Long Title: A Bill to Promote Public Safety, Economic Fairness, and Non-Discriminatory Employment Practices by Providing Access to, and Assisting Employers in the Use of, the Federal E-Verify Program.

1. Summary
   1. The Facilitated Inquiry of Labor Eligibility Act (FILE Act) of 2008 makes it easier for employers to take advantage of the voluntary labor eligibility verification technology the federal government has made available under the E-Verify program. E-Verify (formerly known as the Basic Pilot/Employment Eligibility Verification Program) is an Internet based system operated by the Department of Homeland Security (DHS) in partnership with the Social Security Administration (SSA) that allows participating employers to electronically verify the US labor eligibility of their newly hired employees. U.S. Citizenship and Immigration Services (USCIS) oversees the program.
   2. The FILE Act
      • promotes economic fairness,
      • expands employment opportunities for low and moderate income citizens,
      • helps safeguard workers against unlawful discrimination, and
      • provides legal protections to employers.
   3. By easing the process of utilizing the service, the state encourages employers to comply with relevant hiring and tax laws and reduces current paperwork and recordkeeping burdens on businesses.
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2. Definitions As used in this act,
   1. E-Verify

      means the federally administered program originally known as Web Basic Pilot Program and created under section 401(b) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), authorized by the Basic Pilot Program Extension and Expansion Act of 2003 (Pub. Law 108-156), and administered by the U.S. Citizenship and Immigration Service (USCIS)'s Systematic Alien Verification for Entitlements (SAVE) Program.

   2. Designated Agent

      means the State of [state], which acts in compliance with established USCIS guidelines under the federal E-Verify program on behalf of those employers in the state choosing to participate in the FILE program.

   3. FILE

      means the program under which a state acts as a Designated Agent for the federal E-Verify program as provided for under the Facilitated Inquiry of Labor Eligibility Act of 2008.

   4. Program Administrator

      means the [title], who shall designate such other personnel, users, and administrators as may be necessary to enable the State to fulfill, with the highest possible level of service to the employers and the people of the State, the function of Designated Agent.

   5. Memorandum of Understanding (MOU)

      means a signed agreement between the relevant parties that sets forth the responsibilities of the Designated Agent, the USCIS and the Social Security Administration (SSA) in accordance with USCIS rules.

   6. Relief Memorandum of Understanding (RMOU)

      means a signed agreement between an employer electing to participate in the FILE Act program, the State acting as its Designated Agent, the USCIS, and the SSA setting forth the responsibilities of all parties.

   7. Person

      means a natural person, an employer, or an organization, including a corporation, government agency, estate, trust, partnership, proprietorship, cooperative, association, joint stock company, syndicate, joint venture, or other unincorporated organization or group, and all entities cognizable as legal personalities.

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3. General Provisions
   1. The FILE Act of 2008
      1. establishes in [state] the Facilitated Inquiry of Labor Eligibility Act (the FILE Act) of 2008.
      2. authorizes the state to act as the Designated Agent through which employers in [state] may more easily take advantage of the federal E-Verify program.
      3. requires all governmental agencies in the state of [state] to participate in the FILE program.
      4. names the [title] of the [agency] for the state of [state] to be the Program Administrator for the Designated Agent and for all state agencies.
      5. directs the Program Administrator to maintain a current list of employers participating in the FILE program and to make the list publicly available on the Internet, each record to include as much as possible
         1. business and/or popular and/or dba name
         2. primary business address (physical address, city, state, and nine-digit zip code)
         3. business county
         4. business NAICS category code
         5. dates of last three facilitated inquiries
      6. prohibits any agency of the state, after 30 calendar days from the enactment of this Act, to contract for goods or services with any person who does not actively participate in the FILE program.
      7. offers employers the ability to terminate participation at any time.
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4. Process
   1. Initial Employer Notification
      1. Any person applying for or renewing a license to do business in the State of [state] after the effective date established in Title IV of this Act shall receive be considered to have given its consent to have the [state] Department of [agency] enroll the person in the federal E-Verify program and act as its notice or its on line equivalent, that the State, in its role under the FILE program as Designated Agent, is able, on the prospective licensee's behalf, to verify new hires for labor eligibility through the federal government's E-Verify program.
      2. The state is offering the service to the licensee.
   2. Upon successful application or renewal, together with the notice of successful application or renewal, the employer shall receive
      1. a FILE decal
      2. instructions on how to activate a FILE employer account on line
      3. advisement that a new or renewing licensee may choose not to participate in the FILE program simply by not responding to the offer.
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5. The Decal
   1. The FILE decal is of a recognizable shape and color which is uniform nationwide.
   2. The decal attests to the employer's labor eligibility verification compliance.
   3. The decal carries a unique ID number.
   4. The decal comes with an information sheet explaining
      1. how the employer can activate its account on line by using the ID number printed on the decal,
      2. how to password-protect its and its employees' private information by selecting an on line password for the employer's account,
      3. that once the decal's ID number is accessed, and the employer's account is activated, the employer may display or use the decal in any manner it wishes, including use it in advertising and promotional material,
      4. that activation of the employer's account means the employer agrees to participate in the FILE program.
6. Documentation
   1. English and Spanish notices provided by DHS indicating a company’s participation in the E-Verify program
   2. the Right to Work Poster issued by the Office of Special Counsel for Immigration-Related Unfair Employment Practices
   3. the current E-Verify rules of use as promulgated by USCIS
      1. Employees must be newly hired with a completed Employment Eligibility Verification Form I-9 (referred to hereafter as Form I-9) before you can use E-Verify to initiate queries about the employees for your company.
      2. Form I-9 requirements remain the same except that all "List B" identity documents must bear a photograph.
      3. Employers must submit verification queries for newly hired employees no later than the 3rd business day after they start work for pay.
      4. If an employer discovers that it failed to initiate a verification query by the third business day after the employee starts work for pay, it should bring the company into compliance with program requirements immediately to the extent possible by initiating the query (if it also failed to complete the Form I9, that should be completed first).
      5. Employers may not verify newly hired employees selectively, and must follow E-Verify procedures for all new hires while it is participating.
      6. Employers may not request that the employee use certain documentation for Form I-9 or E-Verify purposes.
      7. Employers may not use E-Verify to discriminate against any job applicant or new hire on the basis of his or her national origin, citizenship, or immigration status.
      8. Employers may not use the system to pre-screen applicants for employment.
      9. Employers may not go back to check labor eligibility for employees hired before it agreed to participate in the E-Verify program.
      10. Employers may not use the system to re-verify labor eligibility.
      11. Employers must provide employees with an opportunity to contest a Tentative Nonconfirmation (TNC).
      12. Employers cannot take any adverse action against an employee based upon E-Verify unless the program issues a Final Nonconfirmation.
      13. Employee must continue to work during the verification process.
   4. a clear explanation of the E-Verify program's components and benefits
   5. a clear explanation of how an employer may remove itself from the E-Verify program and end its participation
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7. E-Verify: Termination
   1. A private employer may terminate its participation in the FILE Act of 2008 program at any time.
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8. Program Administration
   1. The [state] [agency] shall:
      1. Register each state and local government employer and participating private employer in the federal E-Verify program;
      2. Act as a Designated Agent for each state government employer and participating private employer;
      3. Inform each employer of its responsibilities under the Program, including:
         1. All Form I-9 requirements and other federal procedural requirements of the FILE Act E-Verify program;
         2. Time limitations and deadlines associated with the FILE Act E-Verify program;
         3. Limitations and prohibitions on verification of employees under the E-Verify program; and
         4. Any such regulations as may be promulgated from time to time by the Congress of the United States of America or other controlling federal authority;
            1. Establish procedures to monitor, investigate, and prosecute clear violations of federal and state anti-discrimination laws; take proactive measures to prevent activity inconsistent with the provisions of this Act; and
            2. Implement such regulations as necessary to discharge its responsibilities under this section.
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9. Public Notice
   1. Any employer electing to take part in the program described in Section 3 shall disclose the Basic Pilot Notices, as determined by the Department of Homeland Security, in writing to all prospective employees.
   2. Any employer that terminates its participation in the program may not represent in any manner that they are a FILE Act program participant.
   3. The Program Administrator shall create, with an emphasis on clarity, brevity, and infrequency, a free opt-in email digest for employers, available to the general public, containing:
      1. information concerning employment law and issues pertaining to the Form I-9 policy and procedures as released by the Public Affairs Office of the USCIS;
      2. information contained in the "Employer Bulletins" issued by the Office of Business Liaison, the USCIS office responsible for publishing information valuable to employers;
      3. citations and links to original source of information; and
      4. information pertinent to the purpose of this Act that, in the judgment of the Program Administrator, may be useful to employers.
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10. Liability
    1. No employer or representative of any employer participating in the FILE Act program shall be civilly or criminally liable for the good faith discharge of an individual following final confirmation that the individual is not work authorized.
    2. No employer participating in the FILE Act program shall be civilly liable for creating a public or private nuisance, or for creating dangerous or unsafe conditions, when such liability would rest substantially on the employment of an individual who would be determined to be ineligible for employment under the E-Verify program.
    3. A FILE Act employer verifying work authorization under E-Verify has established a rebuttable presumption that it has not knowingly hired ineligible labor.
    4. No employer may make—either to its employees, to any government official or agency, or to any member of the general public—a false claim of participating in the FILE program.
    5. Any public display or use of the FILE Act decal by a non-participating employer where it can be reasonably inferred that the employer meant to mislead shall be considered a "false claim" for the purpose of the preceding paragraph.
    6. Where it can be shown that an employer, with the intent to mislead, has falsely claimed to participate in the FILE program, that employer will be presumed to have knowingly hired ineligible labor if such question ever arises in a court of law.
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11. Funding
    1. Any costs incurred by the State in the funding of the FILE Act program shall be
       1. weighed against any increase in State revenue that may be attributable to the passage of the FILE Act and consequent reduction in the "off the books" economy;
       2. in the highly unlikely event costs exceed gains notwithstanding the preceding paragraph, the costs shall be offset by a corresponding increase in the fee for obtaining a business license, to be determined by the agency issuing such licenses.

IV: Effective Dates

1. Upon Passage
   1. This Act shall take effect on effective date and shall remain in effect until the scheduled end of the E-Verify program, November, 2008, or unless terminated by an act of the state legislature.
   2. In the event the federal E-Verify program is extended beyond November, 2008, the provisions of this Act shall likewise be extended and remain in effect without interruption.