Florida Senate - 2011                             CS for SB 2040
       
       
       
       By the Committees on Judiciary; and Judiciary
       
       
       
       
       590-03822A-11                                         20112040c1
    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 for
   12         employers who request and receive from the employee
   13         certain driver’s licenses or identification cards;
   14         requiring the employers to check the documents using
   15         authentication technology; directing the Department of
   16         Highway Safety and Motor Vehicles to post information
   17         on the website of the department relating to
   18         compliance by states with the federal REAL ID Act of
   19         2005; directing the department to adopt rules relating
   20         to authentication technology; providing that an
   21         employer who does not comply with the employment
   22         requirements is subject to the suspension of any
   23         license held by the employer; providing that an
   24         employer is not liable for terminating an employee
   25         under certain conditions; providing legislative intent
   26         for law enforcement and criminal justice agencies to
   27         coordinate with the Federal Government on the
   28         identification of unauthorized immigrants and
   29         enforcement of immigration laws; authorizing the
   30         Department of Corrections and the Department of Law
   31         Enforcement to pursue agreements with the United
   32         States Department of Homeland Security for the
   33         training of certain personnel related to the
   34         enforcement of immigration laws; requiring reports on
   35         activity under the agreements; providing that sheriffs
   36         may evaluate the feasibility of entering into such
   37         agreements; directing certain agencies having custody
   38         of individuals convicted of dangerous crimes to make
   39         reasonable efforts to determine whether the
   40         individuals are present in the United States lawfully;
   41         requiring arresting agencies to adopt rules relating
   42         to this requirement and authorizing the agencies to
   43         enter into agreements with Immigration and Customs
   44         Enforcement; providing for a presumption as to risk of
   45         flight in order to avoid prosecution; creating s.
   46         945.80, F.S.; requiring the Department of Corrections
   47         to release nonviolent inmates to the custody of the
   48         United States Immigration and Customs Enforcement
   49         under certain circumstances; requiring the department
   50         to identify inmates who are eligible for removal and
   51         deportation; establishing certain procedures for the
   52         transfer of an inmate to federal custody; providing
   53         for a released inmate to serve the remainder of his or
   54         her sentence upon unlawfully returning to the United
   55         States; authorizing the secretary of the department to
   56         enter into an agreement with the United States
   57         Department of Homeland Security regarding the rapid
   58         repatriation of removable custodial aliens; requiring
   59         the department to compile statistics; providing for
   60         applicability; providing legislative findings related
   61         to costs incurred by the state from unauthorized
   62         immigration; requiring the Agency for Workforce
   63         Innovation to prepare a report quantifying the costs;
   64         requiring the director of the agency to submit to the
   65         Federal Government a request for reimbursement of the
   66         costs or a reduction in moneys owed to the Federal
   67         Government as a result of borrowing to fund
   68         unemployment compensation claims; providing an
   69         effective date.
   70  
   71         WHEREAS, under federal immigration law, employers must
   72  verify the identity and employment authorization of each person
   73  they hire, and
   74         WHEREAS, in verifying the identity and employment
   75  authorization of new employees, employers must complete the
   76  federal Form I-9, and
   77         WHEREAS, to improve the accuracy of this process, the
   78  Federal Government operates an electronic employment
   79  verification system called E-Verify, and
   80         WHEREAS, requiring employers to use E-Verify for each new
   81  employee will promote the state’s interest in ensuring that only
   82  those who are authorized to work in the United States are
   83  employed in this state, and
   84         WHEREAS, one of the recognized shortcomings of the E-Verify
   85  Program is the fact that unauthorized workers may attempt to
   86  obtain employment by committing identity fraud not detected by
   87  the E-Verify Program, and
   88         WHEREAS, authentication equipment and software will help
   89  employers detect fraudulent driver’s licenses or identification
   90  cards, and
   91         WHEREAS, requiring employers to employ such equipment and
   92  software in the case of each new employee, as an alternative to
   93  registering with the E-Verify Program, will enhance the process
   94  of verifying identity and combating fraud, and
   95         WHEREAS, the rapid removal and deportation of nonviolent
   96  criminal aliens who are in the state prison system will reduce
   97  fiscal costs for the state and promote public safety, and
   98         WHEREAS, it is in the best interests of the state to seek
   99  reimbursement or other financial remuneration from the Federal
  100  Government for costs incurred by the state related to
  101  unauthorized immigration, NOW, THEREFORE,
  102  
  103  Be It Enacted by the Legislature of the State of Florida:
  104  
  105         Section 1. The Division of Statutory Revision shall
  106  designate ss. 448.30 and 448.31, Florida Statutes, as created by
  107  this act, as part III of chapter 448, Florida Statutes, titled
  108  “UNAUTHORIZED IMMIGRANTS.”
  109         Section 2. Section 448.30, Florida Statutes, is created to
  110  read:
  111         448.30 Definitions.—As used in this part, the term:
  112         (1)“Agency” means a department, board, bureau, district,
  113  commission, authority, or other similar body of this state or a
  114  county, municipality, special district, or other political
  115  subdivision of this state which issues a license for purposes of
  116  operating a business in this state or in any jurisdiction within
  117  this state.
  118         (2)“Employee” means any person, other than an independent
  119  contractor, who, for consideration, provides labor or services
  120  to an employer in this state.
  121         (3)“Employer” means a person or agency that employs one or
  122  more employees in this state. In the case of an independent
  123  contractor, the term means the independent contractor and does
  124  not mean the person or agency that uses the contract labor. The
  125  term does not include an employee leasing company licensed
  126  pursuant to part IX of chapter 468 which enters into a written
  127  agreement or understanding with its client company which places
  128  the primary obligation for compliance with this part upon its
  129  client company. In the absence of a written agreement or
  130  understanding, the contracting party, whether the licensed
  131  employee leasing company or client company that initially hires
  132  the leased employee, is responsible for the obligations set
  133  forth in this part. Such employee leasing company shall, at all
  134  times, remain an employer as otherwise specified by law.
  135         (4)“E-Verify Program” means the program for electronic
  136  verification of employment eligibility which is operated by the
  137  United States Department of Homeland Security, or any successor
  138  program.
  139         (5)“Independent contractor” means a person that carries on
  140  an independent business, contracts to do a piece of work
  141  according to its own means and methods, and is subject to
  142  control only as to results.
  143         (6)“License” means any license, permit, certificate,
  144  approval, registration, charter, or similar form of
  145  authorization that is required by law and issued by any agency
  146  for the purpose of operating a business in this state. The term
  147  includes, but is not limited to, articles of incorporation, a
  148  certificate of partnership, a partnership registration, articles
  149  of organization, and a transaction privilege tax license.
  150         Section 3. Section 448.31, Florida Statutes, is created to
  151  read:
  152         448.31Verification of employment eligibility.—
  153         (1) An employer who hires a new employee on or after July
  154  1, 2012, shall:
  155         (a) Register with the E-Verify Program; use the program for
  156  all new hires, both United States citizens and noncitizens; and
  157  not use the program selectively;
  158         (b) Upon acceptance on or after that date of an offer of
  159  employment by the new employee, verify the employment
  160  eligibility of the employee through, and in accordance with the
  161  time periods and other requirements of, the E-Verify Program;
  162  and
  163         (c) Maintain a record of the verification for 3 years after
  164  the date of hire or 1 year after the date employment ends,
  165  whichever is longer.
  166         (2)(a)An employer who hires a new employee on or after
  167  July 1, 2012, is exempt from the requirements of subsection (1)
  168  if the employer:
  169         1. Requests and receives from the employee a valid driver’s
  170  license or identification card that is issued by a state or
  171  outlying possession of the United States and that complies with
  172  the federal REAL ID Act of 2005 and the final rule promulgated
  173  by the United States Department of Homeland Security
  174  implementing that act;
  175         2. Within 3 business days after the first day of work,
  176  swipes the common machine-readable zone on the driver’s license
  177  or card using the highest standard of authentication equipment
  178  and software to:
  179         a. To determine that the document is not fraudulent; and
  180         b. Verify the physical description and other personal
  181  identifying information of the employee who presents the
  182  document against the data contained on the machine-readable
  183  zone;
  184         3. Maintains, for 3 years after the date of hire or 1 year
  185  after the date employment ends, whichever is longer, a printed
  186  record of the results of the authentication conducted under this
  187  subsection and a photocopy of the document the employee
  188  presented. The employer shall retain the record and the
  189  photocopy with the federal Form I-9; and
  190         4. Complies with the requirements of this subsection for
  191  every new employee, both United States citizens and noncitizens,
  192  unless and until the employer registers with the E-Verify
  193  Program, and does not implement the requirements of this
  194  subsection selectively.
  195         (b) The Department of Highway Safety and Motor Vehicles
  196  shall:
  197         1.Maintain on the website for the department a list of all
  198  states and outlying possessions of the United States which
  199  comply with the federal REAL ID Act of 2005 and the final rule
  200  promulgated by the United States Department of Homeland Security
  201  implementing that act. For each state or possession, the
  202  department shall specify the type of document that is in
  203  compliance and the date on which the state or possession began
  204  issuing the document that is in compliance.
  205         2. Adopt rules pursuant to ss. 120.536(1) and 120.54
  206  prescribing standards and requirements for the equipment and
  207  software used under paragraph (a).
  208         (c) The procedures of this subsection are authorized for
  209  the purpose of authenticating a driver’s license or
  210  identification card presented by a new employee, combating
  211  fraud, and matching identifying information for the employee
  212  against the document. An employer may not use the procedures to
  213  discriminate on the basis of national origin or citizenship
  214  status, except against a person who is not authorized to work in
  215  the United States. Unless otherwise authorized by law, an
  216  employer may not use information obtained through these
  217  procedures for any purpose unrelated to verifying the identity
  218  and employment authorization of a new employee.
  219         (3) An employer who fails to comply with this section is
  220  subject to the suspension of any license held by the employer
  221  through the period of noncompliance. The suspension of a license
  222  pursuant to this subsection by:
  223         (a) An agency subject to chapter 120 must comply with the
  224  provisions of s. 120.60(5).
  225         (b) An agency not subject to chapter 120 must comply with
  226  procedures substantially similar to the provisions of s.
  227  120.60(5).
  228         (4) An employer is not liable for wrongful termination if
  229  the employer terminates an employee:
  230         (a) In accordance with federal regulations upon a final
  231  determination of ineligibility for employment through the E
  232  Verify Program; or
  233         (b) After complying with subsection (2) and reasonably
  234  concluding that the employee presented a fraudulent document or
  235  that the physical description or other personal identifying
  236  information of the employee who presents the document does not
  237  match the data contained on the machine-readable zone.
  238         Section 4. Law enforcement and criminal justice agency
  239  coordination with Federal Government on unauthorized
  240  immigration.—
  241         (1) LEGISLATIVE INTENT.—It is the intent of the Legislature
  242  that law enforcement and criminal justice agencies in this state
  243  work cooperatively with the Federal Government in the
  244  identification of unauthorized immigrants and the enforcement of
  245  immigration laws. It further is the intent of the Legislature to
  246  maximize opportunities to transfer responsibility for the
  247  custody and detention of unauthorized immigrants who are accused
  248  or convicted of crimes from state and local governments to the
  249  Federal Government in order to ensure the safety of the
  250  residents of this state and to reduce costs to the criminal
  251  justice system, while also protecting the due process rights of
  252  individuals accused or convicted of crimes.
  253         (2) DELEGATED ENFORCEMENT AUTHORITY.—
  254         (a)1. The Department of Corrections may request from the
  255  United States Department of Homeland Security approval to enter
  256  into a memorandum of agreement to have employees or contractors
  257  of the Department of Corrections trained by the Department of
  258  Homeland Security as jail enforcement officers under s. 287(g)of
  259  the federal Immigration and Nationality Act. The Department of
  260  Corrections shall perform all actions reasonably necessary to
  261  meet its obligations under the agreement.
  262         2. The Department of Corrections shall report by November
  263  1, 2011, to the Governor, the President of the Senate, and the
  264  Speaker of the House of Representatives on the status of
  265  implementation of this paragraph. If the department has not
  266  entered into a memorandum of agreement with the Department of
  267  Homeland Security by that date, the department shall identify in
  268  the report any barriers to full implementation of this
  269  paragraph.
  270         3. By February 1 of each year, the Department of
  271  Corrections shall report to the Governor, the President of the
  272  Senate, and the Speaker of the House of Representatives on the
  273  enforcement activities conducted under this paragraph,
  274  including, but not limited to, the number of inmates identified
  275  as being unauthorized immigrants, placed in federal custody, or
  276  deported.
  277         (b)1. The Department of Law Enforcement may request from
  278  the United States Department of Homeland Security approval to
  279  enter into a memorandum of agreement to have employees of the
  280  Department of Law Enforcement trained by the Department of
  281  Homeland Security as task force officers under s. 287(g) of the
  282  federal Immigration and Nationality Act. The Department of Law
  283  Enforcement shall perform all actions reasonably necessary to
  284  meet its obligations under the agreement.
  285         2. By February 1 of each year, the Department of Law
  286  Enforcement shall report to the Governor, the President of the
  287  Senate, and the Speaker of the House of Representatives on the
  288  enforcement activities conducted under this paragraph.
  289         (c)1. The sheriff of each county may evaluate the
  290  feasibility of entering into a memorandum of agreement with the
  291  United States Department of Homeland Security to have employees
  292  of the sheriff trained by the Department of Homeland Security as
  293  jail enforcement officers or task force officers under s. 287(g)
  294  of the federal Immigration and Nationality Act. The Department
  295  of Law Enforcement, upon request by a sheriff, shall share
  296  information on the department’s agreement with the United States
  297  Department of Homeland Security and experience in operating
  298  under the agreement.
  299         2. The sheriff shall consider, at a minimum:
  300         a. The potential fiscal impact on the office of the
  301  sheriff;
  302         b. The potential impact on the workload and personnel needs
  303  of the office; and
  304         c. The estimated presence of unauthorized immigrants in the
  305  geographic area served by the sheriff.
  306         3. If the sheriff determines that entering into an
  307  agreement is feasible, the sheriff may make an initial request
  308  for an agreement to the Department of Homeland Security. This
  309  paragraph does not compel the sheriff to execute an agreement.
  310         (3) IDENTIFICATION UPON CONVICTION.—
  311         (a) When a person is confined in a jail, prison, or other
  312  criminal detention facility after a conviction for a dangerous
  313  crime as listed in s. 907.041(4)(a), Florida Statutes, the
  314  agency having custody of that person shall make a reasonable
  315  effort to determine the nationality of the person and whether
  316  the person is present in the United States lawfully, including,
  317  but not limited to, the submission of fingerprints pursuant to
  318  the agreement under paragraph (b). If the holding agency
  319  establishes, independent of the submission of fingerprints, that
  320  the person is not lawfully present in the United States, the
  321  agency shall notify the United States Department of Homeland
  322  Security.
  323         (b) The arresting agency shall adopt rules as are
  324  reasonably necessary and appropriate for, and not inconsistent
  325  with, the proper administration and enforcement of the
  326  provisions of this subsection, and may enter into an agreement
  327  with Immigration and Customs Enforcement which is not
  328  inconsistent with this section and is incident to carrying out
  329  its provisions.
  330         (c) This subsection may not be construed to deny a person
  331  bond or to prevent release of a person from confinement if the
  332  person is otherwise eligible for release. However, for the
  333  purpose of the bail determination required by s. 903.046,
  334  Florida Statutes, a determination that the person is not
  335  lawfully present in the United States raises a rebuttable
  336  presumption that there is a risk of flight to avoid prosecution.
  337         Section 5. Section 945.80, Florida Statutes, is created to
  338  read:
  339         945.80Removal and deportation of criminal aliens.—
  340         (1) Notwithstanding any law to the contrary, and pursuant
  341  to s. 241(a)(4)(B)(ii) of the federal Immigration and
  342  Nationality Act, the secretary of the department shall release a
  343  prisoner to the custody and control of the United States
  344  Immigration and Customs Enforcement if:
  345         (a) The prisoner was convicted of a nonviolent offense;
  346         (b) The department has received a final order of removal
  347  for the prisoner from the United States Immigration and Customs
  348  Enforcement; and
  349         (c) The secretary determines that removal is appropriate
  350  and in the best interest of the state.
  351  
  352  A person is ineligible for release under this section if he or
  353  she would be ineligible for control release under s.
  354  947.146(3)(a)-(m).
  355         (2)(a) The department shall identify, during the inmate
  356  reception process and among the existing inmate population,
  357  prisoners who are eligible for removal under this section and
  358  determine whether removal is appropriate and in the best
  359  interest of the state.
  360         (b) The department shall coordinate with federal
  361  authorities to determine the eligibility of a prisoner for
  362  removal and to obtain a final order of removal.
  363         (3) Upon approval for removal of the prisoner under this
  364  section, the department shall establish a release date for the
  365  prisoner to be transferred to federal custody. The department
  366  shall maintain exclusive control of and responsibility for the
  367  custody and transportation of the prisoner until the prisoner is
  368  physically transferred to federal custody.
  369         (4)(a) If a prisoner who is released under this section
  370  returns unlawfully to the United States, upon notice from any
  371  state or federal law enforcement agency that the prisoner is
  372  incarcerated, the secretary shall revoke the release of the
  373  prisoner and seek the return of the prisoner to the custody of
  374  the department in order to serve the remainder of the sentence
  375  imposed by the court. The prisoner is not eligible for probation
  376  or community control with respect to any sentence affected by
  377  the release under this section.
  378         (b) The department shall notify each prisoner who is
  379  eligible for removal of the provisions of this subsection.
  380         (5) The secretary of the department may enter into an
  381  agreement with the United States Department of Homeland Security
  382  regarding the rapid repatriation of removable custodial aliens
  383  from the United States pursuant to this section.
  384         (6) The department shall compile statistics on
  385  implementation of this section, including, but not limited to:
  386         (a) The number of prisoners who are transferred to federal
  387  custody;
  388         (b) The number of prisoners who reenter the United States;
  389  and
  390         (c) The annual cost-avoidance achieved.
  391         (7) To the extent practicable, this section applies to all
  392  prisoners actually in confinement on, and all prisoners taken
  393  into confinement after, July 1, 2011.
  394         Section 6. (1) The Legislature finds that the costs
  395  incurred by the state related to unauthorized immigration are
  396  exacerbated by the failure of the Federal Government to enforce
  397  immigration laws adequately and to adopt and implement
  398  comprehensive reforms to immigration laws in order to control
  399  and contain unauthorized immigration more effectively.
  400         (2)(a) The Agency for Workforce Innovation, in consultation
  401  with the Office of Economic and Demographic Research, shall
  402  prepare a report by December 1, 2011, quantifying the costs to
  403  the state which are attributable to unauthorized immigration.
  404  The agency shall submit the report to the Governor, the
  405  President of the Senate, and the Speaker of the House of
  406  Representatives by that date.
  407         (b) Before January 1, 2012, the director of the Agency for
  408  Workforce Innovation shall, in consultation with the Office of
  409  the Governor, submit to the appropriate federal agency or
  410  official a request, based on the total costs quantified under
  411  paragraph (a), for reimbursement to the state of those costs or
  412  a corresponding reduction in or forgiveness of any debt,
  413  interest payments, or other moneys owed by the state to the
  414  Federal Government as a result of borrowing from the Federal
  415  Government to fund unemployment compensation claims.
  416         Section 7. This act shall take effect July 1, 2011.