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H. 4117
STATUS INFORMATION
General Bill
Sponsors: Rep. Davenport
Document Path: l:\council\bills\agm\18842mm07.doc
Companion/Similar bill(s): 3149, 4119, 4400
Introduced in the House on May 17, 2007
Currently residing in the House Committee on Ways and Means
Summary: Illegal Aliens and Public Benefits Act
HISTORY OF LEGISLATIVE ACTIONS
Date Body Action Description with journal page number ------------------------------------------------------------------------------- 5/17/2007 House Introduced and read first time HJ-62 5/17/2007 House Referred to Committee on Ways and Means HJ-62
View the latest legislative information at the LPITS web site
VERSIONS OF THIS BILL
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, SO AS TO ENACT THE OMNIBUS SECURITY AND IMMIGRATION COMPLIANCE ACT BY ADDING SECTION 12-6-3595 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, TO PROHIBIT CASH PAYMENTS FOR COMPENSATION TO AN UNAUTHORIZED EMPLOYEE, AND TO PROVIDE FOR CRIMINAL PENALTIES; 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, TO PROHIBIT CASH PAYMENTS FOR COMPENSATION, AND TO PROVIDE FOR CRIMINAL PENALTIES; 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 A PUBLIC EMPLOYER OF THIS STATE FROM ENTERING INTO A CONTRACT FOR SERVICES UNLESS THE CONTRACTOR AND SUBCONTRACTOR COMPLY WITH THE FEDERAL WORK AUTHORIZATION PROGRAM IN VERIFYING INFORMATION ON ALL NEW EMPLOYEES; BY REDESIGNATING SECTIONS 41-1-10 THROUGH 41-1-110, RELATING TO GENERAL PROVISIONS REGARDING LABOR AND EMPLOYMENT, AS ARTICLE 1 AND BY ADDING ARTICLE 3 TO CHAPTER 1 OF TITLE 41 SO AS TO REQUIRE PRIVATE EMPLOYERS IN THE STATE TO REGISTER AND PARTICIPATE IN THE FEDERAL WORK AUTHORIZATION PROGRAM, TO PROHIBIT A PRIVATE EMPLOYER OF THIS STATE FROM ENTERING INTO A CONTRACT FOR SERVICES UNLESS THE CONTRACTOR AND SUBCONTRACTOR COMPLY WITH THE FEDERAL WORK AUTHORIZATION PROGRAM IN VERIFYING INFORMATION ON ALL NEW EMPLOYEES, AND TO DENY AN EMPLOYER WHO VIOLATES THE ARTICLE ACCESS TO STATE-CONFERRED ECONOMIC INCENTIVES; 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 52 TO TITLE 23 SO AS TO REQUIRE REASONABLE EFFORTS BY LOCAL LAW ENFORCEMENT OFFICIALS TO DETERMINE THE NATIONALITY OF A PERSON CHARGED WITH A FELONY OR DRIVING UNDER THE INFLUENCE OFFENSE AND HIS EMPLOYER'S NAME AND ADDRESS; BY ADDING CHAPTER 91 TO TITLE 40 SO AS TO PROVIDE REQUIREMENTS FOR A PERSON ENGAGED IN THE PROFESSION OF PROVIDING IMMIGRATION ASSISTANCE; BY ADDING SECTION 42-1-365 SO AS TO EXCEPT AN EMPLOYEE FROM WORKERS' COMPENSATION BENEFITS AND AN EMPLOYER FROM WORKERS' COMPENSATION AND COMMON LAW PROTECTIONS IF THE EMPLOYEE'S PRESENCE IN THE UNITED STATES IS UNLAWFUL; 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; TO ADD SECTION 16-17-645 SO AS TO CREATE THE OFFENSE OF CRIMINAL EXTORTION OR BLACKMAIL OF AN IMMIGRANT AND TO PROVIDE A PENALTY; TO AMEND SECTION 17-15-30, AS AMENDED, RELATING TO DETERMINING RELEASE OF AN ACCUSED SO AS TO MANDATE THE COURT TO DETERMINE IF AN ILLEGAL ALIEN'S STATUS MAKES HIM A FLIGHT RISK; BY ADDING SECTIONS 4-1-180, 5-7-320, AND 40-1-230 SO AS TO PROVIDE THAT A COUNTY OR A MUNICIPALITY OR A STATE BOARD THAT ISSUES A LICENSE PURSUANT TO TITLE 40, MAY NOT ISSUE OR RENEW A LICENSE WITHOUT THE APPLICANT'S NAME, ADDRESS, AND SOCIAL SECURITY NUMBER AND PROVIDE THAT THE APPLICANT FOR A LICENSE MUST BE LAWFULLY PRESENT IN THE UNITED STATES AND THE APPLICANT SHALL PROVE HIS IDENTITY WITH A SECURE AND VERIFIABLE DOCUMENT; 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 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, the State may legislate in certain areas not preempted by the federal law; and
Whereas, the General Assembly of South Carolina is committed to its legislative role in lessening the impact of illegal aliens on the rights, privileges, and welfare of South Carolina residents. Now, therefore,
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. 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 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, 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 prior to 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.
(D) Notwithstanding Section 41-10-40, a taxpayer subject to this section may not compensate an employee by way of a cash payment unless the employee is an authorized employee.
(E) A taxpayer who violates this section, upon conviction, is subject to a fine not to exceed five thousand dollars for each occurrence, imprisonment not to exceed five years for each occurrence, revocation of its business or professional license, or seizure of its business assets, or all or any combination of them."
SECTION 2. 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 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;
(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.
(C) Notwithstanding Section 41-10-40, a taxpayer subject to this section may not compensate an employee by way of a cash payment unless the employee is an authorized employee.
(D) A taxpayer who violates this section, upon conviction, is subject to a fine not to exceed five thousand dollars for each occurrence, imprisonment not to exceed five years for each occurrence, revocation of its business or professional license, or seizure of its business assets, or all or any combination of them."
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 the State and any department, agency, instrumentality, or 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, 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 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, 2008, with respect to public employers, contractors, or subcontractors of five hundred or more employees;
(2) On or after July 1, 2009, with respect to public employers, 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 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, promulgate regulations, and adopt rules necessary to administer the provisions of this article and publish those 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 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.A. Sections 41-1-10 through 41-1-110 of the 1976 Code are redesignated as "Article 1 General Provisions".
SECTION 2.B. Chapter 1 of Title 41 of the 1976 Code is amended by adding:
Section 41-1-210. As used in this article, the term:
(1) 'Director' means the director of the Department of Labor, Licensing and Regulation;
(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) 'Employer' has the meaning as defined in Section 41-1-65 (A)(1);
(4) 'Employee' has the meaning as defined in Section 41-1-65(A)(2); and
(5) 'Contractor' includes a subcontractor, contract employee, staffing agency, or other contractor regardless of its tier.
Section 41-1-220. (A) On or after July 1, 2008, an employer must register and participate in the federal work authorization program to verify information of all new employees.
(B) An 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 may not enter into a contract or subcontract with an employer in connection with 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.
(D) Subsections (B) and (C) apply as follows:
(1) On or after July 1, 2008, with respect to employers or contractors of five hundred or more employees;
(2) On or after July 1, 2009, with respect to employers or contractors 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 employers or contractors.
Section 41-1-230. The provisions of this article are enforceable without regard to race, religion, gender, ethnicity, or national origin.
Section 41-1-240. 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 a state website designed at the direction of the director."
SECTION 3. It is the intent of the General Assembly that a private employer that violates Article 3, Chapter 1 of Title 41 is ineligible to benefit from state-conferred economic incentives including, but not limited to, tax incentives including credits and exemptions, fees in lieu of taxes, and access to public financing through bonds or otherwise, as provided in Titles 4, 6, 11, 12, 13, 33, 34, 41, 48, 59, and 70, and as may be provided otherwise after the effective date of this Act.
SECTION 1. 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 2. Title 23 of the 1976 Code is amended by adding:
Section 23-52-10. (A) If 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. In addition, the keeper of the jail or other law enforcement officer shall make a reasonable effort to verify the name and address of the employer of the person. 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) 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.
(D) The South Carolina Sheriffs' Association shall prepare and issue guidelines and procedures used to comply with the provisions of this section."
SECTION 1. 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 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) 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;
(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, in which 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) 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 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 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.
(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, or both."
SECTION 1. Chapter 1, Title 42 of the 1976 Code is amended by adding:
"Section 42-1-365. (A) This Title does not apply to an employee whose presence in the United States is unlawful.
(B) An employer who undertakes the employment of a person whose presence in the United States is unlawful is considered to have rejected the terms of this Title and may not avail himself of the:
(1) protection of its exclusivity of remedies; or
(2) the common law defenses of contributory negligence, negligence of a fellow servant, and assumption of risk.
(C) Verification of lawful presence in the United States by the employer must occur as follows:
(1) the employee shall execute an affidavit that he is a United States citizen or legal permanent resident eighteen years of age or older; or
(2) the employee 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.
(D) A person who knowingly and wilfully makes, or causes to be made, a false, fictitious, or fraudulent statement of representation in an affidavit executed pursuant to subsection (C) is guilty of the offense of perjury and must be punished as provided for in Section 16-9-10."
SECTION 1. 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 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 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 U.S.C. 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) 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 that eligibility verification is made, the affidavit is 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 if 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 a 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 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.
(I) 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.
(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 1. Article 7, Chapter 17 of Title 16 is amended by adding:
"Section 16-17-645. (A) It is unlawful to verbally threaten, by printing, writing, or electronic communication, to report the immigration status of a person to a law enforcement official or agency with the intent to extort money or another thing of value from the person or another person.
(B) A person who violates the provisions of this section commits the offense of criminal extortion or blackmail of an immigrant and is guilty of a felony and, upon conviction, must be fined not more than five thousand dollars or imprisoned for not more than ten years, or both."
SECTION 2. 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 1. Chapter 1, Title 4 of the 1976 Code is amended by adding:
"Section 4-1-180. (A) A county may not issue a license without ascertaining the applicant's name, address, and social security number. Subject to the exemptions found in 6 U.S.C. Section 1621(c)(2), a board may issue or renew a license only if the person is lawfully present in the United States. The person applying for a license shall prove his identity with a secure and verifiable document issued by a state or federal jurisdiction or recognized by the United States government that is verifiable by a federal or state law enforcement, intelligence, or homeland security agency. A county may not sell or use for any purpose other than a purpose specified in the information contained in the secure and verifiable document. The county shall keep the information confidential unless disclosure is required by law. Nothing in this section may be construed to limit public access to records that are available for public inspection.
(B) For purposes of subsection (A), a person is unlawfully present in the United States if he is an alien who is not:
(1) a qualified alien as defined in 8 U.S.C. Section 1641;
(2) a nonimmigrant pursuant to the 'Immigration and Nationality Act'; or
(3) an alien who is paroled into the United States pursuant to 8 U.S.C. Section 1182(d)(5) for less than one year.
(C) This section must be enforced without regard to race, religion, gender, ethnicity, or national origin."
SECTION 2. Chapter 7, Title 5 of the 1976 Code is amended by adding:
"Section 5-7-320. (A) A municipality may not issue a license without ascertaining the applicant's name, address, and social security number. Subject to the exemptions found in 6 U.S.C. Section 1621(c)(2), a board may issue or renew a license only if the person is lawfully present in the United States. The person applying for a license shall prove his identity with a secure and verifiable document issued by a state or federal jurisdiction or recognized by the Unites States government that is verifiable by a federal or state law enforcement, intelligence, or homeland security agency. A municipality may not sell or use for any purpose other than a purpose specified in the information contained in the secure and verifiable document. The municipality shall keep the information confidential unless disclosure is required by law. Nothing in this section may be construed to limit public access to records that are available for public inspection.
(B) For purposes of subsection (A), a person is unlawfully present in the United States if he is an alien who is not:
(1) a qualified alien as defined in 8 U.S.C. Section 1641;
(2) a nonimmigrant pursuant to the 'Immigration and Nationality Act'; or
(3) an alien who is paroled into the United States pursuant to 8 U.S.C. Section 1182(d)(5) for less than one year.
(C) This section must be enforced without regard to race, religion, gender, ethnicity, or national origin."
SECTION 3. Article 1, Chapter 1, Title 40 of the 1976 Code is amended by adding:
"Section 40-1-230. (A) A board that issues licenses pursuant to this title may not issue a license without ascertaining the applicant's name, address, and social security number. Subject to the exemptions found in 6 U.S.C. Section 1621(c)(2), a board may issue or renew a license only if the person is lawfully present in the United States. The person applying for a license shall prove his identity with a secure and verifiable document issued by a state or federal jurisdiction or recognized by the Unties States government that is verifiable by a federal or state law enforcement, intelligence, or homeland security agency. A board may not sell or use for any purpose other than a purpose specified in the information contained in the secure and verifiable document. The board shall keep the information confidential unless disclosure is required by law. Nothing in this section may be construed to limit public access to records that are available for public inspection.
(B) For purposes of subsection (A), a person is unlawfully present in the United States if he is an alien who is not:
(1) a qualified alien as defined in 8 U.S.C. Section 1641;
(2) a nonimmigrant pursuant to the 'Immigration and Nationality Act'; or
(3) an alien who is paroled into the United States pursuant to 8 U.S.C. Section 1182(d)(5) for less than one year.
(C) This section must be enforced without regard to race, religion, gender, ethnicity, or national origin."
SECTION 1. (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, 2008. The Study Committee shall continue to meet after this date, if necessary, 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 1. All requirements of this act concerning immigration or the classification of immigration status must be construed in conformity with federal immigration law.
SECTION 2. If any law or regulation conflicts with the provisions of this act, the provisions of this act are intended to control.
SECTION 3. 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 4. 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 1. This act takes effect upon approval by the Governor.
This web page was last updated on Monday, October 10, 2011 at 1:37 P.M.