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COMMITTEE REPORT
January 23, 2008
H. 4400
Introduced by Reps. Harrell, Harrison, Cato, Cooper, Walker, Witherspoon, Merrill, Sandifer, Haley, Young, Erickson, Littlejohn, Simrill, Bowen, Crawford, Barfield, Cotty, Taylor, Spires, Davenport, E.H. Pitts, Frye, Lowe, Shoopman, Hardwick, Bingham, Skelton, Clemmons, Thompson, Bedingfield, Bannister, Mahaffey, Herbkersman, J.R. Smith, Haskins, Huggins, Hutson, Leach, Toole, Viers, Brady, Dantzler, Delleney, Gambrell, Hamilton, Kelly, Rice, Scarborough, G.M. Smith, G.R. Smith, Talley, Umphlett, Duncan and Owens
S. Printed 1/23/08--H.
Read the first time January 9, 2008.
To whom was referred a Bill (H. 4400) to amend the Code of Laws of South Carolina, 1976, by adding Article 13 to Chapter 11 of Title 8, relating to illegal aliens and public employment so as to require, 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 deleting all after the enacting words and inserting:
/ SECTION 1. Chapter 11, Title 8 of the 1976 Code is amended by adding:
Section 8-11-1310. As used in this article, the term:
(1) 'Contractor' means a person having a service contract, as defined in subitem (5), with a public employer.
(2) 'Director' means the director of the State Budget and Control Board.
(3) 'Federal work authorization program' means one of the electronic verification of work authorization programs operated by the United States Department of Homeland Security or an equivalent federal work authorization program operated by the United States Department of Homeland Security to verify information of newly hired employees, pursuant to the Immigration Reform and Control Act of 1986 (IRCA), D.L. 99-603.
(4) 'Public employer' means the State and any department, agency, instrumentality, or political subdivision of the State.
(5) 'Service contract' means a contract that involves the physical performance of manual labor if the total cost of that labor exceeds (i) thirty percent of the total cost of all the labor, or (ii) five percent of the total contract price. The term does not include: (a) a contract with a political subdivision with a total value of less than fifteen thousand dollars in a twelve-month period or a contract with any other public employer with a total value of less than twenty-five thousand dollars in a twelve-month period; (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.
(6) 'Subcontractor' has the same meaning as in Section 11-35-310(30).
Section 8-11-1320. (A) On or after July 1, 2008, a public employer shall register and participate in the federal work authorization program to verify information of all new employees.
(B) A public employer may not enter into a service contract to be performed within this State unless:
(1) the contractor registers and participates in the federal work authorization program to verify information of all new employees and requires his subcontractors to register and participate in the federal work authorization program to verify information of all new employees; or
(2) the contractor 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 a South Carolina driver's license or identification in compliance with Sections 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 at least as strict as those in South Carolina, as determined by the Attorney General.
(C) Subsection (B) applies as follows:
(1) on or after July 1, 2008, with respect to contractors or subcontractors of five hundred or more employees;
(2) on or after July 1, 2009, with respect to contractors or subcontractors of one hundred or more employees but fewer than five hundred employees; and
(3) on or after July 1, 2010, with respect to all other contractors or subcontractors.
Section 8-11-1330. In addition to the remedies provided in Chapter 35 of Title 11, the South Carolina Consolidated Procurement Code, a public employer shall receive from a contractor or subcontractor who violates this article a penalty of five percent of the gross amount of the contract. This five percent penalty must be assessed against a contractor based upon the gross amount of the total contract and against the subcontractor based upon the gross amount of the contract between the subcontractor and the contractor. A contractor who received written certification of compliance with this article from a subcontractor is not vicariously liable for the penalty pursuant to this section for the failure of that subcontractor to comply with this article. However, the contractor is responsible for withholding the penalty amount from payments to the subcontactor. The provisions of this article are enforceable without regard to race, religion, gender, ethnicity, or national origin.
Section 8-11-1335. (A) All other terms of this article notwithstanding, a public employer may not withhold a payment or a portion of a payment to a contractor and contractor may not withhold a payment or a portion of a payment to a subcontractor for more than five days after receipt from the intended recipient of the payment of a sworn affidavit of the recipient's compliance with Section 8-11-1320.
(B) A person who knowingly files a false, fictitious, or fraudulent affidavit pursuant to this section is guilty of a felony and, upon conviction, must be fined within the discretion of the court or imprisoned for not more than five years, or both.
Section 8-11-1340. 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 documentation required to establish either the applicability of this article to the contractor and subcontractors or the compliance with this article by the contractor and any subcontractor. A public employer need not audit or independently verify a contractor's compliance with this article.
Section 8-11-1350. A contractor who in good faith complies with the requirements of this article may not be sanctioned or subjected to civil or administrative action for employing an individual not authorized for employment in the United States.
Section 8-11-1360. A local government must not enact any ordinance or policy that limits or prohibits a law enforcement officer, local official, or local government employee from seeking to enforce the provisions of this article.
Section 8-11-1370. Except as provided in Section 8-11-1380, the director shall prescribe forms, promulgate regulations, and adopt rules necessary to administer the provisions of this article and publish those rules and regulations on the board's state website.
Section 8-11-1380. The director of the Department of Transportation shall prescribe forms, promulgate regulations, and adopt rules necessary for the application of this article to a contract or agreement relating to public transportation and shall publish these rules and regulations on the Department of Transportation's website."
SECTION 2. Title 23 of the 1976 Code is amended by adding:
Section 23-52-10. (A) If a person charged with a criminal offense is confined, for any period, in a local, regional, or state jail or other correctional facility, a reasonable effort must be made to determine the nationality of the person confined.
(B) If the person is not a United States citizen, 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 person and the person is not a United States citizen, 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 law enforcement officer shall notify the United States Department of Homeland Security.
(C) Upon notification to the United States Department of Homeland Security pursuant to subsection (B), the keeper of the jail must account for daily expenses incurred for the housing, maintenance, and care of the prisoner who is unlawfully admitted to the United States and forward an invoice for those expenses to the Department of Homeland Security.
(D) This section does not allow the denial of bond to a person or timely release from confinement when the person is otherwise eligible for bond or release. However, pursuant to the provisions of Section 17-15-30, a court setting bond shall consider the immigration status of the person charged.
(E) The State Law Enforcement Division shall prepare and issue guidelines and procedures used to comply with the provisions of this section."
SECTION 3. Title 40 of the 1976 Code is amended by adding:
Section 40-91-10. This chapter may be cited as the 'Registration of Immigration Assistance Act'.
Section 40-91-20. The purpose and intent of this chapter is to establish and enforce standards of ethics in the profession of immigration assistance by private individuals who are not licensed attorneys.
Section 40-91-30. As used in this chapter, the term:
(1) 'Compensation' means money, property, services, promise of payment, or anything else of value given in exchange for a service.
(2) 'Employed by' means that a person is on the payroll of the employer and the employer deducts from the employee's paycheck social security and withholding taxes or that a person receives compensation from the employer on a commission basis or as an independent contractor.
(3) 'Immigration assistance service' means information or action provided or offered to customers or prospective customers related to immigration matters, excluding legal advice, recommending a specific course of legal action or providing other assistance that requires legal analysis, legal judgment, or interpretation of the law.
(4) 'Immigration matter' means any proceeding, filing, or action affecting the nonimmigrant, immigrant, or citizenship status of a person that arises pursuant to immigration and naturalization law, executive order, or presidential proclamation of the United States or a foreign country; or action of the United States Department of Labor, the United States Department of State, the United States Department of Homeland Security, or the United States Department of Justice.
Section 40-91-40. (A) A person who provides or offers to provide immigration assistance services may perform only these services:
(1) completing a government agency form, requested by the customer and appropriate to the customer's needs, only if the completion of that form does not involve a legal judgment for that particular matter;
(2) transcribing responses to a government agency form that is related to an immigration matter but not advising a customer as to the answers on those forms;
(3) translating information on forms to a customer and translating the customer's answers to questions posed on those forms;
(4) securing for the customer supporting documents currently in existence, including birth and marriage certificates, for submission with government agency forms;
(5) translating documents from a foreign language into English;
(6) notarizing signatures on government agency forms, if the person performing the service is a notary public commissioned in the State of South Carolina and is lawfully present in the United States;
(7) making referrals, without fee, to attorneys who undertake legal representation for a person in an immigration matter;
(8) preparing or arranging for the preparation of photographs and fingerprints;
(9) arranging for the performance of medical testing (including x-rays and AIDS tests) and the obtaining of reports of test results;
(10) conducting English language and civics courses; and
(11) performing other services that the director of the South Carolina Department of Labor, Licensing and Regulation, or his designee, determines by rule may be appropriately performed by these persons in light of the purposes of this chapter.
(B) These persons are exempt from the provisions of this chapter:
(1) an attorney licensed to practice law in South Carolina or an attorney licensed to practice law in another state or territory of the United States or in a foreign country when acting with the approval of a judge having lawful jurisdiction over the matter;
(2) a legal intern, clerk, paralegal, or person in a similar position employed by and under the direct supervision of a licensed attorney meeting the requirements of item (1) and rendering immigration assistance services in the course of employment; and
(3) a not-for-profit organization recognized by the Board of Immigration Appeals under 8 CFR 292.2(a) and employees, of those organizations accredited pursuant to 8 CFR 292.2(d).
(C) This chapter does not regulate a business if that regulation is prohibited or preempted by federal law.
(D) A person performing the services described in this chapter shall obtain a business license from the Department of Labor, Licensing and Regulation and as may be required by a local governing authority.
(E) A person who provides or offers immigration assistance services and who is not exempted pursuant to the provisions of this chapter shall post signs at his or her place of business setting forth information in English and in every other language in which the person provides or offers to provide immigration assistance services. Each language must be on a separate sign. Signs must be posted in a location where the signs are readily visible to customers. Each sign must be at least twelve inches by seventeen inches and must contain the following statement: 'I AM NOT AN ATTORNEY LICENSED TO PRACTICE LAW AND MAY NOT GIVE LEGAL ADVICE OR ACCEPT FEES FOR LEGAL ADVICE.'
(F) Each person engaged in immigration assistance service who is not an attorney who advertises immigration assistance service in a language other than English, whether by radio, television, signs, pamphlets, newspapers, or other written communication, with the exception of a single desk plaque, shall include in the document, advertisement, stationery, letterhead, business card, or other comparable written material the following notice in English and the language in which the written communication appears. This notice must be of a conspicuous size, if in writing, and must state: 'I AM NOT AN ATTORNEY LICENSED TO PRACTICE LAW AND MAY NOT GIVE LEGAL ADVICE OR ACCEPT FEES FOR LEGAL ADVICE.' If the advertisement is by radio or television, the statement may be modified but must include substantially the same message.
(G) A person who provides or offers immigration assistance service and who is not exempted pursuant to the provisions of this chapter may not literally translate from English into another language any document, advertisement, stationery, letterhead, business card, or other comparable written material terms or titles including, but not limited to, notary public, notary, licensed attorney, lawyer, or another term that implies the person is an attorney.
(H) A person engaged in providing immigration services who is not exempted pursuant to the provisions of this chapter may not:
(1) accept payment in exchange for providing legal advice or other assistance that requires legal analysis, legal judgment, or interpretation of the law;
(2) refuse to return documents supplied by, prepared on behalf of, or paid for by the customer upon the request of the customer. These documents must be returned upon request even if there is a fee dispute between the immigration assistant and the customer;
(3) represent or advertise, in connection with assistance in immigration matters, other titles or credentials including, but not limited to, 'notary public' or 'immigration consultant', that could cause a customer to believe that the person possesses special professional skills or is authorized to provide advice on an immigration matter, except that a certified notary public may use the term 'notary public' if the use is accompanied by the statement that the person is not an attorney; the term 'notary public' may not be translated to another language;
(4) provide legal advice, recommend a specific course of legal action, or provide other assistance that requires legal analysis, legal judgment, or interpretation of the law; or
(5) make a misrepresentation or false statement, directly or indirectly, to influence, persuade, or induce patronage.
(I) Violations of this chapter may result in a civil fine up to one thousand dollars for each violation. A fine charged pursuant to this chapter does not preempt or preclude additional appropriate civil or criminal penalties, including disgorgement and restitution.
(J)(1) Any person who knowingly and wilfully makes a false, fictitious, or fraudulent statement or representation in a 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 wilfully making a false, fictitious, or fraudulent statement or representation in a 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 a document prepared or executed as part of the provision of immigration assistance services in an immigration matter pursuant to this chapter is 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.
(2) In addition, a person convicted of violating this subsection must disgorge the benefit received or make restitution, or both, to the agency or political subdivision that administered the benefit or entitlement program.
(3) It is a separate violation of this subsection each time a person knowingly and wilfully makes, aids, or abets in the making of, or solicits or conspires to make a false, fictitious, or fraudulent statement or representation in a document prepared or executed pursuant to this subsection.
(4) A criminal charge pursuant to this chapter does not preempt or preclude additional appropriate civil or criminal charges or penalties. A person who suffers an ascertainable loss of money or property, real or personal, as a result of a conviction or plea to a violation of this subsection may bring an action individually, or in a representative capacity, to recover actual damages from a person convicted of the violation of this subsection. If the court finds that a violation has been established, the court shall award three times the actual damages sustained and may provide such relief as it considers necessary or proper. Upon the finding by the court of a violation, the court shall award to the person bringing the action pursuant to this section reasonable attorney's fees and costs.
(5) Persons convicted of a violation of this subsection are jointly and severally liable for any loss suffered by any person or any agency or political subdivision of the State.
(K) The director of the Department of Labor, Licensing and Regulation shall promulgate regulations not inconsistent with this chapter for the implementation, administration, and enforcement of this chapter.
(L) This chapter does not apply to a person employed by or working for an educational institution if that person is registered as a designated school official with the SEVIS program, or a successor program, operated by the United States Department of Homeland Security."
SECTION 4. Chapter 5, Title 43 of the 1976 Code is amended by adding:
Section 43-5-1410. This article may be cited as the 'Illegal Aliens and Public Benefits Act'.
Section 43-5-1420. (A) Except as provided in subsection (C) or if exempted by federal law, on or after July 1, 2008, every agency and political subdivision of this State shall verify the lawful presence in the United States of a natural person eighteen years of age or older who has applied for state or local public benefits, as defined in 8 USC Section 1621, or for federal public benefits, as defined in 8 USC Section 1611, that are administered by an agency or a political subdivision of this State.
(B) The provisions of this article must be enforced without regard to race, religion, gender, ethnicity, or national origin.
(C) Verification of lawful presence pursuant to the provisions of this article is not required for:
(1) a purpose for which lawful presence in the United States is not required by law, ordinance, or regulation;
(2) assistance for health care items and services that are necessary for the treatment of an emergency medical condition, as defined in 42 USC Section 1396b(v)(3), of the alien involved and are not related to an organ transplant procedure;
(3) short-term, noncash, in-kind emergency disaster relief;
(4) public health assistance for immunizations with respect to immunizable diseases and for testing and treatment of symptoms of communicable diseases whether or not the symptoms are caused by a communicable disease; or
(5) programs, services, or assistance including soup kitchens, crisis counseling and intervention, and short-term shelter specified by the United States Attorney General, in the United States Attorney General's sole discretion after consultation with appropriate federal agencies and departments, which:
(i) deliver in-kind services at the community level, including through public or private nonprofit agencies;
(ii) do not condition the provision of assistance, the amount of assistance provided, or the cost of assistance provided on the individual recipient's income or resources; and
(iii) are necessary for the protection of life or safety;
(6) prenatal care; or
(7) for benefits, programs, services, or other assistance provided to victims of domestic violence, irrespective of immigration status, under the Violence Against Women Act of 2000, PL 106-386, or the Illegal Immigration Reform and Immigrant Responsibility Act, PL 104-208.
(D) Verification of lawful presence in the United States by the agency or political subdivision required to make the verification must occur as follows:
(1) the applicant shall execute an affidavit that he is a United States citizen or legal permanent resident eighteen years of age or older; or
(2) the applicant shall execute an affidavit that he is a qualified alien or nonimmigrant under the federal Immigration and Nationality Act, PL 82-414, eighteen years of age or older, lawfully present in the United States.
(E) For an applicant who has executed an affidavit that he is an alien lawfully present in the United States, eligibility for benefits must be made through the Systematic Alien Verification of Entitlement (SAVE) program operated by the United States Department of Homeland Security or a successor program designated by the United States Department of Homeland Security. Until that eligibility verification is made, the affidavit is presumed to be proof of lawful presence for the purposes of this article.
(F)(1) A person who knowingly and wilfully makes a false, fictitious, or fraudulent statement of representation in an affidavit executed pursuant to subsection (D), or who aids or abets a person in knowingly and wilfully making a false, fictitious, or fraudulent statement or representation in an affidavit executed pursuant to that subsection, or who solicits or conspires to make a false, fictitious, or fraudulent statement or representation in an affidavit executed pursuant to that subsection is 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.
(2) In addition, a person convicted pursuant to this subsection 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.
(3) It is a separate violation of this subsection each time a person received a public benefit based on such a statement or representation.
(4) A conviction and fine charged pursuant to this subsection does not preempt or preclude additional appropriate civil or criminal charges or penalties. A person who suffers an ascertainable loss of money or property, real or personal, as a result of the actions of anyone convicted of a violation 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 other relief it considers necessary and proper. Upon a finding by the court of a violation, the court shall award to the person bringing the action pursuant to this subsection reasonable attorney's fees and costs.
(5) Persons convicted of a violation of this subsection are jointly and severally liable for a loss suffered by a person or an agency or political subdivision of the State.
(6) If an affidavit constitutes a false claim of United States citizenship under 18 USC Section 911, a complaint must be filed by the agency or political subdivision with the United States Attorney for the District of South Carolina.
(G) It is unlawful for an agency or a political subdivision of this State to provide a state, local, or federal benefit, as defined in 8 USC Section 1621 or 8 USC Section 1611, in violation of the provisions of this article. Each state agency, department, division, or other political subdivision that administers a program of state or local public benefits shall provide an annual report with respect to its compliance with the provisions of this article.
(H) All errors and significant delays by SAVE must be reported to the United States Department of Homeland Security and to the Secretary of State which will monitor SAVE and its verification application errors and significant delays and report yearly on such errors and significant delays to ensure that the application of SAVE is not wrongfully denying benefits to legal residents of South Carolina.
(I) An agency or a political subdivision of this State that provides a state, local, or federal benefit, as defined in 8 USC 1621 or 8 USC Section 1611, must require a person currently under the age of eighteen who received the benefit to comply with the provisions of this article upon reaching the age of eighteen. If the recipient is unwilling or unable to comply, receipt of all benefits must cease immediately upon the recipient's eighteenth birthday.
(J) A local government may not enact any ordinance or policy that limits or prohibits a law enforcement officer, local official, or local government employee from seeking to enforce the provisions of this article."
SECTION 5. Chapter 1, Title 6 of the 1976 Code is amended by adding:
"Section 6-1-170. (A) For purposes of this section, 'political subdivision' includes, but is not limited to, a municipality, county, school district, special purpose district, or public service district.
(B) A political subdivision of this State may not enact any ordinance or policy that limits or prohibits a law enforcement officer, local official, or local government employee from seeking to enforce a state law with regard to immigration.
(C) A political subdivision of this State may not enact any ordinance or policy that limits or prohibits a law enforcement officer, local official, or local government employee from communicating to appropriate federal or state officials with regard to the immigration status of any person within this State.
(D) A city, county, municipality, or other local government or political subdivision may not enact any ordinance, regulation, or other legislation pertaining to the employment, licensing, permitting, or otherwise doing business with a person based upon that person's authorization to work in the United States that exceeds or otherwise conflicts with federal or state law. An enactment found to be in conflict with federal or state law is void.
SECTION 6. Article 25, Chapter 6, Title 12 of the 1976 Code is amended by adding:
"Section 12-6-3595. (A) As used in this section:
(1) 'Authorized employee' means an individual authorized for employment in the United States as defined in paragraph (2) of subsection (a) of 8 USC Section 1324a.
(2) 'Labor services' means the physical performance of services in this State.
(B) Notwithstanding another provision of law, on or after January 1, 2009, wages or remuneration paid for labor services to an individual of six hundred dollars or more per annum must not be claimed and allowed as a deductible business expense for state income tax purposes by a taxpayer unless the individual is an authorized employee.
(C) The provisions of this section apply whether or not an Internal Revenue Service Form 1099 is issued in conjunction with the wages or remuneration. This section does not apply to:
(1) a business domiciled in this State which is exempt from compliance with federal employment verification procedures under federal law which makes the employment of unauthorized aliens unlawful;
(2) an individual hired by the taxpayer before January 1, 2009;
(3) a taxpayer when the individual being paid is not directly compensated or employed by the taxpayer; or
(4) to wages or remuneration paid for labor services to an individual who holds and presents to the taxpayer a valid license or identification card issued by the Department of Motor Vehicles, who is eligible to obtain a South Carolina driver's license or identification card in compliance with Sections 56-1-40 through 56-1-90, or who possesses a valid driver's license or identification card from another state where the license requirements are at least as strict as those in South Carolina, as determined by the Attorney General.
(D) A taxpayer must not 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 an unauthorized employee. For purposes of this subsection, a taxpayer is considered to have conducted a reasonable investigation if the individual met the requirements of subsection (C)(4), and the information provided by the individual to the taxpayer was facially correct.
(E) The director of the South Carolina Department of Revenue may prescribe forms and promulgate regulations necessary to administer and effectuate this section.
(F) 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 8, Title 12 of the 1976 Code is amended by adding:
"Section 12-8-610. (A) Notwithstanding another provision of law, 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 compensation paid to an individual, which compensation is reported on Form 1099 and with respect to which the individual has:
(1) failed to provide a taxpayer identification number or social security number;
(2) failed to provide a correct taxpayer identification number or social security number; or
(3) provided an Internal Revenue Service-issued taxpayer identification number issued for nonresident aliens.
(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.
(C) A withholding agent does not violate this section if the individual provides a false or incorrect taxpayer identification number that 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 8. Article 5, Chapter 9, Title 16 of the 1976 Code is amended by adding:
"Section 16-9-460. (A) It is a felony for a person knowingly or in reckless disregard of the fact that another person has come to, entered, or remained in the United States in violation of law to transport, move, or attempt to transport that person within the State or to solicit or conspire to transport or move that person within the State with specific intent to further that person's illegal entry into the United States or avoiding apprehension or detection of that person's illegal status by state or federal authorities.
(B) It is be a felony for a person knowingly or in reckless disregard of the fact that another person has come to, entered, or remained in the United States in violation of law to conceal, harbor, or shelter from detection or to solicit or conspire to conceal, harbor, or shelter from detection that person in any place, including a building or means of transportation, with specific intent to further that person's illegal entry into the United States or avoiding apprehension or detection of that person's illegal status by state or federal authorities.
(C) A person who violates the provisions of subsection (A) or (B) of this section is guilty of a felony and, upon conviction, must 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 contender to a violation of this section must not be permitted to seek or obtain a professional license offered by the State or any agency or political subdivision of the State.
(E) Providing health care treatment or services to a natural person who is in the United States unlawfully is not a violation of this section.
(F) Shelter provided for strictly humanitarian purposes or provided under the Violence Against Women Act is not a violation of this section, so long as that shelter is not provided in furtherance of or in an attempt to conceal a person's illegal presence in the United States."
SECTION 9. Article 2, 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 contender to financial identity fraud or identity fraud involving the false, fictitious, or fraudulent creation or use of documents that enable a person who is not authorized to live or work in the United States or to receive benefits administered by an agency or political subdivision of this State must disgorge the benefit received or make restitution to the agency or political subdivision that administered the benefit or entitlement program, or both. A criminal charge pursuant to this chapter does not preempt or preclude additional appropriate civil or criminal charges or penalties.
(B) A person who suffers an 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 subsection (A), may bring an action individually, or in a representative capacity, to recover actual damages against the person convicted of the violation. If a 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 considers necessary or proper. Upon the finding by the court of a violation, the court shall award to the person bringing this action pursuant to this section reasonable attorney's fees and costs.
(C) A person convicted of a violation of this subsection is jointly and severally liable for a loss suffered by a person or an agency or political subdivision of the State."
SECTION 10. Chapter 23, Title 16 of the 1976 Code is amended by adding:
"Section 16-23-530. (A) It is unlawful for a person who is not lawfully present in the United States to store, keep, buy, transport, distribute, manufacture, possess, or have in possession or permit another to store, keep, buy, transport, distribute, manufacture, possess, or have in possession a rifle, pistol, or other firearm.
(B) It is unlawful for a person to sell, rent, give away, or participate, directly or indirectly, in the sale, renting, giving away, or otherwise disposing of a rifle, pistol, or other firearm to a person who is known by the person charged pursuant to this subsection to be not lawfully present in the United States.
(C) A person violating the provisions of subsection (A) of this section is guilty of a felony and, upon conviction, must be fined not more than ten thousand dollars or imprisoned not more than ten years, or both.
(D) A person violating the provisions of subsection (B) of this section is guilty of a misdemeanor and, upon conviction, must be fined not more than two thousand dollars or imprisoned not more than three years, or both."
SECTION 11. Article 1, Chapter 3, Title 23 of the 1976 Code is amended by adding:
"Section 23-3-80. (A) The chief of the South Carolina Law Enforcement Division is authorized and directed to negotiate the terms of a memorandum of understanding between the State of South Carolina and the United States Department of Justice or Department of Homeland Security addressing:
(1) the enforcement of federal immigration laws by state and local law enforcement, specifically through the 287-G program or other applicable federal law designed for the purpose of state enforcement of federal immigration laws;
(2) the detention of illegal immigrants by state and local law enforcement officials and the costs associated with those detentions;
(3) the removal of detained illegal immigrants by federal authorities or, instead of removal, the deportation of illegal immigrants by state and local law enforcement officials;
(4) training of state and local law enforcement officials pursuant to the 287-G program or other applicable federal laws and the costs of such training; and
(5) further communication and cooperation between federal law enforcement and state and local law enforcement officials in the area of immigration enforcement.
(B) The memorandum of understanding negotiated pursuant to subsection (A) must be signed on behalf of the State by the chief of the South Carolina Law Enforcement Division and the Governor or as otherwise required by the appropriate federal agency.
(C) The chief of the South Carolina Law Enforcement Division shall designate appropriate law enforcement officers to be trained pursuant to the memorandum of understanding provided for in subsections (A) and (B). This training must be funded pursuant to the federal Homeland Security Appropriation Act of 2006, Public Law 109-90, or a subsequent source of federal funding. The provisions of this subsection become effective upon the securing of this funding.
(D) The director of the South Carolina Department of Corrections, the sheriff of a county, and the governing body of a 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 12. Chapter 1, Title 41 of the 1976 Code is amended by adding:
"Section 41-1-30. (A) There is a civil right of action for wrongful termination against an employer who knowingly terminates an employee while retaining a person the employer knows and should reasonably know is an illegal alien and is engaged in substantially the same job category.
(B) Termination for cause is an absolute bar to recovery under this section.
(C) This section does not create an employment contract for either a public of private employer
(D) An employee who brings a civil suit pursuant to this section is limited to the following recovery:
(1) reinstatement to his former position; and
(2) lost wages.
(E) A cause of action does not arise against an employer who makes a determination of legal status of all employees 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. This subsection takes effect ninety days after the effective date of the act."
SECTION 13. Chapter 101, Title 59 of the 1976 Code is amended by adding:
"Section 59-101-430. (A) A person who is not lawfully present in the United States is not eligible to attend a public institution of higher learning in this State, as defined in Section 59-103-5. The trustees of a public institution of higher learning in this State shall develop and institute a process by which lawful presence in the United States is verified.
(B) A person not lawfully present in the United States is not eligible on the basis of residence for a public higher education benefit including, but not limited to, scholarships, financial aid, grants, or resident tuition.
(C) This section does not apply to students already enrolled or those granted enrollment as of the effective date of this section."
SECTION 14. Section 14-7-1630(A)(8) and (9) of the 1976 Code, as last amended by Act 82 of 2007, is further amended to read:
"(8) a crime involving obscenity including, but not limited to, a crime as provided in Article 3, Chapter 15, Title 16 or any attempt, aiding, abetting, solicitation, or conspiracy to commit a crime involving obscenity; and
(9) a crime involving the knowing and wilful making of, aiding and abetting in the making of, or soliciting or conspiring to make a false, fictitious, or fraudulent statement or representation in an affidavit regarding a person's lawful presence in the United States, as defined in Section 43-5-1410, if the number of violations exceeds twenty or if the public benefit received by a person from a violation or combination of violations exceeds twenty thousand dollars;
(10) a crime involving financial identity fraud or identity fraud involving the false, fictitious, or fraudulent creation or use of documents used in an immigration matter as defined in Section 16-13-525, if the number of violations exceeds twenty, or if the value of the ascertainable loss of money or property suffered by a person or persons from a violation or combination of violations exceeds twenty thousand dollars;
(11) a crime involving the knowing and wilful making of, aiding or abetting in the making of, or soliciting or conspiring to make a false, fictitious, or fraudulent statement or representation in a document prepared or executed as part of the provision of immigration assistance services in an immigration matter, as defined in Section 40-91-40, if the number of violations exceeds twenty, or if a benefit received by a person from a violation or combination of violations exceeds twenty thousand dollars; and
(12) a knowing and wilful crime involving actual and substantial harm to the water, ambient air, soil or land, or both soil and land. This crime includes a knowing and wilful violation of the Pollution Control Act, the Atomic Energy and Radiation Control Act, the State Underground Petroleum Environmental Response Bank Act, the State Safe Drinking Water Act, the Hazardous Waste Management Act, the Infectious Waste Management Act, the Solid Waste Policy and Management Act, the Erosion and Sediment Control Act, the South Carolina Mining Act, and the Coastal Zone Management Act, or a knowing and wilful crime arising out of or in connection with environmental laws, or any attempt, aiding, abetting, solicitation, or conspiracy to commit a knowing and wilful crime involving the environment if the anticipated actual damages including, but not limited to, the cost of remediation, are two million dollars or more, as certified by an independent environmental engineer who must be contracted by the Department of Health and Environmental Control. If the knowing and wilful crime is a violation of federal law, then a conviction or an acquittal pursuant to federal law for the same act is a bar to the impaneling of a state grand jury pursuant to this section."
SECTION 15. Section 17-15-30 of the 1976 Code, as last amended by Act 106 of 2005, is further amended to read:
"Section 17-15-30. (A) In determining conditions of release that will reasonably assure appearance, or if release would constitute an unreasonable danger to the community, the court may, on the basis of available information, consider the nature and circumstances of the offense charged, and the accused's:
(1) family ties,;
(2) employment,;
(3) financial resources,;
(4) character and mental condition,;
(5) the length of his residence in the community,;
(6) his record of convictions,; and
(7) his record of flight to avoid prosecution or failure to appear at other court proceedings.
(B) The court shall consider:
(1) the accused's criminal record, if any. The court shall consider, if available,;
(2) all incident reports generated as a result of the offense charged., if available; and
(3) whether the accused is an illegal alien in violation of the Federal Immigration and Nationality Act or another federal law relating to aliens illegally present in the United States and poses a substantial flight risk due to this status."
SECTION 16. All requirements of this act concerning immigration or the classification of immigration status must be construed in conformity with federal immigration law.
SECTION 17. 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, subsection, items, subitems, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.
SECTION 18. This act takes effect upon approval by the Governor. /
Renumber sections to conform.
Amend title to conform.
JAMES H. HARRISON for Committee.
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING ARTICLE 13 TO CHAPTER 11 OF TITLE 8, RELATING TO ILLEGAL ALIENS AND PUBLIC EMPLOYMENT SO AS TO REQUIRE A PUBLIC EMPLOYER AND A CONTRACTOR DOING BUSINESS WITH A PUBLIC EMPLOYER TO REGISTER AND PARTICIPATE IN THE FEDERAL WORK AUTHORIZATION PROGRAM TO VERIFY THE LAWFUL PRESENCE IN THE UNITED STATES OF NEW EMPLOYEES, WITH ALTERNATIVE MEASURES TO BE FOLLOWED BY A CONTRACTOR, TO DESCRIBE COMPLIANCE, TO PROHIBIT LOCAL LAWS FROM LIMITING ENFORCEMENT, AND TO PROVIDE FOR FORMS, REGULATIONS, AND RULES; BY ADDING SECTION 23-52-10 SO AS TO PROVIDE THAT THE APPROPRIATE OFFICIAL UNDERTAKE TO DETERMINE THE LAWFUL PRESENCE IN THE UNITED STATES OF A PERSON CHARGED WITH A CRIMINAL OFFENSE AND CONFINED IN A JAIL AND TO PROVIDE THE PROCESS OF VERIFICATION AND REPORTING, AS WELL AS FOR RECOUPING EXPENSES OF THE CONFINEMENT; BY ADDING CHAPTER 91 TO TITLE 40 SO AS TO ENACT THE "REGISTRATION OF IMMIGRATION ASSISTANCE ACT", PRESCRIBING THE ACTS THAT MAY BE PERFORMED BY AN IMMIGRATION ASSISTANCE SERVICE, REQUIRING A PERSON PERFORMING THOSE ACTS TO BE LICENSED, REQUIRING THE POSTING OF CERTAIN CONSPICUOUS DISCLAIMERS, PROHIBITING THE PERFORMANCE OF CERTAIN ACTS, EXEMPTING CERTAIN PERSONS FROM THESE RESTRICTIONS, AND PROVIDING FOR CIVIL AND CRIMINAL PENALTIES FOR VIOLATIONS; BY ADDING ARTICLE 11 TO CHAPTER 5 OF TITLE 43 SO AS TO REQUIRE ALL STATE AND LOCAL AGENCIES PROVIDING PUBLIC BENEFITS VERIFY THE LAWFUL PRESENCE IN THE UNITED STATES OF A NATURAL PERSON EIGHTEEN YEARS OLD OR OLDER WHO APPLIES FOR STATE OR LOCAL BENEFITS OR FEDERAL BENEFITS ADMINISTERED BY THE STATE, PROVIDING EXCEPTIONS, PROVIDING FOR AN AFFIDAVIT OF ELIGIBILITY AND CRIMINAL PENALTIES FOR A FALSE AND FRAUDULENT AFFIDAVIT, FOR RESTITUTION OF IMPROPERLY RECEIVED BENEFITS, FOR A CIVIL CAUSE OF ACTION AND JOINT AND SEVERAL LIABILITY; BY ADDING SECTION 6-1-170 SO AS TO PROHIBIT A POLITICAL SUBDIVISION OF THIS STATE FROM LIMITING OR INCREASING THE POWER OF LOCAL OFFICIALS TO ENFORCE STATE IMMIGRATION LAWS; BY ADDING SECTION 12-6-3595 SO AS TO PROHIBIT ANY WAGES OR REMUNERATION FOR LABOR SERVICES PAID TO AN INDIVIDUAL OF SIX HUNDRED DOLLARS OR MORE A 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 SECURITY COMMISSION TO SEND WRITTEN NOTICE OF THIS PROVISION TO ALL EMPLOYERS IN THIS STATE; BY ADDING SECTION 12-8-610 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; BY ADDING SECTION 16-9-460 SO AS 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, AND TO PROVIDE FOR PENALTIES IF A PERSON IS CONVICTED; BY ADDING SECTION 16-13-525 SO AS TO REQUIRE A PERSON WHO USES FINANCIAL IDENTITY FRAUD INVOLVING THE CREATION OF DOCUMENTS PURPORTING TO AUTHORIZE EMPLOYMENT IN THE UNITED STATES TO DISGORGE ANY BENEFIT HE RECEIVES AND TO PROVIDE FOR CRIMINAL PENALTIES AND INDIVIDUAL CIVIL REMEDIES; BY ADDING SECTION 16-23-530 SO AS TO MAKE IT A CRIME TO OWN, POSSESS, TRANSFER, MAKE, DISPOSE OF, RENT, BUY, OR OTHERWISE TRANSACT AN ACTIVITY INVOLVING A FIREARM IN THIS STATE IF THE PERSON IS NOT LAWFULLY PRESENT IN THIS STATE; BY ADDING SECTION 23-3-80 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, DETENTIONS AND REMOVALS, AND INVESTIGATIONS IN THE STATE, TO AUTHORIZE THE DESIGNATION OF STATE AND LOCAL OFFICERS TO BE TRAINED PURSUANT TO THE MEMORANDUM, TO STIPULATE FUNDING FOR THE TRAINING, AND TO PROVIDE FOR CERTIFICATION OF TRAINING TO ENFORCE FEDERAL IMMIGRATION LAWS; BY ADDING SECTION 41-1-30 SO AS TO PROVIDE FOR A CIVIL CAUSE OF ACTION BY A PERSON WHO IS TERMINATED FOR THE PURPOSE OF BEING REPLACED BY A WORKER WHO IS NOT AUTHORIZED TO WORK IN THE UNITED STATES; BY ADDING SECTION 59-101-430 SO AS TO PROHIBIT A PERSON WHO IS NOT LAWFULLY PRESENT IN THE UNITED STATES FROM ATTENDING OR RECEIVING ANY BENEFIT OF RESIDENCE; BY AMENDING SECTION 1-31-40, RELATING TO THE STATE COMMISSION ON MINORITY AFFAIRS, SO AS TO PROVIDE FOR A TOLL FREE TELEPHONE NUMBER, ELECTRONIC WEBSITE, AND TRACKING DATABASES FOR RECEIVING AND REPORTING VIOLATIONS OF LAWS OR REGULATIONS BY A NONUNITED STATES CITIZEN OR IMMIGRANT; BY AMENDING SECTION 14-7-1630, AS AMENDED, RELATING TO JURISDICTION OF THE STATE GRAND JURY, SO AS TO INCLUDE THE OFFENSES OF FALSIFICATION OF DOCUMENTS, IDENTITY FRAUD, FRAUDULENT AFFIDAVITS, AND OTHER SPECIFIED ACTS UNDERTAKEN IN A FRAUDULENT ATTEMPT TO DEMONSTRATE LAWFUL PRESENCE IN THE UNITED STATES; AND BY AMENDING SECTION 17-15-30, AS AMENDED, RELATING TO DETERMINATION BY THE COURT OF RELEASE ON BAIL, SO AS TO PROVIDE THAT THE COURT SHALL CONSIDER IF THE ACCUSED IS AN ILLEGAL ALIEN AND IF THAT STATUS POSES A SUBSTANTIAL FLIGHT RISK.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Chapter 11, Title 8 of the 1976 Code is amended by adding:
Section 8-11-1310. As used in this article, the term:
(1) 'Contractor' means a person having a service contract, as defined in subitem (5), with a public employer.
(2) 'Director' means the director of the State Budget and Control Board.
(3) 'Federal work authorization program' means one of the electronic verification of work authorization programs operated by the United States Department of Homeland Security or an equivalent federal work authorization program operated by the United States Department of Homeland Security to verify information of newly hired employees, pursuant to the Immigration Reform and Control Act of 1986 (IRCA), D.L. 99-603.
(4) 'Public employer' means the State and any department, agency, instrumentality, or political subdivision of the State.
(5) 'Service contract' means a contract that involves the physical performance of manual labor if the total cost of that labor exceeds (i) thirty percent of the total cost of all the labor, or (ii) five percent of the total contract price. The term does not include: (a) a contract with a political subdivision with a total value of less than fifteen thousand dollars in a twelve-month period or a contract with any other public employer with a total value of less than twenty-five thousand dollars in a twelve-month period; (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.
(6) 'Subcontractor' has the same meaning as in Section 11-35-310(30).
Section 8-11-1320. (A) On or after July 1, 2008, a public employer shall register and participate in the federal work authorization program to verify information of all new employees.
(B) A public employer may not enter into a service contract to be performed within this State unless:
(1) the contractor registers and participates in the federal work authorization program to verify information of all new employees and requires his subcontractors to register and participate in the federal work authorization program to verify information of all new employees; or
(2) the contractor 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 a South Carolina driver's license or identification in compliance with Sections 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 at least as strict as those in South Carolina, as determined by the Attorney General.
(C) Subsections (A) and (B) apply as follows:
(1) on or after July 1, 2008, with respect to public employers, contractors, or subcontractors of five hundred or more employees;
(2) on or after July 1, 2009, with respect to public employers, contractors, or subcontractors of one hundred or more employees but fewer than five hundred employees; and
(3) on or after July 1, 2010, with respect to all other public employers, contractors, or subcontractors.
Section 8-11-1330. In addition to the remedies provided in Chapter 35 of Title 11, the South Carolina Consolidated Procurement Code, a public employer shall receive from a contractor or subcontractor who violates this article a penalty of ten percent of the gross amount of the contract. The provisions of this article are enforceable without regard to race, religion, gender, ethnicity, or national origin.
Section 8-11-1340. 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 documentation required to establish either the applicability of this article to the contractor and subcontractors or the compliance with this article by the contractor and any subcontractor. A public employer need not audit or independently verify a contractor's compliance with this article.
Section 8-11-1350. A contractor who in good faith complies with the requirements of this article may not be sanctioned or subjected to civil or administrative action for employing an individual not authorized for employment in the United States.
Section 8-11-1360. A local government must not enact any ordinance or policy that limits or prohibits a law enforcement officer, local official, or local government employee from seeking to enforce the provisions of this article.
Section 8-11-1370. Except as provided in Section 8-11-1380, the director shall prescribe forms, promulgate regulations, and adopt rules necessary to administer the provisions of this article and publish those rules and regulations on the board's state website.
Section 8-11-1380. The director of the Department of Transportation shall prescribe forms, promulgate regulations, and adopt rules necessary for the application of this article to a contract or agreement relating to public transportation and shall publish these rules and regulations on the Department of Transportation's website."
SECTION 2. Title 23 of the 1976 Code is amended by adding:
Section 23-52-10. (A) If a person charged with a criminal offense is confined, for any period, in a local, regional, or state jail or other correctional facility, a reasonable effort must be made to determine the nationality of the person confined.
(B) If the person is a foreign national, the keeper of the jail or other 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 person, 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 law enforcement officer shall notify the United States Department of Homeland Security.
(C) Upon notification to the United States Department of Homeland Security pursuant to subsection (B), the keeper of the jail must account for daily expenses incurred for the housing, maintenance, and care of the prisoner who is unlawfully admitted to the United States and forward an invoice for those expenses to the Department of Homeland Security.
(D) This section does not allow the denial of bond to a person or timely release from confinement when the person is otherwise eligible for bond or release. However, pursuant to the provisions of Section 17-15-30, a court setting bond shall consider the immigration status of the person charged.
(E) The State Law Enforcement Division shall prepare and issue guidelines and procedures used to comply with the provisions of this section."
SECTION 3. Title 40 of the 1976 Code is amended by adding:
Section 40-91-10. This chapter may be cited as the 'Registration of Immigration Assistance Act'.
Section 40-91-20. The purpose and intent of this chapter is to establish and enforce standards of ethics in the profession of immigration assistance by private individuals who are not licensed attorneys.
Section 40-91-30. As used in this chapter, the term:
(1) 'Compensation' means money, property, services, promise of payment, or anything else of value given in exchange for a service.
(2) 'Employed by' means that a person is on the payroll of the employer and the employer deducts from the employee's paycheck social security and withholding taxes or that a person receives compensation from the employer on a commission basis or as an independent contractor.
(3) 'Immigration assistance service' means information or action provided or offered to customers or prospective customers related to immigration matters, excluding legal advice, recommending a specific course of legal action or providing other assistance that requires legal analysis, legal judgment, or interpretation of the law.
(4) 'Immigration matter' means any proceeding, filing, or action affecting the nonimmigrant, immigrant, or citizenship status of a person that arises pursuant to immigration and naturalization law, executive order, or presidential proclamation of the United States or a foreign country; or action of the United States Department of Labor, the United States Department of State, the United States Department of Homeland Security, or the United States Department of Justice.
Section 40-91-40. (A) A person who provides or offers to provide immigration assistance services may perform only these services:
(1) completing a government agency form, requested by the customer and appropriate to the customer's needs, only if the completion of that form does not involve a legal judgment for that particular matter;
(2) transcribing responses to a government agency form that is related to an immigration matter but not advising a customer as to the answers on those forms;
(3) translating information on forms to a customer and translating the customer's answers to questions posed on those forms;
(4) securing for the customer supporting documents currently in existence, including birth and marriage certificates, for submission with government agency forms;
(5) translating documents from a foreign language into English;
(6) notarizing signatures on government agency forms, if the person performing the service is a notary public commissioned in the State of South Carolina and is lawfully present in the United States;
(7) making referrals, without fee, to attorneys who undertake legal representation for a person in an immigration matter;
(8) preparing or arranging for the preparation of photographs and fingerprints;
(9) arranging for the performance of medical testing (including x-rays and AIDS tests) and the obtaining of reports of test results;
(10) conducting English language and civics courses; and
(11) performing other services that the director of the South Carolina Department of Labor, Licensing and Regulation, or his designee, determines by rule may be appropriately performed by these persons in light of the purposes of this chapter.
(B) These persons are exempt from the provisions of this chapter:
(1) an attorney licensed to practice law in South Carolina or an attorney licensed to practice law in another state or territory of the United States or in a foreign country when acting with the approval of a judge having lawful jurisdiction over the matter;
(2) a legal intern, clerk, paralegal, or person in a similar position employed by and under the direct supervision of a licensed attorney meeting the requirements of item (1) and rendering immigration assistance services in the course of employment; and
(3) a not-for-profit organization recognized by the Board of Immigration Appeals under 8 CFR 292.2(a) and employees, of those organizations accredited pursuant to 8 CFR 292.2(d).
(C) This chapter does not regulate a business if that regulation is prohibited or preempted by federal law.
(D) A person performing the services described in this chapter shall obtain a business license from the Department of Labor, Licensing and Regulation and as may be required by a local governing authority.
(E) A person who provides or offers immigration assistance services and who is not exempted pursuant to the provisions of this chapter shall post signs at his or her place of business setting forth information in English and in every other language in which the person provides or offers to provide immigration assistance services. Each language must be on a separate sign. Signs must be posted in a location where the signs are readily visible to customers. Each sign must be at least twelve inches by seventeen inches and must contain the following statement: 'I AM NOT AN ATTORNEY LICENSED TO PRACTICE LAW AND MAY NOT GIVE LEGAL ADVICE OR ACCEPT FEES FOR LEGAL ADVICE.'
(F) Each person engaged in immigration assistance service who is not an attorney who advertises immigration assistance service in a language other than English, whether by radio, television, signs, pamphlets, newspapers, or other written communication, with the exception of a single desk plaque, shall include in the document, advertisement, stationery, letterhead, business card, or other comparable written material the following notice in English and the language in which the written communication appears. This notice must be of a conspicuous size, if in writing, and must state: 'I AM NOT AN ATTORNEY LICENSED TO PRACTICE LAW AND MAY NOT GIVE LEGAL ADVICE OR ACCEPT FEES FOR LEGAL ADVICE.' If the advertisement is by radio or television, the statement may be modified but must include substantially the same message.
(G) A person who provides or offers immigration assistance service and who is not exempted pursuant to the provisions of this chapter may not literally translate from English into another language any document, advertisement, stationery, letterhead, business card, or other comparable written material terms or titles including, but not limited to, notary public, notary, licensed attorney, lawyer, or another term that implies the person is an attorney.
(H) A person engaged in providing immigration services who is not exempted pursuant to the provisions of this chapter may not:
(1) accept payment in exchange for providing legal advice or other assistance that requires legal analysis, legal judgment, or interpretation of the law;
(2) refuse to return documents supplied by, prepared on behalf of, or paid for by the customer upon the request of the customer. These documents must be returned upon request even if there is a fee dispute between the immigration assistant and the customer;
(3) represent or advertise, in connection with assistance in immigration matters, other titles or credentials including, but not limited to, 'notary public' or 'immigration consultant', that could cause a customer to believe that the person possesses special professional skills or is authorized to provide advice on an immigration matter, except that a certified notary public may use the term 'notary public' if the use is accompanied by the statement that the person is not an attorney; the term 'notary public' may not be translated to another language;
(4) provide legal advice, recommend a specific course of legal action, or provide other assistance that requires legal analysis, legal judgment, or interpretation of the law; or
(5) make a misrepresentation or false statement, directly or indirectly, to influence, persuade, or induce patronage.
(I) Violations of this chapter may result in a civil fine up to one thousand dollars for each violation. A fine charged pursuant to this chapter does not preempt or preclude additional appropriate civil or criminal penalties, including disgorgement and restitution.
(J)(1) Any person who knowingly and wilfully makes a false, fictitious, or fraudulent statement or representation in a 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 wilfully making a false, fictitious, or fraudulent statement or representation in a 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 a document prepared or executed as part of the provision of immigration assistance services in an immigration matter pursuant to this chapter is 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.
(2) In addition, a person convicted of violating this subsection must disgorge the benefit received or make restitution, or both, to the agency or political subdivision that administered the benefit or entitlement program.
(3) It is a separate violation of this subsection each time a person knowingly and wilfully makes, aids, or abets in the making of, or solicits or conspires to make a false, fictitious, or fraudulent statement or representation in a document prepared or executed pursuant to this subsection.
(4) A criminal charge pursuant to this chapter does not preempt or preclude additional appropriate civil or criminal charges or penalties. A person who suffers an ascertainable loss of money or property, real or personal, as a result of a conviction or plea to a violation of this subsection may bring an action individually, or in a representative capacity, to recover actual damages from a person convicted of the violation of this subsection. If the court finds that a violation has been established, the court shall award three times the actual damages sustained and may provide such relief as it considers necessary or proper. Upon the finding by the court of a violation, the court shall award to the person bringing the action pursuant to this section reasonable attorney's fees and costs.
(5) Persons convicted of a violation of this subsection are jointly and severally liable for any loss suffered by any person or any agency or political subdivision of the State.
(K) The director of the Department of Labor, Licensing and Regulation shall promulgate regulations not inconsistent with this chapter for the implementation, administration, and enforcement of this chapter.
(L) This chapter does not apply to a person employed by or working for an educational institution if that person is registered as a designated school official with the SEVIS program, or a successor program, operated by the United States Department of Homeland Security."
SECTION 4. Chapter 5, Title 43 of the 1976 Code is amended by adding:
Section 43-5-1410. This article may be cited as the 'Illegal Aliens and Public Benefits Act'.
Section 43-5-1420. (A) Except as provided in subsection (C) or if exempted by federal law, on or after July 1, 2008, every agency and political subdivision of this State shall verify the lawful presence in the United States of a natural person eighteen years of age or older who has applied for state or local public benefits, as defined in 8 USC Section 1621, or for federal public benefits, as defined in 8 USC Section 1611, that are administered by an agency or a political subdivision of this State.
(B) The provisions of this article must be enforced without regard to race, religion, gender, ethnicity, or national origin.
(C) Verification of lawful presence pursuant to the provisions of this article is not required for:
(1) a purpose for which lawful presence in the United States is not required by law, ordinance, or regulation;
(2) assistance for health care items and services that are necessary for the treatment of an emergency medical condition, as defined in 42 USC Section 1396b(v)(3), of the alien involved and are not related to an organ transplant procedure;
(3) short-term, noncash, in-kind emergency disaster relief;
(4) public health assistance for immunizations with respect to immunizable diseases and for testing and treatment of symptoms of communicable diseases whether or not the symptoms are caused by a communicable disease; or
(5) programs, services, or assistance including soup kitchens, crisis counseling and intervention, and short-term shelter specified by the United States Attorney General, in the United States Attorney General's sole discretion after consultation with appropriate federal agencies and departments, which:
(i) deliver in-kind services at the community level, including through public or private nonprofit agencies;
(ii) do not condition the provision of assistance, the amount of assistance provided, or the cost of assistance provided on the individual recipient's income or resources; and
(iii) are necessary for the protection of life or safety;
(6) prenatal care; or
(7) for benefits, programs, services, or other assistance provided to victims of domestic violence, irrespective of immigration status, under the Violence Against Women Act of 2000, PL 106-386, or the Illegal Immigration Reform and Immigrant Responsibility Act, PL 104-208.
(D) Verification of lawful presence in the United States by the agency or political subdivision required to make the verification must occur as follows:
(1) the applicant shall execute an affidavit that he is a United States citizen or legal permanent resident eighteen years of age or older; or
(2) the applicant shall execute an affidavit that he is a qualified alien or nonimmigrant under the federal Immigration and Nationality Act, PL 82-414, eighteen years of age or older, lawfully present in the United States.
(E) For an applicant who has executed an affidavit that he is an alien lawfully present in the United States, eligibility for benefits must be made through the Systematic Alien Verification of Entitlement (SAVE) program operated by the United States Department of Homeland Security or a successor program designated by the United States Department of Homeland Security. Until that eligibility verification is made, the affidavit is presumed to be proof of lawful presence for the purposes of this article.
(F)(1) A person who knowingly and wilfully makes a false, fictitious, or fraudulent statement of representation in an affidavit executed pursuant to subsection (D), or who aids or abets a person in knowingly and wilfully making a false, fictitious, or fraudulent statement or representation in an affidavit executed pursuant to that subsection, or who solicits or conspires to make a false, fictitious, or fraudulent statement or representation in an affidavit executed pursuant to that subsection is 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.
(2) In addition, a person convicted pursuant to this subsection 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.
(3) It is a separate violation of this subsection each time a person received a public benefit based on such a statement or representation.
(4) A conviction and fine charged pursuant to this subsection does not preempt or preclude additional appropriate civil or criminal charges or penalties. A person who suffers an ascertainable loss of money or property, real or personal, as a result of the actions of anyone convicted of a violation 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 other relief it considers necessary and proper. Upon a finding by the court of a violation, the court shall award to the person bringing the action pursuant to this subsection reasonable attorney's fees and costs.
(5) Persons convicted of a violation of this subsection are jointly and severally liable for a loss suffered by a person or an agency or political subdivision of the State.
(6) If an affidavit constitutes a false claim of United States citizenship under 18 USC Section 911, a complaint must be filed by the agency or political subdivision with the United States Attorney for the District of South Carolina.
(G) It is unlawful for an agency or a political subdivision of this State to provide a state, local, or federal benefit, as defined in 8 USC Section 1621 or 8 USC Section 1611, in violation of the provisions of this article. Each state agency, department, division, or other political subdivision that administers a program of state or local public benefits shall provide an annual report with respect to its compliance with the provisions of this article.
(H) All errors and significant delays by SAVE must be reported to the United States Department of Homeland Security and to the Secretary of State which will monitor SAVE and its verification application errors and significant delays and report yearly on such errors and significant delays to ensure that the application of SAVE is not wrongfully denying benefits to legal residents of South Carolina.
(I) An agency or a political subdivision of this State that provides a state, local, or federal benefit, as defined in 8 USC 1621 or 8 USC Section 1611, must require a person currently under the age of eighteen who received the benefit to comply with the provisions of this article upon reaching the age of eighteen. If the recipient is unwilling or unable to comply, receipt of all benefits must cease immediately upon the recipient's eighteenth birthday.
(J) A local government may not enact any ordinance or policy that limits or prohibits a law enforcement officer, local official, or local government employee from seeking to enforce the provisions of this article."
SECTION 5. Chapter 1, Title 6 of the 1976 Code is amended by adding:
"Section 6-1-170. (A) For purposes of this section, 'political subdivision' includes, but is not limited to, a municipality, county, school district, special purpose district, or public service district.
(B) A political subdivision of this State may not enact any ordinance or policy that limits or prohibits a law enforcement officer, local official, or local government employee from seeking to enforce a state law with regard to immigration.
(C) A political subdivision of this State may not enact any ordinance or policy that limits or prohibits a law enforcement officer, local official, or local government employee from communicating to appropriate federal or state officials with regard to the immigration status of any person within this State.
(D) A political subdivision of this State may not enact an ordinance or policy that expands or enhances the power of a law enforcement officer, local official, or local government employee to enforce a state law with regard to immigration to the extent that its result is harsher than, and a frustration of, the state's purpose in enacting the state law.
SECTION 6. Article 25, Chapter 6, Title 12 of the 1976 Code is amended by adding:
"Section 12-6-3595. (A) As used in this section:
(1) 'Authorized employee' means an individual authorized for employment in the United States as defined in paragraph (2) of subsection (a) of 8 USC Section 1324a.
(2) 'Labor services' means the physical performance of services in this State.
(B) Notwithstanding another provision of law, on or after January 1, 2009, wages or remuneration paid for labor services to an individual of six hundred dollars or more per annum must not be claimed and allowed as a deductible business expense for state income tax purposes by a taxpayer unless the individual is an authorized employee.
(C) The provisions of this section apply whether or not an Internal Revenue Service Form 1099 is issued in conjunction with the wages or remuneration. This section does not apply to:
(1) a business domiciled in this State which is exempt from compliance with federal employment verification procedures under federal law which makes the employment of unauthorized aliens unlawful;
(2) an individual hired by the taxpayer before January 1, 2009;
(3) a taxpayer when the individual being paid is not directly compensated or employed by the taxpayer; or
(4) to wages or remuneration paid for labor services to an individual who holds and presents to the taxpayer a valid license or identification card issued by the Department of Motor Vehicles, who is eligible to obtain a South Carolina driver's license or identification card in compliance with Sections 56-1-40 through 56-1-90, or who possesses a valid driver's license or identification card from another state where the license requirements are at least as strict as those in South Carolina, as determined by the Attorney General.
(D) A taxpayer must not 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 an unauthorized employee. For purposes of this subsection, a taxpayer is considered to have conducted a reasonable investigation if the individual met the requirements of subsection (C)(4), and the information provided by the individual to the taxpayer was facially correct.
(E) The director of the South Carolina Department of Revenue may prescribe forms and promulgate regulations necessary to administer and effectuate this section.
(F) 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 8, Title 12 of the 1976 Code is amended by adding:
"Section 12-8-610. (A) Notwithstanding another provision of law, 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 compensation paid to an individual, which compensation is reported on Form 1099 and with respect to which the individual has:
(1) failed to provide a taxpayer identification number;
(2) failed to provide a correct taxpayer identification number; or
(3) provided an Internal Revenue Service-issued taxpayer identification number issued for nonresident aliens.
(B) 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.
(C) A withholding agent does not violate this section if the individual provides a false or incorrect taxpayer identification number that 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 8. Article 5, Chapter 9, Title 16 of the 1976 Code is amended by adding:
"Section 16-9-460. (A) It is a felony for a person knowingly or in reckless disregard of the fact that another person has come to, entered, or remained in the United States in violation of law to transport, move, or attempt to transport that person within the State or to solicit or conspire to transport or move that person within the State in furtherance of that person's illegal presence in the United States.
(B) It is be a felony for a person knowingly or in reckless disregard of the fact that another person has come to, entered, or remained in the United States in violation of law to conceal, harbor, or shelter from detection or to solicit or conspire to conceal, harbor, or shelter from detection that person in any place, including a building or means of transportation, in furtherance of that person's illegal presence in the United States.
(C) A person who violates the provisions of subsection (A) or (B) of this section is guilty of a felony and, upon conviction, must 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 contender to a violation of this section must not be permitted to seek or obtain a professional license offered by the State or any agency or political subdivision of the State."
SECTION 9. Article 2, 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 contender to financial identity fraud or identity fraud involving the false, fictitious, or fraudulent creation or use of documents that enable a person who is not authorized to live or work in the United States or to receive benefits administered by an agency or political subdivision of this State must disgorge the benefit received or make restitution to the agency or political subdivision that administered the benefit or entitlement program, or both. A criminal charge pursuant to this chapter does not preempt or preclude additional appropriate civil or criminal charges or penalties.
(B) A person who suffers an 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 subsection (A), may bring an action individually, or in a representative capacity, to recover actual damages against the person convicted of the violation. If a 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 considers necessary or proper. Upon the finding by the court of a violation, the court shall award to the person bringing this action pursuant to this section reasonable attorney's fees and costs.
(C) A person convicted of a violation of this subsection is jointly and severally liable for a loss suffered by a person or an agency or political subdivision of the State."
SECTION 10. Chapter 23, Title 16 of the 1976 Code is amended by adding:
"Section 16-23-530. (A) It is unlawful for a person who is not lawfully present in the United States to store, keep, buy, transport, distribute, manufacture, possess, or have in possession or permit another to store, keep, buy, transport, distribute, manufacture, possess, or have in possession a rifle, pistol, or other firearm.
(B) It is unlawful for a person to sell, rent, give away, or participate, directly or indirectly, in the sale, renting, giving away, or otherwise disposing of a rifle, pistol, or other firearm to a person who is not lawfully present in the United States.
(C) A person violating the provisions of subsection (A) of this section is guilty of a felony and, upon conviction, must be fined not more than ten thousand dollars or imprisoned not more than ten years, or both.
(D) A person violating the provisions of subsection (B) of this section is guilty of a misdemeanor and, upon conviction, must be fined not more than two thousand dollars or imprisoned not more than three years, or both."
SECTION 11. Article 1, Chapter 3, Title 23 of the 1976 Code is amended by adding:
"Section 23-3-80. (A) The chief of the South Carolina Law Enforcement Division is authorized and directed to negotiate the terms of a memorandum of understanding between the State of South Carolina and the United States Department of Justice or Department of Homeland Security addressing:
(1) the enforcement of federal immigration laws by state and local law enforcement, specifically through the 287-G program or other applicable federal law designed for the purpose of state enforcement of federal immigration laws;
(2) the detention of illegal immigrants by state and local law enforcement officials and the costs associated with those detentions;
(3) the removal of detained illegal immigrants by federal authorities or, instead of removal, the deportation of illegal immigrants by state and local law enforcement officials;
(4) training of state and local law enforcement officials pursuant to the 287-G program or other applicable federal laws and the costs of such training; and
(5) further communication and cooperation between federal law enforcement and state and local law enforcement officials in the area of immigration enforcement.
(B) The memorandum of understanding negotiated pursuant to subsection (A) must be signed on behalf of the State by the chief of the South Carolina Law Enforcement Division and the Governor or as otherwise required by the appropriate federal agency.
(C) The chief of the South Carolina Law Enforcement Division shall designate appropriate law enforcement officers to be trained pursuant to the memorandum of understanding provided for in subsections (A) and (B). This training must be funded pursuant to the federal Homeland Security Appropriation Act of 2006, Public Law 109-90, or a subsequent source of federal funding. The provisions of this subsection become effective upon the securing of this funding.
(D) The director of the South Carolina Department of Corrections, the sheriff of a county, and the governing body of a 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 12. Chapter 1, Title 41 of the 1976 Code is amended by adding:
"Section 41-1-30. (A) There is a civil right of action for wrongful termination against an employer who knowingly terminates an employee while retaining a person the employer knows and should reasonably know is an illegal alien and is engaged in substantially the same job category.
(B) Termination for cause is an absolute bar to recovery under this section.
(C) This section does not create an employment contract for either a public of private employer."
SECTION 13. Chapter 101, Title 59 of the 1976 Code is amended by adding:
"Section 59-101-430. (A) A person who is not lawfully present in the United States is not eligible to attend a public institution of higher learning in this State, as defined in Section 59-103-5. The trustees of a public institution of higher learning in this State shall develop and institute a process by which lawful presence in the United States is verified.
(B) A person not lawfully present in the United States is not eligible on the basis of residence for a public higher education benefit including, but not limited to, scholarships, financial aid, grants, or resident tuition.
(C) This section does not apply to students already enrolled or those granted enrollment as of the effective date of this section."
SECTION 14. Section 1-31-40(B) and (C) of the 1976 Code is amended to read:
"(B) In addition to the powers and duties in subsection (A), the State Commission for Minority Affairs 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 laws or regulations by any noncitizen of the United States or immigrant, and allegations of violations of laws or regulations against any noncitizens of the Untied States or immigrant. The commission 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. The executive director of the commission is authorized to hire personnel necessary to carry out the duties prescribed in this subsection. The General Assembly shall provide for the funds in the annual appropriations act.
(C) The commission may delegate these powers and duties as necessary.
(C) (D) Nothing in this chapter recognizes, creates, extends, or forms the basis of any right or claim of interest in land or real estate in this State for any Native American tribe which is recognized by the State."
SECTION 15. Section 14-7-1630(A)(8) and (9) of the 1976 Code, as last amended by Act 82 of 2007, is further amended to read:
"(8) a crime involving obscenity including, but not limited to, a crime as provided in Article 3, Chapter 15, Title 16 or any attempt, aiding, abetting, solicitation, or conspiracy to commit a crime involving obscenity; and
(9) a crime involving the knowing and wilful making of, aiding and abetting in the making of, or soliciting or conspiring to make a false, fictitious, or fraudulent statement or representation in an affidavit regarding a person's lawful presence in the United States, as defined in Section 43-5-1410, if the number of violations exceeds twenty or if the public benefit received by a person from a violation or combination of violations exceeds twenty thousand dollars;
(10) a crime involving financial identity fraud or identity fraud involving the false, fictitious, or fraudulent creation or use of documents used in an immigration matter as defined in Section 16-13-525, if the number of violations exceeds twenty, or if the value of the ascertainable loss of money or property suffered by a person or persons from a violation or combination of violations exceeds twenty thousand dollars;
(11) a crime involving the knowing and wilful making of, aiding or abetting in the making of, or soliciting or conspiring to make a false, fictitious, or fraudulent statement or representation in a document prepared or executed as part of the provision of immigration assistance services in an immigration matter, as defined in Section 40-91-40, if the number of violations exceeds twenty, or if a benefit received by a person from a violation or combination of violations exceeds twenty thousand dollars; and
(12) a knowing and wilful crime involving actual and substantial harm to the water, ambient air, soil or land, or both soil and land. This crime includes a knowing and wilful violation of the Pollution Control Act, the Atomic Energy and Radiation Control Act, the State Underground Petroleum Environmental Response Bank Act, the State Safe Drinking Water Act, the Hazardous Waste Management Act, the Infectious Waste Management Act, the Solid Waste Policy and Management Act, the Erosion and Sediment Control Act, the South Carolina Mining Act, and the Coastal Zone Management Act, or a knowing and wilful crime arising out of or in connection with environmental laws, or any attempt, aiding, abetting, solicitation, or conspiracy to commit a knowing and wilful crime involving the environment if the anticipated actual damages including, but not limited to, the cost of remediation, are two million dollars or more, as certified by an independent environmental engineer who must be contracted by the Department of Health and Environmental Control. If the knowing and wilful crime is a violation of federal law, then a conviction or an acquittal pursuant to federal law for the same act is a bar to the impaneling of a state grand jury pursuant to this section."
SECTION 16. Section 17-15-30 of the 1976 Code, as last amended by Act 106 of 2005, is further amended to read:
"Section 17-15-30. (A) In determining conditions of release that will reasonably assure appearance, or if release would constitute an unreasonable danger to the community, the court may, on the basis of available information, consider the nature and circumstances of the offense charged, and the accused's:
(1) family ties,;
(2) employment,;
(3) financial resources,;
(4) character and mental condition,;
(5) the length of his residence in the community,;
(6) his record of convictions,; and
(7) his record of flight to avoid prosecution or failure to appear at other court proceedings.
(B) The court shall consider:
(1) the accused's criminal record, if any. The court shall consider, if available,;
(2) all incident reports generated as a result of the offense charged., if available; and
(3) whether the accused is an illegal alien in violation of the Federal Immigration and Nationality Act or another federal law relating to aliens illegally present in the United States and poses a substantial flight risk due to this status."
SECTION 17. All requirements of this act concerning immigration or the classification of immigration status must be construed in conformity with federal immigration law.
SECTION 18. 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, subsection, items, subitems, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.
SECTION 19. This act takes effect upon approval by the Governor.
This web page was last updated on Monday, June 22, 2009 at 2:52 P.M.