Reference Citation

INA: ACT 274A - UNLAWFUL EMPLOYMENT OF ALIENS

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INA: ACT 274A - UNLAWFUL EMPLOYMENT OF ALIENS

Sec. 274A. [8 U.S.C. 1324a]
(a) Making Employment of Unauthorized Aliens Unlawful.(1) In general.-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)) 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) or (ii) if the person or entity is an agricultural association,
agricultural employer, or farm labor contractor (as defined in section 3 of the Migrant and
Seasonal Agricultural Worker Protection Act), 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).
(2) Continuing employment.-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.
(3) Defense.-A person or entity that establishes that it has complied in good faith with the
requirements of subsection (b) 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.
(4) Use of labor through contract.-For purposes of this section, a person or other entity who
uses a contract, subcontract, or exchange, entered into, renegotiated, or extended after the date
of the enactment of this section, 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)) with respect to performing
such labor, shall be considered to have hired the alien for employment in the United States in
violation of paragra ph (1)(A).
(5) Use of state employment agency documentation.-For purposes of paragraphs (1)(B) and
(3), a person or entity shall be deemed to have complied with the requirements of subsection (b)
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)) appropriate documentation of
such referral by that agency, which documentation certifies that the agency has complied with
the procedures specified in subsection (b) with respect to the individual's referral.
(6) 1/ Treatment of documentation for certain employees.-

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(A) In general. - 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) with respect to the employment of the individual, the
subsequent employer shall be deemed to have complied with the requirements of subsection (b)
with respect to the hiring of the employee and shall not be liable for civil penalties described in
subsection (e)(5).
(B) Period.-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.
(C) Liability.(i) In general.-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) 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 wor k in the United States.
(ii) Rebuttal of presumption.-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.
(iii) Exception.-Clause (i) shall not apply in any prosecution under subsection (f)(1).
(7) 2/ Application to Federal Government._ For purposes of this section, the term "entity"
includes an entity in any branch of the Federal Government.
(b) Employment Verification System.-The requirements referred to in paragraphs (1)(B) and (3)
of subsection (a) 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:
(1) Attestation after examination of documentation.(A) In general.-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-

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(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.
2a/ 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.
(B) Documents establishing both employment authorization and identity.-A document
described in this subparagraph is an individual's(i) United States passport;
(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) 3/ contains security features to make it resistant to tampering, counterfeiting, and
fraudulent use.
(C) Documents evidencing employment authorization.-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.
(D) Documents establishing identity of individual.-A document described in this
subparagraph is an individual's-

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(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.
(E) 4/ Authority to prohibit use of certain documents.- 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.
(2) Individual attestation of employment authorization.-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 Act 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 . 2a/
(3) Retention of verification form.-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 2a/ 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.
(4) Copying of documentation permitted.- 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.
(5) Limitation on use of attestation form.-A form designated or established by the Attorney
General under this subsection and any information contained in or appended to such form, may

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not be used for purposes other than for enforcement of this Act and sections 1001, 1028, 1546,
and 1621 of title 18, United States Code.
(6) 5/ Good faith compliance.(A) In general.-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.
(B) Exception if failure to correct after notice.- 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.
(C) Exception for pattern or practice violators.- 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).
(c) No Authorization of National Identification Cards.-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.
(d) Evaluation and Changes in Employment Verification System.(1) Presidential monitoring and improvements in system.(A) Monitoring.-The President shall provide for the monitoring and evaluation of the degree
to which the employment verification system established under subsection (b) 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.
(B) Improvements to establish secure system.-To the extent that the system established
under subsection (b) 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) 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).
(2) Restrictions on changes in system.-Any change the President proposes to implement

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under paragraph (1) in the verification system must be designed in a manner so the verification
system, as so changed, meets the following requirements:
(A) Reliable determination of identity.-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.
(B) Using of counterfeit-resistant documents.-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.
(C) Limited use of system.-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.
(D) Privacy of information.-The system must protect the privacy and security of personal
information and identifiers utilized in the system.
(E) Limited denial of verification.-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.
(F) Limited use for law enforcement purposes.-The system may not be used for law
enforcement purposes, other than for enforcement of this Act or sections 1001, 1028, 1546, and
1621 of title 18, United States Code.
(G) Restriction on use of new documents.-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 Act (or enforcement of sections 1001, 1028, 1546, and 1621 of
title 18, United States Code) nor to be carried on one's person.
(3) Notice to congress before implementing changes.(A) In general.-The President may not implement any change under paragraph (1) unless
at least(i) 60 days,

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(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.
(B) Contents of report.-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.
(C) Congressional review of major changes.(i) Hearings and review.-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.
(ii) Congressional action.-No major change may be implemented unless the Congress
specifically provides, in an appropriations or other Act, for funds for implementation of the
change.
(D) Major changes defined.-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, 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) 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.

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(E) General revenue funding of social security card changes.-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.
(4) Demonstration projects.(A) Authority.-The President may undertake demonstration projects (consistent with
paragraph (2)) of different changes in the requirements of subsection (b). No such project may
extend over a period of longer than five years.
(B) Reports on projects.-The President shall report to the Congress on the results of
demonstration projects conducted under this paragraph.
(e) Compliance.(1) Complaints and investigations.-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),
(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) 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) under this subsection.
(2) Authority in investigations.-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) 6/ 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

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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.
(3) Hearing.(A) In general.-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), 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.
(B) Conduct of hearing.-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, United States Code. 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 ord er.
(C) Issuance of orders.-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), 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).
(4) Cease and desist order with civil money penalty for hiring, recruiting, and referral
violations.-With respect to a violation of subsection (a)(1)(A) or (a)(2), 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) (or subsection (d) 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

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(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.
(5) Order for civil money penalty for paperwork violations.- With respect to a violation of
subsection (a)(1)(B), 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 seri ousness of the violation, whether or not the individual was an
unauthorized alien, and the history of previous violations.
(6) Order for prohibited indemnity bonds.-With respect to a violation of subsection (g)(1), the
order under this subsection may provide for the remedy described in subsection (g)(2).
(7) Administrative appellate review.-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 modif ied or vacated) the decision and order is referred to the Attorney
General pursuant to regulations, 7/ in which case the decision and order of the Attorney General
shall become the final agency decision and order 8/ 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.
(8) Judicial review.-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.
(9) Enforcement of orders.-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.
(f) Criminal Penalties and Injunctions for Pattern or Practice Violations.(1) Criminal penalty.-Any person or entity which engages in a pattern or practice of violations
of subsection (a)(1)(A) or (a)(2) 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.

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(2) Enjoining of pattern or practice violations.-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), 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 entit y, as the Attorney General deems necessary.
(g) Prohibition of Indemnity Bonds.(1) Prohibition.-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.
(2) Civil penalty.-Any person or entity which is determined, after notice and opportunity for an
administrative hearing under subsection (e), 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.
(h) Miscellaneous Provisions.(1) Documentation.-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.
(2) Preemption.-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.
(3) Definition of unauthorized alien.-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 Act or by the Attorney General.
(i)-(n) 9/

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FOOTNOTES FOR SECTION 274A
INA: ACT 274A FN 1
FN 1 Added by § 412(b) of IIRIRA , effective as "to individuals hired on or after 60 days after
the date of enactment of this Act."
INA: ACT 274A FN 2
FN 2 Paragraph (7) added by § 412(d) of IIRIRA , effective for "hiring occurring before, on, or
after the date of the enactment of [IIRIRA], but no penalty shall be imposed under subsection (e)
or (f) of section 274A of the Immigration and Nationality Act for such hiring occurring before
such date."
INA: ACT 274A FN 2a
FN 2a Section 274A(b)(1)(A), (2) and (3) were amended by Section 1 of Public Law 108390 , dated October 30, 2004.
    EFFECTIVE DATE.--The amendments of Public Law 108-390 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.
INA: ACT 274A FN 3
FN 3 Added by § 412(a) of IIRIRA , effective "with respect to hiring (or recruitment or referral)
occurring on or after such date (not later than 12 months after the date of enactment of [IIRIRA])
as the Attorney shall designate."
INA: ACT274A FN 4
FN 4 Added by § 412(a) of IIRIRA , effective "with respect to hiring (or recruitment or referral)
occurring on or after such date (not later than 12 months after the date of enactment of [IIRIRA])
as the Attorney shall designate."
INA: ACT274A FN 5
FN 5 Added by § 411 of IIRIRA , effective for "failures occurring on or after the date of the
enactment of [IIRIRA]."
INA: ACT274A FN 6

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FN 6 / Added by § 416 of IIRIRA .
INA: ACT274A FN 7
FN 7 Amended by § 379(a)(1) of IIRIRA , effective for "orders issued on or after the date of
the enactment of this Act."
INA: ACT274A FN 8
FN 8 Amended by § 379(a)(2) of IIRIRA , effective for "orders issued on or after the date of
the enactment of this Act."
INA: ACT274A FN 9
FN 9

Subsections (i) through (n) were struck as "dated provisions" by § 412(c) of IIRIRA .

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