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COMMITTEE REPORT
March 29, 2007
S. 392
Introduced by Senators Ritchie, Cromer, Sheheen, Campsen, Scott, Williams and Vaughn
S. Printed 3/29/07--S. [SEC 3/30/07 1:28 PM]
Read the first time February 1, 2007.
To whom was referred a Bill (S. 392) to amend the Code of Laws of South Carolina, 1976, by adding Chapter 14 to Title 8, relating to illegal aliens and public employment, so as to enact the, etc., respectfully
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 all after the enacting language and inserting therein the following:
/ SECTION 1. This act may be cited as the "South Carolina Illegal Immigration Reform Act".
SECTION 2. Section 1-31-40(A) of the 1976 Code is amended to read:
"(A) The commission shall:
(1) provide the minority community consisting of African Americans, Native American Indians, Hispanics/Latinos, Asians, and others with a single point of contact for statistical and technical assistance in the areas of research and planning for a greater economic future;
(2) work with minority officials on the state, county, and local levels of government in disseminating statistical data and its impact on their constituencies;
(3) provide for publication of a statewide statistical abstract on minority affairs;
(4) provide statistical analyses for members of the General Assembly on the state of minority communities as the State experiences economic growth and changes;
(5) provide the minority community with assistance and information on Voting Rights Act submissions in the State, as well as other related areas of concern to the minority community;
(6) determine, approve, and acknowledge by certification state recognition for Native American Indian entities; however, notwithstanding their state certification, the tribes have no power or authority to take any action which would establish, advance, or promote any form of gambling in this State;
(7) establish advisory committees representative of minority groups, as the commission considers appropriate to advise the commission;
(8) act as liaison with the business community to provide programs and opportunities to fulfill its duties under this chapter;
(9) seek federal and other funding on behalf of the State of South Carolina for the express purpose of implementing various programs and services for African Americans, Native American Indians, Hispanics/Latinos, Asians, and other minority groups;
(10) promulgate regulations as may be necessary to carry out the provisions of this article including, but not limited to, regulations regarding State Recognition of Native American Indian entities in the State of South Carolina; and
(11) establish and maintain a twenty-four hour toll free telephone number and electronic website in accordance with Section 8-30-10; and
(11)(12) perform other duties necessary to implement programs."
SECTION 3. Title 8 of the 1976 Code is amended by adding:
Section 8-14-10. (A) As used in this article, the term:
(1) 'Contractor' means any person having a contract with a public employer except a political subdivision, where the total value of the contract to be performed in a twelve-month period exceeds twenty-five thousand dollars, or, if the public employer is a political subdivision, where the total value of the contract to be performed in a twelve-month period exceeds fifteen thousand dollars.
(2) 'Director' means the Executive Director of the State Budget and Control Board.
(3) 'End product' means movable personal property described in the solicitation and in final form and ready for the use intended including, without limitation, commodities or equipment.
(4) '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), Public Law 99-603, or an electronic verification of work authorization program operated by a private entity and approved by the Attorney General.
(5) 'Public employer' means every department, agency, or instrumentality of the State or a political subdivision of the State.
(6) 'Service contract' means a contract that involves the physical performance of manual labor, if the total cost of such labor exceeds thirty percent of the total cost of all labor or exceeds five percent of the total contract price. Service contract excludes: (a) a contract with a public employer, other than a political subdivision, with a total value of less than twenty-five thousand dollars, or a contract with a political subdivision with a total value of less than fifteen thousand dollars; (b) a contract primarily for the acquisition of an end product; and (c) a contract that is predominantly for the performance of professional or consultant services.
(7) 'Subcontractor' means any person having either: (a) a services contract with a contractor; or (b) a contract with a sub-subcontractor.
(8) 'Sub-subcontractor' means any person having a services contract with a subcontractor.
Section 8-14-20. (A) On or after July 1, 2008, 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 services contract with a contractor for the physical performance of services within this State unless the contractor:
(1) agrees to both: (a) register and participate in the federal work authorization program to verify information of all new employees; and (b) require agreement from its subcontractors, and through the subcontractors, the sub-subcontractors, to register and participate in the federal verification of information of all new employees; or
(2) agrees to employ only workers who: (a) possess a valid South Carolina driver's license or identification card issued by the South Carolina Department of Motor Vehicles; (b) are eligible to obtain South Carolina driver's license or identification card in that they meet the requirements set forth in S.C. Code Ann. Section 56-1-40 through 56-1-90; or (c) possess a valid driver's license or identification card from another state where the license requirements are as strict or stricter than those in South Carolina, as determined by the Attorney General.
(C) A public employer and contractor must not divide work or duties that would otherwise constitute a single contract into separate contracts for the purpose of avoiding the requirements of subsection (B).
(D) Subsection (B) applies as follows:
(1) on and after July 1, 2008, with respect to public employers, contractors, or subcontractors of five hundred or more employees;
(2) on and after July 1, 2009, with respect to public employers, contractors, or subcontractors of one hundred or more employees but less than five hundred employees; and
(3) on and after July 1, 2010, with respect to all other public employers, contractors, or subcontractors.
Section 8-14-30. The provisions of this article are enforceable without regard to race, religion, gender, ethnicity, or national origin. Section 11-35-4210 provides the exclusive remedy for violations of this article for any contract governed by Title 11, Chapter 35. A pre-award protest process appearing in a procurement ordinance adopted by a political subdivision pursuant to Section 11-35-50 or Section 11-35-70 provides the exclusive remedy for violations of this article for any contract governed by that procurement ordinance.
Section 8-14-40. The director may prescribe all forms and promulgate regulations deemed necessary for the application of this article to contracts or agreements and may publish these regulations on the Budget and Control Board's website in accordance with the provisions of Chapter 23 of Title 1 of the South Carolina Code of Laws.
Section 8-14-50. A public employer complies with this article if it obtains a written statement from the contractor certifying that the contractor will comply with the requirements of this article and agrees to provide to the public employer any documentation required to establish either: (a) the applicability of this article to the contractor, subcontractor, and sub-subcontractor; or (b) the compliance with this article by the contractor and any subcontractor or sub-subcontractor. A public employer need not audit or independently verify a contractor's compliance with this article.
Section 8-14-60. A contractor who in good faith complies with the requirements of this article may not be sanctioned or subjected to any civil or administrative action for employing any individual not authorized for employment in the United States."
SECTION 4. Title 8 of the 1976 Code is amended by adding:
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 to enhance cooperation and communication between federal and state law enforcement agencies in the area of immigration enforcement.
(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. The training may be funded pursuant to the federal Homeland Security Appropriations Act of 2006, or any other source of funding. No training shall be scheduled or take place until full funding, to include funding to hire additional law enforcement officers necessary to implement the requirements of this subsection, is secured.
(D) The Director of the South Carolina Department of Corrections, the sheriff of any county, and the governing body of any municipality that maintains a paid police department may enter into the memorandum of understanding between the State of South Carolina and the United States Department of Justice or Department of Homeland Security as a party, and, subject to the availability of funds provided for in subsection (C) of this section, provide corrections officers and local law enforcement officers for training in accordance with the memorandum of understanding.
(E) A law enforcement officer certified as trained in accordance with the memorandum of understanding as provided in this section is authorized to enforce federal immigration and customs laws while performing within the scope of his or her authorized duties."
SECTION 5. Title 8 of the 1976 Code is amended by adding:
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, 2008, every agency or 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 are 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 person 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;
(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; or
(8) for any benefits, programs, services or any other assistance provided to victims of domestic violence, irrespective of their immigration status, under the Violence Against Women Act of 2000, Public Law Number 106-386, or the Illegal Immigration Reform and Immigrant Responsibility Act, Public Law Number 104-208.
(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, Public Law 82-414, eighteen years of age or older, and 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 or representation in an affidavit executed pursuant to this subsection, or who aids or abets a person in knowingly and willfully making a false, fictitious, or fraudulent statement or representation in an affidavit executed pursuant to this section, or who solicits or conspires to make a false, fictitious, or fraudulent statement or representation in an affidavit executed pursuant to this section shall be guilty of a felony and, upon conviction, must be fined in the discretion of the court or imprisoned not more than five years, or both. In addition, a person convicted pursuant to this section must disgorge any benefit received or make restitution, or both, to the agency or political subdivision of this State that administered the benefit or entitlement program. It shall constitute a separate violation of this section each time that a person receives a public benefit based on such a statement or representation. A conviction and fine charged pursuant to this section shall not preempt or preclude additional appropriate civil or criminal charges or penalties.
(G) If an affidavit constitutes a false claim of U.S. citizenship under 18 U.S.C. Section 911, a complaint shall be filed by the agency or political subdivision with the United States Attorney for the District of South Carolina.
(H) 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.
(I) 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 that administers any program of state or local public benefits shall provide an annual report with respect to its compliance with this section.
(J) Any and all errors and significant delays by SAVE shall be reported to the United States Department of Homeland Security and to the Secretary of State which will monitor SAVE and its verification application errors and significant delays and report yearly on such errors and significant delays to ensure that the application of SAVE is not wrongfully denying benefits to legal residents of South Carolina."
SECTION 6. Title 8 of the 1976 Code is amended by adding:
Section 8-30-10. (A) The Executive Director of the State Commission for Minority Affairs, or a designee, shall establish and maintain a twenty-four hour toll free telephone number and electronic website to receive, record, collect, and report allegations of violations of any laws or regulations by any non-United States citizen or immigrant, and allegations of violations of any laws or regulations against any non-United States citizen or immigrant. Such violations shall include, but are not limited to, federal work authorization or Basic Pilot Program violations, violations of Chapter 83 of Title 40 of this code relating to immigration assistance services, or any regulations enacted governing the operation of immigration assistance services, false or fraudulent statements made or documents filed in relation to an immigration matter, as defined by Section 40-83-20, violation of human trafficking laws, as defined in Section 16-3-930, landlord tenant law violations, or violations of any law pertaining to the provision or receipt of public assistance benefits or public services.
(B) The executive director, or a designee, shall establish and maintain a centralized tracking database consisting of all information received through the twenty-four hour toll free telephone number and electronic website, and shall report all alleged violations to the appropriate law enforcement, administrative, executive, or regulatory agency or political subdivision having law enforcement or regulatory control over the subject matter.
Section 8-30-20. The executive director is authorized to hire personnel necessary to carry out the duties prescribed in Section 8-30-10. The General Assembly shall provide for the funds in the annual appropriations act."
SECTION 7. 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 the Immigration Reform and Control Act of 1986.
(2) 'Labor services' means the physical performance of services in this State.
(B) On or after January 1, 2009, 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 that is exempt from compliance with federal employment verification procedures under federal law that makes the employment of unauthorized persons unlawful.
(D) This section shall not apply to any individual hired by the taxpayer prior to January 1, 2009.
(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: (1) holds and presents to the taxpayer a valid license or identification card issued by the South Carolina Department of Motor Vehicles; (2) is eligible to obtain a South Carolina driver's license or identification card in that he meets the requirements set forth in S.C. Code Ann. Section 56-1-40 through 56-1-90; or (3) possesses a valid driver's license or identification card from another state where the license requirements are as strict or stricter than those in South Carolina, as determined by the Attorney General.
(G) No taxpayer shall be held liable for failing to comply with the provisions of this section if, based on a reasonable investigation of the individual, the taxpayer did not know or should not have known that the individual was not an authorized employee. For purposes of this subsection, a taxpayer shall be deemed to have conducted a reasonable investigation if the individual met the requirements of subsection (F), and the information provided by the individual to the taxpayer was facially correct.
(H) The Director of the South Carolina Department of Revenue 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.
(I) The Executive Director of the South Carolina Employment Security Commission shall send written notice of this section to all South Carolina employers no later than July 1, 2008."
SECTION 8. Chapter 8, 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 as defined in Section 12-8-10, shall be required to withhold state income tax at the rate of six percent of the amount of compensation paid to an individual that 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.
(C) A withholding agent must not be held liable for failing to withhold state income tax at a rate of six percent of the amount of compensation paid to an individual who provides a false or incorrect taxpayer identification number if the number provided is facially correct and the withholding agent does not know or should not have known based on reasonable investigation that the number provided is false or incorrect.
(D) The Executive Director of the South Carolina Employment Security Commission shall send written notice of this section to all South Carolina employers no later than July 1, 2008."
SECTION 9. Article 5, Chapter 9, Title 16 of the 1976 Code is amended by adding:
"Section 16-9-460. (A) It shall be a felony for any person to transport, move, or attempt to transport within the State, or to solicit or conspire to transport or move within the State, any person knowingly or in reckless disregard of the fact that the person has come to, entered, or remained in the U.S. in violation of law, in furtherance of the person's illegal presence in the United States.
(B) It shall be a felony for any person to conceal, harbor, or shelter from detection, or to solicit or conspire to conceal, harbor, or shelter from detection any person in any place, including any building or means of transportation, knowingly or in reckless disregard of the fact that the person has come to, entered, or remained in the U.S. in violation of law, in furtherance of the person's illegal presence in the United States.
(C) Any person who violates the provisions of subsection (A) or (B) of this section is guilty of a felony and, upon conviction, shall be punished by a fine not to exceed five thousand dollars or by imprisonment for a term not to exceed five years, or both.
(D) A person who is convicted of, pleads guilty to, or enters into a plea of nolo contendre to a violation of this section must not be permitted to seek or obtain any professional license offered by the State or any agency or political subdivision of the State."
SECTION 10. Chapter 13, Title 16 of the 1976 Code is amended by adding:
"Section 16-13-525. (A) In addition to the penalties provided for in this chapter, a person who is convicted of, pleads guilty to, or enters into a plea of nolo contendre to financial identity fraud or identity fraud involving the false, fictitious, or fraudulent creation or use of documents used in an immigration matter to enable a person not authorized to live or work in the United States to live or work in the United States, or to receive benefits administered by an agency or political subdivision of this State, must disgorge any benefit received or make restitution, or both, to the agency or political subdivision that administered the benefit or entitlement program. A criminal charge pursuant to this chapter shall not preempt or preclude additional appropriate civil or criminal charges or penalties.
(B) Any person who suffers any ascertainable loss of money or property, real or personal, as a result of a conviction or plea to a violation of financial identity fraud or identity fraud involving a matter described in (B) of this subsection, may bring an action individually, or in a representative capacity, to recover actual damages. If the court finds that a violation has been established, the court shall award three times the actual damages sustained and may provide such other relief as it deems necessary or proper. Upon the finding by the court of a violation, the court shall award to the person bringing such action under this section reasonable attorney's fees and costs."
SECTION 11. Chapter 3, Title 23 of the 1976 Code is amended by adding:
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 a jail of the State, county, or municipality, or a jail operated by a regional jail authority, a reasonable effort shall be made to determine whether the person so confined is lawfully present in the United States.
(B) If the prisoner is a foreign national, the keeper of the jail or other officer must 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 must be made within seventy-two 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 12. Article 1, Chapter 5, Title 39 of the 1976 Code is amended by adding:
"Section 39-5-25. (A) The discharge of any United States citizen or other person authorized to work in the United States by an employer in this State is an unfair trade practice as defined in this chapter if the purpose for discharging the person is to replace that worker with another person who the employer knew or should have known was not lawfully admitted to the United States, or not authorized to work in the United States. The discharged employee shall have a private cause of action for the unfair trade practice.
(B) An employer must not be held liable under this subsection for employing a person not authorized to work in the United States if, prior to or at the time the person was hired, the employer was complying with the provisions of Sections 8-14-10 through 8-14-60."
SECTION 13. Title 40 of the 1976 Code is amended by adding:
Section 40-83-10. This act shall be cited as the 'Registration of Immigration Assistance Services 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) 'Director' means the Director of the South Carolina Department of Labor, Licensing and Regulation, or his designee.
(C) '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.
(D) '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.
(E) '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 that 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 a 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 director 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; or
(3) a not-for-profit organization recognized by the Board of Immigration Appeals under 8 C.F.R. 292.2(a), to include, but not be limited to, religious, charitable, social service, or similar organizations, and employees of those organizations accredited under 8 C.F.R. 292.2(d).
(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 a license from the director 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) 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 providing 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.
(I) Violations of this chapter may result in a civil penalty of up to one thousand dollars per violation and the revocation of the business license of the immigration assistance service. A fine charged pursuant to this chapter shall not preempt or preclude additional appropriate civil or criminal penalties to include disgorgement and restitution.
(J) Any person who knowingly and willfully makes a false, fictitious, or fraudulent statement or representation in any document prepared or executed as part of the provision of immigration assistance services in an immigration matter pursuant to this chapter, or anyone who aids or abets a person in knowingly and willfully making a false, fictitious, or fraudulent statement or representation in any document prepared or executed as part of the provision of immigration assistance services in an immigration matter pursuant to this chapter, or who solicits or conspires to make a false, fictitious, or fraudulent statement or representation in any document prepared or executed as part of the provisions of immigration assistance services in an immigration matter pursuant to this chapter shall be guilty of a felony and, upon conviction, must be fined in the discretion of the court or imprisoned not more than ten years, or both. In addition, a person convicted of this subsection must disgorge any benefit received or make restitution, or both, to the agency or political subdivision that administered the benefit or entitlement program. A criminal charge pursuant to this chapter shall not preempt or preclude additional appropriate civil or criminal charges or penalties.
(K) The director 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 14. All requirements of this act concerning immigration or the classification of immigration status must be construed in conformity with federal immigration law.
SECTION 15. 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 16. This act takes effect upon approval by the Governor. /
Renumber sections to conform.
Amend title to conform.
JAMES H. RITCHIE, JR. for Committee.
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING CHAPTER 14 TO TITLE 8, RELATING TO ILLEGAL ALIENS AND PUBLIC EMPLOYMENT, SO AS TO ENACT THE "SOUTH CAROLINA ILLEGAL IMMIGRATION REFORM ACT", TO REQUIRE THAT EVERY PUBLIC EMPLOYER PARTICIPATE IN THE FEDERAL WORK AUTHORIZATION PROGRAM TO VERIFY ALL NEW EMPLOYEES, TO REQUIRE CONTRACTORS OR SUBCONTRACTORS WHO CONTRACT WITH PUBLIC EMPLOYERS FOR THE PHYSICAL PERFORMANCE OF SERVICES TO REGISTER AND PARTICIPATE IN THE FEDERAL WORK AUTHORIZATION PROGRAM, TO DEFINE TERMS, TO ESTABLISH DEADLINES TO COMPLY FOR PUBLIC EMPLOYERS, CONTRACTORS, AND SUBCONTRACTORS, TO REQUIRE THAT THE PROVISIONS OF THE CHAPTER ARE ENFORCEABLE WITHOUT REGARD TO RACE, RELIGION, GENDER, ETHNICITY, OR NATIONAL ORIGIN, AND TO AUTHORIZE THE DIRECTOR OF THE STATE BUDGET AND CONTROL BOARD TO PRESCRIBE FORMS AND PROMULGATE RULES NECESSARY TO ADMINISTER THE ACT AND PUBLISH THE RULES AND REGULATIONS ON THE BOARD'S WEBSITE; TO AMEND TITLE 8 BY ADDING CHAPTER 28, RELATING TO ENFORCEMENT OF FEDERAL IMMIGRATION AND CUSTOMS LAWS, SO AS TO AUTHORIZE THE CHIEF OF THE SOUTH CAROLINA LAW ENFORCEMENT DIVISION TO NEGOTIATE THE TERMS OF A MEMORANDUM OF UNDERSTANDING BETWEEN THE STATE AND THE FEDERAL GOVERNMENT CONCERNING THE ENFORCEMENT OF FEDERAL IMMIGRATION AND CUSTOMS LAWS, DETENTION AND REMOVALS, AND INVESTIGATIONS IN THE STATE, TO AUTHORIZE THE CHIEF OF THE SOUTH CAROLINA LAW ENFORCEMENT DIVISION TO DESIGNATE APPROPRIATE LAW ENFORCEMENT OFFICERS TO BE TRAINED PURSUANT TO THE MEMORANDUM OF UNDERSTANDING, TO STIPULATE THAT NO TRAINING SHALL TAKE PLACE UNTIL FUNDING IS SECURED, TO PERMIT THE DIRECTOR OF THE DEPARTMENT OF CORRECTIONS, ANY COUNTY SHERIFF, OR THE GOVERNING BODY OF ANY MUNICIPALITY THAT MAINTAINS A POLICE FORCE TO ENTER INTO THE MEMORANDUM AS A PARTY AND PROVIDE OFFICERS TO BE TRAINED, AND TO PROVIDE THAT AN OFFICER CERTIFIED AS TRAINED IN ACCORDANCE WITH THE MEMORANDUM IS AUTHORIZED TO ENFORCE FEDERAL IMMIGRATION AND CUSTOMS LAWS WHILE PERFORMING WITHIN THE SCOPE OF HIS OR HER DUTIES; TO AMEND TITLE 8, BY ADDING CHAPTER 29, RELATING TO VERIFICATION OF A PERSON'S LAWFUL PRESENCE IN THE UNITED STATES, SO AS TO REQUIRE THAT EVERY AGENCY OR POLITICAL SUBDIVISION OF THIS STATE VERIFY THE LAWFUL PRESENCE IN THE UNITED STATES OF ANY NATURAL PERSON EIGHTEEN OR OLDER WHO HAS APPLIED FOR STATE OR LOCAL PUBLIC BENEFITS, AS DEFINED BY FEDERAL LAW, THAT ARE ADMINISTERED BY AN AGENCY OR POLITICAL SUBDIVISION OF THIS STATE, TO REQUIRE ENFORCEMENT OF THIS PROVISION WITHOUT REGARD TO RACE, RELIGION, GENDER, ETHNICITY, OR NATIONAL ORIGIN, TO PROVIDE EXCEPTIONS FOR VERIFICATION OF A PERSON'S LAWFUL PRESENCE IN THE UNITED STATES, TO PROVIDE A PROCEDURE FOR A PERSON TO VERIFY HIS OR HER LAWFUL PRESENCE IN THE UNITED STATES, INCLUDING EXECUTING AN AFFIDAVIT THAT THE PERSON IS A UNITED STATES CITIZEN OR LEGAL PERMANENT RESIDENT OR A QUALIFIED ALIEN OR NONIMMIGRANT UNDER THE IMMIGRATION AND NATURALIZATION ACT, TO REQUIRE THAT ELIGIBILITY FOR BENEFITS SHALL BE MADE THROUGH THE FEDERAL SYSTEMATIC ALIEN VERIFICATION OF ENTITLEMENT PROGRAM MAINTAINED BY THE DEPARTMENT OF HOMELAND SECURITY, TO MANDATE THAT A PERSON WHO KNOWINGLY AND WILLFULLY MAKES A FALSE, FICTITIOUS, OR FRAUDULENT STATEMENT OR REPRESENTATION IN AN AFFIDAVIT EXECUTED PURSUANT TO THIS SECTION, OR WHO AIDS OR ABETS A PERSON IN KNOWINGLY AND WILLFULLY MAKING A FALSE, FICTITIOUS, OR FRAUDULENT STATEMENT OR REPRESENTATION IN AN AFFIDAVIT SHALL BE GUILTY OF A FELONY AND, UPON CONVICTION, SHALL BE FINED OR IMPRISONED NOT MORE THAN FIVE YEARS, OR BOTH, AND MUST DISGORGE ANY BENEFIT RECEIVED AND MAKE RESTITUTION TO THE AGENCY WHO ADMINISTERED THE BENEFIT OR ENTITLEMENT, TO REQUIRE THAT IF THE AFFIDAVIT CONSTITUTES A FALSE CLAIM OF UNITED STATES CITIZENSHIP, THE STATE SHALL FILE A COMPLAINT WITH THE UNITED STATES ATTORNEY'S OFFICE, TO PROVIDE THAT AGENCIES OR POLITICAL SUBDIVISIONS MAY ADOPT VARIATIONS OF THE REQUIREMENTS OF THIS SECTION TO REDUCE DELAY AND IMPROVE EFFICIENCY, TO PROVIDE THAT IT SHALL BE UNLAWFUL FOR ANY STATE AGENCY OR POLITICAL SUBDIVISION TO PROVIDE BENEFITS IN VIOLATION OF THIS SECTION, AND TO REQUIRE THAT ALL ERRORS AND DELAYS EXPERIENCED BY AGENCIES OR POLITICAL SUBDIVISIONS IN THE SYSTEMATIC ALIEN VERIFICATION OF ENTITLEMENT PROGRAM BE REPORTED TO THE DEPARTMENT OF HOMELAND SECURITY; TO ADD SECTION 12-6-1175, SO AS TO PROHIBIT ANY WAGES OR REMUNERATION FOR LABOR SERVICES PAID TO AN INDIVIDUAL OF SIX HUNDRED DOLLARS OR MORE PER YEAR FROM BEING CLAIMED AS A DEDUCTIBLE BUSINESS EXPENSE FOR STATE INCOME TAX PURPOSES UNLESS THE INDIVIDUAL IS AN AUTHORIZED EMPLOYEE, TO PROVIDE FOR EXEMPTIONS, TO REQUIRE THE DIRECTOR OF THE DEPARTMENT OF REVENUE TO PRESCRIBE FORMS AND PROMULGATE REGULATIONS TO EFFECTUATE THIS SECTION, AND TO REQUIRE THE EXECUTIVE DIRECTOR OF THE SOUTH CAROLINA EMPLOYMENT SECURITIES COMMISSION TO SEND WRITTEN NOTICE OF THIS PROVISION TO ALL EMPLOYERS IN THIS STATE; TO ADD SECTION 12-8-595, SO AS TO REQUIRE TAX WITHHOLDING AGENTS FOR EMPLOYERS TO WITHHOLD STATE INCOME TAX AT THE RATE OF SIX PERCENT OF THE AMOUNT OF COMPENSATION PAID TO AN INDIVIDUAL IF THE INDIVIDUAL HAS FAILED TO PROVIDE A TAXPAYER IDENTIFICATION NUMBER, FAILED TO PROVIDE A CORRECT TAXPAYER IDENTIFICATION NUMBER, OR PROVIDED A TAXPAYER IDENTIFICATION NUMBER ISSUED FOR NONRESIDENTS, TO PROVIDE THAT WITHHOLDING AGENTS WHO FAIL TO FOLLOW THE PROVISIONS OF THIS SECTION ARE LIABLE FOR THE TAX, TO PROVIDE EXCEPTIONS FROM LIABILITY FOR WITHHOLDING AGENTS IF THE EMPLOYEE PROVIDES A FACIALLY CORRECT TAXPAYER IDENTIFICATION NUMBER THAT THE WITHHOLDING AGENT DOES NOT KNOW WAS FALSE OR INCORRECT, AND TO REQUIRE THE EXECUTIVE DIRECTOR OF THE SOUTH CAROLINA EMPLOYMENT SECURITY COMMISSION TO SEND NOTICE OF THIS PROVISION TO ALL EMPLOYERS; TO ADD SECTION 16-9-460, TO PROVIDE THAT IT IS A FELONY FOR ANY PERSON TO TRANSPORT, MOVE, OR ATTEMPT TO TRANSPORT WITHIN THE STATE ANY PERSON KNOWINGLY OR IN RECKLESS DISREGARD TO THE FACT THAT THE PERSON HAS COME TO, ENTERED INTO, OR REMAINED IN THE UNITED STATES IN VIOLATION OF THE LAW, IN FURTHERANCE OF THE PERSON'S ILLEGAL PRESENCE IN THE UNITED STATES, OR TO CONCEAL, HARBOR, OR SHELTER FROM DETECTION A PERSON ILLEGALLY IN THE UNITED STATES IN FURTHERANCE OF THE PERSON'S ILLEGAL PRESENCE IN THE UNITED STATES, TO PROVIDE FOR PENALTIES IF A PERSON IS CONVICTED, AND TO PROHIBIT ANY PERSON CONVICTED FROM OBTAINING A PROFESSIONAL LICENSE IN SOUTH CAROLINA; TO ADD SECTION 16-9-460, SO AS SO MAKE IT A FELONY TO TRANSPORT, MOVE, OR ATTEMPT TO TRANSPORT WITHIN THE STATE ANY PERSON KNOWINGLY OR IN RECKLESS DISREGARD FOR THE FACT THAT THE PERSON IS NOT LEGALLY PRESENT IN THE UNITED STATES, OR TO CONCEAL, HARBOR, OR SHELTER FROM DETECTION ANY PERSON IN ANY PLACE KNOWINGLY OR IN RECKLESS DISREGARD OF THE FACT THAT THE PERSON IS NOT LEGALLY PRESENT IN THE UNITED STATES, AND TO PROVIDE PENALTIES FOR A CONVICTION FOR SUCH CRIME; TO ADD SECTION 23-3-1100, SO AS TO REQUIRE THAT ALL JAILS OF THIS STATE OR ITS COUNTIES OR MUNICIPALITIES MUST MAKE A REASONABLE EFFORT TO DETERMINE WHETHER ANY PERSON CHARGED WITH A FELONY OR DRIVING UNDER THE INFLUENCE IS LAWFULLY PRESENT IN THE UNITED STATES, TO MAKE SUCH VERIFICATION WITHIN 72 HOURS OF CONFINEMENT, TO NOTIFY THE DEPARTMENT OF HOMELAND SECURITY IF A PERSON IS NOT LAWFULLY IN THE UNITED STATES, AND TO REQUIRE THE STATE LAW ENFORCEMENT DIVISION TO PROMULGATE REGULATIONS TO COMPLY WITH THE PROVISIONS OF THIS SECTION; TO ADD SECTION 39-5-37, SO AS TO PROVIDE A CIVIL CAUSE OF ACTION TO ANY PERSON WHO IS TERMINATED BY AN EMPLOYER IF THE PURPOSE FOR DISCHARGE WAS TO REPLACE THE WORKER WITH ANOTHER PERSON WHO THE EMPLOYER KNEW OR SHOULD HAVE KNOWN WAS NOT LAWFULLY ADMITTED TO THE UNITED STATES, OR NOT AUTHORIZED TO WORK IN THE UNITED STATES, AND TO PROVIDE AN EXEMPTION FOR ANY EMPLOYER WHO CONFIRMS A WORKER'S STATUS THROUGH THE FEDERAL WORK AUTHORIZATION PROGRAM; AND TO AMEND TITLE 40, BY ADDING CHAPTER 83, RELATING TO REGISTRATION OF IMMIGRATION ASSISTANCE SERVICES, SO AS TO ADD THE "REGISTRATION OF IMMIGRATION SERVICE ACT" TO REQUIRE ALL IMMIGRATION ASSISTANCE SERVICES TO OBTAIN A BUSINESS LICENSE FROM THE SOUTH CAROLINA DEPARTMENT OF LABOR, LICENSING AND REGULATION, TO PROVIDE DEFINITIONS, TO LIST THE SERVICES THAT IMMIGRATION ASSISTANCE SERVICES MAY PROVIDE, TO PROHIBIT IMMIGRATION SERVICES FROM ACCEPTING PAYMENT IN EXCHANGE FOR PROVIDING LEGAL ADVICE, FOR REFUSING TO RETURN DOCUMENTS SUPPLIED BY, PREPARED FOR, OR PAID FOR BY A CUSTOMER, FOR REPRESENTING OR ADVERTISING, IN CONNECTION WITH PROVIDING IMMIGRATION ASSISTANCE SERVICES, CERTAIN TITLES TO INCLUDE 'NOTARY PUBLIC', OR 'IMMIGRATION CONSULTANT', OR FOR PROVIDING LEGAL ADVICE, OR MAKING ANY MISREPRESENTATION OR FALSE STATEMENT TO INFLUENCE, PERSUADE, OR INDUCE PATRONAGE, TO PROVIDE FOR CIVIL AND CRIMINAL PENALTIES FOR VIOLATIONS, AND TO REQUIRE THE DIRECTOR OF THE DEPARTMENT OF LABOR, LICENSING AND REGULATION TO PROMULGATE RULES TO EFFECTUATE THIS SUBSECTION.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. This act may be cited as the "South Carolina Illegal Immigration Reform Act".
SECTION 2. Title 8 of the 1976 Code is amended by adding:
Section 8-14-10. (A) As used in this article, the term:
(1) 'Director' means the Executive 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), Public Law 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) 'Contractor' means a person or entity that enters into a contract to perform or supervise the performance of services to a public employer.
(5) 'Subcontractor' includes a subcontractor, contract employee, staffing agency, or other contractor regardless of its tier.
Section 8-14-20. (A) On or after July 1, 2008, 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) A public employer may provide assistance to a contractor or subcontractor with registering and participating in the federal work authorization program.
(E) Subsections (B) and (C) apply as follows:
(1) on and after July 1, 2008, with respect to public employers, contractors, or subcontractors of five hundred or more employees;
(2) on and after July 1, 2009, with respect to public employers, contractors, or subcontractors of one hundred or more employees but less than five hundred employees; and
(3) on and after July 1, 2010, with respect to all other public employers, contractors, or subcontractors.
Section 8-14-30. The provisions of this article are enforceable without regard to race, religion, gender, ethnicity, or national origin.
Section 8-14-40. The director shall prescribe all forms and promulgate regulations deemed necessary for the application of this article to contracts or agreements and shall publish these regulations on the Budget and Control Board'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:
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 to enhance cooperation and communication between federal and state law enforcement agencies in the area of immigration enforcement.
(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. The training may be funded pursuant to the federal Homeland Security Appropriations Act of 2006, or any other source of funding. The training shall not take place until funding is secured.
(D) The Director of the South Carolina Department of Corrections, the sheriff of any county, and the governing body of any municipality that maintains a paid police department may enter into the memorandum of understanding between the State of South Carolina and the United States Department of Justice or Department of Homeland Security as a party, and, subject to the availability of funds provided for in subsection (C) of this section, provide corrections officers and local law enforcement officers for training in accordance with the memorandum of understanding.
(E) 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:
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, 2008, every agency or 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 are 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 person 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, Public Law 82-414, eighteen years of age or older, and 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 or representation in an affidavit executed pursuant to this subsection, or who aids or abets a person in knowingly and willfully making a false, fictitious, or fraudulent statement or representation in an affidavit executed pursuant to this section, or who solicits or conspires to make a false, fictitious, or fraudulent statement or representation in an affidavit executed pursuant to this section shall be guilty of a felony and, upon conviction, must be fined in the discretion of the court or imprisoned not more than five years, or both. In addition, a person convicted pursuant to this section must disgorge any benefit received or make restitution, or both, to the agency or political subdivision of this State that administered the benefit or entitlement program. It shall constitute a separate violation of this section each time that a person receives a public benefit based on such a statement or representation. A conviction and fine charged pursuant to this section shall not preempt or preclude additional appropriate civil or criminal charges or penalties.
(G) If an affidavit constitutes a false claim of U.S. citizenship under 18 U.S.C. Section 911, a complaint shall be filed by the agency or political subdivision with the United States Attorney for the District of South Carolina.
(H) 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.
(I) 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 that administers any program of state or local public benefits shall provide an annual report with respect to its compliance with this section.
(J) Any and all errors and significant delays by SAVE shall be reported to the United States Department of Homeland Security and to the Secretary of State which will monitor SAVE and its verification application errors and significant delays and report yearly on such errors and significant delays to ensure that the application of SAVE is not wrongfully denying benefits to legal residents of South Carolina."
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 the Immigration Reform and Control Act of 1986.
(2) 'Labor services' means the physical performance of services in this State.
(B) On or after January 1, 2009, 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 that is exempt from compliance with federal employment verification procedures under federal law that makes the employment of unauthorized persons unlawful.
(D) This section shall not apply to any individual hired by the taxpayer prior to January 1, 2009.
(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 of the South Carolina Department of Revenue 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.
(H) The Executive Director of the South Carolina Employment Security Commission shall send written notice of this section to all South Carolina employers no later than July 1, 2008."
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 as defined in Section 12-8-10, shall be required to withhold state income tax at the rate of six percent of the amount of compensation paid to an individual that 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.
(C) A withholding agent must not be held liable for failing to withhold state income tax at a rate of six percent of the amount of compensation paid to an individual who provides a false or incorrect taxpayer identification number if the number provided is facially correct and the withholding agent does not know or should not have known based on reasonable investigation that the number provided is false or incorrect.
(D) The Executive Director of the South Carolina Employment Security Commission shall send written notice of this section to all South Carolina employers no later than July 1, 2008."
SECTION 7. Article 5, Chapter 9, Title 16 of the 1976 Code is amended by adding:
"Section 16-9-460. (A) It shall be a felony for any person to transport, move, or attempt to transport within the state, or to solicit or conspire to transport or move within the state, any person knowingly or in reckless disregard of the fact that the person has come to, entered, or remained in the U.S. in violation of law, in furtherance of the person's illegal presence in the United States.
(B) It shall be a felony for any person to conceal, harbor, or shelter from detection, or to solicit or conspire to conceal, harbor, or shelter from detection any person in any place, including any building or means of transportation, knowingly or in reckless disregard of the fact that the person has come to, entered, or remained in the U.S. in violation of law, in furtherance of the person's illegal presence in the United States.
(C) Any person who violates the provisions of subsection (A) or (B) of this section is guilty of a felony and, upon conviction, shall be punished by a fine not to exceed five thousand dollars or by imprisonment for a term not to exceed five years, or both.
(D) A person who is convicted, pleads guilty or nolo contendre to a violation of this section must not be permitted to seek or obtain any professional license offered by the State or any agency or political subdivision of the State."
SECTION 8. Chapter 3, Title 23 of the 1976 Code is amended by adding:
"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 a jail of the State, county, or municipality, or a jail operated by a regional jail authority, a reasonable effort shall be made to determine whether the person so confined is lawfully present in the United States.
(B) If the prisoner is a foreign national, the keeper of the jail or other officer must 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 must be made within 72 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. Article 1, Chapter 5, Title 39 of the 1976 Code of South Carolina is amended by adding:
"Section 39-5-37. (A) The discharge of any United States citizen or other person authorized to work in the United States by an employer in this state is an unfair trade practice as defined in this chapter if the purpose for discharging the person is to replace that worker with another person who the employer knew or should have known was not lawfully admitted to the United States, or not authorized to work in the United States. The discharged employee shall have a private cause of action for the unfair trade practice.
(B) An employer must not be held liable under this subsection for employing a person not authorized to work in the United States if, prior to or at the time the person was hired the employer was registered and participating in the federal work authorization program to verify information of all new employees, as defined in Chapter 11 of Title 8 of the South Carolina Code of Laws, and the employer confirmed the person's work authorization status through the program."
SECTION 10. Title 40 of the 1976 Code is amended by adding:
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) 'Director' means the Director of the South Carolina Department of Labor, Licensing and Regulation, or his designee.
(C) '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.
(D) '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.
(E) '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 that 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 a 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 Director 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), to include but not limited to religious, charitable, social service, or similar organizations, and employees of those organizations accredited under 8 C.F.R. 292.2(d); and
(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 a license from the Director 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) 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 providing 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.
(I) Violations of this chapter may result in a civil penalty of up to one thousand dollars per violation and the revocation of the business license of the immigration assistance service. A fine charged pursuant to this chapter shall not preempt or preclude additional appropriate civil or criminal penalties to include disgorgement and restitution.
(J) Any person who knowingly and willfully makes a false, fictitious, or fraudulent statement or representation in any document prepared or executed as part of the provision of immigration assistance services in an immigration matter pursuant to this chapter, or anyone who aids or abets a person in knowingly and willfully making a false, fictitious, or fraudulent statement or representation in any document prepared or executed as part of the provision of immigration assistance services in an immigration matter pursuant to this chapter, or who solicits or conspires to make a false, fictitious, or fraudulent statement or representation in any document prepared or executed as part of the provision of immigration assistance services in an immigration matter pursuant to this chapter shall be guilty of a felony and, upon conviction, must be fined in the discretion of the court or imprisoned not more than five years, or both. In addition, a person convicted of this subsection must disgorge any benefit received or make restitution, or both, to the agency or political subdivision that administered the benefit or entitlement program. A criminal charge pursuant to this chapter shall not preempt or preclude additional appropriate civil or criminal charges or penalties.
(K) The Director 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 11. All requirements of this act concerning immigration or the classification of immigration status must be construed in conformity with federal immigration law.
SECTION 12. 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 13. This act takes effect upon approval by the Governor.
This web page was last updated on Monday, June 22, 2009 at 2:46 P.M.