South Carolina General Assembly
116th Session, 2005-2006

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H. 5057

STATUS INFORMATION

General Bill
Sponsors: Reps. Ceips, Cato, Harrison, Cooper, Martin, Altman, Ott, Rivers, Sandifer, Scarborough and E.H. Pitts
Document Path: l:\council\bills\ms\7384ahb06.doc

Introduced in the House on April 26, 2006
Introduced in the Senate on May 8, 2006
Currently residing in the Senate

Summary: Illegal Aliens and Public Employment Act

HISTORY OF LEGISLATIVE ACTIONS

     Date      Body   Action Description with journal page number
-------------------------------------------------------------------------------
   4/26/2006  House   Introduced, read first time, placed on calendar without 
                        reference HJ-4
   4/27/2006          Scrivener's error corrected
    5/3/2006  House   Member(s) request name added as sponsor: E.H.Pitts
    5/3/2006  House   Requests for debate-Rep(s). Tripp, Hagood, Hayes, White, 
                        Cooper, Rice, J Brown, Scott, Hosey, Ott, Cobb-Hunter, 
                        Mack, Clyburn, Altman, Merrill, Cato, Rhoad, 
                        Moody-Lawrence, Scarborough, R Brown, Whipper, FN 
                        Smith, Anderson, Coates, Herbkersman, and Jefferson 
                        HJ-26
    5/4/2006  House   Read second time HJ-122
    5/4/2006  House   Roll call Yeas-84  Nays-18 HJ-123
    5/4/2006  House   Unanimous consent for third reading on next legislative 
                        day HJ-123
    5/5/2006  House   Read third time and sent to Senate HJ-2
    5/8/2006  Senate  Introduced and read first time SJ-24
    5/8/2006  Senate  Referred to Committee on Judiciary SJ-24
    5/8/2006  Senate  Referred to Subcommittee: Ritchie (ch), Elliott, Hutto, 
                        Cleary, Williams
   5/24/2006  Senate  Committee report: Favorable with amendment Judiciary 
                        SJ-25
   5/25/2006          Scrivener's error corrected

View the latest legislative information at the LPITS web site

VERSIONS OF THIS BILL

4/26/2006
4/26/2006-A
4/27/2006
5/24/2006
5/25/2006

(Text matches printed bills. Document has been reformatted to meet World Wide Web specifications.)

COMMITTEE REPORT

May 24, 2006

H. 5057

Introduced by Reps. Ceips, Cato, Harrison, Cooper, Martin, Altman, Ott, Rivers, Sandifer, Scarborough and E.H. Pitts

S. Printed 5/24/06--S.    [SEC 5/25/06 2:28 PM]

Read the first time May 8, 2006.

            

THE COMMITTEE ON JUDICIARY

To whom was referred a Bill (H. 5057) to amend the Code of Laws of South Carolina, 1976, by adding Article 13 to Chapter 11, Title 8 so as to enact the Illegal Aliens and Public Employment Act, etc., respectfully

REPORT:

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

Amend the bill, as and if amended, by striking the bill in its entirety and inserting therein the following:

/    TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, SO AS TO ENACT THE "SOUTH CAROLINA SECURITY AND IMMIGRATION COMPLIANCE ACT", BY ADDING ARTICLE 13 TO CHAPTER 11, TITLE 8 SO AS TO ENACT THE "ILLEGAL ALIENS AND PUBLIC EMPLOYMENT ACT", 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; TO ADD CHAPTER 28 TO TITLE 8, SO AS TO AUTHORIZE THE CHIEF OF THE SOUTH CAROLINA LAW ENFORCEMENT DIVISION TO NEGOTIATE TERMS OF A MEMORANDUM OF UNDERSTANDING BETWEEN THE STATE AND THE UNITED STATES DEPARTMENT OF JUSTICE OR DEPARTMENT OF HOMELAND SECURITY CONCERNING THE ENFORCEMENT OF FEDERAL IMMIGRATION AND CUSTOM LAWS, DETENTION AND REMOVALS, AND INVESTIGATIONS IN SOUTH CAROLINA; TO ADD CHAPTER 29 TO TITLE 8, SO AS TO REQUIRE THAT EVERY STATE AGENCY OR POLITICAL SUBDIVISION VERIFY THE LAWFUL PRESENCE OF ANY NATURAL PERSON EIGHTEEN YEARS OF AGE OR OLDER WHO HAS APPLIED FOR STATE OR PUBLIC BENEFITS, TO CREATE EXCEPTIONS WHEN VERIFICATION IS NOT REQUIRED, AND TO MAKE IT UNLAWFUL FOR AGENCIES OR POLITICAL SUBDIVISIONS TO PROVIDE STATE OR FEDERAL BENEFITS IN VIOLATION OF THIS SECTION; TO ADD SECTION 12-6-1175, SO AS TO PROHIBIT EMPLOYERS FROM TAKING A DEDUCTIBLE BUSINESS EXPENSE FOR WAGES PAID OF SIX HUNDRED DOLLARS OR MORE TO AN EMPLOYEE IF THE EMPLOYER HAS NOT VERIFIED THAT THE INDIVIDUAL IS AN AUTHORIZED EMPLOYEE; TO ADD SECTION 12-8-595, SO AS TO REQUIRE THAT TAX WITHHOLDING AGENTS WITHHOLD STATE INCOME TAX AT A RATE OF SIX PERCENT OF THE AMOUNT OF COMPENSATION PAID TO AN INDIVIDUAL IF THE INDIVIDUAL HAS FAILED TO PROVIDE A TAX IDENTIFICATION NUMBER OR A CORRECT TAX IDENTIFICATION NUMBER, OR PROVIDED A TAX IDENTIFICATION NUMBER ISSUED FOR NONRESIDENT ALIENS; TO ADD SECTION 16-17-720, SO AS TO CREATE THE OFFENSE OF TRAFFICKING A PERSON FOR LABOR SERVITUDE OR SEXUAL SERVITUDE, TO PRESCRIBE PENALTIES FOR THE OFFENSE, AND TO AUTHORIZE THE SOLICITORS AND THE ATTORNEY GENERAL TO HAVE CONCURRENT AUTHORITY TO PROSECUTE CASES; TO AMEND CHAPTER 3 OF TITLE 23 BY ADDING SECTION 23-3-1100, SO AS TO REQUIRE THAT WHEN ANY PERSON IS CHARGED WITH A FELONY OR DRIVING UNDER THE INFLUENCE AND IS IN JAIL FOR ANY PERIOD, THE OPERATOR OF THE JAIL MUST MAKE A REASONABLE EFFORT TO DETERMINE THE NATIONALITY OF THE PERSON SO CONFINED; AND TO AMEND TITLE 40 BY ADDING CHAPTER 83, SO AS TO REGULATE IMMIGRATION ASSISTANCE SERVICES AND REQUIRE THAT ANY PERSON WHO PROVIDES OR OFFERS TO PROVIDE IMMIGRATION ASSISTANCE SERVICES MAY ONLY (1) COMPLETE A GOVERNMENT AGENCY FORM IF COMPLETING SUCH A FORM DOES NOT INVOLVE USING LEGAL JUDGMENT, (2) TRANSCRIBE RESPONSES TO A GOVERNMENT AGENCY FORM RELATED TO IMMIGRATION, BUT NOT ADVISE THE CUSTOMER AS TO HIS OR HER ANSWERS, (3) TRANSLATE INFORMATION ON FORMS TO A CUSTOMER AND TRANSLATE THE CUSTOMER'S ANSWERS, (4) SECURE SUPPORTING DOCUMENTS FOR A CUSTOMER CURRENTLY IN EXISTENCE SUCH AS BIRTH AND MARRIAGE CERTIFICATES, (5) TRANSLATE DOCUMENTS FROM A FOREIGN LANGUAGE INTO ENGLISH; (6) NOTARIZE DOCUMENTS, (7) MAKE REFERRALS TO ATTORNEYS FOR NO FEE, (8) PREPARE OR ARRANGE FOR PHOTOGRAPHS OR FINGERPRINTS, (9) ARRANGE FOR MEDICAL TESTING, (10) CONDUCT ENGLISH LANGUAGE OR CIVICS COURSES, AND (11) PERFORM OTHER SERVICES AS THE SECRETARY OF STATE WOULD PERMIT.

SECTION    1.    This act may be cited as the "South Carolina Security and Immigration Compliance Act".

SECTION    2.    Chapter 11, Title 8 of the 1976 Code is amended by adding:

"ARTICLE 13

ILLEGAL ALIENS AND PUBLIC EMPLOYMENT

Section 8-11-1310.    (A)    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 the Basic Pilot Program or one of the electronic verification of work authorization programs operated by the United States Department of Homeland Security, or an equivalent federal work authorization program operated by the United States Department of Homeland Security to verify information of newly hired employees, pursuant to the Immigration Reform and Control Act of 1986 (IRCA), D.L. 99-603, or an electronic verification of work authorization program operated by a private entity and approved by the Attorney General.

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

(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 regulations deemed necessary for the application of this article to a contract or agreement relating to public transportation and shall publish these regulations on the Department of Transportation's website in accordance with the provisions of Chapter 23 of Title 1 of the South Carolina Code of Laws."

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

"CHAPTER 28

ENFORCEMENT OF FEDERAL IMMIGRATION AND CUSTOMS LAWS

MEMORANDUM OF UNDERSTANDING

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

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

(C)    The Chief of the South Carolina Law Enforcement Division shall designate appropriate law enforcement officers to be trained pursuant to the memorandum of understanding provided for in subsections (A) and (B) of this section. Such training shall be funded pursuant to the federal Homeland Security Appropriation Act of 2006, Public Law 109-90, or any subsequent source of federal funding. The provisions of this subsection shall become effective upon such 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    4.    Title 8 of the 1976 Code is amended by adding:

"CHAPTER 29

VERIFICATION OF LAWFUL PRESENCE IN THE UNITED STATES

Section 8-29-10.    (A)    Except as provided in subsection (C) of this section or where exempted by federal law, on or after July 1, 2007, every agency or a political subdivision of this State shall verify the lawful presence in the United States of any natural person eighteen years of age or older who has applied for state or local public benefits, as defined in 8 U.S.C. Section 1621, or for federal public benefits, as defined in 8 U.S.C. Section 1611, that is administered by an agency or a political subdivision of this State.

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

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

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

(2)    for assistance for health care items and services that are necessary for the treatment of an emergency medical condition, as defined in 42 U.S.C. Section 1396b(v)(3), of the 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 such symptoms are caused by a communicable disease;

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

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

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

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

(6)    for prenatal care; or

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

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

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

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

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

(F)    Any person who knowingly and willfully makes a false, fictitious, or fraudulent statement of representation in an affidavit executed pursuant to subsection (D) of this section shall be guilty of a violation of Section 16-9-10.

(G)    Agencies or political subdivisions of this State may adopt variations to the requirements of this section to improve efficiency or reduce delay in the verification process or to provide for adjudication of unique individual circumstances where the verification procedures in this section would impose unusual hardship on a legal resident of South Carolina.

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

(I)    Any and all errors and significant delays by SAVE shall be reported to the United States Department of 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 subsection (F) of this section, any 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 shall not be guilty of any crime for executing an affidavit attesting to lawful presence in the United States that contains a false statement if said affidavit is not required by this section."

SECTION    5.    Chapter 6, Title 12 of the 1976 Code is amended by adding:

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

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

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

(B)    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 such individual is an authorized employee. The provisions of this subsection shall apply whether or not an Internal Revenue Service Form 1099 is issued in conjunction with the wages or remuneration.

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

(D)    This section shall not apply to any individual hired by the taxpayer prior to January 1, 2008.

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

(F)    This section shall not apply to wages or remuneration paid for labor services to any individual who holds and presents to the taxpayer a valid license or identification card issued by the South Carolina Department of Motor Vehicles.

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

SECTION    6.    Chapter 8 of Title 12 of the 1976 Code is amended by adding:

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

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

SECTION    7.    Chapter 17, Title 16 of the 1976 Code is amended by adding:

"Section 16-17-720.    (A)    As used in this section, the term:

(1)    'Coercion' means:

(a)    causing or threatening to cause bodily harm to any person, physically restraining or confining any person, or threatening to physically restrain or confine any person;

(b)    exposing or threatening to expose any fact or information that if revealed would tend to subject a person to criminal or immigration proceedings, hatred, contempt, or ridicule;

(c)    destroying, concealing, removing, confiscating, or possessing any actual or purported passport or other immigration document, or any other actual or purported government identification document, of any person; or

(d)    providing a controlled substance, as such term is defined by Section 44-53-50, et seq., to such person.

(2)    'Deception' means:

(a)    creating or confirming another's impression of an existing fact or past event which is false and which the accused knows or believes to be false;

(b)    maintaining the status or condition of a person arising from a pledge by that person of his or her personal services as security for a debt, if the value of those services as reasonably assessed is not applied toward the liquidation of the debt or the length and nature of those services are not respectively limited and defined, or preventing a person from acquiring information pertinent to the disposition of such debt; or

(c)    promising benefits or the performance of services which the accused does not intend to deliver or perform or knows will not be delivered or performed. Evidence of failure to deliver benefits or perform services standing alone shall not be sufficient to authorize a conviction under this section.

(3)    'Labor servitude' means work or service of economic or financial value which is performed or provided by another person and is induced or obtained by coercion or deception.

(4)    'Sexual servitude' means:

(a)    any sexually explicit conduct as defined in Chapter 3 of Title 16, or Sections 16-15-90 and 16-15-100 of the South Carolina Code for which anything of value is directly or indirectly given, promised to, or received by any person, which conduct is induced or obtained by coercion or deception or which conduct is induced or obtained from a person under the age of eighteen years; or

(b)    any sexually explicit conduct as defined in Chapter 3 of Title 16, or Sections 16-15-90 and 16-15-100 of the South Carolina Code which is performed or provided by any person, which conduct is induced or obtained by coercion or deception or which conduct is induced or obtained from a person under the age of eighteen years.

(B)    A person commits the offense of trafficking a person for labor servitude when that person knowingly subjects or maintains another in labor servitude or knowingly recruits, entices, harbors, transports, provides, or obtains by any means another person for the purpose of labor servitude.

(C)    A person commits the offense of trafficking a person for sexual servitude when that person knowingly subjects or maintains another in sexual servitude or knowingly recruits, entices, harbors, transports, provides, or obtains by any means another person for the purpose of sexual servitude.

(D)    Any person who commits the offense of trafficking a person for labor or sexual servitude shall be guilty of a felony, and upon conviction thereof, shall be punished by imprisonment for not less than one nor more than twenty years. Any person who commits the offense of trafficking a person for labor or sexual servitude against a person who is under the age of eighteen years shall be guilty of a felony, and upon conviction thereof, shall be punished by imprisonment for not less than ten nor more than twenty years.

(E)    Solicitors and the Attorney General shall have concurrent authority to prosecute any criminal cases arising under the provisions of this section and to perform any duty that necessarily appertains thereto.

(F)    Each violation of this section shall constitute a separate offense and shall not merge with any other offense.

(G)    A corporation may be prosecuted under this section for an act or omission constituting a crime under this section only if an agent of the corporation performs the conduct which is an element of the crime while acting within the scope of his or her office or employment and on behalf of the corporation and the commission of the crime was either authorized, requested, commanded, performed, or within the scope of his or her employment on behalf of the corporation or constituted a pattern of illegal activity that an agent of the company knew or should have known was occurring."

SECTION    8.    Chapter 3, Title 23 of the 1976 Code is amended by adding:

"ARTICLE 13

VERFICATION OF NATIONALITY OF PRISONERS

"Section 23-3-1100.    (A)    When any person charged with a felony or with driving under the influence pursuant to Section 56-5-2930 et seq. is confined, for any period, in the jail of the county, any municipality or a jail operated by a regional jail authority, a reasonable effort shall be made to determine the nationality of the person so confined.

(B)    If the prisoner is a foreign national, the keeper of the jail or other officer shall make a reasonable effort to verify that the prisoner has been lawfully admitted to the United States and if lawfully admitted, that such lawful status has not expired. If verification of lawful status cannot be made from documents in the possession of the prisoner, verification shall be made within 48 hours through a query to the Law Enforcement Support Center (LESC) of the United States Department of Homeland Security or other office or agency designated for that purpose by the United States Department of Homeland Security. If the prisoner is determined not to be lawfully admitted to the United States, the keeper of the jail or other officer shall notify the United States Department of Homeland Security.

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

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

SECTION    9.    Title 40 of the 1976 Code is amended by adding:

"CHAPTER 83

REGISTRATION OF IMMIGRATION ASSISTANCE SERVICES

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

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

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

(B)    '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.

(C)    'Immigration assistance service' means any 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 any other assistance that requires legal analysis, legal judgment, or interpretation of the law.

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

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

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

Section 43-83-30.    (A)    Any person who provides or offers to provide immigration assistance service 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, such as birth and marriage certificates, which may be needed to be submitted with government agency forms;

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

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

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

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

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

(10)    conducting English language and civics courses; and

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

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

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

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

(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 under 8 C.F.R. 292.2(d); and

(4)    any organization employing or desiring to employ an alien or nonimmigrant alien, where the organization, its employees, or its agents provide advice or assistance in immigration matters to alien or nonimmigrant alien employees or potential employees without compensation from the individuals to whom such advice or assistance is provided.

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

(D)    Any person performing such services shall obtain business licenses from the office of the Secretary of State and as may be required by a local governing authority.

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

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

(F)    Every 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 shall be of a conspicuous size, if in writing, and shall state: 'I AM NOT AN ATTORNEY LICENSED TO PRACTICE LAW AND MAY NOT GIVE LEGAL ADVICE OR ACCEPT FEES FOR LEGAL ADVICE.' If such advertisement is by radio or television, the statement may be modified but must include substantially the same message.

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

(H)    Violations of this chapter may result in a fine of up to $1,000.00 per violation. A fine charged pursuant to this chapter shall not preempt or preclude additional appropriate civil or criminal penalties.

(I)    No person engaged in providing immigration services who is not exempted under this chapter shall do any of the following:

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

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

(3)    represent or advertise, in connection with the provision 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 any other assistance that requires legal analysis, legal judgment, or interpretation of the law; or

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

(J)    any person who violates any provision of this chapter shall be guilty of a misdemeanor for a first offense and a high and aggravated misdemeanor for a second or subsequent offense committed within five years of a previous conviction for the same offense.

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

SECTION    10.    All requirements of this act concerning immigration or the classification of immigration status must be construed in conformity with federal immigration law.

SECTION    11.    If any section, subsection, item, subitem, paragraph, subparagraph, sentence, clause, phrase, or word of this act is for any reason held to be unconstitutional or invalid, such holding shall not affect the constitutionality or validity of the remaining portions of this act, the General Assembly hereby declaring that it would have passed this act, and each and every section, subsection, item, subitem, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, items, subitems, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.

SECTION    12.    This act takes effect July 1, 2007.                    /

Renumber sections to conform.

Amend title to conform.

JAMES H. RITCHIE, JR. for Committee.

            

A BILL

TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING ARTICLE 13 TO CHAPTER 11, TITLE 8 SO AS TO ENACT THE ILLEGAL ALIENS AND PUBLIC EMPLOYMENT ACT, 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.

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

SECTION    1.    This Act may be cited as the "Illegal Aliens and Public Employment Act".

SECTION    2.    Chapter 11, Title 8 of the 1976 Code is amended by adding:

"Article 13

Illegal Aliens and Public Employment

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

SECTION    4.    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    5.    This act takes effect upon approval by the Governor.

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