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Sponsors: Rep. Davenport
Document Path: l:\council\bills\ms\7398ahb06.doc
Introduced in the House on May 9, 2006
Currently residing in the House Committee on Judiciary
Summary: Illegal Aliens and Public Benefits Act; Omnibus Security and Immigration Compliance Act; Registration of Immigration Assistance Act
HISTORY OF LEGISLATIVE ACTIONS
Date Body Action Description with journal page number ------------------------------------------------------------------------------- 5/9/2006 House Introduced and read first time HJ-19 5/9/2006 House Referred to Committee on Judiciary HJ-20
View the latest legislative information at the LPITS web site
VERSIONS OF THIS BILL
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ENACTING THE OMNIBUS SECURITY AND IMMIGRATION COMPLIANCE ACT, BY ADDING ARTICLE 13 TO CHAPTER 11, TITLE 8 SO AS TO REQUIRE PUBLIC EMPLOYERS OF THE STATE TO REGISTER AND PARTICIPATE IN THE FEDERAL WORK AUTHORIZATION PROGRAM AND TO PROHIBIT PUBLIC EMPLOYERS OF THE STATE FROM ENTERING INTO CONTRACTS FOR SERVICES UNLESS THE CONTRACTORS AND SUBCONTRACTORS COMPLY WITH THE FEDERAL WORK AUTHORIZATION PROGRAM VERIFYING INFORMATION ON ALL NEW EMPLOYEES; BY ADDING SECTION 12-6-3595 SO AS TO DEFINE THE TERMS "AUTHORIZED EMPLOYEE" AND "LABOR SERVICES", TO DISALLOW A DEDUCTIBLE BUSINESS EXPENSE UNDER CERTAIN CIRCUMSTANCES UNLESS THE PERSON EMPLOYED IS AN AUTHORIZED EMPLOYEE, AND TO PROVIDE EXCEPTIONS; BY ADDING SECTION 12-8-610 SO AS TO REQUIRE AN EMPLOYER TO WITHHOLD SIX PERCENT OF THE COMPENSATION PAID TO CERTAIN EMPLOYEES WHO FAIL TO PROVIDE CERTAIN INFORMATION RELATED TO TAXPAYER IDENTIFICATION NUMBERS; BY ADDING SECTION 23-3-80 SO AS TO DIRECT THE CHIEF OF THE STATE LAW ENFORCEMENT DIVISION TO NEGOTIATE A MEMORANDUM OF UNDERSTANDING BETWEEN THE STATE AND THE DEPARTMENT OF JUSTICE OR THE DEPARTMENT OF HOMELAND SECURITY CONCERNING THE ENFORCEMENT OF FEDERAL IMMIGRATION AND CUSTOMS LAWS IN THE STATE; BY ADDING CHAPTER 50 TO TITLE 23 SO AS TO REQUIRE REASONABLE EFFORTS BY LOCAL LAW ENFORCEMENT OFFICIALS TO DETERMINE THE NATIONALITY OF PERSONS CHARGED WITH FELONIES OR DRIVING UNDER THE INFLUENCE OFFENSES; BY ADDING CHAPTER 91 TO TITLE 40 SO AS TO PROVIDE REQUIREMENTS FOR PERSONS ENGAGED IN THE PROFESSION OF PROVIDING IMMIGRATION ASSISTANCE; BY ADDING ARTICLE 11 TO CHAPTER 5, TITLE 43 SO AS TO REQUIRE A STATE AGENCY OR POLITICAL SUBDIVISION OF THE STATE TO VERIFY THE LAWFUL PRESENCE OF A PERSON SEEKING TO OBTAIN PUBLIC BENEFITS; AND TO CREATE A STUDY COMMITTEE TO STUDY APPROPRIATE ENFORCEMENT OF FEDERAL AND STATE LAWS RELATING TO THE PRESENCE OF ILLEGAL ALIENS IN THIS STATE AND TO RECOMMEND LEGISLATIVE CHANGES AS APPROPRIATE.
Whereas, the number of illegal aliens in the United States is reaching epidemic proportions; and
Whereas, the 2000 Census estimates that there are between six million and eleven million illegal immigrants in the United States; and
Whereas, the United States is a highly mobile nation, and at any given moment thousands upon thousands of illegal aliens are present in South Carolina; and
Whereas, the barbaric terrorist atrocities of September 11, 2001, are a grim reminder of the vital importance of the security of America's borders; and
Whereas, the United States government has the principal responsibility and authority to enforce the nation's immigration laws; however, recent amendments to those laws authorize state and local law enforcement officers to enforce federal immigration laws by making arrests and through other enforcement means, if state law does not prohibit such enforcement; and
Whereas, South Carolina law is unclear as to whether state and local law enforcement officers possess the authority to arrest for criminal violations of the federal immigration laws, or to otherwise enforce the federal immigration laws to the extent permitted by federal law; and
Whereas, if South Carolina law enforcement officers and the State are armed with the enforcement power with respect to federal immigration laws, such can be a powerful deterrent not only to the presence of illegal aliens, but to the potential for acts of terror. Now, therefore,
Be it enacted by the General Assembly of the State of South Carolina:
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) 'Director' means the director of the State Budget and Control Board;
(2) '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;
(3) 'Public employer' means every department, agency, or instrumentality of the State or a political subdivision of the State; and
(4) 'Subcontractor' includes a subcontractor, contract employee, staffing agency, or other contractor regardless of its tier.
Section 8-11-1320. (A) On or after July 1, 2007, 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 contract for the physical performance of services within this State unless the contractor registers and participates in the federal work authorization program to verify information of all new employees.
(C) A contractor or subcontractor may not enter into a contract or subcontract with a public employer in connection with the physical performance of services within this State unless the contractor or subcontractor registers and participates in the federal work authorization program to verify information of all new employees.
(D) Subsections (B) and (C) apply as follows:
(1) On or after July 1, 2007, with respect to public employers, contractors, or subcontractors of five hundred or more employees;
(2) On or after July 1, 2008, with respect to public employers, contractors, or subcontractors of one hundred or more employees but less than five hundred employees; and
(3) On or after July 1, 2009, with respect to all other public employers, contractors, or subcontractors.
Section 8-11-1330. The provisions of this article are enforceable without regard to race, religion, gender, ethnicity, or national origin.
Section 8-11-1340. Except as provided in Section 8-11-1350, the director shall prescribe forms and promulgate rules and regulations deemed necessary in order to administer the provisions of this article and publish such rules and regulations on a state website designed at the direction of the director.
Section 8-11-1350. The director of the Department of Transportation shall prescribe all forms and promulgate rules and regulations deemed 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. Article 25, Chapter 6, Title 12 of the 1976 Code is amended by adding:
"Section 12-6-3595. (A) As used in this section, the term:
(1) 'Authorized employee' means an individual authorized for employment in the United States as defined in paragraph (2) of subsection (a) of 8 U.S.C. Section 1324a.; and
(2) 'Labor services' means the physical performance of services in this State.
(B) Notwithstanding another provision of law, on or after January 1, 2008, 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 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; provided, however, 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 prior to January 1, 2008;
(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."
SECTION 3. Article 5, Chapter 8, Title 12 of the 1976 Code is amended by adding:
"Section 12-8-610. (A) Notwithstanding another provision of law, an employer paying wages to an employee is required to 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;
(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) An employer paying wages to an employee who fails to comply with the withholding requirements of this section is liable for the taxes required to have been withheld unless the employer is exempt from federal withholding with respect to the individual pursuant to a properly filed Internal Revenue Service Form 8233."
SECTION 4. 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 concerning the enforcement of federal immigration and customs laws, detention and removals, and investigations in the State.
(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) 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 23 of the 1976 Code is amended by adding:
Section 23-50-10. (A) When a person charged with a felony or with a driving under the influence offense as provided in Article 23, Chapter 5, Title 56 is confined, for any period, in the local jail or other correctional facility, a reasonable effort must be made to determine the nationality of the person confined.
(B) If the person is a foreign national, the keeper of the jail or other law enforcement 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, verification must be made within forty-eight 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) Nothing in this section may be construed to deny a person bond or from being released from confinement when the person is otherwise eligible for release.
(D) The South Carolina Sheriffs' Association shall prepare and issue guidelines and procedures used to comply with the provisions of this section."
SECTION 6. 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;
(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 any 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 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 which 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, including 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 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 other services that the office of the Secretary of State determines by rule may be appropriately performed by these persons in light of the purposes of this chapter.
(B) The following 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;
(3) a not-for-profit organization recognized by the Board of Immigration Appeals under 8 C.F.R. 292.2(a) and employees, of those organizations accredited pursuant to 8 C.F.R. 292.2(d); and
(4) an organization employing or desiring to employ an alien, where the organization, its employees, or its agents provide advice or assistance in immigration matters to alien employees or potential employees without compensation from the individuals to whom this advice or assistance is provided.
(C) Nothing in this chapter regulates a business to the extent that this 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 office of the Secretary of State 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 will be 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 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, notary, licensed, attorney, lawyer, or another term that implies the person is an attorney.
(H) Violations of this chapter may result in a civil fine of up to one thousand dollars per violation. A fine charged pursuant to this chapter does not preempt or preclude additional appropriate civil or criminal penalties.
(I) A person engaged in providing immigration services who is not exempted pursuant to the provisions of this chapter may not do the following:
(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, 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 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.
(J) A person who violates a provision of this chapter is guilty of a misdemeanor and, upon conviction, must be fined not more than one thousand dollars or imprisoned for not more than one year."
SECTION 7. 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 when exempted by federal law, on or after July 1, 2007, every state 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 U.S.C. Section 1621, or for federal public benefits, as defined in 8 U.S.C. Section 1611, that is 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:
(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 alien 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 the symptoms are caused by a communicable disease; or
(5) for 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) for prenatal care; or
(7) for postsecondary education, as determined by the Commission on Higher Education, or in accordance with state law 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.
(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 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 such eligibility verification is made, the affidavit may be presumed to be proof of lawful presence for the purposes of this article.
(F) A person who knowingly and wilfully makes a false, fictitious, or fraudulent statement of representation in an affidavit executed pursuant to subsection (D) is guilty of the offense of perjury and must be punished as provided for in Section 16-9-10.
(G) To the extent that there is no direct conflict with the provisions of this article, agencies and political subdivisions of this State may adopt variations to the requirements of this article to improve efficiency or reduce delay in the verification process or to provide for adjudication of unique individual circumstances where the verification procedures provided in this article would impose unusual hardship on a legal resident of South Carolina.
(H) It is unlawful for an 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 the provisions of this article. Each state agency, department, division, or other political subdivision which 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.
(I) All errors and significant delays by SAVE shall 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.
(J) Notwithstanding the provisions of subsection (F), an applicant for federal benefits as defined in 8 U.S.C. Section 1611 or State or local benefits as defined in 8 U.S.C. Section 1621 is not guilty of a crime for executing an affidavit attesting to lawful presence in the United States that contains a false statement if the affidavit is not required pursuant to the provisions of this article."
SECTION 8. (A) There is created a Study Committee to study the appropriate enforcement of federal and state laws relating to the presence of illegal aliens in this State and to recommend legislative changes as appropriate.
(B) The Study Committee must be composed of nine members appointed as follows:
(1) three members of the House of Representatives appointed by the Speaker of the House of Representatives;
(2) three members of the Senate appointed by the President Pro Tempore of the Senate;
(3) the Attorney General or his designee;
(4) one member appointed by the Governor who must be a sheriff recommended by the South Carolina Sheriffs' Association; and
(5) the chief of the State Law Enforcement Division or his designee.
(C) The Study Committee shall render its report and recommendations to the Speaker of the House of Representatives, the President Pro Tempore of the Senate, and the Governor no later than January 1, 2007. The Study Committee shall continue to meet after this date, if necessary, in order to make continuing recommendations to the General Assembly regarding the appropriate enforcement of federal and state laws related to the presence of illegal aliens in the State.
SECTION 9. All requirements of this act concerning immigration or the classification of immigration status must be construed in conformity with federal immigration law.
SECTION 10. If any law or regulation conflicts with the provisions of this act, the provisions of this act are intended to control.
SECTION 11. If any section, subsection, 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, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.
SECTION 12. The repeal or amendment by this act of any law, whether temporary or permanent or civil or criminal, does not affect pending actions, rights, duties, or liabilities founded thereon, or alter, discharge, release or extinguish any penalty, forfeiture, or liability incurred under the repealed or amended law, unless the repealed or amended provision shall so expressly provide. After the effective date of this act, all laws repealed or amended by this act must be taken and treated as remaining in full force and effect for the purpose of sustaining any pending or vested right, civil action, special proceeding, criminal prosecution, or appeal existing as of the effective date of this act, and for the enforcement of rights, duties, penalties, forfeitures, and liabilities as they stood under the repealed or amended laws.
SECTION 13. This act takes effect upon approval by the Governor.
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