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Bill 392

Indicates Matter Stricken
Indicates New Matter

Indicates Matter Stricken

Indicates New Matter

COMMITTEE REPORT

January 23, 2008

S. 392

Introduced by Senators Ritchie, Cromer, Sheheen, Campsen, Scott, Williams, Vaughn and Ceips

S. Printed 1/23/08--H.

Read the first time April 24, 2007.

To whom was referred a Bill (S. 392) to amend the Code of Laws of South Carolina, 1976, by adding Chapter 14 to Title 8, relating to illegal aliens and public employment, so as to enact the "South Carolina Illegal Immigration Reform Act", etc., respectfully

That they have duly and carefully considered the same and recommend that the same do pass with amendment:

Amend the bill, as and if amended, by deleting all after the enacting words and inserting:

/    SECTION    1.    Chapter 11, Title 8 of the 1976 Code is amended by adding:

Section 8-11-1310.    As used in this article, the term:

(1)    'Contractor' means a person having a service contract, as defined in subitem (5), with a public employer.

(2)    'Director' means the director of the State Budget and Control Board.

(3)    'Federal work authorization program' means one of the electronic verification of work authorization programs operated by the United States Department of Homeland Security or an equivalent federal work authorization program operated by the United States Department of Homeland Security to verify information of newly hired employees, pursuant to the Immigration Reform and Control Act of 1986 (IRCA), D.L. 99-603.

(4)    'Public employer' means the State and any department, agency, instrumentality, or political subdivision of the State.

(5)    'Service contract' means a contract that involves the physical performance of manual labor if the total cost of that labor exceeds (i) thirty percent of the total cost of all the labor, or (ii) five percent of the total contract price. The term does not include: (a) a contract with a political subdivision with a total value of less than fifteen thousand dollars in a twelve-month period or a contract with any other public employer with a total value of less than twenty-five thousand dollars in a twelve-month period; (b) a contract primarily for the acquisition of an end product; and (c) a contract that is predominantly for the performance of professional or consultant services.

(6)    'Subcontractor' has the same meaning as in Section 11-35-310(30).

Section 8-11-1320.    (A) On or after July 1, 2008, a public employer shall register and participate in the federal work authorization program to verify information of all new employees.

(B)    A public employer may not enter into a service contract to be performed within this State unless:

(1)    the contractor registers and participates in the federal work authorization program to verify information of all new employees and requires his subcontractors to register and participate in the federal work authorization program to verify information of all new employees; or

(2)    the contractor agrees to employ only workers who:

(a)    possess a valid South Carolina driver's license or identification card issued by the South Carolina Department of Motor Vehicles;

(b)    are eligible to obtain a South Carolina driver's license or identification in compliance with Sections 56-1-40 through 56-1-90; or

(c)    possess a valid driver's license or identification card from another state where the license requirements are at least as strict as those in South Carolina, as determined by the Attorney General.

(C)    Subsection (B) applies as follows:

(1)    on or after July 1, 2008, with respect to contractors or subcontractors of five hundred or more employees;

(2)    on or after July 1, 2009, with respect to contractors or subcontractors of one hundred or more employees but fewer than five hundred employees; and

(3)    on or after July 1, 2010, with respect to all other contractors or subcontractors.

Section 8-11-1330.    In addition to the remedies provided in Chapter 35 of Title 11, the South Carolina Consolidated Procurement Code, a public employer shall receive from a contractor or subcontractor who violates this article a penalty of five percent of the gross amount of the contract. This five percent penalty must be assessed against a contractor based upon the gross amount of the total contract and against the subcontractor based upon the gross amount of the contract between the subcontractor and the contractor. A contractor who received written certification of compliance with this article from a subcontractor is not vicariously liable for the penalty pursuant to this section for the failure of that subcontractor to comply with this article. However, the contractor is responsible for withholding the penalty amount from payments to the subcontactor. The provisions of this article are enforceable without regard to race, religion, gender, ethnicity, or national origin.

Section 8-11-1335.    (A)    All other terms of this article notwithstanding, a public employer may not withhold a payment or a portion of a payment to a contractor and contractor may not withhold a payment or a portion of a payment to a subcontractor for more than five days after receipt from the intended recipient of the payment of a sworn affidavit of the recipient's compliance with Section 8-11-1320.

(B)    A person who knowingly files a false, fictitious, or fraudulent affidavit pursuant to this section is guilty of a felony and, upon conviction, must be fined within the discretion of the court or imprisoned for not more than five years, or both.

Section 8-11-1340.    A public employer complies with this article if it obtains a written statement from the contractor certifying that the contractor will comply with the requirements of this article and agrees to provide to the public employer documentation required to establish either the applicability of this article to the contractor and subcontractors or the compliance with this article by the contractor and any subcontractor. A public employer need not audit or independently verify a contractor's compliance with this article.

Section 8-11-1350.    A contractor who in good faith complies with the requirements of this article may not be sanctioned or subjected to civil or administrative action for employing an individual not authorized for employment in the United States.

Section 8-11-1360.    A local government must not enact any ordinance or policy that limits or prohibits a law enforcement officer, local official, or local government employee from seeking to enforce the provisions of this article.

Section 8-11-1370.    Except as provided in Section 8-11-1380, the director shall prescribe forms, promulgate regulations, and adopt rules necessary to administer the provisions of this article and publish those rules and regulations on the board's state website.

Section 8-11-1380.    The director of the Department of Transportation shall prescribe forms, promulgate regulations, and adopt rules necessary for the application of this article to a contract or agreement relating to public transportation and shall publish these rules and regulations on the Department of Transportation's website."

SECTION    2.    Title 23 of the 1976 Code is amended by adding:

Section 23-52-10.    (A)    If a person charged with a criminal offense is confined, for any period, in a local, regional, or state jail or other correctional facility, a reasonable effort must be made to determine the nationality of the person confined.

(B)    If the person is not a United States citizen, the keeper of the jail or other officer shall make a reasonable effort to verify that the prisoner has been lawfully admitted to the United States and, if lawfully admitted, that the lawful status has not expired. If verification of lawful status cannot be made from documents in the possession of the person and the person is not a United States citizen, verification must be made within seventy-two hours through a query to the Law Enforcement Support Center (LESC) of the United States Department of Homeland Security or other office or agency designated for that purpose by the United States Department of Homeland Security. If the prisoner is determined not to be lawfully admitted to the United States, the keeper of the jail or other law enforcement officer shall notify the United States Department of Homeland Security.

(C)    Upon notification to the United States Department of Homeland Security pursuant to subsection (B), the keeper of the jail must account for daily expenses incurred for the housing, maintenance, and care of the prisoner who is unlawfully admitted to the United States and forward an invoice for those expenses to the Department of Homeland Security.

(D)    This section does not allow the denial of bond to a person or timely release from confinement when the person is otherwise eligible for bond or release. However, pursuant to the provisions of Section 17-15-30, a court setting bond shall consider the immigration status of the person charged.

(E)    The State Law Enforcement Division shall prepare and issue guidelines and procedures used to comply with the provisions of this section."

SECTION    3.    Title 40 of the 1976 Code is amended by adding:

Section 40-91-10.    This chapter may be cited as the 'Registration of Immigration Assistance Act'.

Section 40-91-20.    The purpose and intent of this chapter is to establish and enforce standards of ethics in the profession of immigration assistance by private individuals who are not licensed attorneys.

Section 40-91-30.    As used in this chapter, the term:

(1)    'Compensation' means money, property, services, promise of payment, or anything else of value given in exchange for a service.

(2)    'Employed by' means that a person is on the payroll of the employer and the employer deducts from the employee's paycheck social security and withholding taxes or that a person receives compensation from the employer on a commission basis or as an independent contractor.

(3)    'Immigration assistance service' means information or action provided or offered to customers or prospective customers related to immigration matters, excluding legal advice, recommending a specific course of legal action or providing other assistance that requires legal analysis, legal judgment, or interpretation of the law.

(4)    'Immigration matter' means any proceeding, filing, or action affecting the nonimmigrant, immigrant, or citizenship status of a person that arises pursuant to immigration and naturalization law, executive order, or presidential proclamation of the United States or a foreign country; or action of the United States Department of Labor, the United States Department of State, the United States Department of Homeland Security, or the United States Department of Justice.

Section 40-91-40.    (A)    A person who provides or offers to provide immigration assistance services may perform only these services:

(1)    completing a government agency form, requested by the customer and appropriate to the customer's needs, only if the completion of that form does not involve a legal judgment for that particular matter;

(2)    transcribing responses to a government agency form that is related to an immigration matter but not advising a customer as to the answers on those forms;

(3)    translating information on forms to a customer and translating the customer's answers to questions posed on those forms;

(4)    securing for the customer supporting documents currently in existence, including birth and marriage certificates, for submission with government agency forms;

(5)    translating documents from a foreign language into English;

(6)    notarizing signatures on government agency forms, if the person performing the service is a notary public commissioned in the State of South Carolina and is lawfully present in the United States;

(7)    making referrals, without fee, to attorneys who undertake legal representation for a person in an immigration matter;

(8)    preparing or arranging for the preparation of photographs and fingerprints;

(9)    arranging for the performance of medical testing (including x-rays and AIDS tests) and the obtaining of reports of test results;

(10)    conducting English language and civics courses; and

(11)    performing other services that the director of the South Carolina Department of Labor, Licensing and Regulation, or his designee, determines by rule may be appropriately performed by these persons in light of the purposes of this chapter.

(B)    These persons are exempt from the provisions of this chapter:

(1)    an attorney licensed to practice law in South Carolina or an attorney licensed to practice law in another state or territory of the United States or in a foreign country when acting with the approval of a judge having lawful jurisdiction over the matter;

(2)    a legal intern, clerk, paralegal, or person in a similar position employed by and under the direct supervision of a licensed attorney meeting the requirements of item (1) and rendering immigration assistance services in the course of employment; and

(3)    a not-for-profit organization recognized by the Board of Immigration Appeals under 8 CFR 292.2(a) and employees, of those organizations accredited pursuant to 8 CFR 292.2(d).

(C)    This chapter does not regulate a business if that regulation is prohibited or preempted by federal law.

(D)    A person performing the services described in this chapter shall obtain a business license from the Department of Labor, Licensing and Regulation and as may be required by a local governing authority.

(E)    A person who provides or offers immigration assistance services and who is not exempted pursuant to the provisions of this chapter shall post signs at his or her place of business setting forth information in English and in every other language in which the person provides or offers to provide immigration assistance services. Each language must be on a separate sign. Signs must be posted in a location where the signs are readily visible to customers. Each sign must be at least twelve inches by seventeen inches and must contain the following statement: 'I AM NOT AN ATTORNEY LICENSED TO PRACTICE LAW AND MAY NOT GIVE LEGAL ADVICE OR ACCEPT FEES FOR LEGAL ADVICE.'

(F)    Each person engaged in immigration assistance service who is not an attorney who advertises immigration assistance service in a language other than English, whether by radio, television, signs, pamphlets, newspapers, or other written communication, with the exception of a single desk plaque, shall include in the document, advertisement, stationery, letterhead, business card, or other comparable written material the following notice in English and the language in which the written communication appears. This notice must be of a conspicuous size, if in writing, and must state: 'I AM NOT AN ATTORNEY LICENSED TO PRACTICE LAW AND MAY NOT GIVE LEGAL ADVICE OR ACCEPT FEES FOR LEGAL ADVICE.' If the advertisement is by radio or television, the statement may be modified but must include substantially the same message.

(G)    A person who provides or offers immigration assistance service and who is not exempted pursuant to the provisions of this chapter may not literally translate from English into another language any document, advertisement, stationery, letterhead, business card, or other comparable written material terms or titles including, but not limited to, notary public, notary, licensed attorney, lawyer, or another term that implies the person is an attorney.

(H)    A person engaged in providing immigration services who is not exempted pursuant to the provisions of this chapter may not:

(1)    accept payment in exchange for providing legal advice or other assistance that requires legal analysis, legal judgment, or interpretation of the law;

(2)    refuse to return documents supplied by, prepared on behalf of, or paid for by the customer upon the request of the customer. These documents must be returned upon request even if there is a fee dispute between the immigration assistant and the customer;

(3)    represent or advertise, in connection with assistance in immigration matters, other titles or credentials including, but not limited to, 'notary public' or 'immigration consultant', that could cause a customer to believe that the person possesses special professional skills or is authorized to provide advice on an immigration matter, except that a certified notary public may use the term 'notary public' if the use is accompanied by the statement that the person is not an attorney; the term 'notary public' may not be translated to another language;

(4)    provide legal advice, recommend a specific course of legal action, or provide other assistance that requires legal analysis, legal judgment, or interpretation of the law; or

(5)    make a misrepresentation or false statement, directly or indirectly, to influence, persuade, or induce patronage.

(I)    Violations of this chapter may result in a civil fine up to one thousand dollars for each violation. A fine charged pursuant to this chapter does not preempt or preclude additional appropriate civil or criminal penalties, including disgorgement and restitution.

(J)(1)    Any person who knowingly and wilfully makes a false, fictitious, or fraudulent statement or representation in a document prepared or executed as part of the provision of immigration assistance services in an immigration matter pursuant to this chapter, or anyone who aids or abets a person in knowingly and wilfully making a false, fictitious, or fraudulent statement or representation in a document prepared or executed as part of the provision of immigration assistance services in an immigration matter pursuant to this chapter, or who solicits or conspires to make a false, fictitious, or fraudulent statement or representation in a document prepared or executed as part of the provision of immigration assistance services in an immigration matter pursuant to this chapter is guilty of a felony and, upon conviction, must be fined in the discretion of the court or imprisoned not more than ten years, or both.

(2)    In addition, a person convicted of violating this subsection must disgorge the benefit received or make restitution, or both, to the agency or political subdivision that administered the benefit or entitlement program.

(3)    It is a separate violation of this subsection each time a person knowingly and wilfully makes, aids, or abets in the making of, or solicits or conspires to make a false, fictitious, or fraudulent statement or representation in a document prepared or executed pursuant to this subsection.

(4)    A criminal charge pursuant to this chapter does not preempt or preclude additional appropriate civil or criminal charges or penalties. A person who suffers an ascertainable loss of money or property, real or personal, as a result of a conviction or plea to a violation of this subsection may bring an action individually, or in a representative capacity, to recover actual damages from a person convicted of the violation of this subsection. If the court finds that a violation has been established, the court shall award three times the actual damages sustained and may provide such relief as it considers necessary or proper. Upon the finding by the court of a violation, the court shall award to the person bringing the action pursuant to this section reasonable attorney's fees and costs.

(5)    Persons convicted of a violation of this subsection are jointly and severally liable for any loss suffered by any person or any agency or political subdivision of the State.

(K)    The director of the Department of Labor, Licensing and Regulation shall promulgate regulations not inconsistent with this chapter for the implementation, administration, and enforcement of this chapter.

(L)    This chapter does not apply to a person employed by or working for an educational institution if that person is registered as a designated school official with the SEVIS program, or a successor program, operated by the United States Department of Homeland Security."

SECTION    4.    Chapter 5, Title 43 of the 1976 Code is amended by adding:

Section 43-5-1410.    This article may be cited as the 'Illegal Aliens and Public Benefits Act'.

Section 43-5-1420.    (A)    Except as provided in subsection (C) or if exempted by federal law, on or after July 1, 2008, every agency and political subdivision of this State shall verify the lawful presence in the United States of a natural person eighteen years of age or older who has applied for state or local public benefits, as defined in 8 USC Section 1621, or for federal public benefits, as defined in 8 USC Section 1611, that are administered by an agency or a political subdivision of this State.

(B)    The provisions of this article must be enforced without regard to race, religion, gender, ethnicity, or national origin.

(C)    Verification of lawful presence pursuant to the provisions of this article is not required for:

(1)    a purpose for which lawful presence in the United States is not required by law, ordinance, or regulation;

(2)    assistance for health care items and services that are necessary for the treatment of an emergency medical condition, as defined in 42 USC Section 1396b(v)(3), of the alien involved and are not related to an organ transplant procedure;

(3)    short-term, noncash, in-kind emergency disaster relief;

(4)    public health assistance for immunizations with respect to immunizable diseases and for testing and treatment of symptoms of communicable diseases whether or not the symptoms are caused by a communicable disease; or

(5)    programs, services, or assistance including soup kitchens, crisis counseling and intervention, and short-term shelter specified by the United States Attorney General, in the United States Attorney General's sole discretion after consultation with appropriate federal agencies and departments, which:

(i)     deliver in-kind services at the community level, including through public or private nonprofit agencies;

(ii)    do not condition the provision of assistance, the amount of assistance provided, or the cost of assistance provided on the individual recipient's income or resources; and

(iii)    are necessary for the protection of life or safety;

(6)    prenatal care; or

(7)    for benefits, programs, services, or other assistance provided to victims of domestic violence, irrespective of immigration status, under the Violence Against Women Act of 2000, PL 106-386, or the Illegal Immigration Reform and Immigrant Responsibility Act, PL 104-208.

(D)    Verification of lawful presence in the United States by the agency or political subdivision required to make the verification must occur as follows:

(1)    the applicant shall execute an affidavit that he is a United States citizen or legal permanent resident eighteen years of age or older; or

(2)    the applicant shall execute an affidavit that he is a qualified alien or nonimmigrant under the federal Immigration and Nationality Act, PL 82-414, eighteen years of age or older, lawfully present in the United States.

(E)    For an applicant who has executed an affidavit that he is an alien lawfully present in the United States, eligibility for benefits must be made through the Systematic Alien Verification of Entitlement (SAVE) program operated by the United States Department of Homeland Security or a successor program designated by the United States Department of Homeland Security. Until that eligibility verification is made, the affidavit is presumed to be proof of lawful presence for the purposes of this article.

(F)(1)    A person who knowingly and wilfully makes a false, fictitious, or fraudulent statement of representation in an affidavit executed pursuant to subsection (D), or who aids or abets a person in knowingly and wilfully making a false, fictitious, or fraudulent statement or representation in an affidavit executed pursuant to that subsection, or who solicits or conspires to make a false, fictitious, or fraudulent statement or representation in an affidavit executed pursuant to that subsection is guilty of a felony and, upon conviction, must be fined in the discretion of the court or imprisoned not more than five years, or both.

(2)    In addition, a person convicted pursuant to this subsection must disgorge any benefit received or make restitution, or both, to the agency or political subdivision of this State that administered the benefit or entitlement program.

(3)    It is a separate violation of this subsection each time a person received a public benefit based on such a statement or representation.

(4)    A conviction and fine charged pursuant to this subsection does not preempt or preclude additional appropriate civil or criminal charges or penalties. A person who suffers an ascertainable loss of money or property, real or personal, as a result of the actions of anyone convicted of a violation of this subsection may bring an action individually, or in a representative capacity, to recover actual damages. If the court finds that a violation has been established, the court shall award three times the actual damages sustained and may provide other relief it considers necessary and proper. Upon a finding by the court of a violation, the court shall award to the person bringing the action pursuant to this subsection reasonable attorney's fees and costs.

(5)    Persons convicted of a violation of this subsection are jointly and severally liable for a loss suffered by a person or an agency or political subdivision of the State.

(6)    If an affidavit constitutes a false claim of United States citizenship under 18 USC Section 911, a complaint must be filed by the agency or political subdivision with the United States Attorney for the District of South Carolina.

(G)    It is unlawful for an agency or a political subdivision of this State to provide a state, local, or federal benefit, as defined in 8 USC Section 1621 or 8 USC Section 1611, in violation of the provisions of this article. Each state agency, department, division, or other political subdivision that administers a program of state or local public benefits shall provide an annual report with respect to its compliance with the provisions of this article.

(H)    All errors and significant delays by SAVE must be reported to the United States Department of Homeland Security and to the Secretary of State which will monitor SAVE and its verification application errors and significant delays and report yearly on such errors and significant delays to ensure that the application of SAVE is not wrongfully denying benefits to legal residents of South Carolina.

(I)    An agency or a political subdivision of this State that provides a state, local, or federal benefit, as defined in 8 USC 1621 or 8 USC Section 1611, must require a person currently under the age of eighteen who received the benefit to comply with the provisions of this article upon reaching the age of eighteen. If the recipient is unwilling or unable to comply, receipt of all benefits must cease immediately upon the recipient's eighteenth birthday.

(J)    A local government may not enact any ordinance or policy that limits or prohibits a law enforcement officer, local official, or local government employee from seeking to enforce the provisions of this article."

SECTION    5.    Chapter 1, Title 6 of the 1976 Code is amended by adding:

"Section 6-1-170.    (A)    For purposes of this section, 'political subdivision' includes, but is not limited to, a municipality, county, school district, special purpose district, or public service district.

(B)    A political subdivision of this State may not enact any ordinance or policy that limits or prohibits a law enforcement officer, local official, or local government employee from seeking to enforce a state law with regard to immigration.

(C)    A political subdivision of this State may not enact any ordinance or policy that limits or prohibits a law enforcement officer, local official, or local government employee from communicating to appropriate federal or state officials with regard to the immigration status of any person within this State. bv

(D)    A city, county, municipality, or other local government or political subdivision may not enact any ordinance, regulation, or other legislation pertaining to the employment, licensing, permitting, or otherwise doing business with a person based upon that person's authorization to work in the United States that exceeds or otherwise conflicts with federal or state law. An enactment found to be in conflict with federal or state law is void.

SECTION    6.    Article 25, Chapter 6, Title 12 of the 1976 Code is amended by adding:

"Section 12-6-3595.    (A)    As used in this section:

(1)    'Authorized employee' means an individual authorized for employment in the United States as defined in paragraph (2) of subsection (a) of 8 USC Section 1324a.

(2)    'Labor services' means the physical performance of services in this State.

(B)    Notwithstanding another provision of law, on or after January 1, 2009, wages or remuneration paid for labor services to an individual of six hundred dollars or more per annum must not be claimed and allowed as a deductible business expense for state income tax purposes by a taxpayer unless the individual is an authorized employee.

(C)    The provisions of this section apply whether or not an Internal Revenue Service Form 1099 is issued in conjunction with the wages or remuneration. This section does not apply to:

(1)    a business domiciled in this State which is exempt from compliance with federal employment verification procedures under federal law which makes the employment of unauthorized aliens unlawful;

(2)    an individual hired by the taxpayer before January 1, 2009;

(3)    a taxpayer when the individual being paid is not directly compensated or employed by the taxpayer; or

(4)    to wages or remuneration paid for labor services to an individual who holds and presents to the taxpayer a valid license or identification card issued by the Department of Motor Vehicles, who is eligible to obtain a South Carolina driver's license or identification card in compliance with Sections 56-1-40 through 56-1-90, or who possesses a valid driver's license or identification card from another state where the license requirements are at least as strict as those in South Carolina, as determined by the Attorney General.

(D)    A taxpayer must not be held liable for failing to comply with the provisions of this section, if, based on a reasonable investigation of the individual, the taxpayer did not know or should not have known that the individual was an unauthorized employee. For purposes of this subsection, a taxpayer is considered to have conducted a reasonable investigation if the individual met the requirements of subsection (C)(4), and the information provided by the individual to the taxpayer was facially correct.

(E)    The director of the South Carolina Department of Revenue may prescribe forms and promulgate regulations necessary to administer and effectuate this section.

(F)    The executive director of the South Carolina Employment Security Commission shall send written notice of this section to all South Carolina employers no later than July 1, 2008."

SECTION    7.    Article 5, Chapter 8, Title 12 of the 1976 Code is amended by adding:

"Section 12-8-610.    (A)    Notwithstanding another provision of law, a withholding agent, as defined in Section 12-8-10, shall withhold state income tax at the rate of six percent of the amount of compensation paid to an individual, which compensation is reported on Form 1099 and with respect to which the individual has:

(1)    failed to provide a taxpayer identification number or social security number;

(2)    failed to provide a correct taxpayer identification number or social security number; or

(3)    provided an Internal Revenue Service-issued taxpayer identification number issued for nonresident aliens.

(B)    A withholding agent who fails to comply with the withholding requirements of this section is liable for the taxes required to have been withheld unless the withholding agent is exempt from federal withholding with respect to the individual pursuant to a properly filed Internal Revenue Service Form 8233.

(C)    A withholding agent does not violate this section if the individual provides a false or incorrect taxpayer identification number that is facially correct and the withholding agent does not know or should not have known based on reasonable investigation that the number provided is false or incorrect.

(D)    The executive director of the South Carolina Employment Security Commission shall send written notice of this section to all South Carolina employers no later than July 1, 2008."

SECTION    8.    Article 5, Chapter 9, Title 16 of the 1976 Code is amended by adding:

"Section 16-9-460.    (A)    It is a felony for a person knowingly or in reckless disregard of the fact that another person has come to, entered, or remained in the United States in violation of law to transport, move, or attempt to transport that person within the State or to solicit or conspire to transport or move that person within the State with specific intent to further that person's illegal entry into the United States or avoiding apprehension or detection of that person's illegal status by state or federal authorities.

(B)    It is be a felony for a person knowingly or in reckless disregard of the fact that another person has come to, entered, or remained in the United States in violation of law to conceal, harbor, or shelter from detection or to solicit or conspire to conceal, harbor, or shelter from detection that person in any place, including a building or means of transportation, with specific intent to further that person's illegal entry into the United States or avoiding apprehension or detection of that person's illegal status by state or federal authorities.

(C)    A person who violates the provisions of subsection (A) or (B) of this section is guilty of a felony and, upon conviction, must be punished by a fine not to exceed five thousand dollars or by imprisonment for a term not to exceed five years, or both.

(D)    A person who is convicted of, pleads guilty to, or enters into a plea of nolo contender to a violation of this section must not be permitted to seek or obtain a professional license offered by the State or any agency or political subdivision of the State.

(E)    Providing health care treatment or services to a natural person who is in the United States unlawfully is not a violation of this section.

(F)    Shelter provided for strictly humanitarian purposes or provided under the Violence Against Women Act is not a violation of this section, so long as that shelter is not provided in furtherance of or in an attempt to conceal a person's illegal presence in the United States."

SECTION    9.    Article 2, Chapter 13, Title 16 of the 1976 Code is amended by adding:

"Section 16-13-525.    (A)    In addition to the penalties provided for in this chapter, a person who is convicted of, pleads guilty to, or enters into a plea of nolo contender to financial identity fraud or identity fraud involving the false, fictitious, or fraudulent creation or use of documents that enable a person who is not authorized to live or work in the United States or to receive benefits administered by an agency or political subdivision of this State must disgorge the benefit received or make restitution to the agency or political subdivision that administered the benefit or entitlement program, or both. A criminal charge pursuant to this chapter does not preempt or preclude additional appropriate civil or criminal charges or penalties.

(B)    A person who suffers an ascertainable loss of money or property, real or personal, as a result of a conviction or plea to a violation of financial identity fraud or identity fraud involving a matter described in subsection (A), may bring an action individually, or in a representative capacity, to recover actual damages against the person convicted of the violation. If a court finds that a violation has been established, the court shall award three times the actual damages sustained and may provide such other relief as it considers necessary or proper. Upon the finding by the court of a violation, the court shall award to the person bringing this action pursuant to this section reasonable attorney's fees and costs.

(C)    A person convicted of a violation of this subsection is jointly and severally liable for a loss suffered by a person or an agency or political subdivision of the State."

SECTION    10.    Chapter 23, Title 16 of the 1976 Code is amended by adding:

"Section 16-23-530.    (A)    It is unlawful for a person who is not lawfully present in the United States to store, keep, buy, transport, distribute, manufacture, possess, or have in possession or permit another to store, keep, buy, transport, distribute, manufacture, possess, or have in possession a rifle, pistol, or other firearm.

(B)    It is unlawful for a person to sell, rent, give away, or participate, directly or indirectly, in the sale, renting, giving away, or otherwise disposing of a rifle, pistol, or other firearm to a person who is known by the person charged pursuant to this subsection to be not lawfully present in the United States.

(C)    A person violating the provisions of subsection (A) of this section is guilty of a felony and, upon conviction, must be fined not more than ten thousand dollars or imprisoned not more than ten years, or both.

(D)    A person violating the provisions of subsection (B) of this section is guilty of a misdemeanor and, upon conviction, must be fined not more than two thousand dollars or imprisoned not more than three years, or both."

SECTION    11.    Article 1, Chapter 3, Title 23 of the 1976 Code is amended by adding:

"Section 23-3-80.    (A)    The chief of the South Carolina Law Enforcement Division is authorized and directed to negotiate the terms of a memorandum of understanding between the State of South Carolina and the United States Department of Justice or Department of Homeland Security addressing:

(1)    the enforcement of federal immigration laws by state and local law enforcement, specifically through the 287-G program or other applicable federal law designed for the purpose of state enforcement of federal immigration laws;

(2)    the detention of illegal immigrants by state and local law enforcement officials and the costs associated with those detentions;

(3)    the removal of detained illegal immigrants by federal authorities or, instead of removal, the deportation of illegal immigrants by state and local law enforcement officials;

(4)    training of state and local law enforcement officials pursuant to the 287-G program or other applicable federal laws and the costs of such training; and

(5)    further communication and cooperation between federal law enforcement and state and local law enforcement officials in the area of immigration enforcement.

(B)    The memorandum of understanding negotiated pursuant to subsection (A) must be signed on behalf of the State by the chief of the South Carolina Law Enforcement Division and the Governor or as otherwise required by the appropriate federal agency.

(C)    The chief of the South Carolina Law Enforcement Division shall designate appropriate law enforcement officers to be trained pursuant to the memorandum of understanding provided for in subsections (A) and (B). This training must be funded pursuant to the federal Homeland Security Appropriation Act of 2006, Public Law 109-90, or a subsequent source of federal funding. The provisions of this subsection become effective upon the securing of this funding.

(D)    The director of the South Carolina Department of Corrections, the sheriff of a county, and the governing body of a municipality that maintains a paid police department may enter into the memorandum of understanding between the State of South Carolina and the United States Department of Justice or Department of Homeland Security as a party, and, subject to the availability of funds provided for in subsection (C) of this section, provide corrections officers and local law enforcement officers for training in accordance with the memorandum of understanding.

(E)    A law enforcement officer certified as trained in accordance with the memorandum of understanding as provided in this section is authorized to enforce federal immigration and customs laws while performing within the scope of his or her authorized duties."

SECTION    12.    Chapter 1, Title 41 of the 1976 Code is amended by adding:

"Section 41-1-30.    (A)    There is a civil right of action for wrongful termination against an employer who knowingly terminates an employee while retaining a person the employer knows and should reasonably know is an illegal alien and is engaged in substantially the same job category.

(B)    Termination for cause is an absolute bar to recovery under this section.

(C)    This section does not create an employment contract for either a public of private employer

(D)    An employee who brings a civil suit pursuant to this section is limited to the following recovery:

(1)    reinstatement to his former position; and

(2)    lost wages.

(E)    A cause of action does not arise against an employer who makes a determination of legal status of all employees through the Systematic Alien Verification of Entitlement (SAVE) program operated by the United States Department of Homeland Security or a successor program designated by the United States Department of Homeland Security. This subsection takes effect ninety days after the effective date of the act."

SECTION    13.    Chapter 101, Title 59 of the 1976 Code is amended by adding:

"Section 59-101-430.    (A)    A person who is not lawfully present in the United States is not eligible to attend a public institution of higher learning in this State, as defined in Section 59-103-5. The trustees of a public institution of higher learning in this State shall develop and institute a process by which lawful presence in the United States is verified.

(B)    A person not lawfully present in the United States is not eligible on the basis of residence for a public higher education benefit including, but not limited to, scholarships, financial aid, grants, or resident tuition.

(C)    This section does not apply to students already enrolled or those granted enrollment as of the effective date of this section."

SECTION    14.    Section 14-7-1630(A)(8) and (9) of the 1976 Code, as last amended by Act 82 of 2007, is further amended to read:

"(8)    a crime involving obscenity including, but not limited to, a crime as provided in Article 3, Chapter 15, Title 16 or any attempt, aiding, abetting, solicitation, or conspiracy to commit a crime involving obscenity; and

(9)    a crime involving the knowing and wilful making of, aiding and abetting in the making of, or soliciting or conspiring to make a false, fictitious, or fraudulent statement or representation in an affidavit regarding a person's lawful presence in the United States, as defined in Section 43-5-1410, if the number of violations exceeds twenty or if the public benefit received by a person from a violation or combination of violations exceeds twenty thousand dollars;

(10)    a crime involving financial identity fraud or identity fraud involving the false, fictitious, or fraudulent creation or use of documents used in an immigration matter as defined in Section 16-13-525, if the number of violations exceeds twenty, or if the value of the ascertainable loss of money or property suffered by a person or persons from a violation or combination of violations exceeds twenty thousand dollars;

(11)    a crime involving the knowing and wilful making of, aiding or abetting in the making of, or soliciting or conspiring to make a false, fictitious, or fraudulent statement or representation in a document prepared or executed as part of the provision of immigration assistance services in an immigration matter, as defined in Section 40-91-40, if the number of violations exceeds twenty, or if a benefit received by a person from a violation or combination of violations exceeds twenty thousand dollars; and

(12)    a knowing and wilful crime involving actual and substantial harm to the water, ambient air, soil or land, or both soil and land. This crime includes a knowing and wilful violation of the Pollution Control Act, the Atomic Energy and Radiation Control Act, the State Underground Petroleum Environmental Response Bank Act, the State Safe Drinking Water Act, the Hazardous Waste Management Act, the Infectious Waste Management Act, the Solid Waste Policy and Management Act, the Erosion and Sediment Control Act, the South Carolina Mining Act, and the Coastal Zone Management Act, or a knowing and wilful crime arising out of or in connection with environmental laws, or any attempt, aiding, abetting, solicitation, or conspiracy to commit a knowing and wilful crime involving the environment if the anticipated actual damages including, but not limited to, the cost of remediation, are two million dollars or more, as certified by an independent environmental engineer who must be contracted by the Department of Health and Environmental Control. If the knowing and wilful crime is a violation of federal law, then a conviction or an acquittal pursuant to federal law for the same act is a bar to the impaneling of a state grand jury pursuant to this section."

SECTION    15.    Section 17-15-30 of the 1976 Code, as last amended by Act 106 of 2005, is further amended to read:

"Section 17-15-30.    (A)    In determining conditions of release that will reasonably assure appearance, or if release would constitute an unreasonable danger to the community, the court may, on the basis of available information, consider the nature and circumstances of the offense charged, and the accused's:

(1)    family ties,;

(2)    employment,;

(3)    financial resources,;

(4)    character and mental condition,;

(5)    the length of his residence in the community,;

(6)    his record of convictions,; and

(7)    his record of flight to avoid prosecution or failure to appear at other court proceedings.

(B)    The court shall consider:

(1)    the accused's criminal record, if any. The court shall consider, if available,;

(2)    all incident reports generated as a result of the offense charged., if available; and

(3)    whether the accused is an illegal alien in violation of the Federal Immigration and Nationality Act or another federal law relating to aliens illegally present in the United States and poses a substantial flight risk due to this status."

SECTION    16.    All requirements of this act concerning immigration or the classification of immigration status must be construed in conformity with federal immigration law.

SECTION    17.    If any section, subsection, item, subitem, paragraph, subparagraph, sentence, clause, phrase, or word of this act is for any reason held to be unconstitutional or invalid, such holding shall not affect the constitutionality or validity of the remaining portions of this act, the General Assembly hereby declaring that it would have passed this act, and each and every section, subsection, item, subitem, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsection, items, subitems, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.

SECTION    18.    This act takes effect upon approval by the Governor.    /

Renumber sections to conform.

Amend title to conform.

JAMES H. HARRISON for Committee.

EXPLANATION OF IMPACT:

State Budget and Control Board - Statewide

Section 2 of the bill requires public employers and those who contract with public agencies to participate in a federal work authorization program for employment verification. Currently, employers may participate in this program without charge. However, if the number of employers using the system continues to grow, there is a potential that a charge would be required for participation. This could result in additional cost to state agencies along with costs for training employees.

In addition, state and local governmental entities may experience increased costs from government contractors as they increase costs for participating in the employee verification program. With increased costs to contractors, this may result in fewer contractors seeking business with the state and local governments thereby impacting the costs for services.

Department of Labor, Licensing and Regulation

The department reports that it would require 2.10 new FTEs for 0.10 Administrator, 1.00 Investigator, and 1.00 Administrative Specialist at an annual cost to the general fund of $118,080 for salary, fringe and other operating expenses. There would also be a cost to the general fund of $15,000 for translation services for interviews and document analysis. It is assumed this would impact general fund expenditures since there is no reference in the bill to the collection of fees in return for registration.

Employment Security Commission

The commission reports there are approximately 100,000 employers statewide. Enactment of this bill would require two separate mailings at a total cost of $89,188. This cost includes $3,020 in mailing supplies (i.e., paper and envelopes), $6,600 in contractual services to fold and stuff mailings and address envelopes, $1,568 in salaries and benefits to print the required notices, and $78,000 in postage for 200,000 mailings. It is assumed additional general funds would be required to fulfill the requirements of the bill.

Administrative Law Court

The court would be responsible for hearing all contested cases in accordance with the provisions of Chapter 23 of Title 1 of the South Carolina Code of Laws. Because there is no historical information on the number of cases this bill may produce, the court cannot determine if it would be able to absorb these costs or if additional funding would be needed.

State Law Enforcement Division

Based on a review of this bill and pending the level of enforcement, the number of agents required to implement the provisions of this bill cannot be determined at this time. The annual cost to the General Fund of the State for each agent is approximately $65,774 with a one-time cost of $42,900 for vehicle and equipment.

Other Agencies

The Departments of Revenue and Corrections as well as the Judicial Department each indicate enactment will have no impact on expenditures or a minimal impact that can be absorbed at the current level of funding.

LOCAL GOVERNMENT IMPACT:

Three local governments indicated enactment would have little or no impact on expenditures. One estimated the impact at $125,000 while another estimated costs might reach $500,000.

Approved By:

Don Addy

Office of State Budget

TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING CHAPTER 14 TO TITLE 8, RELATING TO ILLEGAL ALIENS AND PUBLIC EMPLOYMENT, SO AS TO ENACT THE "SOUTH CAROLINA ILLEGAL IMMIGRATION REFORM ACT", TO REQUIRE THAT EVERY PUBLIC EMPLOYER PARTICIPATE IN THE FEDERAL WORK AUTHORIZATION PROGRAM TO VERIFY ALL NEW EMPLOYEES, TO REQUIRE CONTRACTORS OR SUBCONTRACTORS WHO CONTRACT WITH PUBLIC EMPLOYERS FOR THE PHYSICAL PERFORMANCE OF SERVICES TO REGISTER AND PARTICIPATE IN THE FEDERAL WORK AUTHORIZATION PROGRAM, TO DEFINE TERMS, TO ESTABLISH DEADLINES TO COMPLY FOR PUBLIC EMPLOYERS, CONTRACTORS, AND SUBCONTRACTORS, TO REQUIRE THAT THE PROVISIONS OF THE CHAPTER ARE ENFORCEABLE WITHOUT REGARD TO RACE, RELIGION, GENDER, ETHNICITY, OR NATIONAL ORIGIN, AND TO AUTHORIZE THE DIRECTOR OF THE STATE BUDGET AND CONTROL BOARD TO PRESCRIBE FORMS AND PROMULGATE RULES NECESSARY TO ADMINISTER THE ACT AND PUBLISH THE RULES AND REGULATIONS ON THE BOARD'S WEBSITE; TO AMEND TITLE 8 BY ADDING CHAPTER 28, RELATING TO ENFORCEMENT OF FEDERAL IMMIGRATION AND CUSTOMS LAWS, SO AS TO AUTHORIZE THE CHIEF OF THE SOUTH CAROLINA LAW ENFORCEMENT DIVISION TO NEGOTIATE THE TERMS OF A MEMORANDUM OF UNDERSTANDING BETWEEN THE STATE AND THE FEDERAL GOVERNMENT CONCERNING THE ENFORCEMENT OF FEDERAL IMMIGRATION AND CUSTOMS LAWS, DETENTION AND REMOVALS, AND INVESTIGATIONS IN THE STATE, TO AUTHORIZE THE CHIEF OF THE SOUTH CAROLINA LAW ENFORCEMENT DIVISION TO DESIGNATE APPROPRIATE LAW ENFORCEMENT OFFICERS TO BE TRAINED PURSUANT TO THE MEMORANDUM OF UNDERSTANDING, TO STIPULATE THAT NO TRAINING SHALL TAKE PLACE UNTIL FUNDING IS SECURED, TO PERMIT THE DIRECTOR OF THE DEPARTMENT OF CORRECTIONS, ANY COUNTY SHERIFF, OR THE GOVERNING BODY OF ANY MUNICIPALITY THAT MAINTAINS A POLICE FORCE TO ENTER INTO THE MEMORANDUM AS A PARTY AND PROVIDE OFFICERS TO BE TRAINED, AND TO PROVIDE THAT AN OFFICER CERTIFIED AS TRAINED IN ACCORDANCE WITH THE MEMORANDUM IS AUTHORIZED TO ENFORCE FEDERAL IMMIGRATION AND CUSTOMS LAWS WHILE PERFORMING WITHIN THE SCOPE OF HIS OR HER DUTIES; TO AMEND TITLE 8, BY ADDING CHAPTER 29, RELATING TO VERIFICATION OF A PERSON'S LAWFUL PRESENCE IN THE UNITED STATES, SO AS TO REQUIRE THAT EVERY AGENCY OR POLITICAL SUBDIVISION OF THIS STATE VERIFY THE LAWFUL PRESENCE IN THE UNITED STATES OF ANY NATURAL PERSON EIGHTEEN OR OLDER WHO HAS APPLIED FOR STATE OR LOCAL PUBLIC BENEFITS, AS DEFINED BY FEDERAL LAW, THAT ARE ADMINISTERED BY AN AGENCY OR POLITICAL SUBDIVISION OF THIS STATE, TO REQUIRE ENFORCEMENT OF THIS PROVISION WITHOUT REGARD TO RACE, RELIGION, GENDER, ETHNICITY, OR NATIONAL ORIGIN, TO PROVIDE EXCEPTIONS FOR VERIFICATION OF A PERSON'S LAWFUL PRESENCE IN THE UNITED STATES, TO PROVIDE A PROCEDURE FOR A PERSON TO VERIFY HIS OR HER LAWFUL PRESENCE IN THE UNITED STATES, INCLUDING EXECUTING AN AFFIDAVIT THAT THE PERSON IS A UNITED STATES CITIZEN OR LEGAL PERMANENT RESIDENT OR A QUALIFIED ALIEN OR NONIMMIGRANT UNDER THE IMMIGRATION AND NATURALIZATION ACT, TO REQUIRE THAT ELIGIBILITY FOR BENEFITS SHALL BE MADE THROUGH THE FEDERAL SYSTEMATIC ALIEN VERIFICATION OF ENTITLEMENT PROGRAM MAINTAINED BY THE DEPARTMENT OF HOMELAND SECURITY, TO MANDATE THAT A PERSON WHO KNOWINGLY AND WILLFULLY MAKES A FALSE, FICTITIOUS, OR FRAUDULENT STATEMENT OR REPRESENTATION IN AN AFFIDAVIT EXECUTED PURSUANT TO THIS SECTION, OR WHO AIDS OR ABETS A PERSON IN KNOWINGLY AND WILLFULLY MAKING A FALSE, FICTITIOUS, OR FRAUDULENT STATEMENT OR REPRESENTATION IN AN AFFIDAVIT SHALL BE GUILTY OF A FELONY AND, UPON CONVICTION, SHALL BE FINED OR IMPRISONED NOT MORE THAN FIVE YEARS, OR BOTH, AND MUST DISGORGE ANY BENEFIT RECEIVED AND MAKE RESTITUTION TO THE AGENCY WHO ADMINISTERED THE BENEFIT OR ENTITLEMENT, TO REQUIRE THAT IF THE AFFIDAVIT CONSTITUTES A FALSE CLAIM OF UNITED STATES CITIZENSHIP, THE STATE SHALL FILE A COMPLAINT WITH THE UNITED STATES ATTORNEY'S OFFICE, TO PROVIDE THAT AGENCIES OR POLITICAL SUBDIVISIONS MAY ADOPT VARIATIONS OF THE REQUIREMENTS OF THIS SECTION TO REDUCE DELAY AND IMPROVE EFFICIENCY, TO PROVIDE THAT IT SHALL BE UNLAWFUL FOR ANY STATE AGENCY OR POLITICAL SUBDIVISION TO PROVIDE BENEFITS IN VIOLATION OF THIS SECTION, AND TO REQUIRE THAT ALL ERRORS AND DELAYS EXPERIENCED BY AGENCIES OR POLITICAL SUBDIVISIONS IN THE SYSTEMATIC ALIEN VERIFICATION OF ENTITLEMENT PROGRAM BE REPORTED TO THE DEPARTMENT OF HOMELAND SECURITY; TO ADD SECTION 12-6-1175, SO AS TO PROHIBIT ANY WAGES OR REMUNERATION FOR LABOR SERVICES PAID TO AN INDIVIDUAL OF SIX HUNDRED DOLLARS OR MORE PER YEAR FROM BEING CLAIMED AS A DEDUCTIBLE BUSINESS EXPENSE FOR STATE INCOME TAX PURPOSES UNLESS THE INDIVIDUAL IS AN AUTHORIZED EMPLOYEE, TO PROVIDE FOR EXEMPTIONS, TO REQUIRE THE DIRECTOR OF THE DEPARTMENT OF REVENUE TO PRESCRIBE FORMS AND PROMULGATE REGULATIONS TO EFFECTUATE THIS SECTION, AND TO REQUIRE THE EXECUTIVE DIRECTOR OF THE SOUTH CAROLINA EMPLOYMENT SECURITIES COMMISSION TO SEND WRITTEN NOTICE OF THIS PROVISION TO ALL EMPLOYERS IN THIS STATE; TO ADD SECTION 12-8-595, SO AS TO REQUIRE TAX WITHHOLDING AGENTS FOR EMPLOYERS TO WITHHOLD STATE INCOME TAX AT THE RATE OF SIX PERCENT OF THE AMOUNT OF COMPENSATION PAID TO AN INDIVIDUAL IF THE INDIVIDUAL HAS FAILED TO PROVIDE A TAXPAYER IDENTIFICATION NUMBER, FAILED TO PROVIDE A CORRECT TAXPAYER IDENTIFICATION NUMBER, OR PROVIDED A TAXPAYER IDENTIFICATION NUMBER ISSUED FOR NONRESIDENTS, TO PROVIDE THAT WITHHOLDING AGENTS WHO FAIL TO FOLLOW THE PROVISIONS OF THIS SECTION ARE LIABLE FOR THE TAX, TO PROVIDE EXCEPTIONS FROM LIABILITY FOR WITHHOLDING AGENTS IF THE EMPLOYEE PROVIDES A FACIALLY CORRECT TAXPAYER IDENTIFICATION NUMBER THAT THE WITHHOLDING AGENT DOES NOT KNOW WAS FALSE OR INCORRECT, AND TO REQUIRE THE EXECUTIVE DIRECTOR OF THE SOUTH CAROLINA EMPLOYMENT SECURITY COMMISSION TO SEND NOTICE OF THIS PROVISION TO ALL EMPLOYERS; TO ADD SECTION 16-9-460, TO PROVIDE THAT IT IS A FELONY FOR ANY PERSON TO TRANSPORT, MOVE, OR ATTEMPT TO TRANSPORT WITHIN THE STATE ANY PERSON KNOWINGLY OR IN RECKLESS DISREGARD TO THE FACT THAT THE PERSON HAS COME TO, ENTERED INTO, OR REMAINED IN THE UNITED STATES IN VIOLATION OF THE LAW, IN FURTHERANCE OF THE PERSON'S ILLEGAL PRESENCE IN THE UNITED STATES, OR TO CONCEAL, HARBOR, OR SHELTER FROM DETECTION A PERSON ILLEGALLY IN THE UNITED STATES IN FURTHERANCE OF THE PERSON'S ILLEGAL PRESENCE IN THE UNITED STATES, TO PROVIDE FOR PENALTIES IF A PERSON IS CONVICTED, AND TO PROHIBIT ANY PERSON CONVICTED FROM OBTAINING A PROFESSIONAL LICENSE IN SOUTH CAROLINA; TO ADD SECTION 16-9-460, SO AS SO MAKE IT A FELONY TO TRANSPORT, MOVE, OR ATTEMPT TO TRANSPORT WITHIN THE STATE ANY PERSON KNOWINGLY OR IN RECKLESS DISREGARD FOR THE FACT THAT THE PERSON IS NOT LEGALLY PRESENT IN THE UNITED STATES, OR TO CONCEAL, HARBOR, OR SHELTER FROM DETECTION ANY PERSON IN ANY PLACE KNOWINGLY OR IN RECKLESS DISREGARD OF THE FACT THAT THE PERSON IS NOT LEGALLY PRESENT IN THE UNITED STATES, AND TO PROVIDE PENALTIES FOR A CONVICTION FOR SUCH CRIME; TO ADD SECTION 23-3-1100, SO AS TO REQUIRE THAT ALL JAILS OF THIS STATE OR ITS COUNTIES OR MUNICIPALITIES MUST MAKE A REASONABLE EFFORT TO DETERMINE WHETHER ANY PERSON CHARGED WITH A FELONY OR DRIVING UNDER THE INFLUENCE IS LAWFULLY PRESENT IN THE UNITED STATES, TO MAKE SUCH VERIFICATION WITHIN 72 HOURS OF CONFINEMENT, TO NOTIFY THE DEPARTMENT OF HOMELAND SECURITY IF A PERSON IS NOT LAWFULLY IN THE UNITED STATES, AND TO REQUIRE THE STATE LAW ENFORCEMENT DIVISION TO PROMULGATE REGULATIONS TO COMPLY WITH THE PROVISIONS OF THIS SECTION; TO ADD SECTION 39-5-37, SO AS TO PROVIDE A CIVIL CAUSE OF ACTION TO ANY PERSON WHO IS TERMINATED BY AN EMPLOYER IF THE PURPOSE FOR DISCHARGE WAS TO REPLACE THE WORKER WITH ANOTHER PERSON WHO THE EMPLOYER KNEW OR SHOULD HAVE KNOWN WAS NOT LAWFULLY ADMITTED TO THE UNITED STATES, OR NOT AUTHORIZED TO WORK IN THE UNITED STATES, AND TO PROVIDE AN EXEMPTION FOR ANY EMPLOYER WHO CONFIRMS A WORKER'S STATUS THROUGH THE FEDERAL WORK AUTHORIZATION PROGRAM; AND TO AMEND TITLE 40, BY ADDING CHAPTER 83, RELATING TO REGISTRATION OF IMMIGRATION ASSISTANCE SERVICES, SO AS TO ADD THE "REGISTRATION OF IMMIGRATION SERVICE ACT" TO REQUIRE ALL IMMIGRATION ASSISTANCE SERVICES TO OBTAIN A BUSINESS LICENSE FROM THE SOUTH CAROLINA DEPARTMENT OF LABOR, LICENSING AND REGULATION, TO PROVIDE DEFINITIONS, TO LIST THE SERVICES THAT IMMIGRATION ASSISTANCE SERVICES MAY PROVIDE, TO PROHIBIT IMMIGRATION SERVICES FROM ACCEPTING PAYMENT IN EXCHANGE FOR PROVIDING LEGAL ADVICE, FOR REFUSING TO RETURN DOCUMENTS SUPPLIED BY, PREPARED FOR, OR PAID FOR BY A CUSTOMER, FOR REPRESENTING OR ADVERTISING, IN CONNECTION WITH PROVIDING IMMIGRATION ASSISTANCE SERVICES, CERTAIN TITLES TO INCLUDE 'NOTARY PUBLIC', OR 'IMMIGRATION CONSULTANT', OR FOR PROVIDING LEGAL ADVICE, OR MAKING ANY MISREPRESENTATION OR FALSE STATEMENT TO INFLUENCE, PERSUADE, OR INDUCE PATRONAGE, TO PROVIDE FOR CIVIL AND CRIMINAL PENALTIES FOR VIOLATIONS, AND TO REQUIRE THE DIRECTOR OF THE DEPARTMENT OF LABOR, LICENSING AND REGULATION TO PROMULGATE RULES TO EFFECTUATE THIS SUBSECTION.

Be it enacted by the General Assembly of the State of South Carolina:

SECTION    1.    This act may be cited as the "South Carolina Illegal Immigration Reform Act".

SECTION    2.    Section 1-31-40(A) of the 1976 Code is amended to read:

"(A)    The commission shall:

(1)    provide the minority community consisting of African Americans, Native American Indians, Hispanics/Latinos, Asians, and others with a single point of contact for statistical and technical assistance in the areas of research and planning for a greater economic future;

(2)    work with minority officials on the state, county, and local levels of government in disseminating statistical data and its impact on their constituencies;

(3)    provide for publication of a statewide statistical abstract on minority affairs;

(4)    provide statistical analyses for members of the General Assembly on the state of minority communities as the State experiences economic growth and changes;

(5)    provide the minority community with assistance and information on Voting Rights Act submissions in the State, as well as other related areas of concern to the minority community;

(6)    determine, approve, and acknowledge by certification state recognition for Native American Indian entities; however, notwithstanding their state certification, the tribes have no power or authority to take any action which would establish, advance, or promote any form of gambling in this State;

(7)    establish advisory committees representative of minority groups, as the commission considers appropriate to advise the commission;

(8)    act as liaison with the business community to provide programs and opportunities to fulfill its duties under this chapter;

(9)    seek federal and other funding on behalf of the State of South Carolina for the express purpose of implementing various programs and services for African Americans, Native American Indians, Hispanics/Latinos, Asians, and other minority groups;

(10)    promulgate regulations as may be necessary to carry out the provisions of this article including, but not limited to, regulations regarding State Recognition of Native American Indian entities in the State of South Carolina; and

(11)    establish and maintain a twenty-four hour toll free telephone number and electronic website in accordance with Section 8-30-10; and

(11)(12)    perform other duties necessary to implement programs."

SECTION    3.    Title 8 of the 1976 Code is amended by adding:

Section 8-14-10.    (A)    As used in this article, the term:

(1)    'Contractor' means any person having a contract with a public employer except a political subdivision, where the total value of the contract to be performed in a twelve-month period exceeds twenty-five thousand dollars, or, if the public employer is a political subdivision, where the total value of the contract to be performed in a twelve-month period exceeds fifteen thousand dollars.

(2)    'Director' means the Executive Director of the State Budget and Control Board.

(3)    'End product' means movable personal property described in the solicitation and in final form and ready for the use intended including, without limitation, commodities or equipment.

(4)    'Federal work authorization program' means the Basic Pilot Program or one of the electronic verification of work authorization programs operated by the United States Department of Homeland Security, or an equivalent federal work authorization program operated by the United States Department of Homeland Security to verify information of newly hired employees, pursuant to the Immigration Reform and Control Act of 1986 (IRCA), Public Law 99-603, or an electronic verification of work authorization program operated by a private entity and approved by the Attorney General.

(5)    'Public employer' means every department, agency, or instrumentality of the State or a political subdivision of the State.

(6)    'Service contract' means a contract that involves the physical performance of manual labor, if the total cost of such labor exceeds thirty percent of the total cost of all labor or exceeds five percent of the total contract price. Service contract excludes: (a) a contract with a public employer, other than a political subdivision, with a total value of less than twenty-five thousand dollars, or a contract with a political subdivision with a total value of less than fifteen thousand dollars; (b) a contract primarily for the acquisition of an end product; and (c) a contract that is predominantly for the performance of professional or consultant services.

(7)    'Subcontractor' means any person having either: (a) a services contract with a contractor; or (b) a contract with a sub-subcontractor.

(8)    'Sub-subcontractor' means any person having a services contract with a subcontractor.

Section 8-14-20.    (A)    On or after July 1, 2008, every public employer shall register and participate in the federal work authorization program to verify information of all new employees.

(B)    A public employer may not enter into a services contract with a contractor for the physical performance of services within this State unless the contractor:

(1)    agrees to both: (a) register and participate in the federal work authorization program to verify information of all new employees; and (b) require agreement from its subcontractors, and through the subcontractors, the sub-subcontractors, to register and participate in the federal verification of information of all new employees; or

(2)    agrees to employ only workers who: (a) possess a valid South Carolina driver's license or identification card issued by the South Carolina Department of Motor Vehicles; (b) are eligible to obtain South Carolina driver's license or identification card in that they meet the requirements set forth in S.C. Code Ann. Section 56-1-40 through 56-1-90; or (c) possess a valid driver's license or identification card from another state where the license requirements are as strict or stricter than those in South Carolina, as determined by the Attorney General.

(C)    A public employer and contractor must not divide work or duties that would otherwise constitute a single contract into separate contracts for the purpose of avoiding the requirements of subsection (B).

(D)    Subsection (B) applies as follows:

(1)    on and after July 1, 2008, with respect to public employers, contractors, or subcontractors of five hundred or more employees;

(2)    on and after July 1, 2009, with respect to public employers, contractors, or subcontractors of one hundred or more employees but less than five hundred employees; and

(3)    on and after July 1, 2010, with respect to all other public employers, contractors, or subcontractors.

Section 8-14-30.    The provisions of this article are enforceable without regard to race, religion, gender, ethnicity, or national origin. Section 11-35-4210 provides the exclusive remedy for violations of this article for any contract governed by Title 11, Chapter 35. A pre-award protest process appearing in a procurement ordinance adopted by a political subdivision pursuant to Section 11-35-50 or Section 11-35-70 provides the exclusive remedy for violations of this article for any contract governed by that procurement ordinance.

Section 8-14-40.    The director may prescribe all forms and promulgate regulations deemed necessary for the application of this article to contracts or agreements and may publish these regulations on the Budget and Control Board's website in accordance with the provisions of Chapter 23 of Title 1 of the South Carolina Code of Laws.

Section 8-14-50.    A public employer complies with this article if it obtains a written statement from the contractor certifying that the contractor will comply with the requirements of this article and agrees to provide to the public employer any documentation required to establish either: (a) the applicability of this article to the contractor, subcontractor, and sub-subcontractor; or (b) the compliance with this article by the contractor and any subcontractor or sub-subcontractor. A public employer need not audit or independently verify a contractor's compliance with this article.

Section 8-14-60.    A contractor who in good faith complies with the requirements of this article may not be sanctioned or subjected to any civil or administrative action for employing any individual not authorized for employment in the United States."

SECTION    4.    Title 8 of the 1976 Code is amended by adding:

Section 8-28-10.    (A)    The Chief of the South Carolina Law Enforcement Division is authorized and directed to negotiate the terms of a memorandum of understanding between the State of South Carolina and the United States Department of Justice or Department of Homeland Security concerning the enforcement of federal immigration and custom laws, detention and removals, and investigations in the State of South Carolina to enhance cooperation and communication between federal and state law enforcement agencies in the area of immigration enforcement.

(B)    The memorandum of understanding negotiated pursuant to subsection (A) of this section shall be signed on behalf of the State by the Chief of the South Carolina Law Enforcement Division and the Governor, or as otherwise required by the appropriate federal agency.

(C)    The Chief of the South Carolina Law Enforcement Division shall designate appropriate law enforcement officers to be trained pursuant to the memorandum of understanding provided for in subsections (A) and (B) of this section. The training may be funded pursuant to the federal Homeland Security Appropriations Act of 2006, or any other source of funding. No training shall be scheduled or take place until full funding, to include funding to hire additional law enforcement officers necessary to implement the requirements of this subsection, is secured.

(D)    The Director of the South Carolina Department of Corrections, the sheriff of any county, and the governing body of any municipality that maintains a paid police department may enter into the memorandum of understanding between the State of South Carolina and the United States Department of Justice or Department of Homeland Security as a party, and, subject to the availability of funds provided for in subsection (C) of this section, provide corrections officers and local law enforcement officers for training in accordance with the memorandum of understanding.

(E)    A law enforcement officer certified as trained in accordance with the memorandum of understanding as provided in this section is authorized to enforce federal immigration and customs laws while performing within the scope of his or her authorized duties."

SECTION    5.    Title 8 of the 1976 Code is amended by adding:

Section 8-29-10.    (A)    Except as provided in subsection (C) of this section or where exempted by federal law, on or after July 1, 2008, every agency or political subdivision of this State shall verify the lawful presence in the United States of any natural person eighteen years of age or older who has applied for state or local public benefits, as defined in 8 U.S.C. Section 1621, or for federal public benefits, as defined in 8 U.S.C. Section 1611, that are administered by an agency or a political subdivision of this State.

(B)    This section shall be enforced without regard to race, religion, gender, ethnicity, or national origin.

(C)    Verification of lawful presence under this section shall not be required:

(1)    for any purpose for which lawful presence in the United States is not required by law, ordinance, or regulation;

(2)    for assistance for health care items and services that are necessary for the treatment of an emergency medical condition, as defined in 42 U.S.C. Section 1396b(v)(3), of the person involved and are not related to an organ transplant procedure;

(3)    for short-term, noncash, in-kind emergency disaster relief;

(4)    for public health assistance for immunizations with respect to immunizable diseases and for testing and treatment of symptoms of communicable diseases whether or not such symptoms are caused by a communicable disease;

(5)    for programs, services, or assistance such as soup kitchens, crisis counseling and intervention, and short-term shelter specified by the United States Attorney General, in the United States Attorney General's sole and unreviewable discretion after consultation with appropriate federal agencies and departments, which:

(a)    deliver in-kind services at the community level, including through public or private nonprofit agencies;

(b)    do not condition the provision of assistance, the amount of assistance provided, or the cost of assistance provided on the individual recipient's income or resources; and

(c)    are necessary for the protection of life or safety;

(6)    for prenatal care;

(7)    for postsecondary education, whereby the Department of Education shall set forth, or cause to be set forth, policies regarding postsecondary benefits that comply with all federal law including, but not limited to, public benefits as described in 8 U.S.C. Section 1611, 1621, or 1623; or

(8)    for any benefits, programs, services or any other assistance provided to victims of domestic violence, irrespective of their immigration status, under the Violence Against Women Act of 2000, Public Law Number 106-386, or the Illegal Immigration Reform and Immigrant Responsibility Act, Public Law Number 104-208.

(D)    Verification of lawful presence in the United States by the agency or political subdivision required to make such verification shall occur as follows:

(1)    the applicant must execute an affidavit that he or she is a United States citizen or legal permanent resident eighteen years of age or older; or

(2)    the applicant must execute an affidavit that he or she is a qualified alien or nonimmigrant under the Federal Immigration and Nationality Act, Public Law 82-414, eighteen years of age or older, and lawfully present in the United States.

(E)    For any applicant who has executed an affidavit that he or she is an alien lawfully present in the United States, eligibility for benefits shall be made through the Systematic Alien Verification of Entitlement (SAVE) program operated by the United States Department of Homeland Security or a successor program designated by the United States Department of Homeland Security. Until such eligibility verification is made, the affidavit shall be presumed to be proof of lawful presence for the purposes of this section.

(F)    Any person who knowingly and willfully makes a false, fictitious, or fraudulent statement or representation in an affidavit executed pursuant to this subsection, or who aids or abets a person in knowingly and willfully making a false, fictitious, or fraudulent statement or representation in an affidavit executed pursuant to this section, or who solicits or conspires to make a false, fictitious, or fraudulent statement or representation in an affidavit executed pursuant to this section shall be guilty of a felony and, upon conviction, must be fined in the discretion of the court or imprisoned not more than five years, or both. In addition, a person convicted pursuant to this section must disgorge any benefit received or make restitution, or both, to the agency or political subdivision of this State that administered the benefit or entitlement program. It shall constitute a separate violation of this section each time a person receives a public benefit based on such a statement or representation. A conviction and fine charged pursuant to this section shall not preempt or preclude additional appropriate civil or criminal charges or penalties. A person who suffers any ascertainable loss of money or property, real or personal, as a result of the actions of anyone convicted of a violation of this subsection may bring an action, individually, or in a representative capacity, to recover actual damages. If the court finds that a violation has been established, the court shall award three times the actual damages sustained and may provide such other relief as it considers necessary and proper. Upon a finding by the court of a violation, the court shall award to the person bringing such action under this section reasonable attorney's fees and costs.

(G)    Persons convicted of a violation of this subsection are jointly and severably liable for any loss suffered by a person or an agency or political subdivision of the State.

(H)    If an affidavit constitutes a false claim of U.S. citizenship under 18 U.S.C. Section 911, a complaint shall be filed by the agency or political subdivision with the United States Attorney for the District of South Carolina.

(I)    It shall be unlawful for any agency or a political subdivision of this State to provide any state, local, or federal benefit, as defined in 8 U.S.C. Section 1621 or 8 U.S.C. Section 1611, in violation of this section. Each state agency or department that administers any program of state or local public benefits shall provide an annual report with respect to its compliance with this section.

(J)    All errors and significant delays by SAVE or its successor program shall be reported to the United States Department of Homeland Security and to the Secretary of State which shall monitor SAVE and its verification application errors and significant delays and report yearly on these errors and significant delays to ensure that SAVE is not wrongfully denying benefits to legal residents of South Carolina."

SECTION    6.    Title 8 of the 1976 Code is amended by adding:

Section 8-30-10.    (A)    The executive director of the State Commission for Minority Affairs, or a designee, shall establish and maintain a twenty-four hour toll free telephone number and electronic website to receive, record, collect, and report allegations of violations of any laws or regulations by any non-United States citizen or immigrant, and allegations of violations of any laws or regulations against any non-United States citizen or immigrant. Such violations shall include, but are not limited to, federal work authorization or Basic Pilot Program violations, violations of Chapter 83 of Title 40 of this code relating to immigration assistance services, or any regulations enacted governing the operation of immigration assistance services, false or fraudulent statements made or documents filed in relation to an immigration matter, as defined by Section 40-83-20, violation of human trafficking laws, as defined in Section 16-3-930, landlord tenant law violations, or violations of any law pertaining to the provision or receipt of public assistance benefits or public services.

(B)    The executive director, or a designee, shall establish and maintain a centralized tracking database consisting of all information received through the twenty-four hour toll free telephone number and electronic website, and shall report all alleged violations to the appropriate law enforcement, administrative, executive, or regulatory agency or political subdivision having law enforcement or regulatory control over the subject matter.

Section 8-30-20.    The executive director is authorized to hire personnel necessary to carry out the duties prescribed in Section 8-30-10. The General Assembly shall provide for the funds in the annual appropriations act."

SECTION    7.    Chapter 6, Title 12 of the 1976 Code is amended by adding:

"Section 12-6-1175.    (A)    As used in this section, the term:

(1)    'Authorized employee' means any individual authorized for employment in the United States as defined in the Immigration Reform and Control Act of 1986.

(2)    'Labor services' means the physical performance of services in this State.

(B)    On or after January 1, 2009, no wages or remuneration for labor services to an individual of six hundred dollars or more per annum may be claimed and allowed as a deductible business expense for state income tax purposes by a taxpayer unless such individual is an authorized employee. The provisions of this subsection shall apply whether or not an Internal Revenue Service Form 1099 is issued in conjunction with the wages or remuneration.

(C)    This section shall not apply to any business domiciled in this State that is exempt from compliance with federal employment verification procedures under federal law that makes the employment of unauthorized persons unlawful.

(D)    This section shall not apply to any individual hired by the taxpayer prior to January 1, 2009.

(E)    This section shall not apply to any taxpayer where the individual being paid is not directly compensated or employed by said taxpayer.

(F)    This section shall not apply to wages or remuneration paid for labor services to any individual who: (1) holds and presents to the taxpayer a valid license or identification card issued by the South Carolina Department of Motor Vehicles; (2) is eligible to obtain a South Carolina driver's license or identification card in that he meets the requirements set forth in S.C. Code Ann. Section 56-1-40 through 56-1-90; or (3) possesses a valid driver's license or identification card from another state where the license requirements are as strict or stricter than those in South Carolina, as determined by the Attorney General.

(G)    No taxpayer shall be held liable for failing to comply with the provisions of this section if, based on a reasonable investigation of the individual, the taxpayer did not know or should not have known that the individual was not an authorized employee. For purposes of this subsection, a taxpayer shall be deemed to have conducted a reasonable investigation if the individual met the requirements of subsection (F), and the information provided by the individual to the taxpayer was facially correct.

(H)    The Director of the South Carolina Department of Revenue is authorized to prescribe forms and promulgate regulations deemed necessary in order to administer and effectuate this section in accordance with the provisions of Chapter 23 of Title 1 of the South Carolina Code of Laws.

(I)    The Executive Director of the South Carolina Employment Security Commission shall send written notice of this section to all South Carolina employers no later than July 1, 2008."

SECTION    8.    Chapter 8, Title 12 of the 1976 Code is amended by adding:

"Section 12-8-595.    When withholding in accordance with Form 1099:

(A)    A withholding agent as defined in Section 12-8-10, shall be required to withhold state income tax at the rate of six percent of the amount of compensation paid to an individual that compensation is reported on Form 1099 and with respect to which the individual has:

(1)    failed to provide a taxpayer identification number;

(2)    failed to provide a correct taxpayer identification number; or

(3)    provided an Internal Revenue Service issued taxpayer identification number issued for nonresident aliens.

(B)    Any withholding agent who fails to comply with the withholding requirements of this subsection shall be liable for the taxes required to have been withheld unless such withholding agent is exempt from federal withholding with respect to such individual pursuant to a properly filed Internal Revenue Service Form 8233 and has provided a copy of such form to the commissioner.

(C)    A withholding agent must not be held liable for failing to withhold state income tax at a rate of six percent of the amount of compensation paid to an individual who provides a false or incorrect taxpayer identification number if the number provided is facially correct and the withholding agent does not know or should not have known based on reasonable investigation that the number provided is false or incorrect.

(D)    The Executive Director of the South Carolina Employment Security Commission shall send written notice of this section to all South Carolina employers no later than July 1, 2008."

SECTION    9.    Article 5, Chapter 9, Title 16 of the 1976 Code is amended by adding:

"Section 16-9-460.    (A)    It shall be a felony for any person to transport, move, or attempt to transport within the State, or to solicit or conspire to transport or move within the State, any person knowingly or in reckless disregard of the fact that the person has come to, entered, or remained in the U.S. in violation of law, in furtherance of the person's illegal presence in the United States.

(B)    It shall be a felony for any person to conceal, harbor, or shelter from detection, or to solicit or conspire to conceal, harbor, or shelter from detection any person in any place, including any building or means of transportation, knowingly or in reckless disregard of the fact that the person has come to, entered, or remained in the U.S. in violation of law, in furtherance of the person's illegal presence in the United States.

(C)    Any person who violates the provisions of subsection (A) or (B) of this section is guilty of a felony and, upon conviction, shall be punished by a fine not to exceed five thousand dollars or by imprisonment for a term not to exceed five years, or both.

(D)    A person who is convicted of, pleads guilty to, or enters into a plea of nolo contendre to a violation of this section must not be permitted to seek or obtain any professional license offered by the State or any agency or political subdivision of the State."

SECTION    10.    Chapter 13, Title 16 of the 1976 Code is amended by adding:

"Section 16-13-525.    (A)    In addition to the penalties provided for in this chapter, a person who is convicted of, pleads guilty to, or enters into a plea of nolo contendre to financial identity fraud or identity fraud involving the false, fictitious, or fraudulent creation or use of documents that enable a person who is not authorized to live or work in the United States to live or work in the United States, or to receive benefits administered by an agency or political subdivision of this State, must disgorge any benefit received or make restitution to the agency or political subdivision that administered the benefit or entitlement program, or both. A criminal charge pursuant to this chapter shall not preempt or preclude additional appropriate civil or criminal charges or penalties.

(B)    A person who suffers any ascertainable loss of money or property, real or personal, as a result of a conviction or plea to a violation of financial identity fraud or identity fraud involving a matter described in subsection (A), may bring an action individually, or in a representative capacity, to recover actual damages against any person convicted of the violation. If a court finds that a violation has been established, the court shall award three times the actual damages sustained and may provide such other relief as it considers necessary or proper. Upon the finding by the court of a violation, the court shall award to the person bringing this action pursuant to this section reasonable attorney's fees and costs.

(C)    A person convicted of a violation of this subsection is jointly and severably liable for a loss suffered by a person or an agency or political subdivision of the State."

SECTION    11.    Chapter 3, Title 23 of the 1976 Code is amended by adding:

Section 23-3-1100.    (A)    When any person charged with any criminal offense and is confined for any period in a jail of the State, county, or municipality, or a jail operated by a regional jail authority, a reasonable effort shall be made to determine whether the person so confined is lawfully present in the United States.

(B)    If the prisoner is a foreign national, the keeper of the jail or other officer must make a reasonable effort to verify that the prisoner has been lawfully admitted to the United States and if lawfully admitted, that such lawful status has not expired. If verification of lawful status cannot be made from documents in the possession of the prisoner, verification must be made within seventy-two hours through a query to the Law Enforcement Support Center (LESC) of the United States Department of Homeland Security or other office or agency designated for that purpose by the United States Department of Homeland Security. If the prisoner is determined not to be lawfully admitted to the United States, the keeper of the jail or other officer shall notify the United States Department of Homeland Security.

(C)    Upon notification to the United States Department of Homeland Security pursuant to subsection (B), the keeper of the jail must account for daily expenses incurred for the housing, maintenance, and care of the prisoner who is unlawfully admitted to the United States and forward an invoice to the Department of Homeland Security for these expenses.

(D)    Nothing in this section shall be construed to deny a person bond or from being released from confinement when such person is otherwise eligible for release.

(E)    The State Law Enforcement Division shall promulgate regulations to comply with the provisions of this section in accordance with the provisions of Chapter 23 of Title 1 of the South Carolina Code of Laws."

SECTION    12.    Article 1, Chapter 5, Title 39 of the 1976 Code is amended by adding:

"Section 39-5-25.    (A)    The discharge of any United States citizen or other person authorized to work in the United States by an employer in this State is an unfair trade practice as defined in this chapter if the purpose for discharging the person is to replace that worker with another person who the employer knew or should have known was not lawfully admitted to the United States, or not authorized to work in the United States. The discharged employee shall have a private cause of action for the unfair trade practice.

(B)    An employer must not be held liable under this subsection for employing a person not authorized to work in the United States if, prior to or at the time the person was hired, the employer was complying with the provisions of Sections 8-14-10 through 8-14-60."

SECTION    13.    Title 40 of the 1976 Code is amended by adding:

Section 40-83-10.    This act shall be cited as the 'Registration of Immigration Assistance Service Act'.

Section 40-83-20.    As used in this chapter, the term:

(A)    'Compensation' means money, property, services, promise of payment, or anything else of value.

(B)    'Director' means the Director of the South Carolina Department of Labor, Licensing and Regulation, or his designee.

(C)    'Employed by' means that a person is on the payroll of the employer and the employer deducts from the employee's paycheck social security and withholding taxes or that a person receives compensation from the employer on a commission basis or as an independent contractor.

(D)    'Immigration assistance service' means information or action provided or offered to customers or prospective customers related to immigration matters, excluding legal advice, recommending a specific course of legal action or providing other assistance that requires legal analysis, legal judgment, or interpretation of the law.

(E)    'Immigration matter' means a proceeding, filing, or action affecting the nonimmigrant, immigrant, or citizenship status of any person that arises under:

(1)    immigration and naturalization law, executive order, or presidential proclamation of the United States or any foreign country; or

(2)    action of the United States Department of Labor, the United States Department of State, the United States Department of Homeland Security, or the United States Department of Justice.

Section 43-83-30.    (A)    A person who provides or offers to provide immigration assistance service shall perform only the following services:

(1)    completing a government agency form, requested by the customer and appropriate to the customer's needs only if the completion of that form does not involve a legal judgment for that particular matter;

(2)    transcribing responses to a government agency form that is related to an immigration matter but not advising a customer as to his or her answers on those forms;

(3)    translating information on forms to a customer and translating the customer's answers to questions posed on those forms;

(4)    securing for the customer supporting documents currently in existence, such as birth and marriage certificates, which may be needed to be submitted with government agency forms;

(5)    translating documents from a foreign language into English;

(6)    notarizing signatures on government agency forms, if the person performing the service is a notary public commissioned in the State of South Carolina and is lawfully present in the United States;

(7)    making referrals, without a fee, to attorneys who could undertake legal representation for a person in an immigration matter;

(8)    preparing or arranging for the preparation of photographs and fingerprints;

(9)    arranging for the performance of medical testing (including X-rays and AIDS tests) and the obtaining of reports of such test results;

(10)    conducting English language and civics courses; and

(11)    performing such other services that the director determines by rule may be appropriately performed by such persons in light of the purposes of this chapter.

(B)    The following persons are exempt from this chapter:

(1)    an attorney licensed to practice law in South Carolina or an attorney licensed to practice law in another state or territory of the United States or in a foreign country when acting with the approval of a judge having lawful jurisdiction over the matter;

(2)    a legal intern, clerk, paralegal, or person in a similar position employed by and under the direct supervision of a licensed attorney meeting the requirements in item (1) of this subsection and rendering immigration assistance service in the course of employment; or

(3)    a not-for-profit organization recognized by the Board of Immigration Appeals under 8 C.F.R. 292.2(a), to include, but not be limited to, religious, charitable, social service, or similar organizations, and employees of those organizations accredited under 8 C.F.R. 292.2(d).

(C)    Nothing in this chapter shall regulate any business to the extent that such regulation is prohibited or preempted by federal law.

(D)    A person performing such services shall obtain a license from the director and as may be required by a local governing authority.

(E)    A person who provides or offers immigration assistance service and is not exempted under this chapter shall post signs at his or her place of business setting forth information in English and in every other language in which the person provides or offers to provide immigration assistance service. Each language shall be on a separate sign. Signs shall be posted in a location where the signs will be visible to customers. Each sign shall be at least twelve inches by seventeen inches and shall contain the following statement:

'I AM NOT AN ATTORNEY LICENSED TO PRACTICE LAW AND MAY NOT GIVE LEGAL ADVICE OR ACCEPT FEES FOR LEGAL ADVICE.'

(F)    Each person engaged in immigration assistance service who is not an attorney who advertises immigration assistance service in a language other than English, whether by radio, television, signs, pamphlets, newspapers, or other written communication, with the exception of a single desk plaque, must include in the document, advertisement, stationery, letterhead, business card, or other comparable written material the following notice in English and the language in which the written communication appears. This notice shall be of a conspicuous font size, if in writing, and shall state:

'I AM NOT AN ATTORNEY LICENSED TO PRACTICE LAW AND MAY NOT GIVE LEGAL ADVICE OR ACCEPT FEES FOR LEGAL ADVICE.'

If an advertisement is by radio or television, the statement may be modified but must include substantially the same information.

(G)    A person who provides or offers immigration assistance service and is not exempted under this chapter shall not, in any document, advertisement, stationery, letterhead, business card, or other comparable written material, literally translate from English into another language terms or titles including, but not limited to, notary public, licensed attorney, lawyer, or any other term that implies the person is an attorney.

(H)    A person engaged in providing immigration services who is not exempted under this chapter must not do any of the following:

(1)    accept payment in exchange for providing legal advice or any other assistance that requires legal analysis, legal judgment, or interpretation of the law;

(2)    refuse to return documents supplied by, prepared on behalf of, or paid for by the customer upon the request of the customer. These documents must be returned upon request even if there is a fee dispute between the immigration assistant and the customer;

(3)    represent or advertise, in connection with providing assistance in immigration matters, other titles or credentials, including, but not limited to, 'notary public' or 'immigration consultant', that could cause a customer to believe that the person possesses special professional skills or is authorized to provide advice on an immigration matter, provided that a certified notary public may use the term 'notary public' if the use is accompanied by the statement that the person is not an attorney. The term 'notary public' may not be translated into another language;

(4)    provide legal advice, recommend a specific course of legal action, or provide any other assistance that requires legal analysis, legal judgment, or interpretation of the law; or

(5)    make any misrepresentation or false statement, directly or indirectly, to influence, persuade, or induce patronage.

(I)    Violations of this chapter may result in a civil penalty of up to one thousand dollars per violation and the revocation of the business license of the immigration assistance service. A fine charged pursuant to this chapter shall not preempt or preclude additional appropriate civil or criminal penalties to include disgorgement and restitution.

(J)    Any person who knowingly and willfully makes a false, fictitious, or fraudulent statement or representation in any document prepared or executed as part of the provision of immigration assistance services in an immigration matter pursuant to this chapter, or anyone who aids or abets a person in knowingly and willfully making a false, fictitious, or fraudulent statement or representation in any document prepared or executed as part of the provision of immigration assistance services in an immigration matter pursuant to this chapter, or who solicits or conspires to make a false, fictitious, or fraudulent statement or representation in any document prepared or executed as part of the provision of immigration assistance services in an immigration matter pursuant to this chapter shall be guilty of a felony and, upon conviction, must be fined in the discretion of the court or imprisoned not more than ten years, or both. In addition, a person convicted of this subsection must disgorge any benefit received or make restitution, or both, to the agency or political subdivision that administered the benefit or entitlement program. It shall constitute a separate violation of this subsection each time a person knowingly and willfully makes, aids, or abets in the making of, or solicits or conspires to make a false, fictitious, or fraudulent statement or representation in any document prepared or executed pursuant to this subsection. A criminal charge pursuant to this chapter shall not preempt or preclude additional appropriate civil or criminal charges or penalties. A person who suffers any ascertainable loss of money or property, real or personal, as a result of a conviction or plea to a violation of this subsection may bring an action individually, or in a representative capacity, to recover actual damages from any person convicted of the violation of this subsection. If the court finds that a violation has been established, the court shall award three times the actual damages sustained and may provide such other relief as it considers necessary or proper. Upon the finding by the court of a violation, the court shall award to the person bringing such action under this section reasonable attorney's fees and costs.

(K)    Persons convicted of a violation of this subsection are jointly and severably liable for any loss suffered by any person or any agency or political subdivision of the State.

(L)    The director shall promulgate regulations not inconsistent with this chapter for the implementation, administration, and enforcement of this chapter in accordance with the provisions of Chapter 23 of Title 1 of the South Carolina Code of Laws.

(M)    This chapter shall not apply to anyone employed by or working for an educational institution who is registered as a designated school official with the SEVIS program, or a successor program, operated by the United States Department of Homeland Security."

SECTION 14.    Section 14-7-1630 is amended to read:

"Section 14-7-1630.    (A)    The jurisdiction of a state grand jury impaneled under this article extends throughout the State. The subject matter jurisdiction of a state grand jury in all cases is limited to the following offenses:

(1)    a crime involving narcotics, dangerous drugs, or controlled substances, or a crime arising out of or in connection with a crime involving narcotics, dangerous drugs, or controlled substances including, but not limited to, money laundering as specified in Section 44-53-475, obstruction of justice, perjury or subornation of perjury, or any attempt, aiding, abetting, solicitation, or conspiracy to commit one of the aforementioned crimes if the crime is of a multi-county nature or has transpired or is transpiring or has significance in more than one county of this State;

(2)    a crime, statutory, common law or other, involving public corruption as defined in Section 14-7-1615, a crime, statutory, common law or other, arising out of or in connection with a crime involving public corruption as defined in Section 14-7-1615, and any attempt, aiding, abetting, solicitation, or conspiracy to commit a crime, statutory, common law or other, involving public corruption as defined in Section 14-7-1615;

(3)    a crime involving the election laws including, but not limited to, those named offenses as specified in Title 7, or a common law crime involving the election laws if not superseded, or a crime arising out of or in connection with the election laws, or any attempt, aiding, abetting, solicitation, or conspiracy to commit a crime involving the election laws;

(4)    a crime involving computer crimes, pursuant to Chapter 16, Title 16, or a conspiracy or solicitation to commit a crime involving computer crimes;

(5)    a crime involving terrorism, or a conspiracy or solicitation to commit a crime involving terrorism. Terrorism includes an activity that:

(a)    involves an act dangerous to human life that is a violation of the criminal laws of this State;

(b)    appears to be intended to:

(i)        intimidate or coerce a civilian population;

(ii)    influence the policy of a government by intimidation or coercion; or

(iii)    affect the conduct of a government by mass destruction, assassination, or kidnapping; and

(c)    occurs primarily within the territorial jurisdiction of this State;

(6)    a crime involving a violation of Chapter 1, Title 35 of the Uniform Securities Act, or a crime related to securities fraud or a violation of the securities laws;

(7)    a crime involving obscenity including, but not limited to, a crime as provided in Article 3, Chapter 15, Title 16 or any attempt, aiding, abetting, solicitation, or conspiracy to commit a crime involving obscenity; and

(8)    a knowing and wilful crime involving actual and substantial harm to the water, ambient air, soil or land, or both soil and land. Such a crime includes a knowing and wilful violation of the Pollution Control Act, the Atomic Energy and Radiation Control Act, the State Underground Petroleum Environmental Response Bank Act, the State Safe Drinking Water Act, the Hazardous Waste Management Act, the Infectious Waste Management Act, the Solid Waste Policy and Management Act, the Erosion and Sediment Control Act, the South Carolina Mining Act, and the Coastal Zone Management Act, or any knowing and wilful crime arising out of or in connection with environmental laws, or any attempt, aiding, abetting, solicitation, or conspiracy to commit a knowing and wilful crime involving the environment if the anticipated actual damages, including, but not limited to, the cost of remediation, are two million dollars or more, as certified by an independent environmental engineer who shall be contracted by the Department of Health and Environmental Control. If the knowing and wilful crime is a violation of federal law, then a conviction or an acquittal under federal law for the same act is a bar to the impaneling of a state grand jury pursuant to this section. ;

(9)    a crime involving the knowing and willful making of, aiding or abetting in the making of, or soliciting or conspiring to make a false, fictitious, or fraudulent statement or representation in an affidavit regarding a person's lawful presence in the United States, as defined in Section 8-9-10, if the number of such violations exceeds twenty, or if the public benefit received by a person from any such violation or combination of such violations exceeds twenty thousand dollars;

(10)    a crime involving financial identity fraud or identity fraud involving the false, fictitious, or fraudulent creation or use of documents used in an immigration matter as defined in Section 16-13-525, if the number of such violations exceeds twenty, or if the value of any ascertainable loss of money or property suffered by any person or persons from any such violation or combination of such violations exceeds twenty thousand dollars;

(11)    a crime involving the knowing and willful making of, aiding or abetting in the making of, or soliciting or conspiring to make a false, fictitious, or fraudulent statement or representation in any document prepared or executed as part of the provision of immigration assistance services in an immigration matter, as defined in Section 40-83-30, if the number of such violations exceeds twenty, or if any benefit received by any person from any such violation or combination of such violations exceeds twenty thousand dollars.

(B)    Whenever the Attorney General and the Chief of the South Carolina Law Enforcement Division consider it necessary and normal investigative or prosecutorial procedures are not adequate, the Attorney General may petition in writing to the chief administrative judge of the judicial circuit in which he seeks to impanel a state grand jury for an order impaneling a state grand jury. This judge is referred to in this article as the impaneling judge. The petition must allege the type of offenses to be inquired into and, in the case of those offenses contained in subsection (A)(1), must allege that these offenses may be of a multi-county nature or have transpired or are transpiring or have significance in more than one county of the State. The petition in all instances must specify that the public interest is served by the impanelment.

(C)    In all investigations of crimes specified in subsection (A)(8), except in matters where the Department of Health and Environmental Control or its officers or employees are the subjects of the investigation, the Commissioner of the Department of Health and Environmental Control must consult with and, after investigation, provide a formal written recommendation to the Attorney General and the Chief of the South Carolina Law Enforcement Division. The Attorney General and the Chief of the South Carolina Law Enforcement Division must consider the impaneling of a state grand jury necessary before the Attorney General presents a petition, which includes the commissioner's written recommendation, to the chief administrative judge pursuant to Section 14-7-1630(B).

(1)    In the case of evidence brought to the attention of the Attorney General, the Chief of the South Carolina Law Enforcement Division, or the Department of Health and Environmental Control by an employee or former employee of the alleged violating entity, there must also be separate, credible evidence of the violation in addition to the testimony or documents provided by the employee or former employee of the alleged violating entity.

(2)    Where an individual employee performs a criminal violation of the environmental laws that results in actual and substantial harm pursuant to subsection (A)(8) and which prompts an investigation authorized by this article, only the individual employee is subject to the investigation unless or until there is separate, credible evidence that the individual's employer knew of, concealed, directed, or condoned the employee's action.

(D)    The impaneling judge, after due consideration of the petition, may order the impanelment of a state grand jury in accordance with the petition for a term of twelve calendar months. Upon petition by the Attorney General, the then chief administrative judge of the judicial circuit in which a state grand jury was impaneled, by order, may extend the term of that state grand jury for a period of six months but the term of that state grand jury, including any extension thereof, shall not exceed two years.

(E)    The chief administrative judge of the circuit wherein a state grand jury is sitting shall preside over that state grand jury during his tenure as chief administrative judge. The successor chief administrative judge shall assume all duties and responsibilities with regard to any state grand jury impaneled before his term, including, but not limited to, presiding over the state grand jury and ruling on petitions to extend its term. This judge is referred to in this article as the presiding judge.

(F)    The presiding judge may discharge a state grand jury prior to the end of its original term or any extension thereof, upon a determination that its business has been completed or upon the request of the Attorney General.

(G)    If, at any time within the original term of any state grand jury or any extension thereof, the presiding judge determines that the state grand jury is not conducting investigative activity within its jurisdiction or proper investigative activity, the presiding judge may limit the investigation so that the investigation conforms with the jurisdiction of the state grand jury and existing law or he may discharge the state grand jury. An order issued pursuant to this subsection or under subsection (F) shall not become effective less than ten days after the date on which it is issued and actual notice given to the Attorney General and the foreman of the state grand jury, and may be appealed by the Attorney General to the Supreme Court. If an appeal from the order is made, the state grand jury, except as is otherwise ordered by the Supreme Court, shall continue to exercise its powers pending disposition of the appeal."

SECTION    15.    Article 6, Chapter 23, Title 16 of the 1976 Code is amended by adding:

"Section 16-23-530.    (A)    It is unlawful for a person who is not lawfully present in the United States to store, keep, buy, transport, distribute, manufacture, possess, or have in possession or permit another to store, keep, buy, transport, distribute, manufacture, possess, or have in possession a rifle, pistol, or any other firearm.

(B)    It is unlawful for a person to sell, rent, give away, or participate in any manner, directly or indirectly, in the sale, renting, giving away, or otherwise disposing of a rifle, pistol, or any other firearm to any person who is not lawfully present in the United States.

(C)    A person violating the provisions of subsection (A) of this section is guilty of a felony and, upon conviction, must be fined not more than ten thousand dollars or imprisoned not more than ten years, or both.

(D)    A person violating the provisions of subsection (B) of this section is guilty of a misdemeanor and, upon conviction, must be fined not more than two thousand dollars or imprisoned not more than three years, or both."

SECTION    16.    All requirements of this act concerning immigration or the classification of immigration status must be construed in conformity with federal immigration law.

SECTION    17.    If any section, subsection, item, subitem, paragraph, subparagraph, sentence, clause, phrase, or word of this act is for any reason held to be unconstitutional or invalid, such holding shall not affect the constitutionality or validity of the remaining portions of this act, the General Assembly hereby declaring that it would have passed this act, and each and every section, subsection, item, subitem, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, items, subitems, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.

SECTION    18.    This act takes effect upon approval by the Governor.

This web page was last updated on Monday, June 22, 2009 at 2:46 P.M.