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         448.31Verification 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         945.80Removal 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.