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S. 869
STATUS INFORMATION
General Bill
Sponsors: Senator Elliott
Document Path: l:\council\bills\agm\18939mm08.doc
Companion/Similar bill(s): 4388
Introduced in the Senate on January 8, 2008
Currently residing in the Senate Committee on Judiciary
Summary: Taxpayer and Citizen Protection Act
HISTORY OF LEGISLATIVE ACTIONS
Date Body Action Description with journal page number
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12/5/2007 Senate Prefiled
12/5/2007 Senate Referred to Committee on Judiciary
1/8/2008 Senate Introduced and read first time SJ-37
1/8/2008 Senate Referred to Committee on Judiciary SJ-37
1/15/2008 Senate Referred to Subcommittee: Ritchie (ch), Sheheen,
Campsen, Scott, Williams, Vaughn
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 "SOUTH CAROLINA TAXPAYER AND CITIZEN PROTECTION ACT", ADDRESSING THE FINDINGS OF THE GENERAL ASSEMBLY IN CONNECTION WITH THE EFFECT OF ILLEGAL IMMIGRATION ON THE CITIZENS OF THIS STATE; BY ADDING ARTICLE 13 TO CHAPTER 11 OF TITLE 8 SO AS TO REQUIRE A PUBLIC EMPLOYER AND A CONTRACTOR DOING BUSINESS WITH A PUBLIC EMPLOYER TO REGISTER AND PARTICIPATE IN THE STATUS VERIFICATION SYSTEM TO VERIFY THE WORK AUTHORIZATION STATUS OF A NEW EMPLOYEE AND TO CREATE A CIVIL CAUSE OF ACTION IN FAVOR OF AN AUTHORIZED EMPLOYEE WHO IS DISCHARGED UPON THE HIRING OF AN UNAUTHORIZED EMPLOYEE AND TO PROVIDE FOR DAMAGES AND ATTORNEY'S FEES AND COURT COSTS; BY ADDING SECTION 12-8-610 SO AS TO REQUIRE A WITHHOLDING AGENT TO WITHHOLD STATE INCOME TAX AT THE RATE OF SIX PERCENT WITH RESPECT TO AN INDIVIDUAL WHO FAILS TO PROVIDE A VALID SOCIAL SECURITY NUMBER, AND TO ESTABLISH A PENALTY; BY ADDING SECTION 16-9-460 SO AS TO MAKE IT A FELONY TO KNOWINGLY, OR IN RECKLESS DISREGARD OF THE TRUTH, TO TRANSPORT, MOVE, CONCEAL, HARBOR, OR SHELTER A PERSON IN FURTHERANCE OF THAT PERSON'S ILLEGAL PRESENCE IN THE UNITED STATES AND TO PROVIDE FOR IMPRISONMENT AND FINES; BY ADDING SECTION 23-3-80 SO AS TO DIRECT THE CHIEF OF THE SOUTH CAROLINA LAW ENFORCEMENT DIVISION (SLED), TO NEGOTIATE A MEMORANDUM OF UNDERSTANDING BETWEEN THIS STATE AND THE APPROPRIATE FEDERAL OFFICIALS AS TO THE ENFORCEMENT OF FEDERAL IMMIGRATION LAWS AND DETENTIONS, REMOVALS, AND INVESTIGATIONS IN THIS STATE AND TO PROHIBIT A LOCAL GOVERNMENT OR OTHER PERSON FROM RESTRICTING LOCAL OFFICIALS FROM COMMUNICATING AND COOPERATING WITH FEDERAL OFFICIALS IN THAT REGARD; BY ADDING SECTION 23-3-90 SO AS TO PROVIDE FOR THE ESTABLISHMENT OF A FRAUDULENT DOCUMENTS IDENTIFICATION UNIT WITHIN SLED TO INVESTIGATE AND APPREHEND PERSONS WHO PREPARE AND SELL FRAUDULENT IDENTIFICATION DOCUMENTS TO INDIVIDUALS WHO ARE NOT LAWFULLY PRESENT IN THIS STATE; BY ADDING SECTION 23-52-10 SO AS TO REQUIRE THE APPROPRIATE OFFICIAL TO ASCERTAIN AND REPORT THE UNLAWFUL IMMIGRATION STATUS OF ANY PERSON CONFINED IN A JAIL BY REASON OF A FELONY OR DUI CHARGE; BY ADDING ARTICLE 11 TO CHAPTER 5 OF TITLE 43 SO AS TO REQUIRE THE STATE AND LOCAL GOVERNMENTS TO VERIFY THE LAWFUL PRESENCE IN THE UNITED STATES OF A PERSON FOURTEEN YEARS OR OLDER WHO HAS APPLIED FOR STATE OR LOCAL PUBLIC BENEFITS OR FOR FEDERAL BENEFITS ADMINISTERED BY THIS STATE, TO PROVIDE EXEMPTED BENEFITS, TO PROVIDE FOR AN AFFIDAVIT OF ELIGIBILITY AND FOR CRIMINAL PENALTIES FOR A FRAUDULENT MISREPRESENTATION IN THE AFFIDAVIT, AND TO PROVIDE FOR ANNUAL REPORTS FROM THESE AGENCIES; BY ADDING SECTION 56-1-3355 SO AS TO PROVIDE THAT AN IDENTIFICATION CARD MAY BE ISSUED BY THE DEPARTMENT OF MOTOR VEHICLES ONLY TO PERSONS LEGALLY AND PERMANENTLY IN THE UNITED STATES, TO PROVIDE EXCEPTIONS AND A PROCESS FOR ISSUING CARDS TO THOSE DOCUMENTED EXCEPTIONS, AND TO PROVIDE THAT THIS SECTION APPLIES TO RENEWAL, DUPLICATION, OR REISSUANCE OF A DRIVER'S LICENSE IF THE DEPARTMENT HAS NOTICE OF UNLAWFUL PRESENCE; BY ADDING SECTION 59-101-430 SO AS TO DENY POSTSECONDARY EDUCATION BENEFITS ON THE BASIS OF RESIDENCE TO A PERSON UNLAWFULLY WITHIN THE UNITED STATES; AND TO AMEND SECTION 56-1-40, RELATING TO A PERSON WHO MAY NOT BE ISSUED A SOUTH CAROLINA DRIVER'S LICENSE, SO AS TO CONFORM THE PROVISION CONCERNING NONRESIDENTS TO THE PROVISIONS GOVERNING THE ISSUANCE OF AN IDENTIFICATION CARD.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. This act may be cited as the "South Carolina Taxpayer and Citizen Protection Act".
SECTION 2. The State of General Assembly of the State of South Carolina finds that illegal immigration is causing economic hardship and lawlessness in this State and that illegal immigration is encouraged by public agencies within this State that provide public benefits without verifying immigration status. The General Assembly further finds that illegal immigrants have been harbored and sheltered in this State and encouraged to reside in this State through the issuance of identification cards that are issued without verifying immigration status, and that these practices impede and obstruct the enforcement of federal immigration law, undermine the security of our borders, and impermissibly restrict the privileges and immunities of the citizens of South Carolina. Therefore, the General Assembly of the State of South Carolina declares that it is a compelling public interest of this State to discourage illegal immigration by requiring all agencies within this State to cooperate fully with federal immigration authorities in the enforcement of federal immigration laws. The General Assembly also finds that other measures are necessary to ensure the integrity of various governmental programs and services.
SECTION 3. Chapter 11, Title 8 of the 1976 Code is amended by adding:
Section 8-11-1310. As used in this article, term:
(1) 'Contractor' means a person having a contract with a public employer and includes a subcontractor, contract employee, staffing agency, or any contractor regardless of its tier.
(2) 'Public employer' means every department, agency, or instrumentality of the states or a political subdivision of the state.
(3) 'Status Verification System' shall mean an electronic system operated by the federal government, through which an authorized official of an agency of the State of South Carolina or of a political subdivision therein may make an inquiry, by exercise of authority delegated pursuant to Section 1373 of Title 8 of the United States Code, to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by Section 7 of this act. The Status Verification System shall be deemed to include the electronic verification of work authorization program of the Illegal Immigration Reform and Immigration Responsibility Act of 1996, P.L. 104-208, Division C, Section 403(a); 8 U.S.C. 1324a, and operated by the United States Department of Homeland Security, known as the Basic Pilot Program, or any equivalent federal work authorization program designated by the United States Department of Homeland Security or any other federal agency authorized to verify the work authorization status of newly hired employees, pursuant to the Immigration Reform and Control Act of 1986 (IRCA), D.L. 99-603.
(4) 'Unauthorized alien' means an alien as defined in Section 1324a(h)(3) of Title 8 of the United States Code.
Section 8-11-1320. (A) A public employer shall register and participate in the Status Verification System to verify the work authorization status of all new employees.
(B)(1) 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 Status Verification System to verify the work authorization status of all new employees.
(2) A contractor or subcontractor who enters into a contract with a public employer may not enter into the contract or subcontract in connection with the physical performance of services within this State unless the contractor or subcontractor registers and participates in the Status Verification System to verify information of all new employees.
(3)(a) The discharge of any United States citizen or permanent resident alien employee by a public employer of this State, who, on the date of the discharge employed an unauthorized alien in this State, is considered an unfair employment practice. The discharged employee has a private cause of action against the employing entity for the unfair employment practice. The employing entity found to have violated this item is liable to the aggrieved employee for:
(i) actual loss of compensation and benefits sustained by the employee, plus liquidated damages in the amount of two percent for each day after the date of discharge or in an amount equal to the actual loss of compensation and benefits, whichever is smaller, from the date of the discharge until either the date the employee has been offered reemployment in writing at an equivalent or higher compensation level, or the date the employee has commenced any new employment at an equivalent rate of compensation, whichever occurs first, up to a maximum period of one hundred eighty days from the date of discharge, plus reasonable interest from the date of discharge until the date of payment of the liability; and
(ii) reasonable attorney's fees and costs.
(b) A public employer that, on the date of the discharge in question, was currently enrolled in and used the Basic Pilot Program of other electronic status verification system, as referred to in Section 8-11-1310(3), to verify the employment authorization of its employees in South Carolina is exempt from liability for suit under this section.
(C) The provisions of this section must be enforced without regard to race or national origin."
SECTION 4. Article 5, Chapter 8, Title 12 of the 1976 Code is amended by adding:
"Section 12-8-610. (A) A withholding agent, as defined in Section 12-8-10, shall withhold state income tax at the rate of six percent of the amount of either wages which are subject to withholding tax pursuant to the Internal Revenue Code of 1986, as amended or the amount of compensation paid to an individual which compensation is required to be reported on Form 1099 and in both cases with respect to which the individual has failed to provide a valid Social Security Number, issued by the United States Social Security Administration.
(B) A withholding agent who fails to comply with the withholding requirements of this section is liable for the taxes required to have been withheld unless the withholding agent is exempt from federal withholding with respect to the individual pursuant to a properly filed Internal Revenue Service Form 8233 or its equivalent, and has provided a copy of such form to the South Carolina Department of Revenue."
SECTION 5. Article 5, Chapter 9, Title 16 of the 1976 Code is amended by adding:
"Section 16-9-460. (A) It is unlawful for a person to transport, move, or attempt to transport in the State of South Carolina an alien, knowingly or in reckless disregard of the fact that the alien has come to, entered, or remained in the United States in violation of law, in furtherance of the illegal presence of the alien in the United States.
(B) It is unlawful for a person to conceal, harbor, or shelter from detection an alien in any place within the State of South Carolina, including any building or means of transportation, knowingly or in reckless disregard of the fact that the alien has come to, entered, or remained in the United States in violation of law.
(C) A person violating the provisions of this section is guilty of a felony and, upon conviction, must be imprisoned for not less than five years, or by fine of not less than five thousand dollars, or both."
SECTION 6. 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 the United States Department of Homeland Security, as provided by Section 1357(g) of Title 8 of the United States Code, 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) must be signed on behalf of this state by the Chief of the South Carolina Law Enforcement Division and the Governor or as otherwise required by the appropriate federal agency.
(C) A local government, whether acting through its governing body or by an initiative, referendum, or any other process, may not enact any ordinance or policy that limits or prohibits a law enforcement officer, local official, or local government employee from communicating or cooperating with federal officials with regard to the immigration status of a person within this State.
(D) Notwithstanding another provision of law, a government entity or an official within the State of South Carolina, may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the United States Department of Homeland Security information regarding the citizenship or immigration status, lawful or unlawful, of an individual.
(E) Notwithstanding another provision of law, a person or an agency may not prohibit, or in any way restrict, a public employee from doing any of the following with respect to information regarding the immigration status, lawful or unlawful, of an individual:
(1) sending the information to, or requesting or receiving the information from, the United States Department of Homeland Security;
(2) maintaining the information; or
(3) exchanging the information with another federal, state, or local government entity.
(F) The provisions of this section allow a private right of action by a natural or legal person lawfully domiciled in this State to file for a writ of mandamus to compel a noncooperating local or state governmental agency to comply with the reporting laws."
SECTION 7. Article 1, Chapter 3, Title 23 of the 1976 Code is amended by adding:
"Section 23-3-90. Subject to the availability of funding, the State Law Enforcement Division shall establish the Fraudulent Documents Identification (FDI) Unit for the primary purpose of investigating and apprehending persons or entities that participate in the sale or distribution of fraudulent documents used for identification purposes. The unit additionally shall specialize in fraudulent identification documents created and prepared for persons who are unlawfully residing within the State of South Carolina. SLED shall employ sufficient employees to investigate and implement the FDI Unit."
SECTION 8. Title 23 of the 1976 Code is amended by adding:
Section 23-52-10. (A) If a person charged with felony or with driving under the influence is confined, for any period, in the jail of a county or municipality or a jail operated by a regional jail authority, a reasonable effort must be made to determine the citizenship status of the confined person.
(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 the 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 forty-eight hours through a query to the Law Enforcement Support Center 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 lawful immigration status of the prisoner cannot be verified, the keeper of the jail or other officer shall notify the United States Department of Homeland Security.
(C) For the purpose of determining the grant of or issuance of bond, it is a rebuttable presumption that a person whose citizenship status has been verified pursuant to subsection (B) to be a foreign national who has not been lawfully admitted to the United States is at risk of flight."
SECTION 9. Chapter 5, Title 43 of the 1976 Code is amended by adding:
Section 43-5-1410. (A) Except as provided in subsection (C) of this section or where exempted by federal law, every agency or a political subdivision of this State shall verify the lawful presence in the United States of a natural person fourteen 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 section must be enforced without regard to race, religion, gender, ethnicity, or national origin.
(C) Verification of lawful presence pursuant to this section is not required for:
(1) purpose for which lawful presence in the United States is not restricted 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 diseases and for testing and treatment of symptoms of communicable diseases whether or not those symptoms are caused by a communicable disease; or
(5) 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 sole and unreviewable discretion of the United States Attorney General 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 income or resources of the individual recipient; and
(c) are necessary for the protection of life or safety.
(D)(1) Verification of lawful presence in the United States by the agency or political subdivision required to make the verification requires that the applicant execute an affidavit under penalty of perjury that:
(a) he is a United States citizen; or
(b) he is a qualified alien under the federal Immigration and Nationality Act, and is lawfully present in the United States.
(2) The agency or political subdivision providing the state or local public benefits shall provide notary public services at no cost to the applicant.
(E) For an applicant who has executed the affidavit described in subsection (D) of this section, verification of eligibility for benefits must be made through the Systematic Alien Verification of Entitlement 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 is presumed to be proof of lawful presence for the purposes of this section.
(F) A person who knowingly and wilfully makes a false, fictitious, or fraudulent statement of representation in an affidavit executed pursuant to subsection (D) of this section is subject to criminal penalties applicable in this State for fraudulently obtaining public assistance program benefits. If the affidavit constitutes a false claim of United States citizenship under 18 U.S.C. Section 911, a complaint shall be filed by the agency requiring the affidavit with the United States Attorney for the applicable district based upon the venue in which the affidavit was executed.
(G) Agencies or political subdivisions of this State may adopt variations to the requirements of the provisions of this section which demonstrably improve the 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 is 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 the provisions of this section.
(I) A state agency or department that administers a program of state or local public benefits shall provide an annual report to the Governor, the President Pro Tempore of the Senate and the Speaker of the House of Representatives with respect to its compliance with the provisions of this section. The agency or department shall monitor the Systematic Alien Verification of Entitlement program for verification application errors and significant delays and shall provide an annual public report on errors and significant delays, and recommendations to ensure that the application of the Systematic Alien Verification of Entitlement program is not erroneously denying benefits to legal residents of South Carolina. Errors also must be reported to the United States Department of Homeland Security by the agency or department."
SECTION 10. Article 15, Chapter 1, Title 56 of the 1976 Code is amended by adding:
"Section 56-1-3355. (A) An identification card as provided for in Section 56-1-3350 may be issued only to United States citizens, nationals, and legal permanent resident aliens.
(B)(1) This section does not apply when an applicant presents, in person, valid documentary evidence of:
(a) valid, unexpired immigrant or nonimmigrant visa status for admission into the United States;
(b) pending or approved application for asylum in the United States;
(c) admission into the United States in refugee status;
(d) pending or approved application for temporary protected status in the United States;
(e) approved deferred action status; or
(f) a pending application for adjustment of status to legal permanent residence status or conditional resident status.
(2) Upon approval pursuant to this subsection, the applicant may be issued an identification card. The identification document is valid only during the period of time of the authorized stay of the applicant in the United States or, if there is not definite end to the period of authorized stay, a period of one year. An identification card issued pursuant to the provisions of this subsection shall indicate clearly that it is temporary and shall state the date that the identification card expires. The identification card may be renewed only upon presentation of valid documentary evidence that the status by which the applicant qualified for the identification card has been extended by the United States Immigration and Naturalization Service of the Bureau of Citizenship and Immigration Services of the United States Department of Homeland Security.
(C) A driver's license for which an application has been made for renewal, duplication, or reissuance is presumed to have been issued in accordance with this section if, at the time the application is made, the driver's license has not expired or been canceled, suspended, or revoked. The requirements of this section do apply, however, to a renewal, duplication, or reissuance if the department is notified by a local, state, or federal government agency of information in the possession of the agency indicating a reasonable suspicion that the individual seeking the renewal, duplication, or reissuance is present in the United States in violation of law."
SECTION 11. Article 1, Chapter 101, Title 59 of the 1976 Code is amended by adding:
"Section 59-101-430. An individual who is not lawfully present in the United States is not eligible on the basis of residence within the State for:
(1) a postsecondary education benefit including, but not limited to, scholarships or financial aid; or
(2) resident tuition."
SECTION 12. Section 56-1-40(7) of the 1976 Code is amended to read:
"(7) who is not a resident of South Carolina. For purposes of determining eligibility to obtain or renew a South Carolina driver's license, the term 'resident of South Carolina' shall expressly include includes all persons authorized by the United States Department of Justice, the United States Immigration and Naturalization Service, or the United States Department of State to live, work, or study in the United States on a temporary or permanent basis who present documents as provided in Section 56-1-3355(B) indicating their intent to live, work, or study in South Carolina. These persons and their dependents are eligible to obtain a motor vehicle driver's license or have one renewed pursuant to this provision and Section 56-1-3355(C). A driver's license issued pursuant to this item to a person who is not a lawful permanent resident of the United States shall expire on the later of: (1) the expiration date of the driver's license applicant's authorized period of stay in the United States; or (2) the expiration date of the driver's license applicant's employment authorization document. However, in no event shall a A driver's license issued pursuant to this item may not expire less than one year or more than five years from the date of its issue. In addition, a person pending adjustment of status who presents appropriate documentation to the Department of Motor Vehicles shall department must be granted a one-year extension of his driver's license which is renewable annually."
SECTION 13. 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 14. 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 15. This act takes effect upon approval by the Governor.
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