Florida Senate - 2011 COMMITTEE AMENDMENT Bill No. SB 2040 Barcode 146138 LEGISLATIVE ACTION Senate . House Comm: RCS . 04/05/2011 . . . . ————————————————————————————————————————————————————————————————— ————————————————————————————————————————————————————————————————— The Committee on Judiciary (Thrasher) recommended the following: 1 Senate Amendment (with title amendment) 2 3 Delete everything after the enacting clause 4 and insert: 5 Section 1. The Division of Statutory Revision shall 6 designate ss. 448.30 and 448.31, Florida Statutes, as created by 7 this act, as part III of chapter 448, Florida Statutes, titled 8 “UNAUTHORIZED IMMIGRANTS.” 9 Section 2. Section 448.30, Florida Statutes, is created to 10 read: 11 448.30 Definitions.—As used in this part, the term: 12 (1) “Agency” means a department, board, bureau, district, 13 commission, authority, or other similar body of this state or a 14 county, municipality, special district, or other political 15 subdivision of this state which issues a license for purposes of 16 operating a business in this state or in any jurisdiction within 17 this state. 18 (2) “Employee” means any person, other than an independent 19 contractor, who, for consideration, provides labor or services 20 to an employer in this state. 21 (3) “Employer” means a person or agency that employs one or 22 more employees in this state. In the case of an independent 23 contractor, the term means the independent contractor and does 24 not mean the person or agency that uses the contract labor. 25 (4) “E-Verify Program” means the program for electronic 26 verification of employment eligibility which is operated by the 27 United States Department of Homeland Security, or any successor 28 program. 29 (5) “Independent contractor” means a person that carries on 30 an independent business, contracts to do a piece of work 31 according to its own means and methods, and is subject to 32 control only as to results. 33 (6) “License” means any license, permit, certificate, 34 approval, registration, charter, or similar form of 35 authorization that is required by law and issued by any agency 36 for the purpose of operating a business in this state. The term 37 includes, but is not limited to, articles of incorporation, a 38 certificate of partnership, a partnership registration, articles 39 of organization, and a transaction privilege tax license. 40 Section 3. Section 448.31, Florida Statutes, is created to 41 read: 42 448.31 Verification of employment eligibility.— 43 (1) An employer who hires a new employee on or after July 44 1, 2012, shall: 45 (a) Register with the E-Verify Program; use the program for 46 all new hires, both United States citizens and noncitizens; and 47 not use the program selectively. 48 (b) Upon acceptance on or after that date of an offer of 49 employment by the new employee, verify the employment 50 eligibility of the employee through, and in accordance with the 51 time periods and other requirements of, the E-Verify Program; 52 and 53 (c) Maintain a record of the verification for 3 years after 54 the date of hire or 1 year after the date employment ends, 55 whichever is longer. 56 (2)(a) An employer who hires a new employee on or after 57 July 1, 2012, is exempt from the requirements of subsection (1) 58 if the employer: 59 1. Requests and receives from the employee a valid driver’s 60 license or identification card that is issued by a state or 61 outlying possession of the United States and that complies with 62 the federal REAL ID Act of 2005 and the final rule promulgated 63 by the United States Department of Homeland Security 64 implementing that act; 65 2. Within 3 business days of the first day of work, swipes 66 the common machine-readable zone on the driver’s license or card 67 using the highest standard of authentication equipment and 68 software to: 69 a. To determine that the document is not fraudulent; and 70 b. Verify the physical description and other personal 71 identifying information of the employee who presents the 72 document against the data contained on the machine-readable 73 zone; 74 3. Maintains, for 3 years after the date of hire or 1 year 75 after the date employment ends, whichever is longer, a printed 76 record of the results of the authentication conducted under this 77 subsection and a photocopy of the document the employee 78 presented. The employer shall retain the record and the 79 photocopy with the federal Form I-9; and 80 4. Complies with the requirements of this subsection for 81 every new employee, both United States citizens and noncitizens, 82 unless and until the employer registers with the E-Verify 83 Program, and does not implement the requirements of this 84 subsection selectively. 85 (b) The Department of Highway Safety and Motor Vehicles 86 shall: 87 1.Maintain on the website for the department a list of all 88 states and outlying possessions of the United States that comply 89 with the federal REAL ID Act of 2005 and the final rule 90 promulgated by the United States Department of Homeland Security 91 implementing that act. For each state or possession, the 92 department shall specify the type of document that is in 93 compliance and the date on which the state or possession began 94 issuing the document that is in compliance. 95 2. Adopt rules pursuant to ss. 120.536(1) and 120.54 96 prescribing standards and requirements for the equipment and 97 software used under paragraph (a). 98 (c) The procedures of this subsection are authorized for 99 the purpose of authenticating a driver’s license or 100 identification card presented by a new employee, combating 101 fraud, and matching identifying information for the employee 102 against the document. An employer may not use the procedures to 103 discriminate on the basis of national origin or citizenship 104 status, except against a person who is not authorized to work in 105 the United States. Unless otherwise authorized by law, an 106 employer may not use information obtained through these 107 procedures for any purpose unrelated to verifying the identity 108 and employment authorization of a new employee. 109 (3) An employer who fails to comply with this section is 110 subject to the suspension of any license held by the employer 111 through the period of noncompliance. The suspension of a license 112 pursuant to this subsection by: 113 (a) An agency subject to chapter 120 must comply with the 114 provisions of s. 120.60(5). 115 (b) An agency not subject to chapter 120 must comply with 116 procedures substantially similar to the provisions of s. 117 120.60(5). 118 (4) An employer is not liable for wrongful termination if 119 the employer terminates an employee: 120 (a) In accordance with federal regulations upon a final 121 determination of ineligibility for employment through the E 122 Verify Program; or 123 (b) After complying with subsection (2) and reasonably 124 concluding that the employee presented a fraudulent document or 125 that the physical description or other personal identifying 126 information of the employee who presents the document does not 127 match the data contained on the machine-readable zone. 128 Section 4. Law enforcement and criminal justice agency 129 coordination with Federal Government on unauthorized 130 immigration.— 131 (1) LEGISLATIVE INTENT.—It is the intent of the Legislature 132 that law enforcement and criminal justice agencies in this state 133 work cooperatively with the Federal Government in the 134 identification of unauthorized immigrants and the enforcement of 135 immigration laws. It further is the intent of the Legislature to 136 maximize opportunities to transfer responsibility for the 137 custody and detention of unauthorized immigrants who are accused 138 or convicted of crimes from state and local governments to the 139 Federal Government in order to ensure the safety of the 140 residents of this state and to reduce costs to the criminal 141 justice system, while also protecting the due process rights of 142 individuals accused or convicted of crimes. 143 (2) DELEGATED ENFORCEMENT AUTHORITY.— 144 (a)1. The Department of Corrections shall request from the 145 United States Department of Homeland Security approval to enter 146 into a memorandum of agreement to have employees or contractors 147 of the Department of Corrections trained by the Department of 148 Homeland Security as jail enforcement officers under s. 287(g) 149 of the federal Immigration and Nationality Act. The Department 150 of Corrections shall perform all actions reasonably necessary to 151 meet its obligations under the agreement. 152 2. The Department of Corrections shall report by November 153 1, 2011, to the Governor, the President of the Senate, and the 154 Speaker of the House of Representatives on the status of 155 implementation of this paragraph. If the department has not 156 entered into a memorandum of agreement with the Department of 157 Homeland Security by that date, the department shall identify in 158 the report any barriers to full implementation of this 159 paragraph. 160 3. By February 1 of each year, the Department of 161 Corrections shall report to the Governor, the President of the 162 Senate, and the Speaker of the House of Representatives on the 163 enforcement activities conducted under this paragraph, 164 including, but not limited to, the number of inmates identified 165 as being unauthorized immigrants, placed in federal custody, or 166 deported. 167 (b)1. The Department of Law Enforcement shall request from 168 the United States Department of Homeland Security approval to 169 enter into a memorandum of agreement to have employees of the 170 Department of Law Enforcement trained by the Department of 171 Homeland Security as task force officers under s. 287(g) of the 172 federal Immigration and Nationality Act. The Department of Law 173 Enforcement shall perform all actions reasonably necessary to 174 meet its obligations under the agreement. 175 2. By February 1 of each year, the Department of Law 176 Enforcement shall report to the Governor, the President of the 177 Senate, and the Speaker of the House of Representatives on the 178 enforcement activities conducted under this paragraph. 179 (c)1. The sheriff of each county shall evaluate the 180 feasibility of entering into a memorandum of agreement with the 181 United States Department of Homeland Security to have employees 182 of the sheriff trained by the Department of Homeland Security as 183 jail enforcement officers or task force officers under s. 287(g) 184 of the federal Immigration and Nationality Act. The Department 185 of Law Enforcement, upon request by a sheriff, shall share 186 information on the department’s agreement with the United States 187 Department of Homeland Security and experience in operating 188 under the agreement. 189 2. The sheriff shall consider, at a minimum: 190 a. The potential fiscal impact on the office of the 191 sheriff; 192 b. The potential impact on the workload and personnel needs 193 of the office; and 194 c. The estimated presence of unauthorized immigrants in the 195 geographic area served by the sheriff. 196 3. If the sheriff determines that entering into an 197 agreement is feasible, the sheriff shall make an initial request 198 for an agreement to the Department of Homeland Security. Nothing 199 in this paragraph compels the sheriff to execute an agreement. 200 (3) IDENTIFICATION UPON ARREST AND CONFINEMENT.— 201 (a) When a person is confined in a jail, prison, or other 202 criminal detention facility, the arresting agency shall make a 203 reasonable effort to determine the nationality of the person and 204 whether the person is present in the United States lawfully, 205 including, but not limited to, participating in the submission 206 of fingerprints pursuant to the agreement under paragraph (b). 207 If the arresting agency establishes, independent of the 208 submission of fingerprints, that the person is not lawfully 209 present in the United States, the agency shall notify the United 210 States Department of Homeland Security. 211 (b) The Department of Law Enforcement shall enter into, and 212 perform all actions reasonably necessary to meet its obligations 213 under, a memorandum of agreement with the Department of Homeland 214 Security to implement a program through which fingerprints 215 submitted by local law enforcement agencies during the arrest 216 and booking process are checked against federal databases in 217 order to assess the immigration status of individuals in 218 custody. 219 (c) This subsection may not be construed to deny a person 220 bond or to prevent release of a person from confinement if the 221 person is otherwise eligible for release. However, for the 222 purpose of the bail determination required by s. 903.046, 223 Florida Statutes, a determination that the person is not present 224 in the United States lawfully raises a presumption that there is 225 a risk of flight to avoid prosecution. Upon receiving a detainer 226 request from the Department of Homeland Security relating to a 227 person not present in the United States lawfully, a jail, 228 prison, or other criminal detention facility may detain the 229 person for up to 48 additional hours after the person is 230 otherwise entitled to be released. 231 Section 5. Section 945.80, Florida Statutes, is created to 232 read: 233 945.80 Removal and deportation of criminal aliens.— 234 (1) Notwithstanding any law to the contrary, and pursuant 235 to s. 241(a)(4)(B)(ii) of the federal Immigration and 236 Nationality Act, the secretary of the department shall release a 237 prisoner to the custody and control of the United States 238 Immigration and Customs Enforcement if: 239 (a) The prisoner was convicted of a nonviolent offense; 240 (b) The department has received a final order of removal 241 for the prisoner from the United States Immigration and Customs 242 Enforcement; and 243 (c) The secretary determines that removal is appropriate 244 and in the best interest of the state. 245 246 A person is ineligible for release under this section if he 247 or she would be ineligible for control release under s. 248 947.146(3)(a)-(m). 249 (2)(a) The department shall identify, during the inmate 250 reception process and among the existing inmate population, 251 prisoners who are eligible for removal under this section and 252 determine whether removal is appropriate and in the best 253 interest of the state. 254 (b) The department shall coordinate with federal 255 authorities to determine the eligibility of a prisoner for 256 removal and to obtain a final order of removal. 257 (3) Upon approval for removal of the prisoner under this 258 section, the department shall establish a release date for the 259 prisoner to be transferred to federal custody. The department 260 shall maintain exclusive control of and responsibility for the 261 custody and transportation of the prisoner until the prisoner is 262 physically transferred to federal custody. 263 (4)(a) If a prisoner who is released under this section 264 returns unlawfully to the United States, upon notice from any 265 state or federal law enforcement agency that the prisoner is 266 incarcerated, the secretary shall revoke the release of the 267 prisoner and seek the return of the prisoner to the custody of 268 the department in order to serve the remainder of the sentence 269 imposed by the court. The prisoner is not eligible for probation 270 or community control with respect to any sentence affected by 271 the release under this section. 272 (b) The department shall notify each prisoner who is 273 eligible for removal of the provisions of this subsection. 274 (5) The secretary of the department may enter into an 275 agreement with the United States Department of Homeland Security 276 regarding the rapid repatriation of removable custodial aliens 277 from the United States pursuant to this section. 278 (6) The department shall compile statistics on 279 implementation of this section, including, but not limited to: 280 (a) The number of prisoners who are transferred to federal 281 custody; 282 (b) The number of prisoners who reenter the United States; 283 and 284 (c) The annual cost-avoidance achieved. 285 (7) To the extent practicable, this section applies to all 286 prisoners actually in confinement on, and all prisoners taken 287 into confinement after, July 1, 2011. 288 Section 6. (1) The Legislature finds that the costs 289 incurred by the state related to unauthorized immigration are 290 exacerbated by the failure of the Federal Government to enforce 291 immigration laws adequately and to adopt and implement 292 comprehensive reforms to immigration laws in order to control 293 and contain unauthorized immigration more effectively. 294 (2)(a) The Agency for Workforce Innovation, in consultation 295 with the Office of Economic and Demographic Research, shall 296 prepare a report by December 1, 2011, quantifying the costs to 297 the state which are attributable to unauthorized immigration. 298 The agency shall submit the report to the Governor, the 299 President of the Senate, and the Speaker of the House of 300 Representatives by that date. 301 (b) Before January 1, 2012, the director of the Agency for 302 Workforce Innovation shall, in consultation with the Office of 303 the Governor, submit to the appropriate federal agency or 304 official a request, based on the total costs quantified under 305 paragraph (a), for reimbursement to the state of those costs or 306 a corresponding reduction in or forgiveness of any debt, 307 interest payments, or other moneys owed by the state to the 308 Federal Government as a result of borrowing from the Federal 309 Government to fund unemployment compensation claims. 310 Section 7. This act shall take effect July 1, 2011. 311 312 313 ================= T I T L E A M E N D M E N T ================ 314 And the title is amended as follows: 315 Delete everything before the enacting clause 316 and insert: 317 A bill to be entitled 318 An act relating to unauthorized immigrants; directing the 319 Division of Statutory Revision to designate specified new 320 statutory sections as part III of ch. 448, F.S., and name the 321 part “Unauthorized Immigrants”; creating s. 448.30, F.S.; 322 defining terms; creating s. 448.31, F.S.; requiring every 323 employer to use the federal program for electronic verification 324 of employment eligibility in order to verify the employment 325 eligibility of each employee hired on or after a specified date; 326 providing an exception for employers who request and receive 327 from the employee certain driver’s licenses or identification 328 cards; providing that an employer who does not comply with the 329 employment requirements is subject to the suspension of any 330 license held by the employer; providing that an employer is not 331 liable for terminating an employee under certain conditions; 332 providing legislative intent for law enforcement and criminal 333 justice agencies to coordinate with the Federal Government on 334 the identification of unauthorized immigrants and enforcement of 335 immigration laws; directing the Department of Corrections and 336 the Department of Law Enforcement to pursue and maintain 337 agreements with the United States Department of Homeland 338 Security for the training of certain personnel related to the 339 enforcement of immigration laws; requiring reports on activity 340 under the agreements; directing sheriffs to evaluate the 341 feasibility of entering into such agreements; directing 342 arresting agencies to make reasonable efforts to determine 343 whether arrestees are present in the United States lawfully; 344 requiring the Department of Law Enforcement to enter into and 345 maintain an agreement with the United States Department of 346 Homeland Security for checking fingerprints of arrestees against 347 federal databases to determine immigration status; providing for 348 a presumption as to risk of flight in order to avoid 349 prosecution; authorizing detention of a person for up to 48 350 additional hours upon request from the United States Department 351 of Homeland Security; creating s. 945.80, F.S.; requiring the 352 Department of Corrections to release nonviolent inmates to the 353 custody of the United States Immigration and Customs Enforcement 354 under certain circumstances; requiring the department to 355 identify inmates who are eligible for removal and deportation; 356 establishing certain procedures for the transfer of an inmate to 357 federal custody; providing for a released inmate to serve the 358 remainder of his or her sentence upon unlawfully returning to 359 the United States; authorizing the secretary of the department 360 to enter into an agreement with the United States Department of 361 Homeland Security regarding the rapid repatriation of removable 362 custodial aliens; requiring the department to compile 363 statistics; providing for applicability; providing legislative 364 findings related to costs incurred by the state from 365 unauthorized immigration; requiring the Agency for Workforce 366 Innovation to prepare a report quantifying the costs; requiring 367 the director of the agency to submit to the Federal Government a 368 request for reimbursement of the costs or a reduction in moneys 369 owed to the Federal Government as a result of borrowing to fund 370 unemployment compensation claims; providing an effective date. 371 372 WHEREAS, under federal immigration law, employers must 373 verify the identity and employment authorization of each person 374 they hire, and 375 WHEREAS, in verifying the identity and employment 376 authorization of new employees, employers must complete the 377 federal Form I-9, and 378 WHEREAS, to improve the accuracy of this process, the 379 federal government operates an electronic employment 380 verification system called E-Verify, and 381 WHEREAS, requiring employers to use E-Verify for each new 382 employee will promote the state’s interest in ensuring that only 383 those who are authorized to work in the United States are 384 employed in this state, and 385 WHEREAS, one of the recognized shortcomings of the E-Verify 386 Program is the fact that unauthorized workers may attempt to 387 obtain employment by committing identity fraud not detected by 388 the E-Verify Program, and 389 WHEREAS, authentication equipment and software will help 390 employers detect fraudulent driver’s licenses or identification 391 cards, and 392 WHEREAS, requiring employers to employ such equipment and 393 software in the case of each new employee, as an alternative to 394 registering with the E-Verify Program, will enhance the process 395 of verifying identity and combating fraud, and 396 WHEREAS, the rapid removal and deportation of nonviolent 397 criminal aliens who are in the state prison system will reduce 398 fiscal costs for the state and promote public safety, and 399 WHEREAS, it is in the best interests of the state to seek 400 reimbursement or other financial remuneration from the federal 401 government for costs incurred by the state related to 402 unauthorized immigration, NOW, THEREFORE,