Florida Senate - 2011 SB 2040 By the Committee on Judiciary 590-02472A-11 20112040__ 1 A bill to be entitled 2 An act relating to unauthorized immigrants; directing 3 the Division of Statutory Revision to designate 4 specified new statutory sections as part III of ch. 5 448, F.S., and name the part “Unauthorized 6 Immigrants”; creating s. 448.30, F.S.; defining terms; 7 creating s. 448.31, F.S.; requiring every employer to 8 use the federal program for electronic verification of 9 employment eligibility in order to verify the 10 employment eligibility of each employee hired on or 11 after a specified date; providing an exception in the 12 case of employees who present specified documents to 13 the employer; requiring the Attorney General to 14 request from the Department of Homeland Security a 15 list of employers who are registered with the E-Verify 16 Program and to post that list to the Attorney 17 General’s website; providing that an employer who does 18 not comply with the employment requirements is subject 19 to the suspension of any license held by the employer; 20 providing that an employer who terminates an employee 21 under certain conditions is not liable for wrongful 22 termination; providing legislative intent for law 23 enforcement and criminal justice agencies to 24 coordinate with the Federal Government on the 25 identification of unauthorized immigrants and 26 enforcement of immigration laws; directing the 27 Department of Corrections and the Department of Law 28 Enforcement to pursue and maintain agreements with the 29 United States Department of Homeland Security for the 30 training of certain personnel related to the 31 enforcement of immigration laws; requiring reports on 32 activity under the agreements; directing sheriffs to 33 evaluate the feasibility of entering into such 34 agreements; directing arresting agencies to make 35 reasonable efforts to determine whether arrestees are 36 present in the United States lawfully; requiring the 37 Department of Law Enforcement to enter into and 38 maintain an agreement with the United States 39 Department of Homeland Security for checking 40 fingerprints of arrestees against federal databases to 41 determine immigration status; providing for a 42 presumption as to risk of flight in order to avoid 43 prosecution; creating s. 945.80, F.S.; requiring the 44 Department of Corrections to release nonviolent 45 inmates to the custody of the United States 46 Immigration and Customs Enforcement under certain 47 circumstances; requiring the department to identify 48 inmates who are eligible for removal and deportation; 49 establishing certain procedures for the transfer of an 50 inmate to federal custody; providing for a released 51 inmate to serve the remainder of his or her sentence 52 upon unlawfully returning to the United States; 53 authorizing the secretary of the department to enter 54 into an agreement with the United States Department of 55 Homeland Security regarding the rapid repatriation of 56 removable custodial aliens; requiring the department 57 to compile statistics; providing for applicability; 58 providing legislative findings related to costs 59 incurred by the state from unauthorized immigration; 60 requiring the Agency for Workforce Innovation to 61 prepare a report quantifying the costs; requiring the 62 director of the agency to submit to the Federal 63 Government a request for reimbursement of the costs or 64 a reduction in moneys owed to the Federal Government 65 as a result of borrowing to fund unemployment 66 compensation claims; providing an effective date. 67 68 Be It Enacted by the Legislature of the State of Florida: 69 70 Section 1. The Division of Statutory Revision shall 71 designate ss. 448.30 and 448.31, Florida Statutes, as created by 72 this act, as part III of chapter 448, Florida Statutes, titled 73 “UNAUTHORIZED IMMIGRANTS.” 74 Section 2. Section 448.30, Florida Statutes, is created to 75 read: 76 448.30 Definitions.—As used in this part, the term: 77 (1) “Agency” means a department, board, bureau, district, 78 commission, authority, or other similar body of this state or a 79 county, municipality, special district, or other political 80 subdivision of this state which issues a license for purposes of 81 operating a business in this state or in any jurisdiction within 82 this state. 83 (2) “Employee” means any person, other than an independent 84 contractor, who, for consideration, provides labor or services 85 to an employer in this state. 86 (3) “Employer” means a person or agency that employs one or 87 more employees in this state. In the case of an independent 88 contractor, the term means the independent contractor and does 89 not mean the person or agency that uses the contract labor. 90 (4) “E-Verify Program” means the program for electronic 91 verification of employment eligibility which is operated by the 92 United States Department of Homeland Security, or any successor 93 program. 94 (5) “Independent contractor” means a person that carries on 95 an independent business, contracts to do a piece of work 96 according to its own means and methods, and is subject to 97 control only as to results. 98 (6) “License” means any license, permit, certificate, 99 approval, registration, charter, or similar form of 100 authorization that is required by law and issued by any agency 101 for the purpose of operating a business in this state. The term 102 includes, but is not limited to, articles of incorporation, a 103 certificate of partnership, a partnership registration, articles 104 of organization, and a transaction privilege tax license. 105 Section 3. Section 448.31, Florida Statutes, is created to 106 read: 107 448.31 Verification of employment eligibility.— 108 (1) An employer who hires a new employee on or after July 109 1, 2012, shall: 110 (a) Register with the E-Verify Program; 111 (b) Upon acceptance on or after that date of an offer of 112 employment by the new employee, verify the employment 113 eligibility of the employee through, and in accordance with the 114 requirements of, the E-Verify Program; and 115 (c) Maintain a record of the verification for 3 years after 116 the date of hire or 1 year after the date employment ends, 117 whichever is longer. 118 (2)(a) The requirements of subsection (1) do not apply if 119 the new employee presents to the employer one of the following 120 documents as part of the I-9 process for verifying employment 121 eligibility under federal law: 122 1. An unexpired United States passport or United States 123 passport card; 124 2. An unexpired driver’s license that is issued by a state 125 or outlying possession of the United States and that contains a 126 photograph of the employee; 127 3. An unexpired foreign passport that contains a United 128 States visa evidencing applicable work authorization and a 129 corresponding unexpired Form I-94; or 130 4. A secure national identification card, or similar 131 document issued pursuant to federal law. 132 (b) The employer shall maintain, for 3 years after the date 133 of hire or 1 year after the date employment ends, whichever is 134 longer, a record of the type of document the employee presented, 135 including a legible photocopy of the document. Photocopies may 136 be used only for the verification process and must be retained 137 with the federal Form I-9. 138 (3) The Attorney General shall quarterly request from the 139 United States Department of Homeland Security a list of 140 employers in this state who are registered with the E-Verify 141 Program. The Attorney General shall make the list available on 142 the website for the Office of the Attorney General but shall 143 include a conspicuous notation that employers who comply with 144 subsection (2) are exempt from the requirement to register with 145 the E-Verify Program. 146 (4) An employer who fails to comply with this section is 147 subject to the suspension of any license held by the employer 148 through the period of noncompliance. The suspension of a license 149 pursuant to this subsection must comply with the provisions of 150 s. 120.60(5). 151 (5) An employer who terminates an employee in accordance 152 with federal regulations upon a final determination of 153 ineligibility for employment through the E-Verify Program is not 154 liable for wrongful termination. 155 Section 4. Law enforcement and criminal justice agency 156 coordination with Federal Government on unauthorized 157 immigration.— 158 (1) LEGISLATIVE INTENT.—It is the intent of the Legislature 159 that law enforcement and criminal justice agencies in this state 160 work cooperatively with the Federal Government in the 161 identification of unauthorized immigrants and the enforcement of 162 state and federal immigration laws. It further is the intent of 163 the Legislature to maximize opportunities to transfer 164 responsibility for the custody and detention of unauthorized 165 immigrants who are accused or convicted of crimes from state and 166 local governments to the Federal Government in order to ensure 167 the safety of the residents of this state and to reduce costs to 168 the criminal justice system, while also protecting the due 169 process rights of individuals accused or convicted of crimes. 170 (2) DELEGATED ENFORCEMENT AUTHORITY.— 171 (a)1. The Department of Corrections shall request from the 172 United States Department of Homeland Security approval to enter 173 into a memorandum of agreement to have employees or contractors 174 of the Department of Corrections trained by the Department of 175 Homeland Security as jail enforcement officers under s. 287(g) 176 of the federal Immigration and Nationality Act. The Department 177 of Corrections shall take all actions necessary to maintain the 178 agreement. 179 2. The Department of Corrections shall report by November 180 1, 2011, to the Governor, the President of the Senate, and the 181 Speaker of the House of Representatives on the status of 182 implementation of this paragraph. If the department has not 183 entered into a memorandum of agreement with the Department of 184 Homeland Security by that date, the department shall identify in 185 the report any barriers to full implementation of this 186 paragraph. 187 3. By February 1 of each year, the Department of 188 Corrections shall report to the Governor, the President of the 189 Senate, and the Speaker of the House of Representatives on the 190 enforcement activities conducted under this paragraph, 191 including, but not limited to, the number of inmates identified 192 as being unauthorized immigrants, placed in federal custody, or 193 deported. 194 (b)1. The Department of Law Enforcement shall request from 195 the United States Department of Homeland Security approval to 196 enter into a memorandum of agreement to have employees of the 197 Department of Law Enforcement trained by the Department of 198 Homeland Security as task force officers under s. 287(g) of the 199 federal Immigration and Nationality Act. The Department of Law 200 Enforcement shall take all actions necessary to maintain the 201 agreement. 202 2. By February 1 of each year, the Department of Law 203 Enforcement shall report to the Governor, the President of the 204 Senate, and the Speaker of the House of Representatives on the 205 enforcement activities conducted under this paragraph. 206 (c) The sheriff of each county shall evaluate the 207 feasibility of entering into a memorandum of agreement with the 208 United States Department of Homeland Security to have employees 209 of the sheriff trained by the Department of Homeland Security as 210 jail enforcement officers or task force officers under s. 287(g) 211 of the federal Immigration and Nationality Act. The Department 212 of Law Enforcement, upon request by a sheriff, shall assist the 213 sheriff with the feasibility evaluation. If the sheriff 214 determines that entering into an agreement is feasible, the 215 sheriff shall make a request for an agreement to the Department 216 of Homeland Security. 217 (3) IDENTIFICATION UPON ARREST.— 218 (a) When a person is confined in a jail, prison, or other 219 criminal detention facility, the arresting agency shall make a 220 reasonable effort to determine the nationality of the person and 221 whether the person is present in the United States lawfully, 222 including, but not limited to, participating in the submission 223 of fingerprints pursuant to the agreement under paragraph (b). 224 If the arresting agency establishes, independent of the 225 submission of fingerprints, that the person is not lawfully 226 present in the United States, the agency shall notify the United 227 States Department of Homeland Security. 228 (b) The Department of Law Enforcement shall enter into, and 229 take all actions necessary to maintain, a memorandum of 230 agreement with the Department of Homeland Security to implement 231 a program through which fingerprints submitted by local law 232 enforcement agencies during the arrest and booking process are 233 checked against federal databases in order to assess the 234 immigration status of individuals in custody. 235 (c) This subsection may not be construed to deny a person 236 bond or to prevent release of a person from confinement if the 237 person is otherwise eligible for release. However, for the 238 purpose of the bail determination required by s. 903.046, 239 Florida Statutes, a determination that the person is not present 240 in the United States lawfully raises a presumption that there is 241 a risk of flight to avoid prosecution. 242 Section 5. Section 945.80, Florida Statutes, is created to 243 read: 244 945.80 Removal and deportation of criminal aliens.— 245 (1) Notwithstanding any law to the contrary, and pursuant 246 to s. 241(a)(4)(B)(ii) of the federal Immigration and 247 Nationality Act, the secretary of the department shall release a 248 prisoner to the custody and control of the United States 249 Immigration and Customs Enforcement if: 250 (a) The prisoner was convicted of a nonviolent offense; 251 (b) The department has received a final order of removal 252 for the prisoner from the United States Immigration and Customs 253 Enforcement; and 254 (c) The secretary determines that removal is appropriate 255 and in the best interest of the state. 256 257 A person is ineligible for release under this section if he or 258 she would be ineligible for control release under s. 259 947.146(3)(a)-(m). 260 (2)(a) The department shall identify, during the inmate 261 reception process and among the existing inmate population, 262 prisoners who are eligible for removal under this section and 263 determine whether removal is appropriate and in the best 264 interest of the state. 265 (b) The department shall coordinate with federal 266 authorities to determine the eligibility of a prisoner for 267 removal and to obtain a final order of removal. 268 (3) Upon approval for removal of the prisoner under this 269 section, the department shall establish a release date for the 270 prisoner to be transferred to federal custody. The department 271 shall maintain exclusive control of and responsibility for the 272 custody and transportation of the prisoner until the prisoner is 273 physically transferred to federal custody. 274 (4)(a) If a prisoner who is released under this section 275 returns unlawfully to the United States, upon notice from any 276 state or federal law enforcement agency that the prisoner is 277 incarcerated, the secretary shall revoke the release of the 278 prisoner and seek the return of the prisoner to the custody of 279 the department in order to serve the remainder of the sentence 280 imposed by the court. The prisoner is not eligible for probation 281 or community control with respect to any sentence affected by 282 the release under this section. 283 (b) The department shall notify each prisoner who is 284 eligible for removal of the provisions of this subsection. 285 (5) The secretary of the department may enter into an 286 agreement with the United States Department of Homeland Security 287 regarding the rapid repatriation of removable custodial aliens 288 from the United States pursuant to this section. 289 (6) The department shall compile statistics on 290 implementation of this section, including, but not limited to: 291 (a) The number of prisoners who are transferred to federal 292 custody; 293 (b) The number of prisoners who reenter the United States; 294 and 295 (c) The annual cost-avoidance achieved. 296 (7) To the extent practicable, this section applies to all 297 prisoners actually in confinement on, and all prisoners taken 298 into confinement after, July 1, 2011. 299 Section 6. (1) The Legislature finds that the costs 300 incurred by the state related to unauthorized immigration are 301 exacerbated by the failure of the Federal Government to enforce 302 immigration laws adequately and to adopt and implement 303 comprehensive reforms to immigration laws in order to control 304 and contain unauthorized immigration more effectively. 305 (2)(a) The Agency for Workforce Innovation, in consultation 306 with the Office of Economic and Demographic Research, shall 307 prepare a report by December 1, 2011, quantifying the costs to 308 the state which are attributable to unauthorized immigration. 309 The agency shall submit the report to the Governor, the 310 President of the Senate, and the Speaker of the House of 311 Representatives by that date. 312 (b) Before January 1, 2012, the director of the Agency for 313 Workforce Innovation shall, in consultation with the Office of 314 the Governor, submit to the appropriate federal agency or 315 official a request, based on the total costs quantified under 316 paragraph (a), for reimbursement to the state of those costs or 317 a corresponding reduction in or forgiveness of any debt, 318 interest payments, or other moneys owed by the state to the 319 Federal Government as a result of borrowing from the Federal 320 Government to fund unemployment compensation claims. 321 Section 7. This act shall take effect July 1, 2011.