Senate File 102 - Introduced SENATE FILE 102 BY SORENSON , CHELGREN , BERTRAND , FEENSTRA , BOETTGER , SEYMOUR , BARTZ , ANDERSON , BACON , HAMERLINCK , BEHN , JOHNSON , KAPUCIAN , HAHN , McKINLEY , ERNST , DIX , SMITH , and WHITVER A BILL FOR An Act relating to illegal immigration, providing penalties, 1 and including effective date provisions. 2 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA: 3 TLSB 1518SS (5) 84 je/rj

S.F. 102 Section 1. NEW SECTION . 13.11 Memorandum of understanding 1 —— immigration issues. 2 1. The attorney general shall negotiate the terms of a 3 memorandum of understanding between the state of Iowa and 4 the United States department of justice or the United States 5 department of homeland security concerning the enforcement of 6 federal immigration and custom laws, detention and removal of 7 unauthorized aliens, and investigations in the state of Iowa. 8 2. The memorandum of understanding shall be signed on behalf 9 of this state by the attorney general and the governor or as 10 otherwise required by the appropriate federal agency. 11 3. A local governmental entity shall not enact any ordinance 12 or policy that limits or prohibits a law enforcement officer, 13 local official, or local government employee from communicating 14 or cooperating with federal officials with regard to the 15 immigration status of any person within this state. 16 4. Notwithstanding any other provision of law, a 17 governmental entity or official within this state shall not 18 prohibit, or in any way restrict, any governmental entity or 19 official from sending to, or receiving from, the United States 20 department of homeland security, information regarding the 21 citizenship or immigration status, lawful or unlawful, of any 22 person. 23 5. Notwithstanding any other provision of law, a person or 24 governmental agency shall not prohibit, or in any way restrict, 25 a public employee from doing any of the following with respect 26 to information regarding the immigration status, lawful or 27 unlawful, of any person: 28 a. Sending information to, or requesting or receiving such 29 information from, the United States department of homeland 30 security. 31 b. Maintaining the information in paragraph “a” . 32 c. Exchanging the information in paragraph “a” with any 33 other federal, state, or local governmental entity. 34 6. Any natural person lawfully domiciled in this state may 35 -1- LSB 1518SS (5) 84 je/rj 1/ 12

S.F. 102 file for a writ of mandamus to compel any noncooperating local 1 or state governmental entity to comply with the information 2 sharing provisions set forth in this section. 3 Sec. 2. NEW SECTION . 91A.15 Independent contractors —— wage 4 withholding. 5 1. An employer shall withhold state income tax at the 6 rate of six percent of the amount of compensation paid to 7 an individual, which compensation is required to be reported 8 on internal revenue service form 1099 and with respect to 9 which the individual has failed to provide a valid social 10 security number issued by the United States social security 11 administration. 12 2. An employer who fails to comply with the withholding 13 requirements of subsection 1 shall be liable for the taxes 14 required to have been withheld unless the employer is exempt 15 from federal withholding with respect to such an individual 16 pursuant to a properly filed internal revenue service form 8233 17 or its equivalent, and has provided a copy of such form to the 18 department of revenue. 19 Sec. 3. NEW SECTION . 91F.1 Definitions. 20 As used in this chapter, unless the context otherwise 21 requires: 22 1. “Commissioner” means the labor commissioner appointed 23 pursuant to section 91.2, or the commissioner’s designee. 24 2. “E-verify program” means one of the following: 25 a. The electronic verification of work authorization status 26 program authorized by the federal Illegal Immigration Reform 27 and Immigrant Responsibility Act of 1996, 8 U.S.C. § 1324a, 28 operated by the United States department of homeland security. 29 b. Any federal work authorization status program equivalent 30 to the program described in paragraph “a” and operated by 31 the United States department of homeland security or any 32 other designated federal agency authorized to verify the work 33 authorization status of newly hired employees, pursuant to the 34 federal Immigration Reform and Control Act of 1986, Pub. L. No. 35 -2- LSB 1518SS (5) 84 je/rj 2/ 12

S.F. 102 99-603. 1 3. “Public employer” means this state, its boards, 2 commissions, agencies, and departments, and its political 3 subdivisions including school districts and other special 4 purpose districts. 5 4. “Subcontractor” means a subcontractor, contract 6 employee, staffing agency, or any contractor regardless of the 7 contractor’s tier. 8 5. “Unfair trade practice” means any practice that offends 9 established public policy or is immoral, unethical, oppressive, 10 unscrupulous, or substantially injurious to consumers. 11 Sec. 4. NEW SECTION . 91F.2 E-verify program —— 12 participation. 13 1. Each public employer shall register and participate in 14 the e-verify program to verify the work authorization status 15 of all newly hired employees. 16 2. a. A public employer shall not enter into a contract 17 for the performance of services within this state unless the 18 contractor registers and participates in the e-verify program 19 to verify the work authorization status of all newly hired 20 employees. 21 b. A contractor or subcontractor shall not enter into a 22 contract or subcontract with a public employer in connection 23 with the physical performance of services within this 24 state unless the contractor or subcontractor registers and 25 participates in the e-verify program to verify the work 26 authorization status of all newly hired employees. 27 3. The discharge of any United States citizen or permanent 28 resident alien employee by an employer of this state, who, on 29 the date of the discharge employed an unauthorized alien, as 30 defined in section 710B.1, shall constitute an unfair trade 31 practice, and the discharged employee shall have a private 32 right of action for such unfair trade practice. 33 4. The provisions of this chapter shall be enforced without 34 regard to race, religion, gender, ethnicity, or national 35 -3- LSB 1518SS (5) 84 je/rj 3/ 12

S.F. 102 origin. 1 5. The commissioner shall prescribe forms and administer 2 and effectuate the provisions of this chapter and publish any 3 rules on the department of workforce development’s internet 4 site. 5 Sec. 5. NEW SECTION . 234.15 Citizenship verification 6 program —— public benefits. 7 1. Except as provided in subsection 3 or where exempted 8 by federal law, every state agency and political subdivision 9 of this state shall verify the lawful presence in the United 10 States of any natural person fourteen years of age and older 11 who has applied for state or local public benefits, as defined 12 in 8 U.S.C. § 1621, or for federal public benefits, as defined 13 in 8 U.S.C. § 1611, that are administered by a state agency or 14 political subdivision of this state. 15 2. The provisions of this section shall be enforced without 16 regard to race, religion, gender, ethnicity, or national 17 origin. 18 3. Verification of a person’s lawful presence in the United 19 States under the provisions of this section shall not be 20 required for the following: 21 a. For any purpose for which lawful presence in the United 22 States is not restricted by law. 23 b. For assistance for health care items and services 24 that are necessary for the treatment of an emergency medical 25 condition, as defined in 42 U.S.C. § 1396b(v)(3), of the 26 unauthorized alien involved and are not related to an organ 27 transplant procedure. 28 c. For short-term, noncash, in-kind emergency disaster 29 relief. 30 d. For public health assistance for immunizations with 31 respect to diseases and for testing and treatment of symptoms 32 of communicable diseases whether or not such symptoms are 33 caused by a communicable disease. 34 e. For programs, services, or assistance such as soup 35 -4- LSB 1518SS (5) 84 je/rj 4/ 12

S.F. 102 kitchens, crisis counseling and intervention, and short-term 1 shelter specified by the United States attorney general, in the 2 sole and unreviewable discretion of the United States attorney 3 general after consultation with appropriate federal agencies 4 and departments, which meet all of the following criteria: 5 (1) Deliver in-kind services at the community level, 6 including through public or private nonprofit agencies. 7 (2) Do not condition the provision of assistance, the amount 8 of assistance provided, or the cost of assistance provided on 9 the income or resources of the individual recipient. 10 (3) Are necessary for the protection of life or safety. 11 f. For prenatal care. 12 4. To verify a natural person’s lawful presence in the 13 United States in order to receive benefits, the state agency or 14 political subdivision required to make such verification shall 15 require the applicant to execute an affidavit under penalty of 16 perjury that makes one of the following assertions: 17 a. The applicant is a United States citizen. 18 b. The applicant is a qualified alien under the federal 19 Immigration and Nationality Act, as codified in Tit. 8, United 20 States Code, and is lawfully present in the United States. 21 5. For any applicant who has executed the affidavit 22 described in subsection 4, paragraph “b” , eligibility for 23 benefits shall be verified through the federal systematic 24 alien verification for entitlement program operated by the 25 United States department of homeland security or a successor 26 program designated by the United States department of homeland 27 security. Until such eligibility verification is made, the 28 affidavit may be presumed to be proof of lawful presence for 29 the purposes of this section. 30 6. a. A person who knowingly and willfully makes a false, 31 fictitious, or fraudulent statement of representation in an 32 affidavit executed pursuant to subsection 4, shall be guilty of 33 a fraudulent practice pursuant to section 714.8, subsection 3. 34 b. If the affidavit constitutes a false claim of United 35 -5- LSB 1518SS (5) 84 je/rj 5/ 12

S.F. 102 States citizenship under 18 U.S.C. § 911, a complaint shall 1 be filed by the state agency requiring the affidavit with the 2 United States attorney’s office in the appropriate district in 3 this state. 4 7. A state agency or political subdivision of this state 5 may adopt variations to the requirements of this section which 6 demonstrably improve the efficiency or reduce delay in the 7 verification process, or to provide for adjudication of unique 8 individual circumstances where the verification procedures in 9 this section would impose unusual hardship on a legal resident 10 of this state. 11 8. A state agency or political subdivision of this state 12 shall not provide any state, local, or federal benefit, as 13 defined in 8 U.S.C. § 1621 or 8 U.S.C. § 1611, in violation of 14 the provisions of this section. 15 9. Each state agency that administers any program of state 16 or local public benefits shall provide an annual report to 17 the secretary of state with respect to its compliance with 18 the provisions of this section. Any and all errors shall 19 be reported to the United States department of homeland 20 security by the secretary of state. The secretary of state 21 shall monitor the federal systematic alien verification for 22 entitlement program and its verification application errors 23 and significant delays and shall provide an annual report 24 to the governor and the general assembly on such errors 25 and significant delays, and recommendations to ensure that 26 the application of the systematic alien verification for 27 entitlement program is not erroneously denying benefits to 28 legal residents of this state. 29 Sec. 6. NEW SECTION . 710B.1 Unlawful assistance —— 30 unauthorized aliens —— penalty. 31 1. For purposes of this section, “unauthorized alien” means 32 a person who is not lawfully present in the United States. 33 2. A person shall not transport, move, or attempt to 34 transport within this state any unauthorized alien, knowing 35 -6- LSB 1518SS (5) 84 je/rj 6/ 12

S.F. 102 or in reckless disregard of the fact that the unauthorized 1 alien has come to, entered, or remained in the United States in 2 violation of law, in furtherance of the illegal presence of the 3 unauthorized alien in the United States. 4 3. A person shall not conceal, harbor, or shelter from 5 detection any unauthorized alien in any place, including any 6 building or means of transportation, knowing or in reckless 7 disregard of the fact that the unauthorized alien has come to, 8 entered, or remained in the United States in violation of law. 9 4. A person who violates this section is guilty of a serious 10 misdemeanor. 11 Sec. 7. NEW SECTION . 710B.2 Unauthorized aliens —— official 12 documents. 13 1. Notwithstanding any other provision of law, the 14 following identification documents shall be issued only to 15 United States citizens, legal permanent resident aliens, or 16 holders of valid unexpired nonimmigrant visas. 17 a. Any driver’s licenses or nonoperator’s identification 18 cards pursuant to chapter 321, birth certificates pursuant to 19 chapter 144, or other identification documents required by 20 law or any legitimate purpose consistent with the duties of a 21 federal, state, or local governmental entity. 22 b. Identification designed to identify the bearer as a 23 student, faculty member, administrator, or employee of any 24 public or nonpublic school or state or private educational 25 institution. 26 2. a. The provisions of subsection 1 shall not apply 27 when an applicant presents, in person, proof of United States 28 citizenship including but not limited to one of the following: 29 (1) A federal passport. 30 (2) A state driver’s license or state nonoperator’s 31 identification card. 32 (3) A certified birth certificate. 33 b. The provisions of subsection 1 shall not apply when an 34 applicant presents, in person, valid documentary evidence of 35 -7- LSB 1518SS (5) 84 je/rj 7/ 12

S.F. 102 any of the following: 1 (1) A valid unexpired immigrant or nonimmigrant visa status 2 for admission to the United States. 3 (2) A pending or approved application for asylum in the 4 United States. 5 (3) Admission into the United States in refugee status. 6 (4) A pending or approved application for temporary 7 protected status in the United States. 8 (5) Approved deferred action status. 9 (6) A pending application for adjustment of status to legal 10 permanent residence status or conditional residence status. 11 3. a. Upon presentation of valid documentary evidence in 12 subsection 2, paragraph “b” , the applicant may be issued an 13 identification document as provided in subsection 1, unless 14 otherwise prohibited by law. Such identification document 15 shall be valid only during the time of the authorized stay of 16 the applicant in the United States, or if there is no definite 17 end to the period of authorized stay, a period of one year. 18 b. An identification document issued pursuant to this 19 subsection shall clearly indicate that it is temporary 20 and shall state the date that the identification document 21 expires. Such identification document may be renewed only 22 upon presentation of valid documentary evidence that the 23 status by which the applicant qualified for the identification 24 document has been extended by the United States citizenship 25 and immigration services or United States immigration and 26 customs enforcement of the United States department of homeland 27 security. 28 4. Any driver’s license or nonoperator’s identification 29 card issued pursuant to chapter 321 for which an application 30 has been made for renewal, duplication, or reissuance shall be 31 presumed to have been issued in accordance with the provisions 32 of subsection 1, provided that, at the time the application 33 is made, the driver’s license or nonoperator’s identification 34 card has not expired, or been canceled, suspended, or 35 -8- LSB 1518SS (5) 84 je/rj 8/ 12

S.F. 102 revoked. The requirements of subsection 1 shall apply to 1 a renewal, duplication, or reissuance if the department of 2 transportation receives information or is notified by a local, 3 state, or federal agency that the person seeking such renewal, 4 duplication, or reissuance is neither a citizen of the United 5 States nor lawfully present in the United States. 6 Sec. 8. NEW SECTION . 710B.3 Criminal conduct —— immigration 7 status verification. 8 1. A reasonable effort shall be made to determine the 9 citizenship of a person charged with a serious misdemeanor 10 or a more serious offense, or who is charged with operating 11 while intoxicated pursuant to section 321J.2, if the person is 12 confined for any period in a county jail or city jail. 13 2. If the person is not a United States citizen, the keeper 14 of the jail or other officer shall make a reasonable effort 15 to verify that the prisoner has been lawfully admitted into 16 the United States, and if lawfully admitted, that such lawful 17 status has not expired. If verification of the prisoner’s 18 lawful status cannot be made from documents in the possession 19 of the prisoner, verification shall be made within forty-eight 20 hours through a query to United States immigration and customs 21 enforcement in the United States department of homeland 22 security or other office or agency designated for that purpose. 23 If the prisoner is determined not to be lawfully admitted to 24 the United States, the keeper of the jail or other officer 25 shall notify the United States department of homeland security. 26 3. For the purpose of determining the grant of or issuance 27 of bond, a prisoner whose citizenship status has been verified 28 pursuant to subsection 2 to be an unauthorized alien, shall be 29 deemed a flight risk. 30 4. The department of public safety shall by rule adopt 31 guidelines and procedures to be used to comply with the 32 provisions of this section. 33 Sec. 9. EFFECTIVE DATE. This Act takes effect January 1, 34 2012. 35 -9- LSB 1518SS (5) 84 je/rj 9/ 12

S.F. 102 EXPLANATION 1 This bill relates to illegal immigration in Iowa. 2 The bill directs the attorney general pursuant to new Code 3 section 13.11 to negotiate a memorandum of understanding (MOU) 4 regarding immigration issues between the state and the United 5 States department of justice or the United States department 6 of homeland security in order to increase joint enforcement of 7 federal immigration law with the United States department of 8 homeland security. 9 In new Code section 91A.15, the bill requires an employer 10 to withhold state income tax from the compensation of an 11 independent contractor who fails to provide a valid social 12 security number. An employer who fails to withhold such 13 required income taxes shall be liable for that amount. 14 The bill creates new Code chapter 91F, which requires 15 that each public employer use the federal electronic work 16 authorization program, known as e-verify, to verify the 17 lawful presence of newly hired employees. Public employers 18 are prohibited from entering into contracts unless the 19 contractors register and participate in the e-verify program. 20 The discharge of a United States citizen or a permanent 21 resident alien employee of an employer, who, on the date of the 22 discharge employed an unauthorized alien, shall constitute an 23 unfair trade practice and the discharged employee shall have a 24 private right of action. 25 Under Code section 234.15, the bill requires each state 26 agency or political subdivision to verify the lawful presence 27 of each natural person age 14 years or older who applies 28 for state or local benefits, or federal benefits that are 29 administered by the state agency or political subdivision 30 using the systematic alien verification for entitlement 31 program (SAVE). The Code section includes medical and disaster 32 exceptions for the verification requirement. The state 33 agencies and political subdivisions are required to follow a 34 detailed process for verifying a person’s lawful presence, 35 -10- LSB 1518SS (5) 84 je/rj 10/ 12

S.F. 102 including completion of an affidavit by the applicant asserting 1 the applicant’s lawful presence in the United States. A 2 person who knowingly and willfully makes a false, fictitious, 3 or fraudulent statement in an affidavit commits a fraudulent 4 practice, and may be subject to a class “C” felony through 5 a simple misdemeanor depending on the value of the services 6 and property fraudulently received. A class “C” felony is 7 punishable by confinement for no more than 10 years and a 8 fine of at least $1,000 but not more than $10,000. A class 9 “D” felony is punishable by confinement for no more than five 10 years and a fine of at least $750 but not more than $7,500. An 11 aggravated misdemeanor is punishable by confinement for no more 12 than two years and a fine of at least $625 but not more than 13 $6,250. A serious misdemeanor is punishable by confinement for 14 no more than one year and a fine of at least $315 but not more 15 than $1,875. A simple misdemeanor is punishable by confinement 16 for no more than 30 days or a fine of at least $65 but not more 17 than $625 or by both. 18 An annual report shall be compiled by the secretary of 19 state about the use of the SAVE program by the state agencies 20 and political subdivisions and the number of errors and any 21 significant delays. The report shall be provided to the 22 governor and general assembly. 23 The bill creates new Code chapter 710B. Under Code section 24 710B.1, a person shall not transport, harbor, or shelter 25 an alien in reckless disregard for the person’s illegal 26 immigration status. Such a violation is a serious misdemeanor, 27 which is punishable by confinement for no more than one year 28 and a fine of at least $315 but not more than $1,875. 29 New Code section 710B.2 restricts the issuance of most 30 official identification documents only to United States 31 citizens, legal permanent residents, and holders of valid 32 unexpired visas. 33 The bill provides that a reasonable effort shall be made to 34 determine the citizenship of a person charged with a serious 35 -11- LSB 1518SS (5) 84 je/rj 11/ 12

S.F. 102 misdemeanor or a more serious offense, or who is charged with 1 operating while intoxicated pursuant to Code section 321J.2, 2 if the person is confined for any period in a county jail or 3 city jail. Specific procedures are required to be followed by 4 law enforcement to verify the immigration status of a person in 5 custody. If the person is an unauthorized alien, the person 6 shall be reported to the United States department of homeland 7 security. The department of public safety is charged with 8 adopting guidelines and procedures for complying with this 9 provision. 10 The bill takes effect January 1, 2012. 11 -12- LSB 1518SS (5) 84 je/rj 12/ 12