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, and including effective date provisions.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

   Section 1.  NEW SECTION.  13.11  Memorandum of understanding —— immigration issues.
   1.  The attorney general shall negotiate the terms of a memorandum of understanding between the state of Iowa and the United States department of justice or the United States department of homeland security concerning the enforcement of federal immigration and custom laws, detention and removal of unauthorized aliens, and investigations in the state of Iowa.
   2.  The memorandum of understanding shall be signed on behalf of this state by the attorney general and the governor or as otherwise required by the appropriate federal agency.
   3.  A local governmental entity shall not enact any ordinance or policy that limits or prohibits a law enforcement officer, local official, or local government employee from communicating or cooperating with federal officials with regard to the immigration status of any person within this state.
   4.  Notwithstanding any other provision of law, a governmental entity or official within this state shall not prohibit, or in any way restrict, any governmental entity or official from sending to, or receiving from, the United States department of homeland security, information regarding the citizenship or immigration status, lawful or unlawful, of any person.
   5.  Notwithstanding any other provision of law, a person or governmental agency shall not prohibit, or in any way restrict, a public employee from doing any of the following with respect to information regarding the immigration status, lawful or unlawful, of any person:
   a.  Sending information to, or requesting or receiving such information from, the United States department of homeland security.
   b.  Maintaining the information in paragraph “a”.
   c.  Exchanging the information in paragraph“a” with any other federal, state, or local governmental entity.
   6.  Any natural person lawfully domiciled in this state may file for a writ of mandamus to compel any noncooperating local or state governmental entity to comply with the information sharing provisions set forth in this section. 
   Sec. 2.  NEW SECTION.  91A.15  Independent contractors —— wage withholding.
   1.  An employer shall withhold state income tax at the rate of six percent of the amount of compensation paid to an individual, which compensation is required to be reported on internal revenue service form 1099 and with respect to which the individual has failed to provide a valid social security number issued by the United States social security administration.
   2.  An employer who fails to comply with the withholding requirements of subsection 1 shall be liable for the taxes required to have been withheld unless the employer is exempt from federal withholding with respect to such an individual pursuant to a properly filed internal revenue service form 8233 or its equivalent, and has provided a copy of such form to the department of revenue.
   Sec. 3.  NEW SECTION.  91F.1  Definitions.
   As used in this chapter, unless the context otherwise requires:
   1.  “Commissioner” means the labor commissioner appointed pursuant to section 91.2, or the commissioner’s designee.
   2.  “E-verify program” means one of the following:
   a.  The electronic verification of work authorization status program authorized by the federal Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 8 U.S.C. § 1324a, operated by the United States department of homeland security.
   b.  Any federal work authorization status program equivalent to the program described in paragraph“a” and operated by the United States department of homeland security or any other designated federal agency authorized to verify the work authorization status of newly hired employees, pursuant to the federal Immigration Reform and Control Act of 1986, Pub. L. No. 99-603.
   3.  “Public employer” means this state, its boards, commissions, agencies, and departments, and its political subdivisions including school districts and other special purpose districts.
   4.  “Subcontractor” means a subcontractor, contract employee, staffing agency, or any contractor regardless of the contractor’s tier.
   5.  “Unfair trade practice” means any practice that offends established public policy or is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers.
   Sec. 4.  NEW SECTION.  91F.2  E-verify program —— participation.
   1.  Each public employer shall register and participate in the e-verify program to verify the work authorization status of all newly hired employees.
   2.
  a.  A public employer shall not enter into a contract for the performance of services within this state unless the contractor registers and participates in the e-verify program to verify the work authorization status of all newly hired employees.
   b.  A contractor or subcontractor shall not enter into a contract or subcontract with a public employer in connection with the physical performance of services within this state unless the contractor or subcontractor registers and participates in the e-verify program to verify the work authorization status of all newly hired employees.
   3.  The discharge of any United States citizen or permanent resident alien employee by an employer of this state, who, on the date of the discharge employed an unauthorized alien, as defined in section 710B.1, shall constitute an unfair trade practice, and the discharged employee shall have a private right of action for such unfair trade practice.
   4.  The provisions of this chapter shall be enforced without regard to race, religion, gender, ethnicity, or national origin. 
   5.  The commissioner shall prescribe forms and administer and effectuate the provisions of this chapter and publish any rules on the department of workforce development’s internet site.
   Sec. 5.  NEW SECTION.  234.15  Citizenship verification program —— public benefits.
   1.  Except as provided in subsection 3 or where exempted by federal law, every state agency and political subdivision of this state shall verify the lawful presence in the United States of any natural person fourteen years of age and older who has applied for state or local public benefits, as defined in 8 U.S.C. § 1621, or for federal public benefits, as defined in 8 U.S.C. § 1611, that are administered by a state agency or political subdivision of this state.
   2.  The provisions of this section shall be enforced without regard to race, religion, gender, ethnicity, or national origin.
   3.  Verification of a person’s lawful presence in the United States under the provisions of this section shall not be required for the following:
   a.  For any purpose for which lawful presence in the United States is not restricted by law.
   b.  For assistance for health care items and services that are necessary for the treatment of an emergency medical condition, as defined in 42 U.S.C. § 1396b(v)(3), of the unauthorized alien involved and are not related to an organ transplant procedure.
   c.  For short-term, noncash, in-kind emergency disaster relief.
   d.  For public health assistance for immunizations with respect to diseases and for testing and treatment of symptoms of communicable diseases whether or not such symptoms are caused by a communicable disease.
   e.  For programs, services, or assistance such as soup kitchens, crisis counseling and intervention, and short-term shelter specified by the United States attorney general, in the sole and unreviewable discretion of the United States attorney general after consultation with appropriate federal agencies and departments, which meet all of the following criteria:
   (1)  Deliver in-kind services at the community level, including through public or private nonprofit agencies.
   (2)  Do not condition the provision of assistance, the amount of assistance provided, or the cost of assistance provided on the income or resources of the individual recipient.
   (3)  Are necessary for the protection of life or safety.
   f.  For prenatal care.
   4.  To verify a natural person’s lawful presence in the United States in order to receive benefits, the state agency or political subdivision required to make such verification shall require the applicant to execute an affidavit under penalty of perjury that makes one of the following assertions:
   a.  The applicant is a United States citizen.
   b.  The applicant is a qualified alien under the federal Immigration and Nationality Act, as codified in Tit. 8, United States Code, and is lawfully present in the United States.
   5.  For any applicant who has executed the affidavit described in subsection 4, paragraph “b”, eligibility for benefits shall be verified through the federal systematic alien verification for entitlement program operated by the United States department of homeland security or a successor program designated by the United States department of homeland security. Until such eligibility verification is made, the affidavit may be presumed to be proof of lawful presence for the purposes of this section.
   6.
  a.  A person who knowingly and willfully makes a false, fictitious, or fraudulent statement of representation in an affidavit executed pursuant to subsection 4, shall be guilty of a fraudulent practice pursuant to section 714.8, subsection 3.
   b.  If the affidavit constitutes a false claim of United States citizenship under 18 U.S.C. § 911, a complaint shall be filed by the state agency requiring the affidavit with the United States attorney’s office in the appropriate district in this state.
   7.  A state agency or political subdivision of this state may adopt variations to the requirements of this section which demonstrably improve the efficiency or reduce delay in the verification process, or to provide for adjudication of unique individual circumstances where the verification procedures in this section would impose unusual hardship on a legal resident of this state.
   8.  A state agency or political subdivision of this state shall not provide any state, local, or federal benefit, as defined in 8 U.S.C. § 1621 or 8 U.S.C. § 1611, in violation of the provisions of this section. 
   9.  Each state agency that administers any program of state or local public benefits shall provide an annual report to the secretary of state with respect to its compliance with the provisions of this section. Any and all errors shall be reported to the United States department of homeland security by the secretary of state. The secretary of state shall monitor the federal systematic alien verification for entitlement program and its verification application errors and significant delays and shall provide an annual report to the governor and the general assembly on such errors and significant delays, and recommendations to ensure that the application of the systematic alien verification for entitlement program is not erroneously denying benefits to legal residents of this state.
   Sec. 6.  NEW SECTION.  710B.1  Unlawful assistance —— unauthorized aliens —— penalty.
   1.  For purposes of this section,“unauthorized alien” means a person who is not lawfully present in the United States.
   2.  A person shall not transport, move, or attempt to transport within this state any unauthorized alien, knowing or in reckless disregard of the fact that the unauthorized alien has come to, entered, or remained in the United States in violation of law, in furtherance of the illegal presence of the unauthorized alien in the United States.
   3.  A person shall not conceal, harbor, or shelter from detection any unauthorized alien in any place, including any building or means of transportation, knowing or in reckless disregard of the fact that the unauthorized alien has come to, entered, or remained in the United States in violation of law.
   4.  A person who violates this section is guilty of a serious misdemeanor.
   Sec. 7.  NEW SECTION.  710B.2  Unauthorized aliens —— official documents.
   1.  Notwithstanding any other provision of law, the following identification documents shall be issued only to United States citizens, legal permanent resident aliens, or holders of valid unexpired nonimmigrant visas.
   a.  Any driver’s licenses or nonoperator’s identification cards pursuant to chapter 321, birth certificates pursuant to chapter 144, or other identification documents required by law or any legitimate purpose consistent with the duties of a federal, state, or local governmental entity.
   b.  Identification designed to identify the bearer as a student, faculty member, administrator, or employee of any public or nonpublic school or state or private educational institution.
   2.
  a.  The provisions of subsection 1 shall not apply when an applicant presents, in person, proof of United States citizenship including but not limited to one of the following:
   (1)  A federal passport.
   (2)  A state driver’s license or state nonoperator’s identification card.
   (3)  A certified birth certificate.
   b.  The provisions of subsection 1 shall not apply when an applicant presents, in person, valid documentary evidence of any of the following:
   (1)  A valid unexpired immigrant or nonimmigrant visa status for admission to the United States.
   (2)  A pending or approved application for asylum in the United States.
   (3)  Admission into the United States in refugee status.
   (4)  A pending or approved application for temporary protected status in the United States.
   (5)  Approved deferred action status.
   (6)  A pending application for adjustment of status to legal permanent residence status or conditional residence status.
   3.
  a.  Upon presentation of valid documentary evidence in subsection 2, paragraph “b”, the applicant may be issued an identification document as provided in subsection 1, unless otherwise prohibited by law. Such identification document shall be valid only during the time of the authorized stay of the applicant in the United States, or if there is no definite end to the period of authorized stay, a period of one year.
   b.  An identification document issued pursuant to this subsection shall clearly indicate that it is temporary and shall state the date that the identification document expires. Such identification document may be renewed only upon presentation of valid documentary evidence that the status by which the applicant qualified for the identification document has been extended by the United States citizenship and immigration services or United States immigration and customs enforcement of the United States department of homeland security.
   4.  Any driver’s license or nonoperator’s identification card issued pursuant to chapter 321 for which an application has been made for renewal, duplication, or reissuance shall be presumed to have been issued in accordance with the provisions of subsection 1, provided that, at the time the application is made, the driver’s license or nonoperator’s identification card has not expired, or been canceled, suspended, or revoked. The requirements of subsection 1 shall apply to a renewal, duplication, or reissuance if the department of transportation receives information or is notified by a local, state, or federal agency that the person seeking such renewal, duplication, or reissuance is neither a citizen of the United States nor lawfully present in the United States.
   Sec. 8.  NEW SECTION.  710B.3  Criminal conduct —— immigration status verification.
   1.  A reasonable effort shall be made to determine the citizenship of a person charged with a serious misdemeanor or a more serious offense, or who is charged with operating while intoxicated pursuant to section 321J.2, if the person is confined for any period in a county jail or city jail.
   2.  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 into the United States, and if lawfully admitted, that such lawful status has not expired. If verification of the prisoner’s lawful status cannot be made from documents in the possession of the prisoner, verification shall be made within forty-eight hours through a query to United States immigration and customs enforcement in the United States department of homeland security or other office or agency designated for that purpose. If the prisoner is determined not to be lawfully admitted to the United States, the keeper of the jail or other officer shall notify the United States department of homeland security.
   3.  For the purpose of determining the grant of or issuance of bond, a prisoner whose citizenship status has been verified pursuant to subsection 2 to be an unauthorized alien, shall be deemed a flight risk.
   4.  The department of public safety shall by rule adopt guidelines and procedures to be used to comply with the provisions of this section.
   Sec. 9.  EFFECTIVE DATE.  This Act takes effect January 1, 2012.
EXPLANATION
   This bill relates to illegal immigration in Iowa.
   The bill directs the attorney general pursuant to new Code section 13.11 to negotiate a memorandum of understanding (MOU) regarding immigration issues between the state and the United States department of justice or the United States department of homeland security in order to increase joint enforcement of federal immigration law with the United States department of homeland security.
   In new Code section 91A.15, the bill requires an employer to withhold state income tax from the compensation of an independent contractor who fails to provide a valid social security number. An employer who fails to withhold such required income taxes shall be liable for that amount.
   The bill creates new Code chapter 91F, which requires that each public employer use the federal electronic work authorization program, known as e-verify, to verify the lawful presence of newly hired employees. Public employers are prohibited from entering into contracts unless the contractors register and participate in the e-verify program. The discharge of a United States citizen or a permanent resident alien employee of an employer, who, on the date of the discharge employed an unauthorized alien, shall constitute an unfair trade practice and the discharged employee shall have a private right of action.
   Under Code section 234.15, the bill requires each state agency or political subdivision to verify the lawful presence of each natural person age 14 years or older who applies for state or local benefits, or federal benefits that are administered by the state agency or political subdivision using the systematic alien verification for entitlement program (SAVE). The Code section includes medical and disaster exceptions for the verification requirement. The state agencies and political subdivisions are required to follow a detailed process for verifying a person’s lawful presence, including completion of an affidavit by the applicant asserting the applicant’s lawful presence in the United States. A person who knowingly and willfully makes a false, fictitious, or fraudulent statement in an affidavit commits a fraudulent practice, and may be subject to a class “C” felony through a simple misdemeanor depending on the value of the services and property fraudulently received. A class “C” felony is punishable by confinement for no more than 10 years and a fine of at least $1,000 but not more than $10,000. A class “D” felony is punishable by confinement for no more than five years and a fine of at least $750 but not more than $7,500. An aggravated misdemeanor is punishable by confinement for no more than two years and a fine of at least $625 but not more than $6,250. A serious misdemeanor is punishable by confinement for no more than one year and a fine of at least $315 but not more than $1,875. A simple misdemeanor is punishable by confinement for no more than 30 days or a fine of at least $65 but not more than $625 or by both.
   An annual report shall be compiled by the secretary of state about the use of the SAVE program by the state agencies and political subdivisions and the number of errors and any significant delays. The report shall be provided to the governor and general assembly.
   The bill creates new Code chapter 710B. Under Code section 710B.1, a person shall not transport, harbor, or shelter an alien in reckless disregard for the person’s illegal immigration status. Such a violation is a serious misdemeanor, which is punishable by confinement for no more than one year and a fine of at least $315 but not more than $1,875.
   New Code section 710B.2 restricts the issuance of most official identification documents only to United States citizens, legal permanent residents, and holders of valid unexpired visas.
   The bill provides that a reasonable effort shall be made to determine the citizenship of a person charged with a serious misdemeanor or a more serious offense, or who is charged with operating while intoxicated pursuant to Code section 321J.2, if the person is confined for any period in a county jail or city jail. Specific procedures are required to be followed by law enforcement to verify the immigration status of a person in custody. If the person is an unauthorized alien, the person shall be reported to the United States department of homeland security. The department of public safety is charged with adopting guidelines and procedures for complying with this provision.
   The bill takes effect January 1, 2012.