Suggested State Legislation Committee Recent Legislative Activity on Immigration

The November/December 2011 edition of Capitol Ideas lists immigration as one of the top 15 issues facing the states. Listed below are several recent examples of how states are addressing immigration, as considered by CSG’s Suggested State Legislation Committee (SSL). 

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Medical Language Interpreter
The 2011 SSL draft entitled Medical Language Interpreter provides that a person who renders language interpretation services between a health care provider who speaks English and another person in Spanish, Russian, Bosnian, Somali, Mandarin Chinese, Cantonese, or Navajo, can get certified by the state division of occupational and professional licensing as a medical language interpreter. The Act provides that a person may provide medical interpreter services without obtaining the certification described in the preceding paragraph. The bill describes the requirements that a person must comply with in order to obtain certification. It makes it a misdemeanor to represent or hold oneself out as a certified medical language interpreter when not certified under the provisions of the bill.

The Act permits the state division of occupational and professional licensing to charge a fee to recover the costs of administering the certification examination and issuing the certificate described in this bill. It allows the state department of health and the state department of human services to give priority to contracting with companies that use certified medical language interpreters. This SSL draft is based on Utah HB144/Session Law Chapter 49 of 2009.

Nonimmigrant Agricultural Seasonal Workers
A 2010 SSL Draft entitled Nonimmigrant Agricultural Seasonal Worker Pilot Program creates the “Nonimmigrant Agricultural Seasonal Worker Pilot Program” in the state department of labor. The purpose of the program is to expedite the federal H-2A Visa certification process to enable eligible workers to come to the state legally to meet the staffing needs of farmers and ranchers in the state.

The department may retain agents to:

  • assist employers with labor certification application materials;
  • recruit workers;
  • assist workers with their H-2A Visas;
  • coordinate medical screening prior to departure to the U.S.; and
  • coordinate travel to the state.

The pilot program is limited to 1,000 employees in the first year, with annual increases of 1,000 each year for 4 years.

The Act creates a Nonimmigrant Agricultural Seasonal Worker Pilot Program Advisory Council, made up of legislators, agency executives and stakeholders, to make recommendations for the adoption of rules, determine the availability of health insurance for program participants, and to assist in the preparation of reports to the legislature.

The bill establishes requirements for employers and employees who participate in the program. Employees are required to apply for an identification card within two weeks of arrival in the state.

Employers are required to:

  • reimburse employees for transportation and subsistence costs from the site of recruitment, and pay return expenses;
  • provide free transportation to the worksite, free housing, low-cost meals, and workers’ compensation insurance;
  • pay wages in compliance with the Immigration Reform and Control Act of 1986;
  • not displace a U.S. worker;
  • notify the state department of labor if an employee cannot be located; and
  • pay fees associated with the program.

This Act authorizes the department of labor to fine employers up to $200 per day per violation for failure to report visa violations, and up to $5,000 for violation of any provision. This SSL draft is based on Colorado HB 08-1325, which became law in 2008.

Uniform Unsworn Foreign Declarations Act

The Uniform Unsworn Foreign Declarations Act is highlighted in the 2010 SSL volume. According to the Uniform Law Commissioners, prior to the September 11, 2001 terrorist attacks, access to U.S. consular offices was far less restricted and difficult than it is today. Foreign affiants with information relevant to U.S. proceedings or transactions and willing to provide assistance could visit the U.S. consular office to finalize their affidavit or statement, in very similar fashion to a person within the U.S. visiting a notary public at a local bank. Due to increased security measures, this relatively routine process became more burdensome and time consuming. Even greater hurdles exist for persons seeking statements from individuals who do not reside near a U.S. consular office. The American Bar Association (ABA) raised these issues and referred them to the Uniform Law Commission in an official report, adopted by the ABA House of Delegates in 2006. The Uniform Unsworn Foreign Declarations Act (UUFDA) was promulgated by the Uniform Law Commission at its Annual Meeting in 2008 to address this situation and to harmonize state and federal law.

UUFDA affirms the use in state law proceedings of unsworn declarations made by declarants who are physically outside the boundaries of the United States when making the declaration. Under the UUFDA, if an unsworn declaration is made subject to penalties for perjury and contains the information in the model form provided in the Act, then the statement may be used as an equivalent of a sworn declaration. The UUFDA excludes use of unsworn declarations for depositions, oaths of office, oaths related to self-proved wills, declarations recorded under certain real estate statutes, and oaths required to be given before specified officials other than a notary.

The UUFDA will extend to state proceedings the same flexibility that federal courts have employed for over 30 years. Since 1976, federal law (28 U.S.C. § 1746) has allowed an unsworn declaration executed outside the U.S. to be recognized and valid as the equivalent of a sworn affidavit if it substantially includes the language: declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.

Several states have procedures for allowing unsworn declarations, but the state procedures are not uniform. Further, courts have ruled that 28 U.S.C. § 1746 is inapplicable to state court proceedings.

Enactment of UUFDA harmonizes state and federal treatment of unsworn declarations. The Act alleviates foreign affiants' burden in providing important information for state proceedings, while at the same time helping to reduce congestion in U.S. consular offices and allowing U.S. consular officials to increase focus on core responsibilities. Further, UUFDA will reduce aspects of confusion abroad regarding differences in federal and state litigation practice and help prevent potential negative connotations about cumbersome and inconsistent legal procedure in U.S. court proceedings. This SSL draft is based on Utah’s 2009 enactment (SB122) of the Uniform Law.

Employing Illegal Aliens
The 2009 SSL draft entitled Employing Illegal Aliens establishes penalties for knowingly employing an illegal alien. It defines “knowingly” as having actual knowledge that a person is an illegal alien or having a duty imposed by law to determine the immigration status of an illegal alien and failing to perform such duty. Violators can have their business license suspended. The Act also permits local governments in the state to enter into a written agreement with the United States Department of Homeland Security to help enforce federal immigration laws concerning investigating, detaining, and removing illegal aliens. The draft is based on Tennessee Public Chapter No. 529 of 2007.

Enhanced Drivers’ Licenses and Identicards
The 2009 SSL draft entitled Enhanced Drivers’ Licenses and Identicards is based on Washington Chapter 7, Laws of 2007. According to Washington legislative staff, “The federal Intelligence Reform and Terrorism Prevention Act of 2004 mandated that the Secretary of Homeland Security, in consultation with the Secretary of State, develop and implement a plan to require United States citizens and foreign nationals to present a passport or other secure document when entering the United States. In April 2005, the Departments of State and Homeland Security announced the Western Hemisphere Travel Initiative, which will require people entering or re-entering the United States to present a passport or other acceptable secure identification. When announcing the Western Hemisphere Travel Initiative, the Departments of State and Homeland Security identified the passport as the document of choice for entry or re-entry into the United States, but acknowledged that certain other documents might be acceptable in lieu of a passport.”

This Act permits the state department of licensing (DOL) to enter into a memorandum of understanding with a federal agency to facilitate border crossing between the state and Canada.

The DOL may enter into an agreement with a Canadian province to implement a border crossing initiative. The DOL may issue an enhanced driver’s license or identicard to an applicant who, in addition to meeting all other driver’s license or identicard requirements, provides the DOL with proof of United States citizenship, identity, and state residency. The enhanced driver’s license or identicard must include a one-to-many biometric matching system. The DOL must adopt rules and may set fees for the issuance of enhanced drivers’ licenses and identicards.

According to the Washington State Department of Licensing, a Washington Enhanced Driver License/Enhanced ID (EDL/EID) “is a new border crossing document and some border agents may be unaware it is acceptable identification. To help eliminate any confusion, the department recommends reviewing this U.S. Customs and Border Protection factsheet that lists the EDL/EID as an acceptable border crossing document.

Immigrant Survivors of Human Trafficking
The 2009 SSL draft entitled Immigrant Survivors of Human Trafficking and Other Serious Crimes is based on Florida Chapter 2007-162. According to Florida legislative staff, the federal Victims of Trafficking and Violence Protection Act of 2000 enables immigrant victims of human trafficking to get certain federal benefits once their status in the U.S. is determined. Florida Chapter 2007-162 directs the state department of children and family services to establish a state-funded benefit program for immigrant victims of human trafficking, domestic violence, and other serious crimes while their eligibility for federal benefits under the aforementioned federal Act is being determined.

The Florida Act:

  • applies to “immigrant victims of human trafficking, domestic violence and other serious crimes” who have filed or are preparing to file specified federal applications;
  • states that victims of human trafficking, domestic violence and other serious crimes are eligible for state funded benefits to the same extent as people who are admitted to the United States as refugees under specified circumstances;
  • provides a list of documents that in addition to a sworn statement, suffices as evidence that an applicant has been a victim of human trafficking; and
  • permits the state department of children and family services to develop a public awareness campaign about the program.

Immigration Status
The 2009 SSL draft entitled Immigration Status - Cooperating with Federal Officials is aimed at preventing local governments from designating their localities as sanctuaries for illegal aliens. The Act prohibits local governments from passing any ordinance or policy that limits or prohibits peace officers, local officials, or local government employees from communicating or cooperating with federal officials about the immigration status of people living in the state.

The Act requires peace officers who have probable cause to believe that an arrestee for a criminal offense is not legally present in the United States to report the person to the Federal Immigration and Customs Enforcement Office if the arrestee is not held at a detention facility. If the arrestee is held at a detention facility and the county sheriff reasonably believes that the arrestee is not legally present in the United States; the sheriff must report the arrestee to the Federal Immigration and Customs Enforcement Office.

This Act also prohibits local governments that violate the Act from receiving certain grants. The SSL draft is based on Colorado Chapter 177 of 2006.

Alien Verification
The 2009 SSL draft entitled Systematic Alien Verification for Entitlements and the Department of Driver Services permits the governor to delay implementing the requirements of the Real ID Act until the federal Department of Homeland Security has issued regulations that the governor finds will adequately protect the interests of the citizens of the state.

The Act directs the state department of driver services to take the necessary steps to become a participant in the SAVE Program (Systematic Alien Verification for Entitlements), which is administered by the United States Bureau of Citizenship and Immigration Services, to help ensure that secure and verifiable identification is required in this state in order to obtain a driver’s license. The SSL draft is based on Georgia Senate Bill 5, which became law in 2007.

Verifying Lawful Presence
A 2009 SSL draft entitled Verifying Lawful Presence in U.S. in Order to Get Public Benefits requires people 18 years or older to prove they are lawfully present in the United States before such people can get certain public benefits.

They can do this by providing:

  • a state driver’s license or state identification card; or
  • a valid driver’s license or similar document issued for the purpose of identification by another state or territory of the United States, if such license or document contains a photograph if the individual or such other personal identifying information relating to the individual that the director of the department of health and welfare or, with regard to unemployment compensation benefits, the director of the department of commerce and labor finds, by rule, sufficient for purposes of this section; or

    • a.  United States Military Card or A Military Dependent’s Identification Card; or
    • b.  a United States Coast Guard Merchant Mariner Card; or
    • c.   a Native American Tribal Document;
    • d.  a valid United States Passport; and
    • e.  a valid Social Security Number that has been assigned to the applicant; and
    • f.   attest, under penalty of perjury and on a form designated or established by the director of the state department of health and welfare or, with regard to unemployment compensation benefits, by the director of the state department of commerce and labor, that the applicant is a United States citizen or legal permanent resident or the applicant is otherwise lawfully present in the United States pursuant to federal law.

The draft is based on Idaho Chapter 311 of 2007.

Denying Professional or Commercial Licenses
The 2008 SSL draft entitled Denying Professional and Commercial Licenses to People Who are Unlawfully Present in the United States declares that subject to exemptions and definitions found in federal law, local governments and divisions, boards, and agencies of the department of regulatory agencies must issue and renew licenses, permits, registrations, certificates, charters, memberships, or similar authorizations to a person only if the person is lawfully present in the United States and to deny any such authorization, including a renewal thereof, upon determining that the person is unlawfully present in the United States. It also requires a person to prove his or her identity with a secure and verifiable document. The draft is based on Colorado HB 1009, which became law in 2006.

Proof of Lawful Presence
A 2008 SSL draft entitled Requiring Proof of Lawful Presence to Receive Public Benefits requires each state agency or political subdivision to verify the lawful presence in the United States of each person 18 years of age or older who applies for public benefits, as defined in federal law, for the applicant. It excludes specified public benefits. The legislation specifies the manner of verification, including requiring a specified form of identification, an affidavit, and verification through a federal program. It specifies criminal penalties for falsifying a required affidavit. It also authorizes variations of the affidavit requirement. It prohibits state agencies or political subdivisions from providing benefits in violation of the Act and establishes reporting requirements. The SSL draft is based on Colorado Chapter 13 of 2006.

Security and Immigration Compliance
The 2008 SSL draft entitled Security and Immigration Compliance provides for the comprehensive regulation of people in the state who are not lawfully present in the United States.

Specifically, this Act:

  • prohibits public employers and contractors and subcontractors from entering into certain labor contracts unless the contractor and subcontractors register and participate in a federal work authorization program to verify information about all new employees;
  • provides that it shall be unlawful to traffic a person for labor or sexual servitude;
  • directs the state commissioner of labor to negotiate a memorandum of understanding between the state and the United States Department of Justice or Department of Homeland Security about the enforcement of federal immigration and custom laws, detention and removals, and investigations in the state;
  • directs jailers to make a reasonable effort verify that prisoners who are foreign nationals are lawfully admitted to the United States and if lawfully admitted, that such lawful status has not expired;
  • establishes and enforce standards of ethics in the profession of immigration assistance by private people who are not licensed attorneys, and
  • requires every agency or a political subdivision of the state to verify the lawful presence in the United States of any natural person 18 years of age or older who has applied for state or local public benefits.

The SSL draft is based on Georgia SB 529AP, which was enacted into law in 2006.

Model State Anti-Trafficking Criminal Statute
The 2007 SSL volume includes a Model State Anti-Trafficking Criminal Statute by the U.S. Department of Justice. According to the U.S. Department of Justice, the centerpiece of U.S. government efforts to stop human trafficking is the Trafficking Victims Protection Act of 2000 (TVPA), Pub. L. 106-386, signed into law on October 28, 2000. It enhanced three aspects of federal government activity to combat trafficking in persons (TIP): protection, prosecution, and prevention. The TVPA provided for a range of new protections and assistance for victims of trafficking in persons; it expanded the crimes and enhanced the penalties available to federal investigators and prosecutors pursuing traffickers; and it expanded U.S. activities internationally to prevent victims from being trafficked.

The Trafficking Victims Protection Reauthorization Act of 2003 (TVPRA), Pub. L. 108-193, signed into law on December 19, 2003, reauthorized the TVPA and added responsibilities to the U.S. government’s anti-trafficking portfolio. In particular, the TVPRA mandated new information campaigns to combat sex tourism, added some refinements to the federal criminal law, and created a new civil action that allows trafficking victims to sue their traffickers in federal district court.

The Civil Rights Division and the Office of Legal Policy wrote the 2004 Model State Anti-Trafficking Statute based on the TVPA and federal experience prosecuting trafficking cases, in order to provide a model for state governments to follow the lead of the federal government in combating trafficking. The U.S. Senate subsequently passed a resolution endorsing the statute and encouraging states to adopt it, and DOJ officials used the statute to urge states to join the fight against trafficking. The model statute seeks to expand anti-trafficking authority to the states in order to harness the almost one million state and local law enforcement officers who might come into contact with trafficking victims. Once states have adopted the statute, or at least their own versions of anti-trafficking laws, the total number of prosecutions nationwide will likely increase.

This model Act directs that whoever knowingly recruits, entices, harbors, transports, provides, or obtains by any means, or attempts to recruit, entice, harbor, transport, provide, or obtain by any means, another person, intending or knowing that the person will be subjected to forced labor or services; or benefits, financially or by receiving anything of value, from participating in human trafficking can be imprisoned for up to 15 years.

Immigration Assistance Services
The 2006 SSL draft entitled Immigration Assistance Services defines “Immigration Assistance Services” and establishes regulations for people and organizations that provide such services for a fee. For example, the Act prohibits immigration service providers from providing such services to a customer without a contract that the customer can understand.

The Act enables customers to break such contracts within 3 days of signing such contracts and to get back any money that the customers have paid on the contract. This Act also requires immigration assistance providers to post signs that explain that the assistance provider is not an attorney or the individual providing assistance under this contact is not an attorney licensed to practice law or accredited by the board of immigration appeals to provide representation before the federal Bureau of Citizenship and Immigration services, the federal Department of Labor, the Department of State or any immigration authorities. It also requires a separate sign that lists the fees the provider charges for immigration services. This SSL draft is based on New York A07137, which was enacted into law in 2004.

Notary Requirements
The 2006 SSL draft entitled Notary Publics/Accredited Immigration Representativesprohibits a person whose prior notary commission was suspended, canceled, or revoked from receiving another commission. The Act exempts notaries who are accredited immigration representatives from the requirement that non-English advertisements of service include a notice that the notary is not an attorney. It applies the notice requirement to other identifying articles, such as letterhead and business cards. This Act prohibits the literal translation of various English terms that may imply the notary is an attorney. It prohibits a notary from accepting fees for immigration advice or assistance. The Act also permits recovery of prohibited fees through compensatory damages and permits punitive damages of 3 times the amount of the fees.

The Act provides that no notary public who is not an attorney or an accredited representative shall provide or accept payment in exchange for any assistance that requires legal analysis, legal judgment, or interpretation of the law. It provides that the $1,000 fine imposed for violation of the immigration services notice requirement shall apply only if the violation is not subject to penalties under the state Notary Public Act. This bill is based on Illinois Public Act 093-1001, enacted in 2004.

Interpreter Services
Washington State’s Spoken Language Brokered Interpreter Services won a CSG Innovations Award in 2006. The state Department of Social and Health Services provides Interpreter Services to meet the communication needs of Limited English Proficient Medical Assistance Clients.

The Civil Rights Bureau of the New York Office of the Attorney General “investigates individuals and companies who target immigrant communities with false promises of residency and citizenship or provide services without having the legal authority