Taxpayer and Citizen Protection
Suggested State legislation: This Act makes it a felony to knowingly transport, conceal or harbor an illegal alien. Anyone found in violation and convicted may receive up to one year in prison and/or a fine not less than $1,000.
Since this is a new felony there is insufficient data available on the occurrence of this crime. The fiscal impact would be dependent upon the number of adjudicated cases.
The law requires all public employers to enter into a contract for the physical performance of services within the state or register and participate in the federal Status Verification System to verify the work authorization status of all new employees. The state department of labor is required to prescribe forms and promulgate rules and regulations necessary to administer the program and post the rules and regulations on its web site.
The Act directs the Attorney General to negotiate a Memorandum of Understanding between the state and the United States Department of Justice or the United States Department of Homeland Security concerning the enforcement of federal immigration and custom laws, detention and removals, and investigations in the state.
Status: Enacted into law in 2007.
Suggested State Legislation: 2009 Docket
(Title, enacting clause, etc.)
Section 1. [Short Title.] This Act shall be cited as the “Taxpayer and Citizen Protection
Section 2. [Legislative Findings.]
A. Illegal immigration is causing economic hardship and lawlessness in this state and that illegal immigration is encouraged when public agencies within this state provide public benefits without verifying immigration status.
B. When illegal immigrants have been harbored and sheltered in this state and encouraged to reside in this state through the issuance of identification cards that are issued without verifying immigration status, these practices impede and obstruct the enforcement of federal immigration law, undermine the security of our borders, and impermissibly restrict the privileges and immunities of the citizens of this state.
C. Therefore, the people of this state declare that it is a compelling public interest of this state to discourage illegal immigration by requiring all agencies within this state to fully cooperate with federal immigration authorities in the enforcement of federal immigration laws.
D. Other measures are necessary to ensure the integrity of various governmental programs and services.
Section 3. [Definitions.] As used in this Act:
government, through which an authorized official of an agency of this state or of a political subdivision therein may make an inquiry, by exercise of authority delegated pursuant to Section 1373 of Title 8 of the United States Code, to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by this Act. The Status Verification System shall be deemed to include:
a. the electronic verification of the Work Authorization Program of the Illegal Immigration Reform and Immigration Responsibility Act of 1996, P.L. 104-208, Division C, Section 403(a); 8 U.S.C., Section 1324a, and operated by the United States Department of Homeland Security, known as the Basic Pilot Program,
b. any equivalent federal program designated by the United States Department of Homeland Security or any other federal agency authorized to verify the work eligibility status of newly hired employees, pursuant to the Immigration Reform and Control Act of 1986 (IRCA), D.L. 99-603,
c. any other independent, third-party system with an equal or higher degree of reliability as the programs, systems, or processes described in this paragraph, or
d. the Social Security Number Verification Service, or such similar online verification process implemented by the United States Social Security Administration;
2. “Public employer” means every department, agency, or instrumentality of the state or a political subdivision of the state;
3. “Subcontractor” means a subcontractor, contract employee, staffing agency, or any contractor regardless of its tier; and
4. “Unauthorized alien” means an alien as defined in Section 1324a(h)(3) of Title 8 of the United States Code.
Section 4. [Transporting or Harboring Aliens Illegally.]
A. It shall be unlawful for any person to transport, move, or attempt to transport in this state any alien knowing or in reckless disregard of the fact that the alien has come to, entered, or remained in the United States in violation of law, in furtherance of the illegal presence of the alien.
B. It shall be unlawful for any person to conceal, harbor, or shelter from detection any alien in any place within this state, including any building or means of transportation, knowing or in reckless disregard of the fact that the alien has come to, entered, or remained in the United States in violation of law.
C. Nothing in this section shall be construed so as to prohibit or restrict the provision of any state or local public benefit described in 8 U.S.C., Section 1621(b), or regulated public health services provided by a private charity using private funds.
D. Any person violating the provisions of subsections A or B of this section shall, upon conviction, be guilty of a felony punishable by imprisonment in the custody of the [Department of ($1,000.00)], or by both such fine and imprisonment.
Section 5. [Entities Which Can Create Identification Documents for U.S. Citizens.]
A. The following entities may create, publish or otherwise manufacture an identification document, identification card, or identification certificate and may possess an engraved plate or other such devise device for the printing of such identification; provided, the name of the issuing entity shall be clearly printed upon the face of the identification:
1. businesses, companies, corporations, service organizations and federal, state and local governmental agencies for employee identification which is designed to identify the bearer as an employee;
2. businesses, companies, corporations and service organizations for customer identification which is designed to identify the bearer as a customer or member;
3. federal, state and local government agencies for purposes authorized or required by law or any legitimate purpose consistent with the duties of such an agency, including, but not limited to, voter identification cards, driver licenses, non-driver identification cards, passports, birth certificates and social security cards;
4. any public school or state or private educational institution, as defined by [insert citation], to identify the bearer as an administrator, faculty member, student or employee;
5. any professional organization or labor union to identify the bearer as a member of the professional organization or labor union; and identification for the wearer thereof.
B. All identification documents as provided for in paragraph 3 or 4 of subsection A of this section shall be issued only to United States citizens, nationals and legal permanent resident aliens.
C. The provisions of subsection B of this section shall not apply when an applicant presents, in person, valid documentary evidence of:
1. a valid, unexpired immigrant or nonimmigrant visa status for admission into the United States;
2. a pending or approved application for asylum in the United States;
3. admission into the United States in refugee status;
4. a pending or approved application for temporary protected status in the United States;
5. approved deferred action status; or
6. a pending application for adjustment of status to legal permanent residence status or conditional resident status.
D. Upon approval, the applicant may be issued an identification document provided for in paragraph 3 or 4 of subsection A of this section. Such identification document shall be valid only during the period of time of the authorized stay of the applicant in the United States or, if there is no definite end to the period of authorized stay, a period of [one (1)] year. Any identification document issued pursuant to the provisions of this subsection shall clearly indicate that it istemporary and shall state the date that the identification document expires. Such identification document may be renewed only upon presentation of valid documentary evidence that the status by which the applicant qualified for the identification document has been extended by the United States Citizenship and Immigration Services or other authorized agency of the United States Department of Homeland Security.
E. The provisions of subsection B of this section shall not apply to an identification document described in paragraph 4 of subsection A of this section that is only valid for use on the campus or facility of that educational institution and includes a statement of such restricted validity clearly and conspicuously printed upon the face of the identification document.
F. Any driver license issued to a person who is not a United States citizen, national or legal permanent resident alien for which an application has been made for renewal, duplication or reissuance shall be presumed to have been issued in accordance with the provisions of subsection C of this section; provided that, at the time the application is made, the driver license has not expired, or been cancelled, suspended or revoked. The requirements of subsection C of this section shall apply, however, to a renewal, duplication or reissuance if the [Department of Public Safety] is notified by a local, state or federal government agency of information in the possession of theagency indicating a reasonable suspicion that the individual seeking such renewal, duplication or reissuance is present in the United States in violation of law. The provisions of this subsection shall not apply to United States citizens, nationals or legal permanent resident aliens.
Section 6. [Determining Citizenship of People Who are Jailed.]
A. When a person charged with a felony or driving under the influence pursuant to [insert citation] is confined, for any period, in the jail of the county, any municipality or a jail operated by a regional jail authority, a reasonable effort shall be made to determine the citizenship status of the person so confined.
B. If the prisoner is a foreign national, the keeper of the jail or other officer shall make a reasonable effort to verify that the prisoner has been lawfully admitted to the United States and, if lawfully admitted, that such lawful status has not expired. If verification of lawful status cannot be made from documents in the possession of the prisoner, verification shall be made within [forty eight (48)] hours through a query to the Law Enforcement Support Center of the United States Department of Homeland Security or other office or agency designated for that purpose by the United States Department of Homeland Security. If the lawful immigration status of the prisoner cannot be verified, the keeper of the jail or other officer shall notify the United States Department of Homeland Security.
C. For the purpose of determining the grant of or issuance of bond, it shall be a rebuttable presumption that a person whose citizenship status has been verified pursuant to subsection B of this section to be a foreign national who has not been lawfully admitted to the United States is at risk of flight.
Section 7. [Verifying Public Employee Status.]
A. Every public employer shall register with and use the Status Verification System as described in this Act to verify the federal employment authorization status of all new employees.
B. 1. After [July 1, 2008], no public employer shall enter into a contract for the physical performance of services within this state unless the contractor registers and participates in the Status Verification System to verify the work eligibility status of all new employees.
2. After [July 1, 2008], no contractor or subcontractor who enters into a contract with a public employer shall enter into such a contract or subcontract in connection with the physical performance of services within this state unless the contractor or subcontractor registers and participates in the Status Verification System to verify information of all new employees.
3. The provisions of this subsection shall not apply to any contracts entered into prior to the effective date of this section even though such contracts may involve the physical performance of services within this state after [July 1, 2008].
C. 1. It shall be a discriminatory practice for an employing entity to discharge an employee working in this state who is a United States citizen or permanent resident alien while retaining an employee who the employing entity knows, or reasonably should have known, is an unauthorized alien hired after [July 1, 2008], and who is working in this state in a job category that requires equal skill, effort, and responsibility, and which is performed under similar workingconditions, as defined by 29 U.S.C., Section 206(d)(1), as the job category held by the discharged employee.
2. An employing entity which, on the date of the discharge in question, was currently enrolled in and used a Status Verification System to verify the employment eligibility of its employees in this state hired after [July 1, 2008], shall be exempt from liability, investigation, or suit arising from any action under this section.
3. No cause of action for a violation of this subsection shall arise anywhere in [state] law but from the provisions of this subsection.
Section 8. [Verifying Lawful Presence of People 14 years or Older Who Apply for Public Benefits.]
A. Except as provided in subsection C of this section or where exempted by federal law, every agency or a political subdivision of this state shall verify the lawful presence in the United States of any natural person [fourteen (14)] years of age or older who has applied for state or local public benefits, as defined in 8 U.S.C., Section 1, or for federal public benefits, as defined in 8 U.S.C., Section 1611, that is administered by an agency or a political subdivision of this state.
B. The provisions of this section shall be enforced without regard to race, religion, gender, ethnicity, or national origin.
C. Verification of lawful presence under the provisions of this section shall not be required:
1. for any purpose for which lawful presence in the United States is not restricted by law, ordinance, or regulation;
2. for assistance for health care items and services that are necessary for the treatment of an emergency medical condition, as defined in 42 U.S.C., Section 1396b(v)(3), of the alien involved and are not related to an organ transplant procedure;
3. for short-term, noncash, in-kind emergency disaster relief;
4. for public health assistance for immunizations with respect to diseases and for testing and treatment of symptoms of communicable diseases whether or not such symptoms are caused by a communicable disease; or
5. for programs, services, or assistance such as soup kitchens, crisis counseling and intervention, and short-term shelter specified by the United States Attorney General, in the sole and unreviewable discretion of the United States Attorney General after consultation with appropriate federal agencies and departments which:
a. deliver in-kind services at the community level, including through public or private nonprofit agencies,
b. do not condition the provision of assistance, the amount of assistance provided, or the cost of assistance provided on the income or resources of the individual recipient, and
c. are necessary for the protection of life or safety.
D. Verification of lawful presence in the United States by the state agency or political subdivision shall require that the applicant execute an affidavit under penalty of perjury that:
1. he or she is a United States citizen; or
2. he or she is a qualified alien under the federal Immigration and Nationality Act and is lawfully present in the United States.
E. The agency or political subdivision providing the state or local public benefits shall provide notary public services at no cost to the applicant.
F. For any applicant who has executed the affidavit described in paragraph 2 of subsection D of this section, eligibility for benefits shall be verified through the Systematic Alien Verification for Entitlements (SAVE) Program operated by the United States Department of Homeland Security or an equivalent program designated by the United States Department of Homeland Security. Until such eligibility verification is made, the affidavit may be presumed to be proof of lawful presence for the purposes of this section.
G. Any person who knowingly and willfully makes a false, fictitious, or fraudulent statement of representation in an affidavit executed pursuant to subsection D of this section shall be subject to criminal penalties applicable in this state for fraudulently obtaining public assistance program benefits. If the affidavit constitutes a false claim of U.S. citizenship under 18 U.S.C., Section 911, a complaint shall be filed by the agency requiring the affidavit with the United States Attorney General for the applicable district based upon the venue in which the affidavit was executed.
H. Agencies or political subdivisions of this state may adopt variations to the requirements of the provisions of this section which demonstrably improve the efficiency or reduce delay in the verification process, or to provide for adjudication of unique individual circumstances where the verification procedures in this section would impose unusual hardship on a legal resident of this state.
I. It shall be unlawful for any agency or a political subdivision of this state to provide any state, local, or federal benefit, as defined in 8 U.S.C., Section 1621, or 8 U.S.C., Section 1611, in violation of the provisions of this section.
J. Each state agency or department which administers any program of state or local public benefits shall provide an annual report to the [Governor, the President Pro Tempore of the Senate and the Speaker of the House of Representatives] with respect to its compliance with the provisions of this section. Each agency or department shall monitor the Systematic Alien Verification for Entitlements Program for application verification errors and significant delays and shall provide an annual public report on such errors and significant delays and recommendations to ensure that the application of the Systematic Alien Verification of Entitlements Program is not erroneously denying benefits to legal residents of this state. Errors shall also be reported to the United States Department of Homeland Security by each agency or department.
Section 9. [Requiring Contractors to Withhold State Income Taxes of Unauthorized Alien Laborers.]
A. If an individual independent contractor, contracting for the physical performance of services in this state, fails to provide to the contracting entity documentation to verify the independent contractor's employment authorization, pursuant to the prohibition against the use of unauthorized alien labor through contract set forth in 8 U.S.C., Section 1324a(a)(4), the contracting entity shall be required to withhold state income tax at the top marginal income tax rate as provided in [insert citation] as applied to compensation paid to such individual for the performance of such services within this state which exceeds the minimum amount of compensation the contracting entity is required to report as income on United States Internal Revenue Service Form 1099.
B. Any contracting entity who fails to comply with the withholding requirements of this subsection shall be liable for the taxes required to have been withheld unless such contracting filed Internal Revenue Service Form 8233 or its equivalent.
C. Nothing in this section is intended to create, or should be construed as creating, an employer-employee relationship between a contracting entity and an individual independent contractor.
Section 10. [Memorandum of Understanding to Enforce Immigrations and Customs Laws.]
A. The [Attorney General] is authorized and directed to negotiate the terms of a Memorandum of Understanding between [state] and the United States Department of Justice or the United States Department of Homeland Security, as provided by Section 1357(g) of Title 8 of the United States Code, concerning the enforcement of federal immigration and customs laws, retention and removals, and investigations in this state.
B. The Memorandum of Understanding negotiated pursuant to subsection A of this section shall be signed on behalf of this state by the [Attorney General and the Governor] or as otherwise required by the appropriate federal agency.
C. No local government, whether acting through its governing body or by an initiative, referendum, or any other process, shall enact any ordinance or policy that limits or prohibits a law enforcement officer, local official, or local government employee from communicating or cooperating with federal officials with regard to the immigration gration status of any person within this state.
D. Notwithstanding any other provision of law, no government entity or official within this state may prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the United States Department of Homeland Security, information regarding the citizenship or immigration status, lawful or unlawful, of any individual.
E. Notwithstanding any other provision of law, no person or agency may prohibit, or in any way restrict, a public employee from doing any of the following with respect to information regarding the immigration status, lawful or unlawful, of any individual:
1. sending such information to, or requesting or receiving such information from, the United States Department of Homeland Security;
2. maintaining such information; or
3. exchanging such information with any other federal, state, or local government entity.
F. The provisions of this section shall allow for a private right of action by any natural or legal person lawfully domiciled in this state to file for a writ of mandamus to compel any non cooperating local or state governmental agency to comply with such reporting laws.
G. Except as otherwise provided in [insert citation], an individual who is not lawfully present in the United States shall not be eligible on the basis of residence within the state for:
1. any postsecondary education benefit, including, but not limited to, scholarships or financial aid; or
2. resident tuition.
H. The provisions of subsection A of this section shall not apply to a student enrolled in a degree program at a postsecondary educational institution within this state’s system of higher education during the [2006-2007] school year or any prior year who received a resident tuition benefit pursuant to [insert citation] at that institution.
Section 11. [Fraudulent Documents Identification Unit.] Subject to the availability of funding, the [Department of Public Safety] shall establish a [Fraudulent Documents Identification (FDI) Unit] for the primary purpose of investigating and apprehending people or entities that participate in the sale or distribution of fraudulent documents used for identification purposes. The [unit] shall additionally specialize in fraudulent identification documents created and prepared for people who are unlawfully residing within this state. The [Department] shall employ sufficient employees to investigate and implement an [FDI Unit].
Section 12. [Student Eligibility for Resident Tuition.]
A. The [State Regents for Higher Education] may adopt a policy which allows a student to enroll in an institution within state system of higher education and allows a student to be eligible for resident tuition if the student:
1. graduated from a public or private high school in this state; and
2. resided in this state with a parent or legal guardian while attending classes at a public or private high school in this state for at least [two (2)] years prior to graduation.
B. To be eligible for the provisions of subsection A of this section, an eligible student shall:
1. satisfy admission standards as determined by the [State Regents for Higher Education] for the appropriate type of institution and have secured admission to, and enrolled in, an institution within state system of higher education; and
2. if the student cannot present to the institution valid documentation of United States nationality or an immigration status permitting study at a postsecondary institution:
a. provide to the institution a copy of a true and correct application or a petition filed with the United States citizenship and Immigration Services to legalize the student’s immigration status, or
b. file an affidavit with the institution stating that the student will file an application to legalize his or her immigration status at the earliest opportunity the student is eligible to do so, but in no case later than:
I. [one (1)] year after the date on which the student enrolls for study at the institution, or
II. if there is no formal process to permit children of parents without lawful immigration status to apply for lawful status without risk of deportation, [one (1)] year after the date the United States Citizenship and Immigration Services provide such a formal process, and
c. if the student files an affidavit pursuant to subparagraph b of this paragraph, present to the institution a copy of a true and correct application or petition filed with the United States Citizenship and Immigration Services no later than:
I. one (1) year after the date on which the student enrolls for study at the institution, or
II. if there is no formal process to permit children of parents without lawful immigration status to apply for lawful status without risk of deportation, [one (1)] year after the date the United States Citizenship and Immigration Services provide such a formal process, which copy shall be maintained in the institution's records for that student.
C. Any student who completes the required criteria prescribed in subsection A and of this section, paragraph 1 of subsection B of this section, and subparagraph a of paragraph 2 of subsection B of this section shall not be disqualified on the basis of the student’s immigration status from any scholarships or financial aid provided by this state.
D. The provisions of this section shall not impose any additional conditions to maintain resident tuition status at a postsecondary educational institution within the state system of higher education on a student who was enrolled in a degree program and first received such resident tuition status at that institution during the [2006-2007] school year or any prior year.
Section 13. [Severability.] [Insert severability clause.]
Section 14. [Repealer.] [Insert repealer clause.]
Section 15. [Effective Date.] [Insert effective date.]