. L. 101–649, set out as a note under section 1221 of this title.
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under section 1551 of this title.
(1)(A) Any person who—
(i) knowing that a person is an alien, brings to or attempts to bring to the United States in any manner whatsoever such person at a place other than a designated port of entry or place other than as designated by the Commissioner, regardless of whether such alien has received prior official authorization to come to, enter, or reside in the United States and regardless of any future official action which may be taken with respect to such alien;
(ii) knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, transports, or moves or attempts to transport or move such alien within the United States by means of transportation or otherwise, in furtherance of such violation of law;
(iii) knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation;
(iv) encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law; or
(v)(I) engages in any conspiracy to commit any of the preceding acts, or
(II) aids or abets the commission of any of the preceding acts,
shall be punished as provided in subparagraph (B).
(B) A person who violates subparagraph (A) shall, for each alien in respect to whom such a violation occurs—
(i) in the case of a violation of subparagraph (A)(i) or (v)(I) or in the case of a violation of subparagraph (A)(ii), (iii), or (iv) in which the offense was done for the purpose of commercial advantage or private financial gain, be fined under title 18, imprisoned not more than 10 years, or both;
(ii) in the case of a violation of subparagraph (A)(ii), (iii), (iv), or (v)(II), be fined under title 18, imprisoned not more than 5 years, or both;
(iii) in the case of a violation of subparagraph (A)(i), (ii), (iii), (iv), or (v) during and in relation to which the person causes serious bodily injury (as defined in section 1365 of title 18) to, or places in jeopardy the life of, any person, be fined under title 18, imprisoned not more than 20 years, or both; and
(iv) in the case of a violation of subparagraph (A)(i), (ii), (iii), (iv), or (v) resulting in the death of any person, be punished by death or imprisoned for any term of years or for life, fined under title 18, or both.
(C) It is not a violation of clauses 1 (ii) or (iii) of subparagraph (A), or of clause (iv) of subparagraph (A) except where a person encourages or induces an alien to come to or enter the United States, for a religious denomination having a bona fide nonprofit, religious organization in the United States, or the agents or officers of such denomination or organization, to encourage, invite, call, allow, or enable an alien who is present in the United States to perform the vocation of a minister or missionary for the denomination or organization in the United States as a volunteer who is not compensated as an employee, notwithstanding the provision of room, board, travel, medical assistance, and other basic living expenses, provided the minister or missionary has been a member of the denomination for at least one year.
(2) Any person who, knowing or in reckless disregard of the fact that an alien has not received prior official authorization to come to, enter, or reside in the United States, brings to or attempts to bring to the United States in any manner whatsoever, such alien, regardless of any official action which may later be taken with respect to such alien shall, for each alien in respect to whom a violation of this paragraph occurs—
(A) be fined in accordance with title 18 or imprisoned not more than one year, or both; or
(B) in the case of—
(i) an offense committed with the intent or with reason to believe that the alien unlawfully brought into the United States will commit an offense against the United States or any State punishable by imprisonment for more than 1 year,
(ii) an offense done for the purpose of commercial advantage or private financial gain, or
(iii) an offense in which the alien is not upon arrival immediately brought and presented to an appropriate immigration officer at a designated port of entry,
be fined under title 18 and shall be imprisoned, in the case of a first or second violation of subparagraph (B)(iii), not more than 10 years, in the case of a first or second violation of subparagraph (B)(i) or (B)(ii), not less than 3 nor more than 10 years, and for any other violation, not less than 5 nor more than 15 years.
(3)(A) Any person who, during any 12-month period, knowingly hires for employment at least 10 individuals with actual knowledge that the individuals are aliens described in subparagraph (B) shall be fined under title 18 or imprisoned for not more than 5 years, or both.
(B) An alien described in this subparagraph is an alien who—
(i) is an unauthorized alien (as defined in section 1324a(h)(3) of this title), and
(ii) has been brought into the United States in violation of this subsection.
(4) In the case of a person who has brought aliens into the United States in violation of this subsection, the sentence otherwise provided for may be increased by up to 10 years if—
(A) the offense was part of an ongoing commercial organization or enterprise;
(B) aliens were transported in groups of 10 or more; and
(C)(i) aliens were transported in a manner that endangered their lives; or
(ii) the aliens presented a life-threatening health risk to people in the United States.
Any conveyance, including any vessel, vehicle, or aircraft, that has been or is being used in the commission of a violation of subsection (a) of this section, the gross proceeds of such violation, and any property traceable to such conveyance or proceeds, shall be seized and subject to forfeiture.
Seizures and forfeitures under this subsection shall be governed by the provisions of chapter 46 of title 18 relating to civil forfeitures, including section 981(d) of such title, except that such duties as are imposed upon the Secretary of the Treasury under the customs laws described in that section shall be performed by such officers, agents, and other persons as may be designated for that purpose by the Attorney General.
In determining whether a violation of subsection (a) of this section has occurred, any of the following shall be prima facie evidence that an alien involved in the alleged violation had not received prior official authorization to come to, enter, or reside in the United States or that such alien had come to, entered, or remained in the United States in violation of law:
(A) Records of any judicial or administrative proceeding in which that alien's status was an issue and in which it was determined that the alien had not received prior official authorization to come to, enter, or reside in the United States or that such alien had come to, entered, or remained in the United States in violation of law.
(B) Official records of the Service or of the Department of State showing that the alien had not received prior official authorization to come to, enter, or reside in the United States or that such alien had come to, entered, or remained in the United States in violation of law.
(C) Testimony, by an immigration officer having personal knowledge of the facts concerning that alien's status, that the alien had not received prior official authorization to come to, enter, or reside in the United States or that such alien had come to, entered, or remained in the United States in violation of law.
No officer or person shall have authority to make any arrests for a violation of any provision of this section except officers and employees of the Service designated by the Attorney General, either individually or as a member of a class, and all other officers whose duty it is to enforce criminal laws.
Notwithstanding any provision of the Federal Rules of Evidence, the videotaped (or otherwise audiovisually preserved) deposition of a witness to a violation of subsection (a) of this section who has been deported or otherwise expelled from the United States, or is otherwise unable to testify, may be admitted into evidence in an action brought for that violation if the witness was available for cross examination and the deposition otherwise complies with the Federal Rules of Evidence.
The Secretary of Homeland Security, in consultation with the Attorney General and the Secretary of State, as appropriate, shall develop and implement an outreach program to educate the public in the United States and abroad about the penalties for bringing in and harboring aliens in violation of this section.
(June 27, 1952, ch. 477, title II, ch. 8, §274, 66 Stat. 228; Pub. L. 95–582, §2, Nov. 2, 1978, 92 Stat. 2479; Pub. L. 97–116, §12, Dec. 29, 1981, 95 Stat. 1617; Pub. L. 99–603, title I, §112, Nov. 6, 1986, 100 Stat. 3381; Pub. L. 100–525, §2(d), Oct. 24, 1988, 102 Stat. 2610; Pub. L. 103–322, title VI, §60024, Sept. 13, 1994, 108 Stat. 1981; Pub. L. 104–208, div. C, title II, §§203(a)–(d), 219, title VI, §671(a)(1), Sept. 30, 1996, 110 Stat. 3009–565, 3009–566, 3009–574, 3009–720; Pub. L. 106–185, §18(a), Apr. 25, 2000, 114 Stat. 222; Pub. L. 108–458, title V, §5401, Dec. 17, 2004, 118 Stat. 3737; Pub. L. 109–97, title VII, §796, Nov. 10, 2005, 119 Stat. 2165.)
The Federal Rules of Evidence, referred to in subsec. (d), are set out in the Appendix to Title 28, Judiciary and Judicial Procedure.
2005—Subsec. (a)(1)(C). Pub. L. 109–97 added subpar. (C).
2004—Subsec. (a)(4). Pub. L. 108–458, §5401(a), added par. (4).
Subsec. (e). Pub. L. 108–458, §5401(b), added subsec. (e).
2000—Subsec. (b). Pub. L. 106–185 inserted heading and amended text of subsec. (b) generally, substituting present provisions for provisions relating to conveyances subject to seizure and forfeiture, exceptions, officers and authorized persons, disposition of forfeited conveyances, and suits and actions.
1996—Subsec. (a)(1). Pub. L. 104–208, §671(a)(1), made technical amendment to directory language of Pub. L. 103–322, §60024(1)(F). See 1994 Amendment note below.
Subsec. (a)(1)(A)(v). Pub. L. 104–208, §203(b)(1), which directed the amendment of subsec. (a)(1)(A) by adding cl. (v) at end, was executed by adding cl. (v) after cl. (iv), to reflect the probable intent of Congress.
Subsec. (a)(1)(B)(i). Pub. L. 104–208, §203(a), (b)(2)(A), inserted “or (v)(I) or in the case of a violation of subparagraph (A)(ii), (iii), or (iv) in which the offense was done for the purpose of commercial advantage or private financial gain” after “subparagraph (A)(i)”.
Subsec. (a)(1)(B)(ii). Pub. L. 104–208, §203(b)(2)(B), substituted “(iv), or (v)(II)” for “or (iv)”.
Subsec. (a)(1)(B)(iii), (iv). Pub. L. 104–208, §203(b)(2)(C), (D), substituted “(iv), or (v)” for “or (iv)”.
Subsec. (a)(2). Pub. L. 104–208, §203(d), substituted “for each alien in respect to whom a violation of this paragraph occurs” for “for each transaction constituting a violation of this paragraph, regardless of the number of aliens involved” in introductory provisions.
Subsec. (a)(2)(B). Pub. L. 104–208, §203(b)(3), in concluding provisions, substituted “be fined under title 18 and shall be imprisoned, in the case of a first or second violation of subparagraph (B)(iii), not more than 10 years, in the case of a first or second violation of subparagraph (B)(i) or (B)(ii), not less than 3 nor more than 10 years, and for any other violation, not less than 5 nor more than 15 years.” for “be fined in accordance with title 18 or in the case of a violation of subparagraph (B)(ii), imprisoned not more than 10 years, or both; or in the case of a violation of subparagraph (B)(i) or (B)(iii), imprisoned not more than 5 years, or both..”
Subsec. (a)(2)(B)(i). Pub. L. 104–208, §203(c), amended cl. (i) generally. Prior to amendment, cl. (i) read as follows: “a second or subsequent offense,”.
Subsec. (a)(3). Pub. L. 104–208, §203(b)(4), added par. (3).
Subsec. (d). Pub. L. 104–208, §219, added subsec. (d).
1994—Subsec. (a)(1). Pub. L. 103–322, §60024(1)(F), as amended by Pub. L. 104–208, §671(a)(1), substituted “shall be punished as provided in subparagraph (B)” for “shall be fined in accordance with title 18, United States Code, or imprisoned not more than five years, or both, for each alien in respect to whom any violation of this paragraph occurs” in concluding provisions.
Pub. L. 103–322, §60024(1)(A)–(E), (G), designated existing provisions of par. (1) as subpar. (A) of par. (1), redesignated subpars. (A) to (D) of former par. (1) as cls. (i) to (iv), respectively, of subpar. (A), and added subpar. (B).
Subsec. (a)(2)(B). Pub. L. 103–322, §60024(2), in concluding provisions, substituted “or in the case of a violation of subparagraph (B)(ii), imprisoned not more than 10 years, or both; or in the case of a violation of subparagraph (B)(i) or (B)(iii), imprisoned not more than 5 years, or both.” for “or imprisoned not more than five years, or both”.
1988—Subsec. (a)(1). Pub. L. 100–525, §2(d)(1), in closing provisions substituted “or imprisoned” for “imprisoned” and “this paragraph” for “this subsection”.
Subsec. (b)(4)(C), (5). Pub. L. 100–525, §2(d)(2), amended Pub. L. 99–603, §112(b)(5), (8). See 1986 Amendment note below.
1986—Subsec. (a). Pub. L. 99–603, §112(a), amended subsec. (a) generally. Prior to amendment, subsec. (a) read as follows: “Any person, including the owner, operator, pilot, master, commanding officer, agent, or consignee of any means of transportation who—
“(1) brings into or lands in the United States, by any means of transportation or otherwise, or attempts, by himself or through another, to bring into or land in the United States, by any means of transportation or otherwise;
“(2) knowing that he is in the United States in violation of law, and knowing or having reasonable grounds to believe that his last entry into the United States occurred less than three years prior thereto, transports, or moves, or attempts to transport or move, within the United States by means of transportation or otherwise, in furtherance of such violation of law;
“(3) willfully or knowingly conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, in any place, including any building or any means of transportation; or
“(4) willfully or knowingly encourages or induces, or attempts to encourage or induce, either directly or indirectly, the entry into the United States of—
any alien, including an alien crewman, not duly admitted by an immigration officer or not lawfully entitled to enter or reside within the United States under the terms of this chapter or any other law relating to the immigration or expulsion of aliens, shall be guilty of a felony, and upon conviction thereof shall be punished by a fine not exceeding $2,000 or by imprisonment for a term not exceeding five years, or both, for each alien in respect to whom any violation of this subsection occurs: Provided, however, That for the purposes of this section, employment (including the usual and normal practices incident to employment) shall not be deemed to constitute harboring.”
Subsec. (b)(1). Pub. L. 99–603, §112(b)(1), (2), substituted “has been or is being used” for “is used” and “seized and subject to” for “subject to seizure and” in provisions preceding subpar. (A).
Subsec. (b)(2). Pub. L. 99–603, §112(b)(3), inserted “or is being” after “has been”.
Subsec. (b)(3). Pub. L. 99–603, §112(b)(4), substituted “property” for “conveyances”.
Subsec. (b)(4)(C). Pub. L. 99–603, §112(b)(5), as amended by Pub. L. 100–525, §2(d)(2)(A), inserted “, or the Maritime Administration if appropriate under section 484(i) of title 40,”.
Subsec. (b)(4)(D). Pub. L. 99–603, §112(b)(6), added subpar. (D).
Subsec. (b)(5). Pub. L. 99–603, §112(b)(7)–(9), as amended by Pub. L. 100–525, §2(d)(2)(B), substituted “, except that” for “: Provided, That” in provisions preceding subpar. (A), substituted “had not received prior official authorization to come to, enter, or reside in the United States or that such alien had come to, entered, or remained in the United States in violation of law” for “was not lawfully entitled to enter, or reside within, the United States” wherever appearing, inserted “or of the Department of State” in subpar. (B), and substituted “had not received prior official authorization to come to, enter, or reside in the United States or that such alien had come to, entered, or remained in the United States in violation of law” for “was not entitled to enter, or reside within, the United States” in subpar. (C).
1981—Subsec. (b). Pub. L. 97–116 strengthened the seizure and forfeiture authority by striking out the “innocent owner” exemption and merely requiring the Government to show probable cause that the conveyance seized has been used to illegally transport aliens, which when demonstrated, shifts the burden of proof to the owner or claimant to show by a preponderance of the evidence that the conveyance was not illegally used, by relieving the Government of the obligation to pay any administrative and incidental costs incurred by a successful claimant provided probable cause for the original seizure was demonstrated, and by striking out the requirement that the Government satisfy any valid lien or third party interest in the conveyance without expense to the interest holder by providing the lienholders interest be satisfied only after costs associated with the seizure have been deducted.
1978—Subsecs. (b), (c). Pub. L. 95–582 added subsec. (b) and redesignated former subsec. (b) as (c).
Pub. L. 106–185, §21, Apr. 25, 2000, 114 Stat. 225, provided that: “Except as provided in section 14(c) [set out as an Effective Date note under section 2466 of title 28, Judiciary and Judicial Procedure], this Act [see Short Title of 2000 Amendment note set out under section 981 of Title 18, Crimes and Criminal Procedure] and the amendments made by this Act shall apply to any forfeiture proceeding commenced on or after the date that is 120 days after the date of the enactment of this Act [Apr. 25, 2000].”
Section 203(f) of div. C of Pub. L. 104–208 provided that: “This section [amending this section and enacting provisions set out as a note under section 994 of Title 28, Judiciary and Judicial Procedure] and the amendments made by this section shall apply with respect to offenses occurring on or after the date of the enactment of this Act [Sept. 30, 1996].”
Amendment by section 671(a)(1) of Pub. L. 104–208 effective as if included in the enactment of the Violent Crime Control and Law Enforcement Act of 1994, Pub. L. 103–322, see section 671(a)(7) of Pub. L. 104–208, set out as a note under section 1101 of this title.
Amendment by Pub. L. 100–525 effective as if included in enactment of Immigration Reform and Control Act of 1986, Pub. L. 99–603, see section 2(s) of Pub. L. 100–525, set out as a note under section 1101 of this title.
Amendment by Pub. L. 97–116 effective Dec. 29, 1981, see section 21(a) of Pub. L. 97–116, set out as a note under section 1101 of this title.
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under section 1551 of this title.
1 So in original. Probably should be “clause”.
It is unlawful for a person or other entity—
(A) to hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien (as defined in subsection (h)(3) of this section) with respect to such employment, or
(B)(i) to hire for employment in the United States an individual without complying with the requirements of subsection (b) of this section or (ii) if the person or entity is an agricultural association, agricultural employer, or farm labor contractor (as defined in section 1802 of title 29), to hire, or to recruit or refer for a fee, for employment in the United States an individual without complying with the requirements of subsection (b) of this section.
It is unlawful for a person or other entity, after hiring an alien for employment in accordance with paragraph (1), to continue to employ the alien in the United States knowing the alien is (or has become) an unauthorized alien with respect to such employment.
A person or entity that establishes that it has complied in good faith with the requirements of subsection (b) of this section with respect to the hiring, recruiting, or referral for employment of an alien in the United States has established an affirmative defense that the person or entity has not violated paragraph (1)(A) with respect to such hiring, recruiting, or referral.
For purposes of this section, a person or other entity who uses a contract, subcontract, or exchange, entered into, renegotiated, or extended after November 6, 1986, to obtain the labor of an alien in the United States knowing that the alien is an unauthorized alien (as defined in subsection (h)(3) of this section) with respect to performing such labor, shall be considered to have hired the alien for employment in the United States in violation of paragraph (1)(A).
For purposes of paragraphs (1)(B) and (3), a person or entity shall be deemed to have complied with the requirements of subsection (b) of this section with respect to the hiring of an individual who was referred for such employment by a State employment agency (as defined by the Attorney General), if the person or entity has and retains (for the period and in the manner described in subsection (b)(3) of this section) appropriate documentation of such referral by that agency, which documentation certifies that the agency has complied with the procedures specified in subsection (b) of this section with respect to the individual's referral.
For purposes of this section, if—
(i) an individual is a member of a collective-bargaining unit and is employed, under a collective bargaining agreement entered into between one or more employee organizations and an association of two or more employers, by an employer that is a member of such association, and
(ii) within the period specified in subparagraph (B), another employer that is a member of the association (or an agent of such association on behalf of the employer) has complied with the requirements of subsection (b) of this section with respect to the employment of the individual,
the subsequent employer shall be deemed to have complied with the requirements of subsection (b) of this section with respect to the hiring of the employee and shall not be liable for civil penalties described in subsection (e)(5) of this section.
The period described in this subparagraph is 3 years, or, if less, the period of time that the individual is authorized to be employed in the United States.
If any employer that is a member of an association hires for employment in the United States an individual and relies upon the provisions of subparagraph (A) to comply with the requirements of subsection (b) of this section and the individual is an alien not authorized to work in the United States, then for the purposes of paragraph (1)(A), subject to clause (ii), the employer shall be presumed to have known at the time of hiring or afterward that the individual was an alien not authorized to work in the United States.
The presumption established by clause (i) may be rebutted by the employer only through the presentation of clear and convincing evidence that the employer did not know (and could not reasonably have known) that the individual at the time of hiring or afterward was an alien not authorized to work in the United States.
Clause (i) shall not apply in any prosecution under subsection (f)(1) of this section.
For purposes of this section, the term “entity” includes an entity in any branch of the Federal Government.
The requirements referred to in paragraphs (1)(B) and (3) of subsection (a) of this section are, in the case of a person or other entity hiring, recruiting, or referring an individual for employment in the United States, the requirements specified in the following three paragraphs:
The person or entity must attest, under penalty of perjury and on a form designated or established by the Attorney General by regulation, that it has verified that the individual is not an unauthorized alien by examining—
(i) a document described in subparagraph (B), or
(ii) a document described in subparagraph (C) and a document described in subparagraph (D).
Such attestation may be manifested by either a hand-written or an electronic signature. A person or entity has complied with the requirement of this paragraph with respect to examination of a document if the document reasonably appears on its face to be genuine. If an individual provides a document or combination of documents that reasonably appears on its face to be genuine and that is sufficient to meet the requirements of the first sentence of this paragraph, nothing in this paragraph shall be construed as requiring the person or entity to solicit the production of any other document or as requiring the individual to produce such another document.
A document described in this subparagraph is an individual's—
(i) United States passport; 1
(ii) resident alien card, alien registration card, or other document designated by the Attorney General, if the document—
(I) contains a photograph of the individual and such other personal identifying information relating to the individual as the Attorney General finds, by regulation, sufficient for purposes of this subsection,
(II) is evidence of authorization of employment in the United States, and
(III) contains security features to make it resistant to tampering, counterfeiting, and fraudulent use.
A document described in this subparagraph is an individual's—
(i) social security account number card (other than such a card which specifies on the face that the issuance of the card does not authorize employment in the United States); or
(ii) other documentation evidencing authorization of employment in the United States which the Attorney General finds, by regulation, to be acceptable for purposes of this section.
A document described in this subparagraph is an individual's—
(i) driver's license or similar document issued for the purpose of identification by a State, if it contains a photograph of the individual or such other personal identifying information relating to the individual as the Attorney General finds, by regulation, sufficient for purposes of this section; or
(ii) in the case of individuals under 16 years of age or in a State which does not provide for issuance of an identification document (other than a driver's license) referred to in clause (i), documentation of personal identity of such other type as the Attorney General finds, by regulation, provides a reliable means of identification.
If the Attorney General finds, by regulation, that any document described in subparagraph (B), (C), or (D) as establishing employment authorization or identity does not reliably establish such authorization or identity or is being used fraudulently to an unacceptable degree, the Attorney General may prohibit or place conditions on its use for purposes of this subsection.
The individual must attest, under penalty of perjury on the form designated or established for purposes of paragraph (1), that the individual is a citizen or national of the United States, an alien lawfully admitted for permanent residence, or an alien who is authorized under this chapter or by the Attorney General to be hired, recruited, or referred for such employment. Such attestation may be manifested by either a hand-written or an electronic signature.
After completion of such form in accordance with paragraphs (1) and (2), the person or entity must retain a paper, microfiche, microfilm, or electronic version of the form and make it available for inspection by officers of the Service, the Special Counsel for Immigration-Related Unfair Employment Practices, or the Department of Labor during a period beginning on the date of the hiring, recruiting, or referral of the individual and ending—
(A) in the case of the recruiting or referral for a fee (without hiring) of an individual, three years after the date of the recruiting or referral, and
(B) in the case of the hiring of an individual—
(i) three years after the date of such hiring, or
(ii) one year after the date the individual's employment is terminated,
whichever is later.
Notwithstanding any other provision of law, the person or entity may copy a document presented by an individual pursuant to this subsection and may retain the copy, but only (except as otherwise permitted under law) for the purpose of complying with the requirements of this subsection.
A form designated or established by the Attorney General under this subsection and any information contained in or appended to such form, may not be used for purposes other than for enforcement of this chapter and sections 1001, 1028, 1546, and 1621 of title 18.
Except as provided in subparagraphs (B) and (C), a person or entity is considered to have complied with a requirement of this subsection notwithstanding a technical or procedural failure to meet such requirement if there was a good faith attempt to comply with the requirement.
Subparagraph (A) shall not apply if—
(i) the Service (or another enforcement agency) has explained to the person or entity the basis for the failure,
(ii) the person or entity has been provided a period of not less than 10 business days (beginning after the date of the explanation) within which to correct the failure, and
(iii) the person or entity has not corrected the failure voluntarily within such period.
Subparagraph (A) shall not apply to a person or entity that has or is engaging in a pattern or practice of violations of subsection (a)(1)(A) or (a)(2) of this section.
Nothing in this section shall be construed to authorize, directly or indirectly, the issuance or use of national identification cards or the establishment of a national identification card.
The President shall provide for the monitoring and evaluation of the degree to which the employment verification system established under subsection (b) of this section provides a secure system to determine employment eligibility in the United States and shall examine the suitability of existing Federal and State identification systems for use for this purpose.
To the extent that the system established under subsection (b) of this section is found not to be a secure system to determine employment eligibility in the United States, the President shall, subject to paragraph (3) and taking into account the results of any demonstration projects conducted under paragraph (4), implement such changes in (including additions to) the requirements of subsection (b) of this section as may be necessary to establish a secure system to determine employment eligibility in the United States. Such changes in the system may be implemented only if the changes conform to the requirements of paragraph (2).
Any change the President proposes to implement under paragraph (1) in the verification system must be designed in a manner so the verification system, as so changed, meets the following requirements:
The system must be capable of reliably determining whether—
(i) a person with the identity claimed by an employee or prospective employee is eligible to work, and
(ii) the employee or prospective employee is claiming the identity of another individual.
If the system requires that a document be presented to or examined by an employer, the document must be in a form which is resistant to counterfeiting and tampering.
Any personal information utilized by the system may not be made available to Government agencies, employers, and other persons except to the extent necessary to verify that an individual is not an unauthorized alien.
The system must protect the privacy and security of personal information and identifiers utilized in the system.
A verification that an employee or prospective employee is eligible to be employed in the United States may not be withheld or revoked under the system for any reason other than that the employee or prospective employee is an unauthorized alien.
The system may not be used for law enforcement purposes, other than for enforcement of this chapter or sections 1001, 1028, 1546, and 1621 of title 18.
If the system requires individuals to present a new card or other document (designed specifically for use for this purpose) at the time of hiring, recruitment, or referral, then such document may not be required to be presented for any purpose other than under this chapter (or enforcement of sections 1001, 1028, 1546, and 1621 of title 18) nor to be carried on one's person.
The President may not implement any change under paragraph (1) unless at least—
(i) 60 days,
(ii) one year, in the case of a major change described in subparagraph (D)(iii), or
(iii) two years, in the case of a major change described in clause (i) or (ii) of subparagraph (D),
before the date of implementation of the change, the President has prepared and transmitted to the Committee on the Judiciary of the House of Representatives and to the Committee on the Judiciary of the Senate a written report setting forth the proposed change. If the President proposes to make any change regarding social security account number cards, the President shall transmit to the Committee on Ways and Means of the House of Representatives and to the Committee on Finance of the Senate a written report setting forth the proposed change. The President promptly shall cause to have printed in the Federal Register the substance of any major change (described in subparagraph (D)) proposed and reported to Congress.
In any report under subparagraph (A) the President shall include recommendations for the establishment of civil and criminal sanctions for unauthorized use or disclosure of the information or identifiers contained in such system.
The Committees on the Judiciary of the House of Representatives and of the Senate shall cause to have printed in the Congressional Record the substance of any major change described in subparagraph (D), shall hold hearings respecting the feasibility and desirability of implementing such a change, and, within the two year period before implementation, shall report to their respective Houses findings on whether or not such a change should be implemented.
No major change may be implemented unless the Congress specifically provides, in an appropriations or other Act, for funds for implementation of the change.
As used in this paragraph, the term “major change” means a change which would—
(i) require an individual to present a new card or other document (designed specifically for use for this purpose) at the time of hiring, recruitment, or referral,
(ii) provide for a telephone verification system under which an employer, recruiter, or referrer must transmit to a Federal official information concerning the immigration status of prospective employees and the official transmits to the person, and the person must record, a verification code, or
(iii) require any change in any card used for accounting purposes under the Social Security Act [42 U.S.C. 301 et seq.], including any change requiring that the only social security account number cards which may be presented in order to comply with subsection (b)(1)(C)(i) of this section are such cards as are in a counterfeit-resistant form consistent with the second sentence of section 205(c)(2)(D) of the Social Security Act [42 U.S.C. 405(c)(2)(D)].
Any costs incurred in developing and implementing any change described in subparagraph (D)(iii) for purposes of this subsection shall not be paid for out of any trust fund established under the Social Security Act [42 U.S.C. 301 et seq.].
The President may undertake demonstration projects (consistent with paragraph (2)) of different changes in the requirements of subsection (b) of this section. No such project may extend over a period of longer than five years.
The President shall report to the Congress on the results of demonstration projects conducted under this paragraph.
The Attorney General shall establish procedures—
(A) for individuals and entities to file written, signed complaints respecting potential violations of subsection (a) or (g)(1) of this section,
(B) for the investigation of those complaints which, on their face, have a substantial probability of validity,
(C) for the investigation of such other violations of subsection (a) or (g)(1) of this section as the Attorney General determines to be appropriate, and
(D) for the designation in the Service of a unit which has, as its primary duty, the prosecution of cases of violations of subsection (a) or (g)(1) of this section under this subsection.
In conducting investigations and hearings under this subsection—
(A) immigration officers and administrative law judges shall have reasonable access to examine evidence of any person or entity being investigated,
(B) administrative law judges, may, if necessary, compel by subpoena the attendance of witnesses and the production of evidence at any designated place or hearing, and
(C) immigration officers designated by the Commissioner may compel by subpoena the attendance of witnesses and the production of evidence at any designated place prior to the filing of a complaint in a case under paragraph (2).
In case of contumacy or refusal to obey a subpoena lawfully issued under this paragraph and upon application of the Attorney General, an appropriate district court of the United States may issue an order requiring compliance with such subpoena and any failure to obey such order may be punished by such court as a contempt thereof.
Before imposing an order described in paragraph (4), (5), or (6) against a person or entity under this subsection for a violation of subsection (a) or (g)(1) of this section, the Attorney General shall provide the person or entity with notice and, upon request made within a reasonable time (of not less than 30 days, as established by the Attorney General) of the date of the notice, a hearing respecting the violation.
Any hearing so requested shall be conducted before an administrative law judge. The hearing shall be conducted in accordance with the requirements of section 554 of title 5. The hearing shall be held at the nearest practicable place to the place where the person or entity resides or of the place where the alleged violation occurred. If no hearing is so requested, the Attorney General's imposition of the order shall constitute a final and unappealable order.
If the administrative law judge determines, upon the preponderance of the evidence received, that a person or entity named in the complaint has violated subsection (a) or (g)(1) of this section, the administrative law judge shall state his findings of fact and issue and cause to be served on such person or entity an order described in paragraph (4), (5), or (6).
With respect to a violation of subsection (a)(1)(A) or (a)(2) of this section, the order under this subsection—
(A) shall require the person or entity to cease and desist from such violations and to pay a civil penalty in an amount of—
(i) not less than $250 and not more than $2,000 for each unauthorized alien with respect to whom a violation of either such subsection occurred,
(ii) not less than $2,000 and not more than $5,000 for each such alien in the case of a person or entity previously subject to one order under this paragraph, or
(iii) not less than $3,000 and not more than $10,000 for each such alien in the case of a person or entity previously subject to more than one order under this paragraph; and
(B) may require the person or entity—
(i) to comply with the requirements of subsection (b) of this section (or subsection (d) of this section if applicable) with respect to individuals hired (or recruited or referred for employment for a fee) during a period of up to three years, and
(ii) to take such other remedial action as is appropriate.
In applying this subsection in the case of a person or entity composed of distinct, physically separate subdivisions each of which provides separately for the hiring, recruiting, or referring for employment, without reference to the practices of, and not under the control of or common control with, another subdivision, each such subdivision shall be considered a separate person or entity.
With respect to a violation of subsection (a)(1)(B) of this section, the order under this subsection shall require the person or entity to pay a civil penalty in an amount of not less than $100 and not more than $1,000 for each individual with respect to whom such violation occurred. In determining the amount of the penalty, due consideration shall be given to the size of the business of the employer being charged, the good faith of the employer, the seriousness of the violation, whether or not the individual was an unauthorized alien, and the history of previous violations.
With respect to a violation of subsection (g)(1) of this section, the order under this subsection may provide for the remedy described in subsection (g)(2) of this section.
The decision and order of an administrative law judge shall become the final agency decision and order of the Attorney General unless either (A) within 30 days, an official delegated by regulation to exercise review authority over the decision and order modifies or vacates the decision and order, or (B) within 30 days of the date of such a modification or vacation (or within 60 days of the date of decision and order of an administrative law judge if not so modified or vacated) the decision and order is referred to the Attorney General pursuant to regulations, in which case the decision and order of the Attorney General shall become the final agency decision and order under this subsection. The Attorney General may not delegate the Attorney General's authority under this paragraph to any entity which has review authority over immigration-related matters.
A person or entity adversely affected by a final order respecting an assessment may, within 45 days after the date the final order is issued, file a petition in the Court of Appeals for the appropriate circuit for review of the order.
If a person or entity fails to comply with a final order issued under this subsection against the person or entity, the Attorney General shall file a suit to seek compliance with the order in any appropriate district court of the United States. In any such suit, the validity and appropriateness of the final order shall not be subject to review.
Any person or entity which engages in a pattern or practice of violations of subsection (a)(1)(A) or (a)(2) of this section shall be fined not more than $3,000 for each unauthorized alien with respect to whom such a violation occurs, imprisoned for not more than six months for the entire pattern or practice, or both, notwithstanding the provisions of any other Federal law relating to fine levels.
Whenever the Attorney General has reasonable cause to believe that a person or entity is engaged in a pattern or practice of employment, recruitment, or referral in violation of paragraph (1)(A) or (2) of subsection (a) of this section, the Attorney General may bring a civil action in the appropriate district court of the United States requesting such relief, including a permanent or temporary injunction, restraining order, or other order against the person or entity, as the Attorney General deems necessary.
It is unlawful for a person or other entity, in the hiring, recruiting, or referring for employment of any individual, to require the individual to post a bond or security, to pay or agree to pay an amount, or otherwise to provide a financial guarantee or indemnity, against any potential liability arising under this section relating to such hiring, recruiting, or referring of the individual.
Any person or entity which is determined, after notice and opportunity for an administrative hearing under subsection (e) of this section, to have violated paragraph (1) shall be subject to a civil penalty of $1,000 for each violation and to an administrative order requiring the return of any amounts received in violation of such paragraph to the employee or, if the employee cannot be located, to the general fund of the Treasury.
In providing documentation or endorsement of authorization of aliens (other than aliens lawfully admitted for permanent residence) authorized to be employed in the United States, the Attorney General shall provide that any limitations with respect to the period or type of employment or employer shall be conspicuously stated on the documentation or endorsement.
The provisions of this section preempt any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.
As used in this section, the term “unauthorized alien” means, with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this chapter or by the Attorney General.
(June 27, 1952, ch. 477, title II, ch. 8, §274A, as added Pub. L. 99–603, title I, §101(a)(1), Nov. 6, 1986, 100 Stat. 3360; amended Pub. L. 100–525, §2(a)(1), Oct. 24, 1988, 102 Stat. 2609; Pub. L. 101–649, title V, §§521(a), 538(a), Nov. 29, 1990, 104 Stat. 5053, 5056; Pub. L. 102–232, title III, §§306(b)(2), 309(b)(11), Dec. 12, 1991, 105 Stat. 1752, 1759; Pub. L. 103–416, title II, §§213, 219(z)(4), Oct. 25, 1994, 108 Stat. 4314, 4318; Pub. L. 104–208, div. C, title III, §379(a), title IV, §§411(a), 412(a)–(d), 416, Sept. 30, 1996, 110 Stat. 3009–649, 3009–666 to 3009–669; Pub. L. 108–390, §1(a), Oct. 30, 2004, 118 Stat. 2242.)
This chapter, referred to in subsecs. (b)(2), (5), (d)(2)(F), (G), and (h)(3), was in the original, “this Act”, meaning act June 27, 1952, ch. 477, 66 Stat. 163, known as the Immigration and Nationality Act, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 1101 of this title and Tables.
The Social Security Act, referred to in subsec. (d)(3)(D)(iii), (E), is act Aug. 14, 1935, ch. 531, 49 Stat. 620, as amended, which is classified generally to chapter 7 (§301 et seq.) of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see section 1305 of Title 42 and Tables.
2004—Subsec. (b)(1)(A). Pub. L. 108–390, §1(a)(1), inserted “Such attestation may be manifested by either a hand-written or an electronic signature.” before “A person or entity has complied” in concluding provisions.
Subsec. (b)(2). Pub. L. 108–390, §1(a)(2), inserted at end “Such attestation may be manifested by either a hand-written or an electronic signature.”
Subsec. (b)(3). Pub. L. 108–390, §1(a)(3), inserted “a paper, microfiche, microfilm, or electronic version of” after “must retain” in introductory provisions.
1996—Subsec. (a)(6). Pub. L. 104–208, §412(b), added par. (6).
Subsec. (a)(7). Pub. L. 104–208, §412(d), added par. (7).
Subsec. (b)(1)(B). Pub. L. 104–208, §412(a)(1)(A), (B), redesignated cl. (v) as (ii), substituted “, alien registration card, or other document designated by the Attorney General, if the document” for “or other alien registration card, if the card” in introductory provisions of that cl., and struck out former cls. (ii) to (iv) which read as follows:
“(ii) certificate of United States citizenship;
“(iii) certificate of naturalization;
“(iv) unexpired foreign passport, if the passport has an appropriate, unexpired endorsement of the Attorney General authorizing the individual's employment in the United States; or”.
Subsec. (b)(1)(B)(ii). Pub. L. 104–208, §412(a)(1)(C), in subcl. (I), substituted “and” for “or” before “such other personal” and struck out “and” at end, in subcl. (II), substituted “, and” for the period at end, and added subcl. (III).
Subsec. (b)(1)(C). Pub. L. 104–208, §412(a)(2), inserted “or” at end of cl. (i), redesignated cl. (iii) as (ii), and struck out former cl. (ii) which read as follows: “certificate of birth in the United States or establishing United States nationality at birth, which certificate the Attorney General finds, by regulation, to be acceptable for purposes of this section; or”.
Subsec. (b)(1)(E). Pub. L. 104–208, §412(a)(3), added subpar. (E).
Subsec. (b)(6). Pub. L. 104–208, §411(a), added par. (6).
Subsec. (e)(2)(C). Pub. L. 104–208, §416, added subpar. (C).
Subsec. (e)(7). Pub. L. 104–208, §379(a)(2), substituted “the final agency decision and order under this subsection” for “a final order under this subsection”.
Pub. L. 104–208, §379(a)(1), substituted “unless either (A) within 30 days, an official delegated by regulation to exercise review authority over the decision and order modifies or vacates the decision and order, or (B) within 30 days of the date of such a modification or vacation (or within 60 days of the date of decision and order of an administrative law judge if not so modified or vacated) the decision and order is referred to the Attorney General pursuant to regulations” for “unless, within 30 days, the Attorney General modifies or vacates the decision and order”.
Subsecs. (i) to (n). Pub. L. 104–208, §412(c), struck out subsec. (i) which provided effective dates for implementation of this section, subsec. (j) which required General Accounting Office reports on implementation of this section, subsec. (k) which established a taskforce to review reports, subsec. (l) which provided a termination date for employer sanctions under this section upon finding of widespread discrimination in implementing this section, and subsecs. (m) and (n) which provided for expedited procedures in House of Representatives and Senate for considering resolutions to approve findings in the reports.
1994—Subsec. (b)(3). Pub. L. 103–416, §219(z)(4), made technical correction to Pub. L. 102–232, §306(b)(2). See 1991 Amendment note below.
Subsec. (d)(4)(A). Pub. L. 103–416, §213, substituted “five” for “three” in second sentence.
1991—Subsec. (b)(1)(D)(ii). Pub. L. 102–232, §309(b)(11), substituted “clause (i)” for “clause (ii)”.
Subsec. (b)(3). Pub. L. 102–232, §306(b)(2), as amended by Pub. L. 103–416, §219(z)(4), made technical correction to Pub. L. 101–649, §538(a). See 1990 Amendment note below.
1990—Subsec. (a)(1). Pub. L. 101–649, §521(a), struck out “to hire, or to recruit or refer for a fee, for employment in the United States” after “or other entity” in introductory provisions, inserted “to hire, or to recruit or refer for a fee, for employment in the United States” after “(A)” in subpar. (A), and inserted “(i) to hire for employment in the United States an individual without complying with the requirements of subsection (b) of this section or (ii) if the person or entity is an agricultural association, agricultural employer, or farm labor contractor (as defined in section 1802 of title 29), to hire, or to recruit or refer for a fee, for employment in the United States” after “(B)” in subpar. (B).
Subsec. (b)(3). Pub. L. 101–649, §538(a), as amended by Pub. L. 102–232, §306(b)(2), as amended by Pub. L. 103–416, §219(z)(4), inserted “, the Special Counsel for Immigration-Related Unfair Employment Practices,” after “officers of the Service”.
1988—Subsec. (b)(1)(A). Pub. L. 100–525, §2(a)(1)(A), substituted “the first sentence of this paragraph” for “such sentence” and “such another document” for “such a document”.
Subsec. (d)(3)(D). Pub. L. 100–525, §2(a)(1)(B), in heading substituted “defined” for “requiring two years notice and congressional review”.
Subsec. (e)(1). Pub. L. 100–525, §2(a)(1)(C)(i), inserted reference to subsec. (g)(1) in three places.
Subsec. (e)(3). Pub. L. 100–525, §2(a)(1)(C)(i), (ii), inserted reference to subsec. (g)(1) in two places and reference to par. (6) in two places.
Subsec. (e)(4)(A)(ii), (iii). Pub. L. 100–525, §2(a)(1)(D), substituted “paragraph” for “subparagraph”.
Subsec. (e)(6) to (9). Pub. L. 100–525, §2(a)(1)(C)(iii), (iv), added par. (6) and redesignated former pars. (6) to (8) as (7) to (9), respectively.
Subsec. (g)(2). Pub. L. 100–525, §2(a)(1)(E), inserted reference to subsec. (e) of this section.
Subsec. (i)(3)(B)(iii). Pub. L. 100–525, §2(a)(1)(F), substituted “an order” for “a order” and “subsection (a)(1)(A) of this section” for “paragraph (1)(A)”.
Subsec. (j)(1). Pub. L. 100–525, §2(a)(1)(G), made technical amendment to provision of original act which was translated as “November 6, 1986,” and struck out “of the United States” after “Comptroller General”.
Subsec. (j)(2). Pub. L. 100–525, §2(a)(1)(H), substituted “this section” for “that section”.
Pub. L. 108–390, §1(b), Oct. 30, 2004, 118 Stat. 2242, provided that: “The amendments made by subsection (a) [amending this section] shall take effect on the earlier of—
“(1) the date on which final regulations implementing such amendments take effect; or
“(2) 180 days after the date of the enactment of this Act [Oct. 30, 2004].”
Section 379(b) of div. C of Pub. L. 104–208 provided that: “The amendments made by subsection (a) [amending this section and section 1324c of this title] shall apply to orders issued on or after the date of the enactment of this Act [Sept. 30, 1996].”
Section 411(b) of div. C of Pub. L. 104–208 provided that: “The amendment made by subsection (a) [amending this section] shall apply to failures occurring on or after the date of the enactment of this Act [Sept. 30, 1996].”
Section 412(e) of div. C of Pub. L. 104–208, as amended by Pub. L. 105–54, §3(a), Oct. 6, 1997, 111 Stat. 1175; Pub. L. 108–156, §3(d), Dec. 3, 2003, 117 Stat. 1945, provided that:
“(1) The amendments made by subsection (a) [amending this section] shall apply with respect to hiring (or recruitment or referral) occurring on or after such date (not later than 18 months after the date of the enactment of this Act [Sept. 30, 1996]) as the Secretary of Homeland Security shall designate.
“(2) The amendment made by subsection (b) [amending this section] shall apply to individuals hired on or after 60 days after the date of the enactment of this Act.
“(3) The amendment made by subsection (c) [amending this section] shall take effect on the date of the enactment of this Act.
“(4) The amendment made by subsection (d) [amending this section] applies to hiring occurring before, on, or after the date of the enactment of this Act, but no penalty shall be imposed under subsection (e) or (f) of section 274A of the Immigration and Nationality Act [subsecs. (e) and (f) of this section] for such hiring occurring before such date.”
[Section 3(b) of Pub. L. 105–54 provided that: “The amendment made by subsection (a) [amending section 412(e) of div. C of Pub. L. 104–208, set out above] shall take effect as if included in the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 [div. C of Pub. L. 104–208].”]
Section 219(z) of Pub. L. 103–416 provided that the amendment made by subsec. (z)(4) of that section is effective as if included in the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, Pub. L. 102–232.
Amendment by section 306(b)(2) of Pub. L. 102–232 effective as if included in the enactment of the Immigration Act of 1990, Pub. L. 101–649, see section 310(1) of Pub. L. 102–232, set out as a note under section 1101 of this title.
Section 521(b) of Pub. L. 101–649 provided that: “The amendments made by subsection (a) [amending this section] shall apply to recruiting and referring occurring on or after the date of the enactment of this Act [Nov. 29, 1990].”
Section 538(b) of Pub. L. 101–649 provided that: “The amendment made by subsection (a) [amending this section] shall take effect on the date of the enactment of this Act [Nov. 29, 1990].”
Amendment by Pub. L. 100–525 effective as if included in enactment of Immigration Reform and Control Act of 1986, Pub. L. 99–603, see section 2(s) of Pub. L. 100–525, set out as a note under section 1101 of this title.
Date of enactment of this section with respect to aliens deemed employed under section 8704 of Title 46, Shipping, as the date 180 days after Jan. 11, 1988, see section 5(f)(3) of Pub. L. 100–239, set out as a Construction note under section 8704 of Title 46.
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under section 1551 of this title.
Memorandum of President of the United States, Feb. 10, 1992, 57 F.R. 24345, provided:
Memorandum for the Secretary of Health and Human Services
Section 205(c)(2)(F) of the Social Security Act (section 405(c)(2)(F) of title 42 of the United States Code) directs the Secretary of Health and Human Services to issue Social Security number cards to individuals who are assigned Social Security numbers.
By the authority vested in me as President by the Constitution and the laws of the United States of America, including section 274A(d)(3)(A) of the Immigration and Nationality Act (the “Act”) (section 1324a(d)(3)(A) of title 8 of the United States Code) and section 301 of title 3 of the United States Code, and in order to provide for the delegation of certain functions under the Act [8 U.S.C. 1101 et seq.], I hereby:
(1) Authorize you to prepare and transmit, to the Committee on the Judiciary and the Committee on Ways and Means of the House of Representatives and to the Committee on the Judiciary and the Committee on Finance of the Senate, a written report regarding the substance of any proposed change in Social Security number cards, to the extent required by section 274A(d)(3)(A) of the Act, and
(2) Authorize you to cause to have printed in the Federal Register the substance of any change in the Social Security number card so proposed and reported to the designated congressional committees, to the extent required by section 274A(d)(3)(A) of the Act.
The authority delegated by this memorandum may be further redelegated within the Department of Health and Human Services.
You are hereby authorized and directed to publish this memorandum in the Federal Register.
George Bush.
Authority of President under subsec. (d)(4) of this section to undertake demonstration projects of different changes in requirements of employment verification system delegated to Attorney General by section 2 of Ex. Ord. No. 12781, Nov. 20, 1991, 56 F.R. 59203, set out as a note under section 301 of Title 3, The President.
Pub. L. 104–208, div. C, title IV, subtitle A, Sept. 30, 1996, 110 Stat. 3009–655, as amended by Pub. L. 107–128, §2, Jan. 16, 2002, 115 Stat. 2407; Pub. L. 108–156, §§2, 3, Dec. 3, 2003, 117 Stat. 1944; Pub. L. 111–83, title V, §§547, 551, Oct. 28, 2009, 123 Stat. 2177, provided that:
“(a)
“(b)
“(c)
“(1) of the E-Verify Program (described in section 403(a) of this division) in, at a minimum, 5 of the 7 States with the highest estimated population of aliens who are not lawfully present in the United States, and the Secretary of Homeland Security shall expand the operation of the program to all 50 States not later than December 1, 2004;
“(2) of the citizen attestation pilot program (described in section 403(b) of this division) in at least 5 States (or, if fewer, all of the States) that meet the condition described in section 403(b)(2)(A) of this division; and
“(3) of the machine-readable-document pilot program (described in section 403(c) of this division) in at least 5 States (or, if fewer, all of the States) that meet the condition described in section 403(c)(2) of this division.
“(d)
“(1)
“(2)
“(3)
“(4) I–9
“(5)
“(6)
“(7)
“(a)
“(b)
“(1)
“(2)
“(c)
“(1)
“(2)
“(A)
“(i) to all its hiring (and all recruitment or referral) in the State (or States) in which the pilot program is operating, or
“(ii) to its hiring (or recruitment or referral) in one or more pilot program States or one or more places of hiring (or recruitment or referral, as the case may be) in the pilot program States.
“(B)
“(3)
“(d)
“(1)
“(2)
“(3)
“(A) to inform persons and other entities that seek information about pilot programs of the voluntary nature of such programs, and
“(B) to assist persons and other entities in electing and participating in any pilot programs in effect in the District, in complying with the requirements of section 274A, and in facilitating confirmation of the identity and employment eligibility of individuals consistent with such section.
“(e)
“(1)
“(A)
“(i)
“(ii)
“(I) shall elect the pilot program (or programs) in which the Department shall participate, and
“(II) may limit the election to hiring occurring in certain States (or geographic areas) covered by the program (or programs) and in specified divisions within the Department, so long as all hiring by such divisions and in such locations is covered.
“(iii)
“(I) a significant portion of the total hiring within each Department within States covered by a pilot program is covered under such a program, and
“(II) there is significant participation by the Federal Executive branch in each of the pilot programs.
“(B)
“(2)
“(3)
“(A) such failure shall be treated as a violation of section 274A(a)(1)(B) with respect to that individual, and
“(B) a rebuttable presumption is created that the person or entity has violated section 274A(a)(1)(A).
Subparagraph (B) shall not apply in any prosecution under section 274A(f)(1).
“(f)
“(a)
“(1)
“(A) the individual's social security account number, if the individual has been issued such a number, and
“(B) if the individual does not attest to United States citizenship under section 274A(b)(2), such identification or authorization number established by the Immigration and Naturalization Service for the alien as the Secretary of Homeland Security shall specify,
and shall retain the original form and make it available for inspection for the period and in the manner required of I–9 forms under section 274A(b)(3).
“(2)
“(A)
“(i) A document referred to in section 274A(b)(1)(B)(ii) (as redesignated by section 412(a) of this division) must be designated by the Secretary of Homeland Security as suitable for the purpose of identification in a pilot program.
“(ii) A document referred to in section 274A(b)(1)(D) must contain a photograph of the individual.
“(iii) The person or other entity has complied with the requirements of section 274A(b)(1) with respect to examination of a document if the document reasonably appears on its face to be genuine and it reasonably appears to pertain to the individual whose identity and work eligibility is being confirmed.
“(B)
“(i) the person with the identity claimed by the individual is authorized to work in the United States, and
“(ii) the individual is claiming the identity of another person,
if a person or entity could fulfill the requirement to examine documentation contained in subparagraph (A) of section 274A(b)(1) by examining a document specified in either subparagraph (B) or (D) of such section, the Secretary of Homeland Security may provide that, for purposes of such requirement, only such a document need be examined. In such case, any reference in section 274A(b)(1)(A) to a verification that an individual is not an unauthorized alien shall be deemed to be a verification of the individual's identity.
“(3)
“(A)
“(B)
“(4)
“(A)
“(B)
“(i)
“(ii)
“(iii)
“(iv)
“(C)
“(i)
“(ii)
“(iii)
“(b)
“(1)
“(2)
“(A)
“(i) contains a photograph of the individual involved, and
“(ii) has been determined by the Secretary of Homeland Security to have security features, and to have been issued through application and issuance procedures, which make such document sufficiently resistant to counterfeiting, tampering, and fraudulent use that it is a reliable means of identification for purposes of this section.
“(B)
“(3)
“(A) the person or entity may fulfill the requirement to examine documentation contained in subparagraph (A) of section 274A(b)(1) by examining a document specified in either subparagraph (B)(i) or (D) of such section; and
“(B) the person or other entity is not required to comply with respect to such individual with the procedures described in paragraphs (3) and (4) of subsection (a), but only if the person or entity retains the form and makes it available for inspection in the same manner as in the case of an I–9 form under section 274A(b)(3).
“(4)
“(A)
“(B)
“(5)
“(c)
“(1)
“(2)
“(3)
“(d)
“(a)
“(1) responds to inquiries made by electing persons and other entities (including those made by the transmittal of data from machine-readable documents under the machine-readable pilot program) at any time through a toll-free telephone line or other toll-free electronic media concerning an individual's identity and whether the individual is authorized to be employed, and
“(2) maintains records of the inquiries that were made, of confirmations provided (or not provided), and of the codes provided to inquirers as evidence of their compliance with their obligations under the pilot programs.
To the extent practicable, the Secretary of Homeland Security shall seek to establish such a system using one or more nongovernmental entities.
“(b)
“(c)
“(d)
“(1) to maximize its reliability and ease of use by persons and other entities making elections under section 402(a) of this division consistent with insulating and protecting the privacy and security of the underlying information;
“(2) to respond to all inquiries made by such persons and entities on whether individuals are authorized to be employed and to register all times when such inquiries are not received;
“(3) with appropriate administrative, technical, and physical safeguards to prevent unauthorized disclosure of personal information; and
“(4) to have reasonable safeguards against the system's resulting in unlawful discriminatory practices based on national origin or citizenship status, including—
“(A) the selective or unauthorized use of the system to verify eligibility;
“(B) the use of the system prior to an offer of employment; or
“(C) the exclusion of certain individuals from consideration for employment as a result of a perceived likelihood that additional verification will be required, beyond what is required for most job applicants.
“(e)
“(f)
“(g)
“(h)
“(1)
“(2)
“(a)
“(1) assess the degree of fraudulent attesting of United States citizenship,
“(2) include recommendations on whether or not the pilot programs should be continued or modified, and
“(3) assess the benefits of the pilot programs to employers and the degree to which they assist in the enforcement of section 274A.
“(b)
“(1) evaluating whether the problems identified by the report submitted under subsection (a) have been substantially resolved; and
“(2) describing what actions the Secretary of Homeland Security shall take before undertaking the expansion of the E-Verify Program to all 50 States in accordance with section 401(c)(1), in order to resolve any outstanding problems raised in the report filed under subsection (a).”
[Pub. L. 110–329, div. A, §143, Sept. 30, 2008, 122 Stat. 3580, as amended by Pub. L. 111–8, div. J, §101, Mar. 11, 2009, 123 Stat. 988, provided that: “Section 401(b) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 [Pub. L. 104–208] (8 U.S.C. 1324a note) shall be applied by substituting [‘]September 30, 2009[’] for ‘the 11-year period beginning on the first day the pilot program is in effect’.”]
[Pub. L. 107–128, §3, Jan. 16, 2002, 115 Stat. 2407, provided that: “The amendment made by this Act [amending section 401(b) of Pub. L. 104–208, set out above] shall take effect on the date of the enactment of this Act [Jan. 16, 2002].”]
Pub. L. 104–208, div. C, title IV, §413(a), Sept. 30, 1996, 110 Stat. 3009–668, as amended by Pub. L. 108–156, §3(d), Dec. 3, 2003, 117 Stat. 1945, provided that not later than 1 year after Sept. 30, 1996, the Secretary of Homeland Security was to submit to the Committees on the Judiciary of the House of Representatives and of the Senate a report on any additional authority or resources needed by the Immigration and Naturalization Service in order to enforce section 1324a of this title, or by Federal agencies in order to carry out Ex. Ord. No. 12989, set out below, and to expand the restrictions in such order to cover agricultural subsidies, grants, job training programs, and other Federally subsidized assistance programs.
Pub. L. 101–238, §5, Dec. 18, 1989, 103 Stat. 2104, provided that:
“(a)
“(b)
“(c)
“(d)
Section 101(a)(2) of Pub. L. 99–603 provided that: “The Attorney General shall, not later than the first day of the seventh month beginning after the date of the enactment of this Act [Nov. 6, 1986], first issue, on an interim or other basis, such regulations as may be necessary in order to implement this section [enacting this section, amending sections 1802, 1813, 1816, and 1851 of Title 29, Labor, and enacting provisions set out as notes under this section, section 1802 of Title 29, and section 405 of Title 42, The Public Health and Welfare].”
Section 101(a)(3) of Pub. L. 99–603 provided that:
“(A) Section 274A(a)(1) of the Immigration and Nationality Act [8 U.S.C. 1324a(a)(1)] shall not apply to the hiring, or recruiting or referring of an individual for employment which has occurred before the date of the enactment of this Act [Nov. 6, 1986].
“(B) Section 274A(a)(2) of the Immigration and Nationality Act shall not apply to continuing employment of an alien who was hired before the date of the enactment of this Act.”
Section 101(d) of Pub. L. 99–603 provided that:
“(1) The Attorney General, in consultation with the Secretary of Labor and the Secretary of Health and Human Services, shall conduct a study for use by the Department of Justice in determining employment eligibility of aliens in the United States. Such study shall concentrate on those data bases that are currently available to the Federal Government which through the use of a telephone and computation capability could be used to verify instantly the employment eligibility status of job applicants who are aliens.
“(2) Such study shall be conducted in conjunction with any existing Federal program which is designed for the purpose of providing information on the resident or employment status of aliens for employers. The study shall include an analysis of costs and benefits which shows the differences in costs and efficiency of having the Federal Government or a contractor perform this service. Such comparisons should include reference to such technical capabilities as processing techniques and time, verification techniques and time, back up safeguards, and audit trail performance.
“(3) Such study shall also concentrate on methods of phone verification which demonstrate the best safety and service standards, the least burden for the employer, the best capability for effective enforcement, and procedures which are within the boundaries of the Privacy Act of 1974 [5 U.S.C. 552a, 552a note].
“(4) Such study shall be conducted within twelve months of the date of enactment of this Act [Nov. 6, 1986].
“(5) The Attorney General shall prepare and transmit to the Congress a report—
“(A) not later than six months after the date of enactment of this Act, describing the status of such study; and
“(B) not later than twelve months after such date, setting forth the findings of such study.”
Section 101(e) of Pub. L. 99–603 provided that: “The Secretary of Health and Human Services, acting through the Social Security Administration and in cooperation with the Attorney General and the Secretary of Labor, shall conduct a study of the feasibility and costs of establishing a social security number validation system to assist in carrying out the purposes of section 274A of the Immigration and Nationality Act [8 U.S.C. 1324a], and of the privacy concerns that would be raised by the establishment of such a system. The Secretary shall submit to the Committees on Ways and Means and Judiciary of the House of Representatives and to the Committees on Finance and Judiciary of the Senate, within 2 years after the date of the enactment of this Act [Nov. 6, 1986], a full and complete report on the results of the study together with such recommendations as may be appropriate.”
Section 402 of Pub. L. 99–603 provided that: “The President shall transmit to Congress annual reports on the implementation of section 274A of the Immigration and Nationality Act [8 U.S.C. 1324a] (relating to unlawful employment of aliens) during the first three years after its implementation. Each report shall include—
“(1) an analysis of the adequacy of the employment verification system provided under subsection (b) of that section;
“(2) a description of the status of the development and implementation of changes in that system under subsection (d) of that section, including the results of any demonstration projects conducted under paragraph (4) of such subsection; and
“(3) an analysis of the impact of the enforcement of that section on—
“(A) the employment, wages, and working conditions of United States workers and on the economy of the United States,
“(B) the number of aliens entering the United States illegally or who fail to maintain legal status after entry, and
“(C) the violation of terms and conditions of nonimmigrant visas by foreign visitors.”
[Functions of President under section 402 of Pub. L. 99–603 delegated to Secretary of Homeland Security, except functions in section 402(3)(A) which were delegated to Secretary of Labor, by sections 1(b) and 2(a) of Ex. Ord. No. 12789, Feb. 10, 1992, 57 F.R. 5225, as amended, set out as a note under section 1364 of this title.]
Ex. Ord. No. 12989, Feb. 13, 1996, 61 F.R. 6091, as amended by Ex. Ord. No. 13286, §19, Feb. 28, 2003, 68 F.R. 10623; Ex. Ord. No. 13465, §§1–6, June 6, 2008, 73 F.R. 33285–33287, provided:
This order is designed to promote economy and efficiency in Federal Government procurement. Stability and dependability are important elements of economy and efficiency. A contractor whose workforce is less stable will be less likely to produce goods and services economically and efficiently than a contractor whose workforce is more stable. It is the policy of the executive branch to enforce fully the immigration laws of the United States, including the detection and removal of illegal aliens and the imposition of legal sanctions against employers that hire illegal aliens. Because of the worksite enforcement policy of the United States and the underlying obligation of the executive branch to enforce the immigration laws, contractors that employ illegal aliens cannot rely on the continuing availability and service of those illegal workers, and such contractors inevitably will have a less stable and less dependable workforce than contractors that do not employ such persons. Where a contractor assigns illegal aliens to work on Federal contracts, the enforcement of Federal immigration laws imposes a direct risk of disruption, delay, and increased expense in Federal contracting. Such contractors are less dependable procurement sources, even if they do not knowingly hire or knowingly continue to employ unauthorized workers.
Contractors that adopt rigorous employment eligibility confirmation policies are much less likely to face immigration enforcement actions, because they are less likely to employ unauthorized workers, and they are therefore generally more efficient and dependable procurement sources than contractors that do not employ the best available measures to verify the work eligibility of their workforce. It is the policy of the executive branch to use an electronic employment verification system because, among other reasons, it provides the best available means to confirm the identity and work eligibility of all employees that join the Federal workforce. Private employers that choose to contract with the Federal Government should meet the same standard.
I find, therefore, that adherence to the general policy of contracting only with providers that do not knowingly employ unauthorized alien workers and that have agreed to utilize an electronic employment verification system designated by the Secretary of Homeland Security to confirm the employment eligibility of their workforce will promote economy and efficiency in Federal procurement.
NOW, THEREFORE, to ensure the economical and efficient administration and completion of Federal Government contracts, and by the authority vested in me as President by the Constitution and the laws of the United States of America, including subsection 121(a) of title 40 and section 301 of title 3, United States Code, it is hereby ordered as follows:
(b) It is the policy of the executive branch in procuring goods and services that, to ensure the economical and efficient administration and completion of Federal Government contracts, contracting agencies may not enter into contracts with employers that do not use the best available means to confirm the work authorization of their workforce.
(c) It is the policy of the executive branch to enforce fully the antidiscrimination provisions of the INA. Nothing in this order relieves employers of antidiscrimination obligations under section 274B of the INA (8 U.S.C. 1324b) or any other law.
(d) All discretion under this order shall be exercised consistent with the policies set forth in this section.
(b) the Secretary of Homeland Security shall receive and may investigate complaints by employees of any entity covered under section 3(a) of this order where such complaints allege noncompliance with the INA employment provisions; and
(c) the Attorney General shall hold such hearings as are required under 8 U.S.C. 1324a(e) to determine whether an entity covered under section 3(a) is not in compliance with the INA employment provisions.
(b) The head of the contracting agency may debar the contractor or an organizational unit thereof based on the determination of the Secretary of Homeland Security or the Attorney General that it is not in compliance with the INA employment provisions. Such determination shall not be reviewable in the debarment proceedings.
(c) The scope of the debarment generally should be limited to those organizational units of a Federal contractor that the Secretary of Homeland Security or the Attorney General finds are not in compliance with the INA employment provisions.
(d) The period of the debarment shall be for 1 year and may be extended for additional periods of 1 year if, using the procedures established pursuant to 8 U.S.C. 1324a(e), the Secretary of Homeland Security or the Attorney General determines that the organizational unit of the Federal contractor continues to be in violation of the INA employment provisions.
(e) The Administrator of General Services shall list a debarred contractor or an organizational unit thereof on the List of Parties Excluded from Federal Procurement and Nonprocurement Programs and the contractor or an organizational unit thereof shall be ineligible to participate in any procurement or nonprocurement activities.
(b) The Secretary of Homeland Security:
(i) shall administer, maintain, and modify as necessary and appropriate the electronic employment eligibility verification system designated by the Secretary under subsection (a) of this section; and
(ii) may establish with respect to such electronic employment verification system:
(A) terms and conditions for use of the system; and
(B) procedures for monitoring the use, failure to use, or improper use of the system.
(c) The Secretary of Defense, the Administrator of General Services, and the Administrator of the National Aeronautics and Space Administration shall amend the Federal Acquisition Regulation to the extent necessary and appropriate to implement the debarment responsibility, the employment eligibility verification responsibility, and other related responsibilities assigned to heads of departments and agencies under this order.
(d) Except to the extent otherwise specified by law or this order, the Secretary of Homeland Security and the Attorney General:
(i) shall administer and enforce this order; and
(ii) may, after consultation to the extent appropriate with the Secretary of Defense, the Secretary of Labor, the Administrator of General Services, the Administrator of the National Aeronautics and Space Administration, the Administrator for Federal Procurement Policy, and the heads of such other departments or agencies as may be appropriate, issue such rules, regulations, or orders, or establish such requirements, as may be necessary and appropriate to implement this order.
(b) This order shall be implemented in a manner consistent with the protection of intelligence and law enforcement sources, methods, and activities from unauthorized disclosure.
(i) authority granted by law to a department or agency or the head thereof; or
(ii) functions of the Director of the Office of Management and Budget relating to budget, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity, by any party against the United States, its departments, agencies or entities, its officers, employees, or agents, or any other person.
1 So in original. Probably should be followed by “or”.
It is an unfair immigration-related employment practice for a person or other entity to discriminate against any individual (other than an unauthorized alien, as defined in section 1324a(h)(3) of this title) with respect to the hiring, or recruitment or referral for a fee, of the individual for employment or the discharging of the individual from employment—
(A) because of such individual's national origin, or
(B) in the case of a protected individual (as defined in paragraph (3)), because of such individual's citizenship status.
Paragraph (1) shall not apply to—
(A) a person or other entity that employs three or fewer employees,
(B) a person's or entity's discrimination because of an individual's national origin if the discrimination with respect to that person or entity and that individual is covered under section 703 of the Civil Rights Act of 1964 [42 U.S.C. 2000e–2], or
(C) discrimination because of citizenship status which is otherwise required in order to comply with law, regulation, or executive order, or required by Federal, State, or local government contract, or which the Attorney General determines to be essential for an employer to do business with an agency or department of the Federal, State, or local government.
As used in paragraph (1), the term “protected individual” means an individual who—
(A) is a citizen or national of the United States, or
(B) is an alien who is lawfully admitted for permanent residence, is granted the status of an alien lawfully admitted for temporary residence under section 1160(a) or 1255a(a)(1) of this title, is admitted as a refugee under section 1157 of this title, or is granted asylum under section 1158 of this title; but does not include (i) an alien who fails to apply for naturalization within six months of the date the alien first becomes eligible (by virtue of period of lawful permanent residence) to apply for naturalization or, if later, within six months after November 6, 1986, and (ii) an alien who has applied on a timely basis, but has not been naturalized as a citizen within 2 years after the date of the application, unless the alien can establish that the alien is actively pursuing naturalization, except that time consumed in the Service's processing the application shall not be counted toward the 2-year period.
Notwithstanding any other provision of this section, it is not an unfair immigration-related employment practice for a person or other entity to prefer to hire, recruit, or refer an individual who is a citizen or national of the United States over another individual who is an alien if the two individuals are equally qualified.
It is also an unfair immigration-related employment practice for a person or other entity to intimidate, threaten, coerce, or retaliate against any individual for the purpose of interfering with any right or privilege secured under this section or because the individual intends to file or has filed a charge or a complaint, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this section. An individual so intimidated, threatened, coerced, or retaliated against shall be considered, for purposes of subsections (d) and (g) of this section, to have been discriminated against.
A person's or other entity's request, for purposes of satisfying the requirements of section 1324a(b) of this title, for more or different documents than are required under such section or refusing to honor documents tendered that on their face reasonably appear to be genuine shall be treated as an unfair immigration-related employment practice if made for the purpose or with the intent of discriminating against an individual in violation of paragraph (1).
Except as provided in paragraph (2), any person alleging that the person is adversely affected directly by an unfair immigration-related employment practice (or a person on that person's behalf) or an officer of the Service alleging that an unfair immigration-related employment practice has occurred or is occurring may file a charge respecting such practice or violation with the Special Counsel (appointed under subsection (c) of this section). Charges shall be in writing under oath or affirmation and shall contain such information as the Attorney General requires. The Special Counsel by certified mail shall serve a notice of the charge (including the date, place, and circumstances of the alleged unfair immigration-related employment practice) on the person or entity involved within 10 days.
No charge may be filed respecting an unfair immigration-related employment practice described in subsection (a)(1)(A) of this section if a charge with respect to that practice based on the same set of facts has been filed with the Equal Employment Opportunity Commission under title VII of the Civil Rights Act of 1964 [42 U.S.C. 2000e et seq.], unless the charge is dismissed as being outside the scope of such title. No charge respecting an employment practice may be filed with the Equal Employment Opportunity Commission under such title if a charge with respect to such practice based on the same set of facts has been filed under this subsection, unless the charge is dismissed under this section as being outside the scope of this section.
The President shall appoint, by and with the advice and consent of the Senate, a Special Counsel for Immigration-Related Unfair Employment Practices (hereinafter in this section referred to as the “Special Counsel”) within the Department of Justice to serve for a term of four years. In the case of a vacancy in the office of the Special Counsel the President may designate the officer or employee who shall act as Special Counsel during such vacancy.
The Special Counsel shall be responsible for investigation of charges and issuance of complaints under this section and in respect of the prosecution of all such complaints before administrative law judges and the exercise of certain functions under subsection (j)(1) of this section.
The Special Counsel is entitled to receive compensation at a rate not to exceed the rate now or hereafter provided for grade GS–17 of the General Schedule, under section 5332 of title 5.
The Special Counsel, in accordance with regulations of the Attorney General, shall establish such regional offices as may be necessary to carry out his duties.
The Special Counsel shall investigate each charge received and, within 120 days of the date of the receipt of the charge, determine whether or not there is reasonable cause to believe that the charge is true and whether or not to bring a complaint with respect to the charge before an administrative law judge. The Special Counsel may, on his own initiative, conduct investigations respecting unfair immigration-related employment practices and, based on such an investigation and subject to paragraph (3), file a complaint before such a judge.
If the Special Counsel, after receiving such a charge respecting an unfair immigration-related employment practice which alleges knowing and intentional discriminatory activity or a pattern or practice of discriminatory activity, has not filed a complaint before an administrative law judge with respect to such charge within such 120-day period, the Special Counsel shall notify the person making the charge of the determination not to file such a complaint during such period and the person making the charge may (subject to paragraph (3)) file a complaint directly before such a judge within 90 days after the date of receipt of the notice. The Special Counsel's failure to file such a complaint within such 120-day period shall not affect the right of the Special Counsel to investigate the charge or to bring a complaint before an administrative law judge during such 90-day period.
No complaint may be filed respecting any unfair immigration-related employment practice occurring more than 180 days prior to the date of the filing of the charge with the Special Counsel. This subparagraph shall not prevent the subsequent amending of a charge or complaint under subsection (e)(1) of this section.
Whenever a complaint is made that a person or entity has engaged in or is engaging in any such unfair immigration-related employment practice, an administrative law judge shall have power to issue and cause to be served upon such person or entity a copy of the complaint and a notice of hearing before the judge at a place therein fixed, not less than five days after the serving of the complaint. Any such complaint may be amended by the judge conducting the hearing, upon the motion of the party filing the complaint, in the judge's discretion at any time prior to the issuance of an order based thereon. The person or entity so complained of shall have the right to file an answer to the original or amended complaint and to appear in person or otherwise and give testimony at the place and time fixed in the complaint.
Hearings on complaints under this subsection shall be considered before administrative law judges who are specially designated by the Attorney General as having special training respecting employment discrimination and, to the extent practicable, before such judges who only consider cases under this section.
Any person filing a charge with the Special Counsel respecting an unfair immigration-related employment practice shall be considered a party to any complaint before an administrative law judge respecting such practice and any subsequent appeal respecting that complaint. In the discretion of the judge conducting the hearing, any other person may be allowed to intervene in the proceeding and to present testimony.
The testimony taken by the administrative law judge shall be reduced to writing. Thereafter, the judge, in his discretion, upon notice may provide for the taking of further testimony or hear argument.
In conducting investigations and hearings under this subsection 1 and in accordance with regulations of the Attorney General, the Special Counsel and administrative law judges shall have reasonable access to examine evidence of any person or entity being investigated. The administrative law judges by subpoena may compel the attendance of witnesses and the production of evidence at any designated place or hearing. In case of contumacy or refusal to obey a subpoena lawfully issued under this paragraph and upon application of the administrative law judge, an appropriate district court of the United States may issue an order requiring compliance with such subpoena and any failure to obey such order may be punished by such court as a contempt thereof.
The administrative law judge shall issue and cause to be served on the parties to the proceeding an order, which shall be final unless appealed as provided under subsection (i) of this section.
If, upon the preponderance of the evidence, an administrative law judge determines that any person or entity named in the complaint has engaged in or is engaging in any such unfair immigration-related employment practice, then the judge shall state his findings of fact and shall issue and cause to be served on such person or entity an order which requires such person or entity to cease and desist from such unfair immigration-related employment practice.
Such an order also may require the person or entity—
(i) to comply with the requirements of section 1324a(b) of this title with respect to individuals hired (or recruited or referred for employment for a fee) during a period of up to three years;
(ii) to retain for the period referred to in clause (i) and only for purposes consistent with section 1324a(b)(5) of this title, the name and address of each individual who applies, in person or in writing, for hiring for an existing position, or for recruiting or referring for a fee, for employment in the United States;
(iii) to hire individuals directly and adversely affected, with or without back pay;
(iv)(I) except as provided in subclauses (II) through (IV), to pay a civil penalty of not less than $250 and not more than $2,000 for each individual discriminated against,
(II) except as provided in subclauses (III) and (IV), in the case of a person or entity previously subject to a single order under this paragraph, to pay a civil penalty of not less than $2,000 and not more than $5,000 for each individual discriminated against,
(III) except as provided in subclause (IV), in the case of a person or entity previously subject to more than one order under this paragraph, to pay a civil penalty of not less than $3,000 and not more than $10,000 for each individual discriminated against, and
(IV) in the case of an unfair immigration-related employment practice described in subsection (a)(6) of this section, to pay a civil penalty of not less than $100 and not more than $1,000 for each individual discriminated against;
(v) to post notices to employees about their rights under this section and employers’ obligations under section 1324a of this title;
(vi) to educate all personnel involved in hiring and complying with this section or section 1324a of this title about the requirements of this section or such section;
(vii) to remove (in an appropriate case) a false performance review or false warning from an employee's personnel file; and
(viii) to lift (in an appropriate case) any restrictions on an employee's assignments, work shifts, or movements.
In providing a remedy under subparagraph (B)(iii), back pay liability shall not accrue from a date more than two years prior to the date of the filing of a charge with the Special Counsel. Interim earnings or amounts earnable with reasonable diligence by the individual or individuals discriminated against shall operate to reduce the back pay otherwise allowable under such paragraph. No order shall require the hiring of an individual as an employee or the payment to an individual of any back pay, if the individual was refused employment for any reason other than discrimination on account of national origin or citizenship status.
In applying this subsection in the case of a person or entity composed of distinct, physically separate subdivisions each of which provides separately for the hiring, recruiting, or referring for employment, without reference to the practices of, and not under the control of or common control with, another subdivision, each such subdivision shall be considered a separate person or entity.
If upon the preponderance of the evidence an administrative law judge determines that the person or entity named in the complaint has not engaged and is not engaging in any such unfair immigration-related employment practice, then the judge shall state his findings of fact and shall issue an order dismissing the complaint.
In any complaint respecting an unfair immigration-related employment practice, an administrative law judge, in the judge's discretion, may allow a prevailing party, other than the United States, a reasonable attorney's fee, if the losing party's argument is without reasonable foundation in law and fact.
Not later than 60 days after the entry of such final order, any person aggrieved by such final order may seek a review of such order in the United States court of appeals for the circuit in which the violation is alleged to have occurred or in which the employer resides or transacts business.
Upon the filing of the record with the court, the jurisdiction of the court shall be exclusive and its judgment shall be final, except that the same shall be subject to review by the Supreme Court of the United States upon writ of certiorari or certification as provided in section 1254 of title 28.
If an order of the agency is not appealed under subsection (i)(1) of this section, the Special Counsel (or, if the Special Counsel fails to act, the person filing the charge) may petition the United States district court for the district in which a violation of the order is alleged to have occurred, or in which the respondent resides or transacts business, for the enforcement of the order of the administrative law judge, by filing in such court a written petition praying that such order be enforced.
Upon the filing of such petition, the court shall have jurisdiction to make and enter a decree enforcing the order of the administrative law judge. In such a proceeding, the order of the administrative law judge shall not be subject to review.
If, upon appeal of an order under subsection (i)(1) of this section, the United States court of appeals does not reverse such order, such court shall have the jurisdiction to make and enter a decree enforcing the order of the administrative law judge.
In any judicial proceeding under subsection (i) of this section or this subsection, the court, in its discretion, may allow a prevailing party, other than the United States, a reasonable attorney's fee as part of costs but only if the losing party's argument is without reasonable foundation in law and fact.
(1) This section shall not apply to discrimination in hiring, recruiting, or referring, or discharging of individuals occurring after the date of any termination of the provisions of section 1324a of this title, under subsection (l) 2 of that section.
(2) The provisions of this section shall terminate 30 calendar days after receipt of the last report required to be transmitted under section 1324a(j) 2 of this title if—
(A) the Comptroller General determines, and so reports in such report that—
(i) no significant discrimination has resulted, against citizens or nationals of the United States or against any eligible workers seeking employment, from the implementation of section 1324a of this title, or
(ii) such section has created an unreasonable burden on employers hiring such workers; and
(B) there has been enacted, within such period of 30 calendar days, a joint resolution stating in substance that the Congress approves the findings of the Comptroller General contained in such report.
The provisions of subsections (m) and (n) 2 of section 1324a of this title shall apply to any joint resolution under subparagraph (B) in the same manner as they apply to a joint resolution under subsection (l) 2 of such section.
(1) Not later than 3 months after November 29, 1990, the Special Counsel, in cooperation with the chairman of the Equal Employment Opportunity Commission, the Secretary of Labor, and the Administrator of the Small Business Administration, shall conduct a campaign to disseminate information respecting the rights and remedies prescribed under this section and under title VII of the Civil Rights Act of 1964 [42 U.S.C. 2000e et seq.] in connection with unfair immigration-related employment practices. Such campaign shall be aimed at increasing the knowledge of employers, employees, and the general public concerning employer and employee rights, responsibilities, and remedies under this section and such title.
(2) In order to carry out the campaign under this subsection, the Special Counsel—
(A) may, to the extent deemed appropriate and subject to the availability of appropriations, contract with public and private organizations for outreach activities under the campaign, and
(B) shall consult with the Secretary of Labor, the chairman of the Equal Employment Opportunity Commission, and the heads of such other agencies as may be appropriate.
(3) There are authorized to be appropriated to carry out this subsection $10,000,000 for each fiscal year (beginning with fiscal year 1991).
(June 27, 1952, ch. 477, title II, ch. 8, §274B, as added Pub. L. 99–603, title I, §102(a), Nov. 6, 1986, 100 Stat. 3374; amended Pub. L. 100–525, §2(b), Oct. 24, 1988, 102 Stat. 2610; Pub. L. 101–649, title V, §§531, 532(a), 533(a), 534(a), 535(a), 536(a), 537(a), 539(a), Nov. 29, 1990, 104 Stat. 5054–5056; Pub. L. 102–232, title III, §306(b)(1), (3), (c)(1), Dec. 12, 1991, 105 Stat. 1752; Pub. L. 103–416, title II, §219(q), Oct. 25, 1994, 108 Stat. 4317; Pub. L. 104–208, div. C, title IV, §421(a), title VI, §671(d)(1)(B), Sept. 30, 1996, 110 Stat. 3009–670, 3009–723.)
The Civil Rights Act of 1964, referred to in subsecs. (b)(2) and (l)(1), is Pub. L. 88–352, July 2, 1964, 78 Stat. 241, as amended. Title VII of the Civil Rights Act of 1964 is classified generally to subchapter VI (§2000e et seq.) of chapter 21 of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 2000a of Title 42 and Tables.
Subsections (j), (l), (m), and (n) of section 1324a of this title, referred to in subsec. (k), were repealed by Pub. L. 104–208, div. C, title IV, §412(c), Sept. 30, 1996, 110 Stat. 3009–668.
1996—Subsec. (a)(3)(B). Pub. L. 104–208, §671(d)(1)(B), struck out “, 1161(a),” after “section 1160(a)”.
Subsec. (a)(6). Pub. L. 104–208, §421(a), substituted “A person's” for “For purposes of paragraph (1), a person's” and “if made for the purpose or with the intent of discriminating against an individual in violation of paragraph (1)” for “relating to the hiring of individuals”.
1994—Subsec. (g)(2)(C). Pub. L. 103–416 substituted “the Special Counsel” for “an administrative law judge” in first sentence.
1991—Subsec. (g)(2)(B)(iv)(II). Pub. L. 102–232, §306(b)(1), substituted “subclauses (III) and (IV)” for “subclause (IV)”.
Subsec. (g)(2)(B)(iv)(IV). Pub. L. 102–232, §306(b)(3)(A), substituted a semicolon for period at end.
Subsec. (g)(2)(B)(v), (vi). Pub. L. 102–232, §306(b)(3)(B), substituted semicolons for commas at end.
Subsec. (g)(2)(B)(vii). Pub. L. 102–232, §306(b)(3)(C), (D), substituted a semicolon for comma at end and “to remove (in an appropriate case)” for “to order (in an appropriate case) the removal of”.
Subsec. (g)(2)(B)(viii). Pub. L. 102–232, §306(b)(3)(E), substituted “to lift (in an appropriate case)” for “to order (in an appropriate case) the lifting of”.
Subsec. (g)(2)(D). Pub. L. 102–232, §306(c)(1), substituted “physically” for “physicially”.
1990—Subsec. (a)(1)(B). Pub. L. 101–649, §533(a)(1), substituted “protected individual” for “citizen or intending citizen”.
Subsec. (a)(3). Pub. L. 101–649, §533(a)(2), (3), in heading and text substituted “protected individual” for “citizen or intending citizen”.
Subsec. (a)(3)(B). Pub. L. 101–649, §533(a)(4), substituted “is an alien who is lawfully admitted for permanent residence, is granted the status of an alien lawfully admitted for temporary residence under section 1160(a), 1161(a), or 1255a(a)(1) of this title, is admitted as a refugee under section 1157 of this title, or is granted asylum under section 1158 of this title; but does not” for “is an alien who—
“(i) is lawfully admitted for permanent residence, is granted the status of an alien lawfully admitted for temporary residence under section 1160(a), 1161(a), or 1255a(a)(1) of this title, is admitted as a refugee under section 1157 of this title, or is granted asylum under section 1158 of this title, and
“(ii) evidences an intention to become a citizen of the United States through completing a declaration of intention to become a citizen;
but does not”, and in closing provisions substituted “(i)” and “(ii)” for “(I)” and “(II)”, respectively.
Pub. L. 101–649, §532(a), inserted reference to sections 1160(a) and 1161(a) of this title in cl. (i).
Subsec. (a)(5). Pub. L. 101–649, §534(a), added par. (5).
Subsec. (a)(6). Pub. L. 101–649, §535(a), added par. (6).
Subsec. (d)(2). Pub. L. 101–649, §537(a), inserted “the Special Counsel shall notify the person making the charge of the determination not to file such a complaint during such period and” after “120-day period,”, inserted “within 90 days after the date of receipt of the notice” before period at end, and inserted at end “The Special Counsel's failure to file such a complaint within such 120-day period shall not affect the right of the Special Counsel to investigate the charge or to bring a complaint before an administrative law judge during such 90-day period.”
Subsec. (g)(2)(B)(iii). Pub. L. 101–649, §539(a)(1), struck out “and” at end.
Subsec. (g)(2)(B)(iv). Pub. L. 101–649, §539(a)(2), which directed the substitution of a comma for the period at end of cl. (iv)(II), could not be executed because of the general amendment of cl. (iv) by Pub. L. 101–649, §536(a), see below.
Pub. L. 101–649, §536(a), amended cl. (iv) generally. Prior to amendment, cl. (iv) read as follows:
“(I) except as provided in subclause (II), to pay a civil penalty of not more than $1,000 for each individual discriminated against, and
“(II) in the case of a person or entity previously subject to such an order, to pay a civil penalty of not more than $2,000 for each individual discriminated against.”
Subsec. (g)(2)(B)(v) to (viii). Pub. L. 101–649, §539(a)(3), added cls. (v) to (viii).
Subsec. (l). Pub. L. 101–649, §531, added subsec. (l).
1988—Subsec. (a)(1). Pub. L. 100–525, §2(b)(1), inserted reference to section 1324a(h)(3) of this title.
Subsec. (e)(3). Pub. L. 100–525, §2(b)(2), struck out “said” before “proceeding”.
Subsec. (g)(2)(A). Pub. L. 100–525, §2(b)(3), substituted “that” for “that that”.
Subsec. (g)(2)(B)(ii). Pub. L. 100–525, §2(b)(4), substituted “1324a” for “1324”.
Subsec. (g)(3). Pub. L. 100–525, §2(b)(5), substituted “engaged and” for “engaged or”.
Subsec. (h). Pub. L. 100–525, §2(b)(6), substituted “attorney's” for “attorneys’ ” in heading.
Section 421(b) of div. C of Pub. L. 104–208 provided that: “The amendments made by subsection (a) [amending this section] shall apply to requests made on or after the date of the enactment of this Act [Sept. 30, 1996].”
Amendment by Pub. L. 103–416 effective as if included in the enactment of the Immigration Act of 1990, Pub. L. 101–649, see section 219(dd) of Pub. L. 103–416, set out as a note under section 1101 of this title.
Amendment by Pub. L. 102–232 effective as if included in the enactment of the Immigration Act of 1990, Pub. L. 101–649, see section 310(1) of Pub. L. 102–232, set out as a note under section 1101 of this title.
Section 532(b) of Pub. L. 101–649 provided that: “The amendment made by subsection (a) [amending this section] shall apply to actions occurring on or after the date of the enactment of this Act [Nov. 29, 1990].”
Section 533(b) of Pub. L. 101–649 provided that: “The amendments made by subsection (a) [amending this section] shall apply to unfair immigration-related employment practices occurring before, on, or after the date of the enactment of this Act [Nov. 29, 1990].”
Section 534(b) of Pub. L. 101–649 provided that: “The amendment made by subsection (a) [amending this section] shall apply to actions occurring on or after the date of the enactment of this Act [Nov. 29, 1990].”
Section 535(b) of Pub. L. 101–649 provided that: “The amendment made by subsection (a) [amending this section] shall take effect on the date of the enactment of this Act [Nov. 29, 1990], but shall apply to actions occurring on or after such date.”
Section 536(b) of Pub. L. 101–649 provided that: “The amendments made by this section [amending this section] shall apply to unfair immigration-related employment practices occurring after the date of the enactment of this Act [Nov. 29, 1990].”
Section 537(b) of Pub. L. 101–649 provided that: “The amendments made by subsection (a) [amending this section] shall apply to charges received on or after the date of the enactment of this Act [Nov. 29, 1990].”
Section 539(b) of Pub. L. 101–649 provided that: “The amendments made by subsection (a) [amending this section] shall apply to orders with respect to unfair immigration-related employment practices occurring on or after the date of the enactment of this Act [Nov. 29, 1990].”
Amendment by Pub. L. 100–525 effective as if included in enactment of Immigration Reform and Control Act of 1986, Pub. L. 99–603, see section 2(s) of Pub. L. 100–525, set out as a note under section 1101 of this title.
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under section 1551 of this title.
References in laws to the rates of pay for GS–16, 17, or 18, or to maximum rates of pay under the General Schedule, to be considered references to rates payable under specified sections of Title 5, Government Organization and Employees, see section 529 [title I, §101(c)(1)] of Pub. L. 101–509, set out in a note under section 5376 of Title 5.
Section 102(b) of Pub. L. 99–603 provided that: “Except as may be specifically provided in this section, nothing in this section shall be construed to restrict the authority of the Equal Employment Opportunity Commission to investigate allegations, in writing and under oath or affirmation, of unlawful employment practices, as provided in section 706 of the Civil Rights Act of 1964 (42 U.S.C. 2000e–5), or any other authority provided therein.”
1 So in original. Probably should be “section”.
2 See References in Text note below.
It is unlawful for any person or entity knowingly—
(1) to forge, counterfeit, alter, or falsely make any document for the purpose of satisfying a requirement of this chapter or to obtain a benefit under this chapter,
(2) to use, attempt to use, possess, obtain, accept, or receive or to provide any forged, counterfeit, altered, or falsely made document in order to satisfy any requirement of this chapter or to obtain a benefit under this chapter,
(3) to use or attempt to use or to provide or attempt to provide any document lawfully issued to or with respect to a person other than the possessor (including a deceased individual) for the purpose of satisfying a requirement of this chapter or obtaining a benefit under this chapter,
(4) to accept or receive or to provide any document lawfully issued to or with respect to a person other than the possessor (including a deceased individual) for the purpose of complying with section 1324a(b) of this title or obtaining a benefit under this chapter, or
(5) to prepare, file, or assist another in preparing or filing, any application for benefits under this chapter, or any document required under this chapter, or any document submitted in connection with such application or document, with knowledge or in reckless disregard of the fact that such application or document was falsely made or, in whole or in part, does not relate to the person on whose behalf it was or is being submitted, or
(6)(A) to present before boarding a common carrier for the purpose of coming to the United States a document which relates to the alien's eligibility to enter the United States, and (B) to fail to present such document to an immigration officer upon arrival at a United States port of entry.
This section does not prohibit any lawfully authorized investigative, protective, or intelligence activity of a law enforcement agency of the United States, a State, or a subdivision of a State, or of an intelligence agency of the United States, or any activity authorized under chapter 224 of title 18.
Nothing in this section shall be construed to diminish or qualify any of the penalties available for activities prohibited by this section but proscribed as well in title 18.
In conducting investigations and hearings under this subsection—
(A) immigration officers and administrative law judges shall have reasonable access to examine evidence of any person or entity being investigated,
(B) administrative law judges, may, if necessary, compel by subpoena the attendance of witnesses and the production of evidence at any designated place or hearing, and
(C) immigration officers designated by the Commissioner may compel by subpoena the attendance of witnesses and the production of evidence at any designated place prior to the filing of a complaint in a case under paragraph (2).
In case of contumacy or refusal to obey a subpoena lawfully issued under this paragraph and upon application of the Attorney General, an appropriate district court of the United States may issue an order requiring compliance with such subpoena and any failure to obey such order may be punished by such court as a contempt thereof.
Before imposing an order described in paragraph (3) against a person or entity under this subsection for a violation of subsection (a) of this section, the Attorney General shall provide the person or entity with notice and, upon request made within a reasonable time (of not less than 30 days, as established by the Attorney General) of the date of the notice, a hearing respecting the violation.
Any hearing so requested shall be conducted before an administrative law judge. The hearing shall be conducted in accordance with the requirements of section 554 of title 5. The hearing shall be held at the nearest practicable place to the place where the person or entity resides or of the place where the alleged violation occurred. If no hearing is so requested, the Attorney General's imposition of the order shall constitute a final and unappealable order.
If the administrative law judge determines, upon the preponderance of the evidence received, that a person or entity has violated subsection (a) of this section, the administrative law judge shall state his findings of fact and issue and cause to be served on such person or entity an order described in paragraph (3).
With respect to a violation of subsection (a) of this section, the order under this subsection shall require the person or entity to cease and desist from such violations and to pay a civil penalty in an amount of—
(A) not less than $250 and not more than $2,000 for each document that is the subject of a violation under subsection (a) of this section, or
(B) in the case of a person or entity previously subject to an order under this paragraph, not less than $2,000 and not more than $5,000 for each document that is the subject of a violation under subsection (a) of this section.
In applying this subsection in the case of a person or entity composed of distinct, physically separate subdivisions each of which provides separately for the hiring, recruiting, or referring for employment, without reference to the practices of, and not under the control of or common control with, another subdivision, each such subdivision shall be considered a separate person or entity.
The decision and order of an administrative law judge shall become the final agency decision and order of the Attorney General unless either (A) within 30 days, an official delegated by regulation to exercise review authority over the decision and order modifies or vacates the decision and order, or (B) within 30 days of the date of such a modification or vacation (or within 60 days of the date of decision and order of an administrative law judge if not so modified or vacated) the decision and order is referred to the Attorney General pursuant to regulations, in which case the decision and order of the Attorney General shall become the final agency decision and order under this subsection.
A person or entity adversely affected by a final order under this section may, within 45 days after the date the final order is issued, file a petition in the Court of Appeals for the appropriate circuit for review of the order.
If a person or entity fails to comply with a final order issued under this section against the person or entity, the Attorney General shall file a suit to seek compliance with the order in any appropriate district court of the United States. In any such suit, the validity and appropriateness of the final order shall not be subject to review.
The Attorney General may waive the penalties imposed by this section with respect to an alien who knowingly violates subsection (a)(6) of this section if the alien is granted asylum under section 1158 of this title or withholding of removal under section 1231(b)(3) of this title.
(1) Whoever, in any matter within the jurisdiction of the Service, knowingly and willfully fails to disclose, conceals, or covers up the fact that they have, on behalf of any person and for a fee or other remuneration, prepared or assisted in preparing an application which was falsely made (as defined in subsection (f) of this section) for immigration benefits, shall be fined in accordance with title 18, imprisoned for not more than 5 years, or both, and prohibited from preparing or assisting in preparing, whether or not for a fee or other remuneration, any other such application.
(2) Whoever, having been convicted of a violation of paragraph (1), knowingly and willfully prepares or assists in preparing an application for immigration benefits pursuant to this chapter, or the regulations promulgated thereunder, whether or not for a fee or other remuneration and regardless of whether in any matter within the jurisdiction of the Service, shall be fined in accordance with title 18, imprisoned for not more than 15 years, or both, and prohibited from preparing or assisting in preparing any other such application.
For purposes of this section, the term “falsely make” means to prepare or provide an application or document, with knowledge or in reckless disregard of the fact that the application or document contains a false, fictitious, or fraudulent statement or material representation, or has no basis in law or fact, or otherwise fails to state a fact which is material to the purpose for which it was submitted.
(June 27, 1952, ch. 477, title II, ch. 8, §274C, as added Pub. L. 101–649, title V, §544(a), Nov. 29, 1990, 104 Stat. 5059; amended Pub. L. 102–232, title III, §306(c)(5)(A), Dec. 12, 1991, 105 Stat. 1752; Pub. L. 103–416, title II, §219(r), Oct. 25, 1994, 108 Stat. 4317; Pub. L. 104–208, div. C, title II, §§212(a)–(d), 213, 220, title III, §§308(g)(10)(D), 379(a), Sept. 30, 1996, 110 Stat. 3009–570, 3009–571, 3009–575, 3009–625, 3009–649.)
This chapter, referred to in subsecs. (a) and (e)(2), was in the original, “this Act”, meaning act June 27, 1952, ch. 477, 66 Stat. 163, known as the Immigration and Nationality Act, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 1101 of this title and Tables.
1996—Subsec. (a)(1). Pub. L. 104–208, §212(a)(1), inserted “or to obtain a benefit under this chapter” before comma at end.
Subsec. (a)(2). Pub. L. 104–208, §212(a)(2), inserted “or to obtain a benefit under this chapter” before comma at end.
Subsec. (a)(3). Pub. L. 104–208, §212(a)(3), inserted “or with respect to” after “issued to” and “or obtaining a benefit under this chapter” after “of this chapter” and struck out “or” at end.
Subsec. (a)(4). Pub. L. 104–208, §212(a)(4), inserted “or with respect to” after “issued to” and “or obtaining a benefit under this chapter” after “section 1324a(b) of this title” and substituted “, or” for the period at end.
Subsec. (a)(5), (6). Pub. L. 104–208, §212(a)(5), added pars. (5) and (6).
Subsec. (d)(1)(C). Pub. L. 104–208, §220, added subpar. (C).
Subsec. (d)(3)(A), (B). Pub. L. 104–208, §212(c), substituted “each document that is the subject of a violation under subsection (a) of this section” for “each document used, accepted, or created and each instance of use, acceptance, or creation”.
Subsec. (d)(4). Pub. L. 104–208, §379(a)(2), substituted “the final agency decision and order under this subsection” for “a final order under this subsection”.
Pub. L. 104–208, §379(a)(1), substituted “unless either (A) within 30 days, an official delegated by regulation to exercise review authority over the decision and order modifies or vacates the decision and order, or (B) within 30 days of the date of such a modification or vacation (or within 60 days of the date of decision and order of an administrative law judge if not so modified or vacated) the decision and order is referred to the Attorney General pursuant to regulations” for “unless, within 30 days, the Attorney General modifies or vacates the decision and order”.
Subsec. (d)(7). Pub. L. 104–208, §308(g)(10)(D), substituted “withholding of removal under section 1231(b)(3) of this title” for “withholding of deportation under section 1253(h) of this title”.
Pub. L. 104–208, §212(d), added par. (7).
Subsec. (e). Pub. L. 104–208, §213, added subsec. (e).
Subsec. (f). Pub. L. 104–208, §212(b), added subsec. (f).
1994—Subsec. (b). Pub. L. 103–416 substituted “chapter 224 of title 18” for “title V of the Organized Crime Control Act of 1970 (18 U.S.C. note prec. 3481)”.
1991—Subsec. (a)(2) to (4). Pub. L. 102–232 inserted “or to provide” after “receive” in pars. (2) and (4) and “or to provide or attempt to provide” after “attempt to use” in par. (3).
Section 212(e) of div. C of Pub. L. 104–208 provided that: “Section 274C(f) of the Immigration and Nationality Act [8 U.S.C. 1324c(f)], as added by subsection (b), applies to the preparation of applications before, on, or after the date of the enactment of this Act [Sept. 30, 1996].”
Amendment by section 308(g)(10)(D) of Pub. L. 104–208 effective, with certain transitional provisions, on the first day of the first month beginning more than 180 days after Sept. 30, 1996, see section 309 of Pub. L. 104–208, set out as a note under section 1101 of this title.
Amendment by section 379(a) of Pub. L. 104–208 applicable to orders issued on or after Sept. 30, 1996, see section 379(b) of Pub. L. 104–208, set out as a note under section 1324a of this title.
Amendment by Pub. L. 103–416 effective as if included in the enactment of the Immigration Act of 1990, Pub. L. 101–649, see section 219(dd) of Pub. L. 103–416, set out as a note under section 1101 of this title.
Amendment by Pub. L. 102–232 effective as if included in the enactment of the Immigration Act of 1990, Pub. L. 101–649, see section 310(1) of Pub. L. 102–232, set out as a note under section 1101 of this title.
Section applicable to persons or entities that have committed violations on or after Nov. 29, 1990, see section 544(d) of Pub. L. 101–649, as amended, set out as an Effective Date of 1990 Amendment note under section 1227 of this title.
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under section 1551 of this title.
Any alien subject to a final order of removal who—
(1) willfully fails or refuses to—
(A) depart from the United States pursuant to the order,
(B) make timely application in good faith for travel or other documents necessary for departure, or
(C) present for removal at the time and place required by the Attorney General; or
(2) conspires to or takes any action designed to prevent or hamper the alien's departure pursuant to the order,
shall pay a civil penalty of not more than $500 to the Commissioner for each day the alien is in violation of this section.
Nothing in this section shall be construed to diminish or qualify any penalties to which an alien may be subject for activities proscribed by section 1253(a) of this title or any other section of this chapter.
(June 27, 1952, ch. 477, title II, ch. 8, §274D, as added Pub. L. 104–208, div. C, title III, §380(a), Sept. 30, 1996, 110 Stat. 3009–650.)
This chapter, referred to in subsec. (b), was in the original, “this Act”, meaning act June 27, 1952, ch. 477, 66 Stat. 163, known as the Immigration and Nationality Act, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 1101 of this title and Tables.
Section 308(c) of div. C of Pub. L. 104–208 provided that: “The amendment made by subsection (a) [enacting this section] shall apply to actions occurring on or after the title III–A effective date (as defined in section 309(a) of this division [set out as a note under section 1101 of this title]).”
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under section 1551 of this title.
For purposes of carrying out this chapter, any reference in law to an order of removal is deemed to include a reference to an order of exclusion and deportation or an order of deportation, see section 309(d)(2) of Pub. L. 104–208, set out in an Effective Date of 1996 Amendments note under section 1101 of this title.
Any alien who (1) enters or attempts to enter the United States at any time or place other than as designated by immigration officers, or (2) eludes examination or inspection by immigration officers, or (3) attempts to enter or obtains entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact, shall, for the first commission of any such offense, be fined under title 18 or imprisoned not more than 6 months, or both, and, for a subsequent commission of any such offense, be fined under title 18, or imprisoned not more than 2 years, or both.
Any alien who is apprehended while entering (or attempting to enter) the United States at a time or place other than as designated by immigration officers shall be subject to a civil penalty of—
(1) at least $50 and not more than $250 for each such entry (or attempted entry); or
(2) twice the amount specified in paragraph (1) in the case of an alien who has been previously subject to a civil penalty under this subsection.
Civil penalties under this subsection are in addition to, and not in lieu of, any criminal or other civil penalties that may be imposed.
Any individual who knowingly enters into a marriage for the purpose of evading any provision of the immigration laws shall be imprisoned for not more than 5 years, or fined not more than $250,000, or both.
Any individual who knowingly establishes a commercial enterprise for the purpose of evading any provision of the immigration laws shall be imprisoned for not more than 5 years, fined in accordance with title 18, or both.
(June 27, 1952, ch. 477, title II, ch. 8, §275, 66 Stat. 229; Pub. L. 99–639, §2(d), Nov. 10, 1986, 100 Stat. 3542; Pub. L. 101–649, title I, §121(b)(3), title V, §543(b)(2), Nov. 29, 1990, 104 Stat. 4994, 5059; Pub. L. 102–232, title III, §306(c)(3), Dec. 12, 1991, 105 Stat. 1752; Pub. L. 104–208, div. C, title I, §105(a), Sept. 30, 1996, 110 Stat. 3009–556.)
1996—Subsecs. (b) to (d). Pub. L. 104–208 added subsec. (b) and redesignated former subsecs. (b) and (c) as (c) and (d), respectively.
1991—Subsec. (a). Pub. L. 102–232 substituted “fined under title 18” for “fined not more than $2,000 (or, if greater, the amount provided under title 18)”.
1990—Subsec. (a). Pub. L. 101–649, §543(b)(2), inserted “or attempts to enter” after “(1) enters” and “attempts to enter or” after “or (3)”, and substituted “shall, for the first commission of any such offense, be fined not more than $2,000 (or, if greater, the amount provided under title 18) or imprisoned not more than 6 months, or both, and, for a subsequent commission of any such offense, be fined under title 18, or imprisoned not more than 2 years” for “shall, for the first commission of any such offenses, be guilty of a misdemeanor and upon conviction thereof be punished by imprisonment for not more than six months, or by a fine of not more than $500, or by both, and for a subsequent commission of any such offenses shall be guilty of a felony and upon conviction thereof shall be punished by imprisonment for not more than two years, or by a fine of not more than $1,000”.
Subsec. (c). Pub. L. 101–649, §121(b)(3), added subsec. (c).
1986—Pub. L. 99–639 designated existing provisions as subsec. (a) and added subsec. (b).
Section 105(b) of div. C of Pub. L. 104–208 provided that: “The amendments made by subsection (a) [amending this section] shall apply to illegal entries or attempts to enter occurring on or after the first day of the sixth month beginning after the date of the enactment of this Act [Sept. 30, 1996].”
Amendment by Pub. L. 102–232 effective as if included in the enactment of the Immigration Act of 1990, Pub. L. 101–649, see section 310(1) of Pub. L. 102–232, set out as a note under section 1101 of this title.
Amendment by section 121(b)(3) of Pub. L. 101–649 effective Oct. 1, 1991, and applicable beginning with fiscal year 1992, see section 161(a) of Pub. L. 101–649, set out as a note under section 1101 of this title.
Amendment by section 543(b)(2) of Pub. L. 101–649 applicable to actions taken after Nov. 29, 1990, see section 543(c) of Pub. L. 101–649, set out as a note under section 1221 of this title.
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under section 1551 of this title.
Subject to subsection (b) of this section, any alien who—
(1) has been denied admission, excluded, deported, or removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding, and thereafter
(2) enters, attempts to enter, or is at any time found in, the United States, unless (A) prior to his reembarkation at a place outside the United States or his application for admission from foreign contiguous territory, the Attorney General has expressly consented to such alien's reapplying for admission; or (B) with respect to an alien previously denied admission and removed, unless such alien shall establish that he was not required to obtain such advance consent under this chapter or any prior Act,
shall be fined under title 18, or imprisoned not more than 2 years, or both.
Notwithstanding subsection (a) of this section, in the case of any alien described in such subsection—
(1) whose removal was subsequent to a conviction for commission of three or more misdemeanors involving drugs, crimes against the person, or both, or a felony (other than an aggravated felony), such alien shall be fined under title 18, imprisoned not more than 10 years, or both;
(2) whose removal was subsequent to a conviction for commission of an aggravated felony, such alien shall be fined under such title, imprisoned not more than 20 years, or both;
(3) who has been excluded from the United States pursuant to section 1225(c) of this title because the alien was excludable under section 1182(a)(3)(B) of this title or who has been removed from the United States pursuant to the provisions of subchapter V, and who thereafter, without the permission of the Attorney General, enters the United States, or attempts to do so, shall be fined under title 18 and imprisoned for a period of 10 years, which sentence shall not run concurrently with any other sentence.1 or
(4) who was removed from the United States pursuant to section 1231(a)(4)(B) of this title who thereafter, without the permission of the Attorney General, enters, attempts to enter, or is at any time found in, the United States (unless the Attorney General has expressly consented to such alien's reentry) shall be fined under title 18, imprisoned for not more than 10 years, or both.
For the purposes of this subsection, the term “removal” includes any agreement in which an alien stipulates to removal during (or not during) a criminal trial under either Federal or State law.
Any alien deported pursuant to section 1252(h)(2) 2 of this title who enters, attempts to enter, or is at any time found in, the United States (unless the Attorney General has expressly consented to such alien's reentry) shall be incarcerated for the remainder of the sentence of imprisonment which was pending at the time of deportation without any reduction for parole or supervised release. Such alien shall be subject to such other penalties relating to the reentry of deported aliens as may be available under this section or any other provision of law.
In a criminal proceeding under this section, an alien may not challenge the validity of the deportation order described in subsection (a)(1) of this section or subsection (b) of this section unless the alien demonstrates that—
(1) the alien exhausted any administrative remedies that may have been available to seek relief against the order;
(2) the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review; and
(3) the entry of the order was fundamentally unfair.
(June 27, 1952, ch. 477, title II, ch. 8, §276, 66 Stat. 229; Pub. L. 100–690, title VII, §7345(a), Nov. 18, 1988, 102 Stat. 4471; Pub. L. 101–649, title V, §543(b)(3), Nov. 29, 1990, 104 Stat. 5059; Pub. L. 103–322, title XIII, §130001(b), Sept. 13, 1994, 108 Stat. 2023; Pub. L. 104–132, title IV, §§401(c), 438(b), 441(a), Apr. 24, 1996, 110 Stat. 1267, 1276, 1279; Pub. L. 104–208, div. C, title III, §§305(b), 308(d)(4)(J), (e)(1)(K), (14)(A), 324(a), (b), Sept. 30, 1996, 110 Stat. 3009–606, 3009–618 to 3009–620, 3009–629.)
This chapter, referred to in subsec. (a)(2), was in the original a reference to this Act, meaning act June 27, 1952, ch. 477, 66 Stat. 163, known as the Immigration and Nationality Act, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 1101 of this title and Tables.
Section 1252 of this title, referred to in subsec. (c), was amended generally by Pub. L. 104–208, div. C, title III, §306(a)(2), Sept. 30, 1996, 110 Stat. 3009–607, and, as so amended, does not contain a subsec. (h). For provisions similar to those formerly contained in section 1252(h)(2) of this title, see section 1231(a)(4) of this title.
1996—Pub. L. 104–208, §308(e)(14)(A), amended section catchline.
Subsec. (a)(1). Pub. L. 104–208, §308(d)(4)(J)(i), substituted “denied admission, excluded, deported, or removed” for “arrested and deported, has been excluded and deported,” and “exclusion, deportation, or removal” for “exclusion or deportation”.
Pub. L. 104–208, §324(a), amended par. (1) generally. Prior to amendment, par. (1) read as follows: “has been arrested and deported or excluded and deported, and thereafter”.
Subsec. (a)(2)(B). Pub. L. 104–208, §308(d)(4)(J)(ii), substituted “denied admission and removed” for “excluded and deported”.
Subsec. (b). Pub. L. 104–208, §324(b), inserted “(or not during)” after “during” in concluding provisions.
Pub. L. 104–208, §308(e)(1)(K), substituted “removal” for “deportation” wherever appearing in pars. (1) and (2) and in concluding provisions.
Subsec. (b)(2). Pub. L. 104–208, §305(b)(1), struck out “or” at end.
Subsec. (b)(3). Pub. L. 104–208, §305(b)(2), inserted “or” at end.
Pub. L. 104–132, §401(c), added par. (3).
Subsec. (b)(4). Pub. L. 104–208, §305(b)(3), added par. (4).
Subsec. (c). Pub. L. 104–132, §438(b), added subsec. (c).
Subsec. (d). Pub. L. 104–132, §441(a), added subsec. (d).
1994—Subsec. (b). Pub. L. 103–322, in par. (1), inserted “three or more misdemeanors involving drugs, crimes against the person, or both, or” after “commission of” and substituted “10” for “5”, in par. (2), substituted “20” for “15”, and added concluding sentence.
1990—Subsec. (a). Pub. L. 101–649 substituted “shall be fined under title 18, or imprisoned not more than 2 years” for “shall be guilty of a felony, and upon conviction thereof, be punished by imprisonment of not more than two years, or by a fine of not more than $1,000”.
1988—Pub. L. 100–690 designated existing provisions as subsec. (a), substituted “Subject to subsection (b) of this section, any alien” for “Any alien”, and added subsec. (b).
Amendment by sections 305(b) and 308(d)(4)(J), (e)(1)(K), (14)(A) of Pub. L. 104–208 effective, with certain transitional provisions, on the first day of the first month beginning more than 180 days after Sept. 30, 1996, see section 309 of Pub. L. 104–208, set out as a note under section 1101 of this title.
Section 324(c) of div. C of Pub. L. 104–208 provided that: “The amendment made by subsection (a) [amending this section] shall apply to departures that occurred before, on, or after the date of the enactment of this Act [Sept. 30, 1996], but only with respect to entries (and attempted entries) occurring on or after such date.”
Section 401(f) of Pub. L. 104–132 provided that: “The amendments made by this section [enacting sections 1531 to 1537 of this title and amending this section and section 1105a of this title] shall take effect on the date of enactment of this Act [Apr. 24, 1996] and shall apply to all aliens without regard to the date of entry or attempted entry into the United States.”
Section 441(b) of Pub. L. 104–132 provided that: “The amendment made by subsection (a) [amending this section] shall apply to criminal proceedings initiated after the date of enactment of this Act [Apr. 24, 1996].”
Amendment by Pub. L. 101–649 applicable to actions taken after Nov. 29, 1990, see section 543(c) of Pub. L. 101–649, set out as a note under section 1221 of this title.
Section 7345(b) of Pub. L. 100–690 provided that: “The amendments made by subsection (a) [amending this section] shall apply to any alien who enters, attempts to enter, or is found in, the United States on or after the date of the enactment of this Act [Nov. 18, 1988].”
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under section 1551 of this title.
For purposes of carrying out this chapter, any reference in law to an order of removal is deemed to include a reference to an order of exclusion and deportation or an order of deportation, see section 309(d)(2) of Pub. L. 104–208, set out in an Effective Date of 1996 Amendments note under section 1101 of this title.
1 So in original. The period probably should be a semicolon.
2 See References in Text note below.
Any person who knowingly aids or assists any alien inadmissible under section 1182(a)(2) (insofar as an alien inadmissible under such section has been convicted of an aggravated felony) or 1182(a)(3) (other than subparagraph (E) thereof) of this title to enter the United States, or who connives or conspires with any person or persons to allow, procure, or permit any such alien to enter the United States, shall be fined under title 18, or imprisoned not more than 10 years, or both.
(June 27, 1952, ch. 477, title II, ch. 8, §277, 66 Stat. 229; Pub. L. 100–690, title VII, §7346(a), (c)(1), Nov. 18, 1988, 102 Stat. 4471; Pub. L. 101–649, title V, §543(b)(4), title VI, §603(a)(16), Nov. 29, 1990, 104 Stat. 5059, 5084; Pub. L. 104–208, div. C, title III, §308(d)(3)(A), Sept. 30, 1996, 110 Stat. 3009–617.)
1996—Pub. L. 104–208 substituted “inadmissible” for “excludable” in two places.
1990—Pub. L. 101–649, §603(a)(16), substituted “1182(a)(2) (insofar as an alien excludable under such section has been convicted of an aggravated felony) or 1182(a)(3) (other than subparagraph (E) thereof)” for “1182(a)(9), (10), (23) (insofar as an alien excludable under any such paragraph has in addition been convicted of an aggravated felony), (27), (28), or (29)”.
Pub. L. 101–649, §543(b)(4), substituted “shall be fined under title 18, or imprisoned not more than 10 years” for “shall be guilty of a felony, and upon conviction thereof shall be punished by a fine of not more than $5,000 or by imprisonment for not more than five years”.
1988—Pub. L. 100–690 substituted “certain aliens” for “subversive alien” in section catchline and inserted “(9), (10), (23) (insofar as an alien excludable under any such paragraph has in addition been convicted of an aggravated felony),” after “1182(a)”.
Amendment by Pub. L. 104–208 effective, with certain transitional provisions, on the first day of the first month beginning more than 180 days after Sept. 30, 1996, see section 309 of Pub. L. 104–208, set out as a note under section 1101 of this title.
Amendment by section 543(b)(4) of Pub. L. 101–649 applicable to actions taken after Nov. 29, 1990, see section 543(c) of Pub. L. 101–649, set out as a note under section 1221 of this title.
Amendment by section 603(a)(16) of Pub. L. 101–649 applicable to individuals entering United States on or after June 1, 1991, see section 601(e)(1) of Pub. L. 101–649, set out as a note under section 1101 of this title.
Section 7346(b) of Pub. L. 100–690 provided that: “The amendment made by subsection (a) [amending this section] shall apply to any aid or assistance which occurs on or after the date of the enactment of this Act [Nov. 18, 1988].”
The importation into the United States of any alien for the purpose of prostitution, or for any other immoral purpose, is forbidden. Whoever shall, directly or indirectly, import, or attempt to import into the United States any alien for the purpose of prostitution or for any other immoral purpose, or shall hold or attempt to hold any alien for any such purpose in pursuance of such illegal importation, or shall keep, maintain, control, support, employ, or harbor in any house or other place, for the purpose of prostitution or for any other immoral purpose, any alien, in pursuance of such illegal importation, shall be fined under title 18, or imprisoned not more than 10 years, or both. The trial and punishment of offenses under this section may be in any district to or into which such alien is brought in pursuance of importation by the person or persons accused, or in any district in which a violation of any of the provisions of this section occurs. In all prosecutions under this section, the testimony of a husband or wife shall be admissible and competent evidence against each other.
(June 27, 1952, ch. 477, title II, ch. 8, §278, 66 Stat. 230; Pub. L. 101–649, title V, §543(b)(5), Nov. 29, 1990, 104 Stat. 5059.)
1990—Pub. L. 101–649 substituted “shall be fined under title 18, or imprisoned not more than 10 years, or both” for “shall, in every such case, be guilty of a felony and upon conviction thereof shall be punished by a fine of not more than $5,000 and by imprisonment for a term of not more than ten years”.
Amendment by Pub. L. 101–649 applicable to actions taken after Nov. 29, 1990, see section 543(c) of Pub. L. 101–649, set out as a note under section 1221 of this title.
The district courts of the United States shall have jurisdiction of all causes, civil and criminal, brought by the United States that arise under the provisions of this subchapter. It shall be the duty of the United States attorney of the proper district to prosecute every such suit when brought by the United States. Notwithstanding any other law, such prosecutions or suits may be instituted at any place in the United States at which the violation may occur or at which the person charged with a violation under section 1325 or 1326 of this title may be apprehended. No suit or proceeding for a violation of any of the provisions of this subchapter shall be settled, compromised, or discontinued without the consent of the court in which it is pending and any such settlement, compromise, or discontinuance shall be entered of record with the reasons therefor. Nothing in this section shall be construed as providing jurisdiction for suits against the United States or its agencies or officers.
(June 27, 1952, ch. 477, title II, ch. 8, §279, 66 Stat. 230; Pub. L. 104–208, div. C, title III, §381(a), Sept. 30, 1996, 110 Stat. 3009–650.)
1996—Pub. L. 104–208, §381(a)(2), inserted at end “Nothing in this section shall be construed as providing jurisdiction for suits against the United States or its agencies or officers.”
Pub. L. 104–208, §381(a)(1), amended first sentence generally. Prior to amendment, first sentence read as follows: “The district courts of the United States shall have jurisdiction of all causes, civil and criminal, arising under any of the provisions of this subchapter.”
Section 381(b) of div. C of Pub. L. 104–208 provided that: “The amendments made by subsection (a) [amending this section] shall apply to actions filed after the date of the enactment of this Act [Sept. 30, 1996].”
(a) Notwithstanding any other provisions of this subchapter, the withholding or denial of clearance of or a lien upon any vessel or aircraft provided for in section 1221, 1224, 1253(c)(2), 1281, 1283, 1284, 1285, 1286, 1321, 1322, or 1323 of this title shall not be regarded as the sole and exclusive means or remedy for the enforcement of payments of any fine, penalty or expenses imposed or incurred under such sections, but, in the discretion of the Attorney General, the amount thereof may be recovered by civil suit, in the name of the United States, from any person made liable under any of such sections.
(b)(1) There is established in the general fund of the Treasury a separate account which shall be known as the “Immigration Enforcement Account”. Notwithstanding any other section of this subchapter, there shall be deposited as offsetting receipts into the Immigration Enforcement Account amounts described in paragraph (2) to remain available until expended.
(2) The amounts described in this paragraph are the following:
(A) The increase in penalties collected resulting from the amendments made by sections 203(b) and 543(a) of the Immigration Act of 1990.
(B) Civil penalties collected under sections 1229c(d), 1324c, 1324d, and 1325(b) of this title.
(3)(A) The Secretary of the Treasury shall refund out of the Immigration Enforcement Account to any appropriation the amount paid out of such appropriation for expenses incurred by the Attorney General for activities that enhance enforcement of provisions of this subchapter. Such activities include—
(i) the identification, investigation, apprehension, detention, and removal of criminal aliens;
(ii) the maintenance and updating of a system to identify and track criminal aliens, deportable aliens, inadmissible aliens, and aliens illegally entering the United States; and
(iii) for the repair, maintenance, or construction on the United States border, in areas experiencing high levels of apprehensions of illegal aliens, of structures to deter illegal entry into the United States.
(B) The amounts which are required to be refunded under subparagraph (A) shall be refunded at least quarterly on the basis of estimates made by the Attorney General of the expenses referred to in subparagraph (A). Proper adjustments shall be made in the amounts subsequently refunded under subparagraph (A) to the extent prior estimates were in excess of, or less than, the amount required to be refunded under subparagraph (A).
(C) The amounts required to be refunded from the Immigration Enforcement Account for fiscal year 1996 and thereafter shall be refunded in accordance with estimates made in the budget request of the Attorney General for those fiscal years. Any proposed changes in the amounts designated in such budget requests shall only be made after notification to the Committees on Appropriations of the House of Representatives and the Senate in accordance with section 605 of Public Law 104–134.
(D) The Attorney General shall prepare and submit annually to the Congress statements of financial condition of the Immigration Enforcement Account, including beginning account balance, revenues, withdrawals, and ending account balance and projection for the ensuing fiscal year.
(June 27, 1952, ch. 477, title II, ch. 8, §280, 66 Stat. 230; Pub. L. 101–649, title V, §542(a), Nov. 29, 1990, 104 Stat. 5057; Pub. L. 103–416, title II, §219(s), Oct. 25, 1994, 108 Stat. 4317; Pub. L. 104–208, div. C, title III, §§308(g)(4)(C), 382(a), Sept. 30, 1996, 110 Stat. 3009–623, 3009–651.)
Sections 203(b) and 543(a) of the Immigration Act of 1990, referred to in subsec. (b)(2)(A), are sections 203(b) and 543(a) of Pub. L. 101–649. Section 203(b) of the Act amended section 1281 of this title. Section 543(a) of the Act amended sections 1221, former 1227, 1229 (now 1224), 1284, 1285, 1286, 1287, 1321, 1322, and 1323 of this title.
Section 605 of Public Law 104–134, referred to in subsec. (b)(3)(C), is section 101[(a)] [title VI, §605] of Pub. L. 104–134, title I, Apr. 26, 1996, 110 Stat. 1321, 1321–63, which is not classified to the Code.
1996—Subsec. (a). Pub. L. 104–208, §308(g)(4)(C), substituted “1224, 1253(c)(2)” for “1227, 1229, 1253”.
Subsec. (b). Pub. L. 104–208, §382(a), amended subsec. (b) generally. Prior to amendment, subsec. (b) read as follows: “Notwithstanding section 3302 of title 31, the increase in penalties collected resulting from the amendments made by sections 203(b), 543(a), and 544 of the Immigration Act of 1990 shall be credited to the appropriation—
“(1) for the Immigration and Naturalization Service for activities that enhance enforcement of provisions of this subchapter, including—
“(A) the identification, investigation, and apprehension of criminal aliens,
“(B) the implementation of the system described in section 1252(a)(3)(A) of this title, and
“(C) for the repair, maintenance, or construction on the United States border, in areas experiencing high levels of apprehensions of illegal aliens, of structures to deter illegal entry into the United States; and
“(2) for the Executive Office for Immigration Review in the Department of Justice for the purpose of removing the backlogs in the preparation of transcripts of deportation proceedings conducted under section 1252 of this title.”
1994—Subsec. (b)(1)(C). Pub. L. 103–416 substituted “maintenance” for “maintainance”.
1990—Pub. L. 101–649 designated existing provisions as subsec. (a) and added subsec. (b).
Amendment by section 308(g)(4)(C) of Pub. L. 104–208 effective, with certain transitional provisions, on the first day of the first month beginning more than 180 days after Sept. 30, 1996, see section 309 of Pub. L. 104–208, set out as a note under section 1101 of this title.
Section 382(c) of div. C of Pub. L. 104–208 provided that: “The amendments made by this section [amending this section and section 1356 of this title] shall apply to fines and penalties collected on or after the date of the enactment of this Act [Sept. 30, 1996].”
Amendment by Pub. L. 103–416 effective as if included in the enactment of the Immigration Act of 1990, Pub. L. 101–649, see section 219(dd) of Pub. L. 103–416, set out as a note under section 1101 of this title.
Section 542(b) of Pub. L. 101–649 provided that: “The amendment made by subsection (a) [amending this section] shall apply to fines and penalties collected on or after January 1, 1991.”
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under section 1551 of this title.