Laws: Cases and Codes : U.S. Code : Title 8 : Section 1324a
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U.S. Code as of:
01/03/05
Section 1324a - Notes
SOURCE
(June 27, 1952, ch. 477, title II, ch. 8, Sec. 274A, as added Pub.
L. 99-603, title I, Sec. 101(a)(1), Nov. 6, 1986, 100 Stat. 3360;
amended Pub. L. 100-525, Sec. 2(a)(1), Oct. 24, 1988, 102 Stat.
2609; Pub. L. 101-649, title V, Secs. 521(a), 538(a), Nov. 29,
1990, 104 Stat. 5053, 5056; Pub. L. 102-232, title III, Secs.
306(b)(2), 309(b)(11), Dec. 12, 1991, 105 Stat. 1752, 1759; Pub. L.
103-416, title II, Secs. 213, 219(z)(4), Oct. 25, 1994, 108 Stat.
4314, 4318; Pub. L. 104-208, div. C, title III, Sec. 379(a), title
IV, Secs. 411(a), 412(a)-(d), 416, Sept. 30, 1996, 110 Stat.
3009-649, 3009-666 to 3009-669; Pub. L. 108-390, Sec. 1(a), Oct.
30, 2004, 118 Stat. 2242.)
REFERENCES IN TEXT
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 (Sec. 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.
AMENDMENTS
2004 - Subsec. (b)(1)(A). Pub. L. 108-390, Sec. 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, Sec. 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, Sec. 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, Sec. 412(b), added par.
(6).
Subsec. (a)(7). Pub. L. 104-208, Sec. 412(d), added par. (7).
Subsec. (b)(1)(B). Pub. L. 104-208, Sec. 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, Sec. 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, Sec. 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, Sec. 412(a)(3), added subpar.
(E).
Subsec. (b)(6). Pub. L. 104-208, Sec. 411(a), added par. (6).
Subsec. (e)(2)(C). Pub. L. 104-208, Sec. 416, added subpar. (C).
Subsec. (e)(7). Pub. L. 104-208, Sec. 379(a)(2), substituted "the
final agency decision and order under this subsection" for "a final
order under this subsection".
Pub. L. 104-208, Sec. 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, Sec. 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, Sec. 219(z)(4), made
technical correction to Pub. L. 102-232, Sec. 306(b)(2). See 1991
Amendment note below.
Subsec. (d)(4)(A). Pub. L. 103-416, Sec. 213, substituted "five"
for "three" in second sentence.
1991 - Subsec. (b)(1)(D)(ii). Pub. L. 102-232, Sec. 309(b)(11),
substituted "clause (i)" for "clause (ii)".
Subsec. (b)(3). Pub. L. 102-232, Sec. 306(b)(2), as amended by
Pub. L. 103-416, Sec. 219(z)(4), made technical correction to Pub.
L. 101-649, Sec. 538(a). See 1990 Amendment note below.
1990 - Subsec. (a)(1). Pub. L. 101-649, Sec. 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, Sec. 538(a), as amended by Pub.
L. 102-232, Sec. 306(b)(2), as amended by Pub. L. 103-416, Sec.
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, Sec. 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, Sec. 2(a)(1)(B), in heading
substituted "defined" for "requiring two years notice and
congressional review".
Subsec. (e)(1). Pub. L. 100-525, Sec. 2(a)(1)(C)(i), inserted
reference to subsec. (g)(1) in three places.
Subsec. (e)(3). Pub. L. 100-525, Sec. 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, Sec. 2(a)(1)(D),
substituted "paragraph" for "subparagraph".
Subsec. (e)(6) to (9). Pub. L. 100-525, Sec. 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, Sec. 2(a)(1)(E), inserted
reference to subsec. (e) of this section.
Subsec. (i)(3)(B)(iii). Pub. L. 100-525, Sec. 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, Sec. 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, Sec. 2(a)(1)(H), substituted
"this section" for "that section".
ABOLITION OF IMMIGRATION AND NATURALIZATION SERVICE AND TRANSFER OF
FUNCTIONS
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.
PILOT PROGRAMS FOR EMPLOYMENT ELIGIBILITY CONFIRMATION
Pub. L. 104-208, div. C, title IV, subtitle A, Sept. 30, 1996,
110 Stat. 3009-655, as amended by Pub. L. 107-128, Sec. 2, Jan. 16,
2002, 115 Stat. 2407; Pub. L. 108-156, Secs. 2, 3, Dec. 3, 2003,
117 Stat. 1944, provided that:
EX. ORD. NO. 12989. ECONOMY AND EFFICIENCY IN GOVERNMENT
PROCUREMENT THROUGH COMPLIANCE WITH CERTAIN IMMIGRATION AND
NATIONALITY ACT PROVISIONS
Ex. Ord. No. 12989, Feb. 13, 1996, 61 F.R. 6091, as amended by
Ex. Ord. No. 13286, Sec. 19, Feb. 28, 2003, 68 F.R. 10623,
provided:
This order is designed to promote economy and efficiency in
Government procurement. Stability and dependability are important
elements of economy and efficiency. A contractor whose work force
is less stable will be less likely to produce goods and services
economically and efficiently than a contractor whose work force is
more stable. It remains the policy of this Administration to
enforce the immigration laws to the fullest extent, including the
detection and deportation of illegal aliens. In these
circumstances, contractors cannot rely on the continuing
availability and service of illegal aliens, and contractors that
choose to employ unauthorized aliens inevitably will have a less
stable and less dependable work force than contractors that do not
employ such persons. Because of this Administration's vigorous
enforcement policy, contractors that employ unauthorized alien
workers are necessarily less stable and dependable procurement
sources than contractors that do not hire such persons. I find,
therefore, that adherence to the general policy of not contracting
with providers that knowingly employ unauthorized alien workers
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 40 U.S.C.
486(a) [now 40 U.S.C. 121(a)] and 3 U.S.C. 301, it is hereby
ordered as follows:
Section 1. (a) 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 should not contract with employers
that have not complied with section 274A(a)(1)(A) and 274A(a)(2) of
the Immigration and Nationality Act (8 U.S.C. 1324a(a)(1)(A),
1324a(a)(2)) (the "INA employment provisions") prohibiting the
unlawful employment of aliens. All discretion under this Executive
order shall be exercised consistent with this policy.
(b) It remains the policy of this Administration to fully and
aggressively enforce the antidiscrimination provisions of the
Immigration and Nationality Act [8 U.S.C. 1101 et seq.] to the
fullest extent. Nothing in this order relieves employers from their
obligation to avoid unfair immigration-related employment practices
as required by the antidiscrimination provisions of section 1324(b)
[274B] of the INA (8 U.S.C. 1324b) and all other antidiscrimination
requirements of applicable law, including the requirements of 8
U.S.C. 1324b(a)(6) concerning the treatment of certain documentary
practices as unfair immigration-related employment practices.
Sec. 2. Contractor, as used in this Executive order, shall have
the same meaning as defined in subpart 9.4 of the Federal
Acquisition Regulation.
Sec. 3. Using the procedures established pursuant to 8 U.S.C.
1324a(e): (a) the Secretary of Homeland Security may investigate to
determine whether a contractor or an organizational unit thereof is
not in compliance with the INA employment provisions;
(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.
Sec. 4. (a) Whenever the Secretary of Homeland Security or the
Attorney General determines that a contractor or an organizational
unit thereof is not in compliance with the INA employment
provisions, the Secretary of Homeland Security or the Attorney
General shall transmit that determination to the appropriate
contracting agency and such other Federal agencies as the Secretary
of Homeland Security or the Attorney General may determine. Upon
receipt of such determination from the Secretary of Homeland
Security or the Attorney General, the head of the appropriate
contracting agency shall consider the contractor or an
organizational unit thereof for debarment as well as for such other
action as may be appropriate in accordance with the procedures and
standards prescribed by the Federal Acquisition Regulation.
(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.
Sec. 5. (a) The Secretary of Homeland Security and Attorney
General shall be responsible for the administration and enforcement
of this order, except for the debarment procedures. The Secretary
of Homeland Security and Attorney General may adopt such additional
rules and regulations and issue such orders as may be deemed
necessary and appropriate to carry out their respective
responsibilities under this order. If the Secretary of Homeland
Security or the Attorney General proposes to issue rules,
regulations, or orders that affect the contracting departments and
agencies, the Secretary of Homeland Security or the Attorney
General shall consult 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 such other
agencies as may be appropriate.
(b) 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 and other related responsibilities assigned to heads
of contracting departments and agencies under this order.
Sec. 6. Each contracting department and agency shall cooperate
with and provide such information and assistance to the Secretary
of Homeland Security and the Attorney General as may be required in
the performance of their respective functions under this order.
Sec. 7. The Secretary of Homeland Security, the Attorney General,
the Secretary of Defense, the Administrator of General Services,
the Administrator of the National Aeronautics and Space
Administration, and the heads of contracting departments and
agencies may delegate any of their functions or duties under this
order to any officer or employee of their respective agencies.
Sec. 8. This order shall be implemented in a manner intended to
least burden the procurement process. This order neither authorizes
nor requires any additional certification provision, clause, or
requirement to be included in any contract or contract
solicitation.
Sec. 9. This order is not intended, and should not be construed,
to create any right or benefit, substantive or procedural,
enforceable at law by a party against the United States, its
agencies, its officers, or its employees. This order is not
intended, however, to preclude judicial review of final agency
decisions in accordance with the Administrative Procedure Act, 5
U.S.C. 701 et seq.
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