Representative Lamar Smith (R-Texas) introduced the Legal Workforce Act (LWA) on June 14, 2011. If the LWA becomes law as written, it would create a new employment verification system (similar to the current E-Verify system) that all employers would have to opt into within two years of LWA’s enactment. Larger employers would be required to implement enrollment faster than smaller employers.

The bill amends the Immigration and Nationality Act (INA) by replacing all of subsection (b) of INA § 274A with new provisions regarding the verification of individuals for employment. New verification procedures would be mandated and the employer will be required to verify that the individual is not an unauthorized alien by (1) having obtained and recorded the individual’s social security number if s/he claims to have one or, if the individual does not claim to be a U.S. citizen, by recording the identification number accorded by the DHS and (2) by examining documents that establish identity and work authorization.

The bill would reduce the list of acceptable documents that can be accepted from the list that is currently part of the Form I-9 employment verification process. The individual will be required to attest to his/her claim of citizenship, lawful permanent resident status or noncitizen authorized to work in the U.S. along with providing the required documentation.

The bill would also introduce a new criminal aspect to employment verification. The potential penalty would be a fine and/or sentence of not less than one year and up to 15 years for knowingly providing a false social security number or other DHS ID number. The LWA prohibits probation of any person convicted for this crime and prohibits the sentence from running concurrently with the sentence of any other crime.

The proposed Electronic Employment Verification System (EEVS) would essentially mirror the current E-Verify system. The employer would be required to enter information regarding the individual into an electronic system and receive confirmation that the individual is work authorized and that the social security number matches up with the individual. The bill sets forth the procedures to follow if the system indicates that there is an issue with the person’s work authorization, identity or social security number.

The bill also sets forth a schedule by which employers, depending on size, would be required to enroll in the new EEVS. Employers could opt to enroll at a faster rate without penalty. All time periods listed in the chart below refer to the time from date of enactment:

LWA would define the verification period for employers to be from the date of offer until three days after the hire date and offers could be made upon condition of verification. Reverification of employment authorization, if required, would be completed on a different form from the original verification form.

LWA would also implement a requirement that certain individuals not previously entered into the E-Verify system would be required to be entered within six months of enactment. This would impact employees of federal, state and local governments; employees at critical infrastructure sites that require security clearance and employees assigned to perform work under Federal contract (FAR) rules.

In addition, LWA would mandate that the Social Security Administration place safeguards to identify the multiple use of social security numbers and mismatches between wage and tax statements.  Employers could also opt to voluntarily verify all employees within 30-days of enactment so long as it is not done in a discriminatory fashion.

LWA would change the “good faith” defense that currently exists for failures to correct deficiencies if the deficiency were a de minimus error. The employer would lose the good faith defense if the error is determined by DHS not to be de minimus and if the employer fails to correct the error within 30-days of notice.

The House’s sub-committee on immigration will begin debating this bill shortly.

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