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: 152 448.31 Verification 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: 339 945.80 Removal 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.