Florida Senate - 2011                        COMMITTEE AMENDMENT
       Bill No. SB 2040
       
       
       
       
       
       
                                Barcode 146138                          
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  04/05/2011           .                                
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       The Committee on Judiciary (Thrasher) recommended the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. The Division of Statutory Revision shall
    6  designate ss. 448.30 and 448.31, Florida Statutes, as created by
    7  this act, as part III of chapter 448, Florida Statutes, titled
    8  “UNAUTHORIZED IMMIGRANTS.”
    9         Section 2. Section 448.30, Florida Statutes, is created to
   10  read:
   11         448.30 Definitions.—As used in this part, the term:
   12         (1)“Agency” means a department, board, bureau, district,
   13  commission, authority, or other similar body of this state or a
   14  county, municipality, special district, or other political
   15  subdivision of this state which issues a license for purposes of
   16  operating a business in this state or in any jurisdiction within
   17  this state.
   18         (2)“Employee” means any person, other than an independent
   19  contractor, who, for consideration, provides labor or services
   20  to an employer in this state.
   21         (3)“Employer” means a person or agency that employs one or
   22  more employees in this state. In the case of an independent
   23  contractor, the term means the independent contractor and does
   24  not mean the person or agency that uses the contract labor.
   25         (4)“E-Verify Program” means the program for electronic
   26  verification of employment eligibility which is operated by the
   27  United States Department of Homeland Security, or any successor
   28  program.
   29         (5)“Independent contractor” means a person that carries on
   30  an independent business, contracts to do a piece of work
   31  according to its own means and methods, and is subject to
   32  control only as to results.
   33         (6)“License” means any license, permit, certificate,
   34  approval, registration, charter, or similar form of
   35  authorization that is required by law and issued by any agency
   36  for the purpose of operating a business in this state. The term
   37  includes, but is not limited to, articles of incorporation, a
   38  certificate of partnership, a partnership registration, articles
   39  of organization, and a transaction privilege tax license.
   40         Section 3. Section 448.31, Florida Statutes, is created to
   41  read:
   42         448.31Verification of employment eligibility.—
   43         (1) An employer who hires a new employee on or after July
   44  1, 2012, shall:
   45         (a) Register with the E-Verify Program; use the program for
   46  all new hires, both United States citizens and noncitizens; and
   47  not use the program selectively.
   48         (b) Upon acceptance on or after that date of an offer of
   49  employment by the new employee, verify the employment
   50  eligibility of the employee through, and in accordance with the
   51  time periods and other requirements of, the E-Verify Program;
   52  and
   53         (c) Maintain a record of the verification for 3 years after
   54  the date of hire or 1 year after the date employment ends,
   55  whichever is longer.
   56         (2)(a)An employer who hires a new employee on or after
   57  July 1, 2012, is exempt from the requirements of subsection (1)
   58  if the employer:
   59         1. Requests and receives from the employee a valid driver’s
   60  license or identification card that is issued by a state or
   61  outlying possession of the United States and that complies with
   62  the federal REAL ID Act of 2005 and the final rule promulgated
   63  by the United States Department of Homeland Security
   64  implementing that act;
   65         2. Within 3 business days of the first day of work, swipes
   66  the common machine-readable zone on the driver’s license or card
   67  using the highest standard of authentication equipment and
   68  software to:
   69         a. To determine that the document is not fraudulent; and
   70         b. Verify the physical description and other personal
   71  identifying information of the employee who presents the
   72  document against the data contained on the machine-readable
   73  zone;
   74         3. Maintains, for 3 years after the date of hire or 1 year
   75  after the date employment ends, whichever is longer, a printed
   76  record of the results of the authentication conducted under this
   77  subsection and a photocopy of the document the employee
   78  presented. The employer shall retain the record and the
   79  photocopy with the federal Form I-9; and
   80         4. Complies with the requirements of this subsection for
   81  every new employee, both United States citizens and noncitizens,
   82  unless and until the employer registers with the E-Verify
   83  Program, and does not implement the requirements of this
   84  subsection selectively.
   85         (b) The Department of Highway Safety and Motor Vehicles
   86  shall:
   87         1.Maintain on the website for the department a list of all
   88  states and outlying possessions of the United States that comply
   89  with the federal REAL ID Act of 2005 and the final rule
   90  promulgated by the United States Department of Homeland Security
   91  implementing that act. For each state or possession, the
   92  department shall specify the type of document that is in
   93  compliance and the date on which the state or possession began
   94  issuing the document that is in compliance.
   95         2. Adopt rules pursuant to ss. 120.536(1) and 120.54
   96  prescribing standards and requirements for the equipment and
   97  software used under paragraph (a).
   98         (c) The procedures of this subsection are authorized for
   99  the purpose of authenticating a driver’s license or
  100  identification card presented by a new employee, combating
  101  fraud, and matching identifying information for the employee
  102  against the document. An employer may not use the procedures to
  103  discriminate on the basis of national origin or citizenship
  104  status, except against a person who is not authorized to work in
  105  the United States. Unless otherwise authorized by law, an
  106  employer may not use information obtained through these
  107  procedures for any purpose unrelated to verifying the identity
  108  and employment authorization of a new employee.
  109         (3) An employer who fails to comply with this section is
  110  subject to the suspension of any license held by the employer
  111  through the period of noncompliance. The suspension of a license
  112  pursuant to this subsection by:
  113         (a) An agency subject to chapter 120 must comply with the
  114  provisions of s. 120.60(5).
  115         (b) An agency not subject to chapter 120 must comply with
  116  procedures substantially similar to the provisions of s.
  117  120.60(5).
  118         (4) An employer is not liable for wrongful termination if
  119  the employer terminates an employee:
  120         (a) In accordance with federal regulations upon a final
  121  determination of ineligibility for employment through the E
  122  Verify Program; or
  123         (b) After complying with subsection (2) and reasonably
  124  concluding that the employee presented a fraudulent document or
  125  that the physical description or other personal identifying
  126  information of the employee who presents the document does not
  127  match the data contained on the machine-readable zone.
  128         Section 4. Law enforcement and criminal justice agency
  129  coordination with Federal Government on unauthorized
  130  immigration.—
  131         (1) LEGISLATIVE INTENT.—It is the intent of the Legislature
  132  that law enforcement and criminal justice agencies in this state
  133  work cooperatively with the Federal Government in the
  134  identification of unauthorized immigrants and the enforcement of
  135  immigration laws. It further is the intent of the Legislature to
  136  maximize opportunities to transfer responsibility for the
  137  custody and detention of unauthorized immigrants who are accused
  138  or convicted of crimes from state and local governments to the
  139  Federal Government in order to ensure the safety of the
  140  residents of this state and to reduce costs to the criminal
  141  justice system, while also protecting the due process rights of
  142  individuals accused or convicted of crimes.
  143         (2) DELEGATED ENFORCEMENT AUTHORITY.—
  144         (a)1. The Department of Corrections shall request from the
  145  United States Department of Homeland Security approval to enter
  146  into a memorandum of agreement to have employees or contractors
  147  of the Department of Corrections trained by the Department of
  148  Homeland Security as jail enforcement officers under s. 287(g)
  149  of the federal Immigration and Nationality Act. The Department
  150  of Corrections shall perform all actions reasonably necessary to
  151  meet its obligations under the agreement.
  152         2. The Department of Corrections shall report by November
  153  1, 2011, to the Governor, the President of the Senate, and the
  154  Speaker of the House of Representatives on the status of
  155  implementation of this paragraph. If the department has not
  156  entered into a memorandum of agreement with the Department of
  157  Homeland Security by that date, the department shall identify in
  158  the report any barriers to full implementation of this
  159  paragraph.
  160         3. By February 1 of each year, the Department of
  161  Corrections shall report to the Governor, the President of the
  162  Senate, and the Speaker of the House of Representatives on the
  163  enforcement activities conducted under this paragraph,
  164  including, but not limited to, the number of inmates identified
  165  as being unauthorized immigrants, placed in federal custody, or
  166  deported.
  167         (b)1. The Department of Law Enforcement shall request from
  168  the United States Department of Homeland Security approval to
  169  enter into a memorandum of agreement to have employees of the
  170  Department of Law Enforcement trained by the Department of
  171  Homeland Security as task force officers under s. 287(g) of the
  172  federal Immigration and Nationality Act. The Department of Law
  173  Enforcement shall perform all actions reasonably necessary to
  174  meet its obligations under the agreement.
  175         2. By February 1 of each year, the Department of Law
  176  Enforcement shall report to the Governor, the President of the
  177  Senate, and the Speaker of the House of Representatives on the
  178  enforcement activities conducted under this paragraph.
  179         (c)1. The sheriff of each county shall evaluate the
  180  feasibility of entering into a memorandum of agreement with the
  181  United States Department of Homeland Security to have employees
  182  of the sheriff trained by the Department of Homeland Security as
  183  jail enforcement officers or task force officers under s. 287(g)
  184  of the federal Immigration and Nationality Act. The Department
  185  of Law Enforcement, upon request by a sheriff, shall share
  186  information on the department’s agreement with the United States
  187  Department of Homeland Security and experience in operating
  188  under the agreement.
  189         2. The sheriff shall consider, at a minimum:
  190         a. The potential fiscal impact on the office of the
  191  sheriff;
  192         b. The potential impact on the workload and personnel needs
  193  of the office; and
  194         c. The estimated presence of unauthorized immigrants in the
  195  geographic area served by the sheriff.
  196         3.If the sheriff determines that entering into an
  197  agreement is feasible, the sheriff shall make an initial request
  198  for an agreement to the Department of Homeland Security. Nothing
  199  in this paragraph compels the sheriff to execute an agreement.
  200         (3) IDENTIFICATION UPON ARREST AND CONFINEMENT.—
  201         (a) When a person is confined in a jail, prison, or other
  202  criminal detention facility, the arresting agency shall make a
  203  reasonable effort to determine the nationality of the person and
  204  whether the person is present in the United States lawfully,
  205  including, but not limited to, participating in the submission
  206  of fingerprints pursuant to the agreement under paragraph (b).
  207  If the arresting agency establishes, independent of the
  208  submission of fingerprints, that the person is not lawfully
  209  present in the United States, the agency shall notify the United
  210  States Department of Homeland Security.
  211         (b) The Department of Law Enforcement shall enter into, and
  212  perform all actions reasonably necessary to meet its obligations
  213  under, a memorandum of agreement with the Department of Homeland
  214  Security to implement a program through which fingerprints
  215  submitted by local law enforcement agencies during the arrest
  216  and booking process are checked against federal databases in
  217  order to assess the immigration status of individuals in
  218  custody.
  219         (c) This subsection may not be construed to deny a person
  220  bond or to prevent release of a person from confinement if the
  221  person is otherwise eligible for release. However, for the
  222  purpose of the bail determination required by s. 903.046,
  223  Florida Statutes, a determination that the person is not present
  224  in the United States lawfully raises a presumption that there is
  225  a risk of flight to avoid prosecution. Upon receiving a detainer
  226  request from the Department of Homeland Security relating to a
  227  person not present in the United States lawfully, a jail,
  228  prison, or other criminal detention facility may detain the
  229  person for up to 48 additional hours after the person is
  230  otherwise entitled to be released.
  231         Section 5. Section 945.80, Florida Statutes, is created to
  232  read:
  233         945.80Removal and deportation of criminal aliens.—
  234         (1) Notwithstanding any law to the contrary, and pursuant
  235  to s. 241(a)(4)(B)(ii) of the federal Immigration and
  236  Nationality Act, the secretary of the department shall release a
  237  prisoner to the custody and control of the United States
  238  Immigration and Customs Enforcement if:
  239         (a) The prisoner was convicted of a nonviolent offense;
  240         (b) The department has received a final order of removal
  241  for the prisoner from the United States Immigration and Customs
  242  Enforcement; and
  243         (c) The secretary determines that removal is appropriate
  244  and in the best interest of the state.
  245  
  246         A person is ineligible for release under this section if he
  247  or she would be ineligible for control release under s.
  248  947.146(3)(a)-(m).
  249         (2)(a) The department shall identify, during the inmate
  250  reception process and among the existing inmate population,
  251  prisoners who are eligible for removal under this section and
  252  determine whether removal is appropriate and in the best
  253  interest of the state.
  254         (b) The department shall coordinate with federal
  255  authorities to determine the eligibility of a prisoner for
  256  removal and to obtain a final order of removal.
  257         (3) Upon approval for removal of the prisoner under this
  258  section, the department shall establish a release date for the
  259  prisoner to be transferred to federal custody. The department
  260  shall maintain exclusive control of and responsibility for the
  261  custody and transportation of the prisoner until the prisoner is
  262  physically transferred to federal custody.
  263         (4)(a) If a prisoner who is released under this section
  264  returns unlawfully to the United States, upon notice from any
  265  state or federal law enforcement agency that the prisoner is
  266  incarcerated, the secretary shall revoke the release of the
  267  prisoner and seek the return of the prisoner to the custody of
  268  the department in order to serve the remainder of the sentence
  269  imposed by the court. The prisoner is not eligible for probation
  270  or community control with respect to any sentence affected by
  271  the release under this section.
  272         (b) The department shall notify each prisoner who is
  273  eligible for removal of the provisions of this subsection.
  274         (5) The secretary of the department may enter into an
  275  agreement with the United States Department of Homeland Security
  276  regarding the rapid repatriation of removable custodial aliens
  277  from the United States pursuant to this section.
  278         (6) The department shall compile statistics on
  279  implementation of this section, including, but not limited to:
  280         (a) The number of prisoners who are transferred to federal
  281  custody;
  282         (b) The number of prisoners who reenter the United States;
  283  and
  284         (c) The annual cost-avoidance achieved.
  285         (7) To the extent practicable, this section applies to all
  286  prisoners actually in confinement on, and all prisoners taken
  287  into confinement after, July 1, 2011.
  288         Section 6. (1) The Legislature finds that the costs
  289  incurred by the state related to unauthorized immigration are
  290  exacerbated by the failure of the Federal Government to enforce
  291  immigration laws adequately and to adopt and implement
  292  comprehensive reforms to immigration laws in order to control
  293  and contain unauthorized immigration more effectively.
  294         (2)(a) The Agency for Workforce Innovation, in consultation
  295  with the Office of Economic and Demographic Research, shall
  296  prepare a report by December 1, 2011, quantifying the costs to
  297  the state which are attributable to unauthorized immigration.
  298  The agency shall submit the report to the Governor, the
  299  President of the Senate, and the Speaker of the House of
  300  Representatives by that date.
  301         (b) Before January 1, 2012, the director of the Agency for
  302  Workforce Innovation shall, in consultation with the Office of
  303  the Governor, submit to the appropriate federal agency or
  304  official a request, based on the total costs quantified under
  305  paragraph (a), for reimbursement to the state of those costs or
  306  a corresponding reduction in or forgiveness of any debt,
  307  interest payments, or other moneys owed by the state to the
  308  Federal Government as a result of borrowing from the Federal
  309  Government to fund unemployment compensation claims.
  310         Section 7. This act shall take effect July 1, 2011.
  311  
  312  
  313  ================= T I T L E  A M E N D M E N T ================
  314         And the title is amended as follows:
  315         Delete everything before the enacting clause
  316  and insert:
  317                        A bill to be entitled                      
  318         An act relating to unauthorized immigrants; directing the
  319  Division of Statutory Revision to designate specified new
  320  statutory sections as part III of ch. 448, F.S., and name the
  321  part “Unauthorized Immigrants”; creating s. 448.30, F.S.;
  322  defining terms; creating s. 448.31, F.S.; requiring every
  323  employer to use the federal program for electronic verification
  324  of employment eligibility in order to verify the employment
  325  eligibility of each employee hired on or after a specified date;
  326  providing an exception for employers who request and receive
  327  from the employee certain driver’s licenses or identification
  328  cards; providing that an employer who does not comply with the
  329  employment requirements is subject to the suspension of any
  330  license held by the employer; providing that an employer is not
  331  liable for terminating an employee under certain conditions;
  332  providing legislative intent for law enforcement and criminal
  333  justice agencies to coordinate with the Federal Government on
  334  the identification of unauthorized immigrants and enforcement of
  335  immigration laws; directing the Department of Corrections and
  336  the Department of Law Enforcement to pursue and maintain
  337  agreements with the United States Department of Homeland
  338  Security for the training of certain personnel related to the
  339  enforcement of immigration laws; requiring reports on activity
  340  under the agreements; directing sheriffs to evaluate the
  341  feasibility of entering into such agreements; directing
  342  arresting agencies to make reasonable efforts to determine
  343  whether arrestees are present in the United States lawfully;
  344  requiring the Department of Law Enforcement to enter into and
  345  maintain an agreement with the United States Department of
  346  Homeland Security for checking fingerprints of arrestees against
  347  federal databases to determine immigration status; providing for
  348  a presumption as to risk of flight in order to avoid
  349  prosecution; authorizing detention of a person for up to 48
  350  additional hours upon request from the United States Department
  351  of Homeland Security; creating s. 945.80, F.S.; requiring the
  352  Department of Corrections to release nonviolent inmates to the
  353  custody of the United States Immigration and Customs Enforcement
  354  under certain circumstances; requiring the department to
  355  identify inmates who are eligible for removal and deportation;
  356  establishing certain procedures for the transfer of an inmate to
  357  federal custody; providing for a released inmate to serve the
  358  remainder of his or her sentence upon unlawfully returning to
  359  the United States; authorizing the secretary of the department
  360  to enter into an agreement with the United States Department of
  361  Homeland Security regarding the rapid repatriation of removable
  362  custodial aliens; requiring the department to compile
  363  statistics; providing for applicability; providing legislative
  364  findings related to costs incurred by the state from
  365  unauthorized immigration; requiring the Agency for Workforce
  366  Innovation to prepare a report quantifying the costs; requiring
  367  the director of the agency to submit to the Federal Government a
  368  request for reimbursement of the costs or a reduction in moneys
  369  owed to the Federal Government as a result of borrowing to fund
  370  unemployment compensation claims; providing an effective date.
  371  
  372         WHEREAS, under federal immigration law, employers must
  373  verify the identity and employment authorization of each person
  374  they hire, and
  375         WHEREAS, in verifying the identity and employment
  376  authorization of new employees, employers must complete the
  377  federal Form I-9, and
  378         WHEREAS, to improve the accuracy of this process, the
  379  federal government operates an electronic employment
  380  verification system called E-Verify, and
  381         WHEREAS, requiring employers to use E-Verify for each new
  382  employee will promote the state’s interest in ensuring that only
  383  those who are authorized to work in the United States are
  384  employed in this state, and
  385         WHEREAS, one of the recognized shortcomings of the E-Verify
  386  Program is the fact that unauthorized workers may attempt to
  387  obtain employment by committing identity fraud not detected by
  388  the E-Verify Program, and
  389         WHEREAS, authentication equipment and software will help
  390  employers detect fraudulent driver’s licenses or identification
  391  cards, and
  392         WHEREAS, requiring employers to employ such equipment and
  393  software in the case of each new employee, as an alternative to
  394  registering with the E-Verify Program, will enhance the process
  395  of verifying identity and combating fraud, and
  396         WHEREAS, the rapid removal and deportation of nonviolent
  397  criminal aliens who are in the state prison system will reduce
  398  fiscal costs for the state and promote public safety, and
  399         WHEREAS, it is in the best interests of the state to seek
  400  reimbursement or other financial remuneration from the federal
  401  government for costs incurred by the state related to
  402  unauthorized immigration, NOW, THEREFORE,