Employing Illegal Aliens

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This Act establishes penalties for knowingly employing an illegal alien. It defines “knowingly” as having actual knowledge that a person is an illegal alien or having a duty imposed by law to determine the immigration status of an illegal alien and failing to perform such duty. Violators can have their business license suspended. The Act also permits local governments in the state to enter into a written agreement with the United States Department of Homeland Security to help enforce federal immigration laws concerning investigating, detaining, and removing illegal aliens.

Submitted as: Tennessee Public Chapter No. 529 Status: Enacted into law in 2007.

Suggested State Legislation

(Title, enacting clause, etc.)

Section 1. [Short Title.] This Act shall be cited as “An Act to Prohibit Employing Illegal Aliens.”

Section 2. [Definitions.] (a) As used in this section, unless the context otherwise requires: (1) “Commissioner” means the [commissioner of labor and workforce development]. (2) “Department” means the [department of labor and workforce development]. (3) “Employ” or “employment” means any work engaged in for compensation in money or other valuable consideration and for which a person paying the compensation for the work performed is required to file a “Form W-2” Wage and Tax Statement with the Federal Internal Revenue Service. (4) “Illegal alien” means a person who is at the time of employment neither an alien who is lawfully admitted for permanent residence in the United States pursuant to the Federal Immigration and Naturalization Act nor authorized to be employed by the Federal Immigration and Naturalization Act or the United States Attorney General. (5) “Knowingly” means having actual knowledge that a person is an illegal alien or having a duty imposed by law to determine the immigration status of an illegal alien and failing to perform such duty. (6) “Lawful resident alien” means a person who is entitled to lawful residence in the United States pursuant to the Federal Immigration and Naturalization Act. (7) “Lawful resident verification information” means the documentation that is required by the United States Department of Homeland Security when completing the employment eligibility verification form commonly referred to as the federal “Form I-9.” Documentation that later proves to be falsified, but that at the time of employment satisfies the requirements of the “Form I-9,” is lawful resident verification information. (8) “License” means any certificate, approval, registration or similar form of permission required by law.

29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 (9) “Person” means an individual, corporation, partnership, association or any other

legal entity. (b) A person shall not knowingly employ, recruit or refer for a fee for employment, an illegal alien. (c) A person has not violated subsection (b) with respect to a particular employee if the person: (1) Requested from the employee, received, and documented in the employee record at least [fourteen (14) calendar days] after commencement of employment lawful resident verification information consistent with employer requirements under the Immigration Reform and Control Act of 1986; and (2) The lawful resident verification information provided by the person later was determined to be false. (d) A person has not violated subsection (b) with respect to a particular employee if the person verified the immigrant status of the person at least [fourteen (14) calendar days] after commencement of employment by using the Federal Electronic Work Authorization Verification Service provided by the United States Department of Homeland Security pursuant to the Federal Basic Pilot Program Extension and Expansion Act of 2003. (e) If any state or local governmental agency, officer, employee or entity has reason to believe that a violation of subsection (b) has occurred, the agency, officer, employee or entity shall file a complaint with the [department]. Upon receipt of the complaint, the [commissioner] shall conduct an investigation. If there is substantial evidence that a violation of subsection (b) has occurred, the [commissioner] shall conduct a contested case hearing pursuant to the Uniform Administrative Procedures Act, complied in [insert citation], on the question of whether such person has violated subsection (b). If the [commissioner] or the [commissioner’s] designee determines that there is clear and convincing evidence that a person has violated subsection (b) and such violation occurred while the person was acting within the scope of practice of a license issued by this state pursuant to [insert citation], the [commissioner] shall request an order consistent with [insert citation], requiring the appropriate regulatory board or local government with respect to business licensure pursuant to [insert citation], to revoke, suspend, or deny the person’s license. The [commissioner] shall state in their findings of fact and conclusions of law whether there have been previous violations of subsection (b). (1) For the first violation of subsection (b), the [commissioner] shall order that the regulatory board or local government suspend the person’s license until the person shows to the satisfaction of the [commissioner] that the person is no longer in violation of subsection (b). Such showing may be made by the person filing a sworn statement with the [commissioner] stating that the person is no longer employing illegal aliens. (2) For a second or subsequent violation of subsection (b) occurring within [three (3)] years from the issuance of the [commissioner’s] first order, the [commissioner] shall order that the regulatory agency or local government suspend the license for [one (1)] year.

Section 3. [Inter-Branch Agreements to Enforce this Act.] (a) For purposes of enforcing federal immigration laws, including, if applicable, federal laws relating to the employment of illegal aliens, the legislative body of a municipality or county, or the chief law enforcement officer of the county upon approval by the governing legislative body, may enter into a written Memorandum of Understanding, in accordance with federal law, between the municipality or county and the United States Department of Homeland Security concerning the enforcement of federal immigration laws, detention and removals, and investigations in the municipality or county.

77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 (b) If a Memorandum of Understanding with the United States Department of Homeland Security is executed pursuant to subsection (a), municipal and county law enforcement officers shall be designated from local law enforcement agencies which, by written designation and recommendation of a commanding officer, shall be trained pursuant to such Memorandum of Understanding. Funding for such training shall be provided pursuant to the Federal Homeland Security Appropriation Act of 2006, Public Law 109-90 or subsequent federal funding sources.

Section 4. [Commissioner Authorized to Promulgate Rules and Regulations to Implement this Act.] The [commissioner] is authorized to promulgate rules and regulations to effectuate the purposes of this Act. All such rules and regulations shall be promulgated in accordance with the provisions of [insert citation].

Section 5. [Severability.] [Insert severability clause.]

Section 6. [Repealer.] [Insert repealer clause.]

Section 7. [Effective Date.] [Insert effective date.]

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Enhanced Drivers’ Licenses and Identicards

According to Washington legislative staff, “The federal Intelligence Reform and Terrorism Prevention Act of 2004 mandated that the Secretary of Homeland Security, in consultation with the Secretary of State, develop and implement a plan to require United States citizens and foreign nationals to present a passport or other secure document when entering the United States. In April 2005, the Departments of State and Homeland Security announced the Western Hemisphere Travel Initiative, which will require people entering or re-entering the United States to present a passport or other acceptable secure identification. When announcing the Western Hemisphere Travel Initiative, the Departments of State and Homeland Security identified the passport as the document of choice for entry or re-entry into the United States, but acknowledged that certain other documents might be acceptable in lieu of a passport.” This Act permits the state department of licensing (DOL) to enter into a memorandum of understanding with a federal agency to facilitate border crossing between the state and Canada. The DOL may enter into an agreement with a Canadian province to implement a border crossing initiative. The DOL may issue an enhanced driver’s license or identicard to an applicant who, in addition to meeting all other driver’s license or identicard requirements, provides the DOL with proof of United States citizenship, identity, and state residency. The enhanced driver’s license or identicard must include a one-to-many biometric matching system. The DOL must adopt rules and may set fees for the issuance of enhanced drivers’ licenses and identicards.

Submitted as: Washington Chapter 7, Laws of 2007 Status: Enacted into law in 2007.

Suggested State Legislation

(Title, enacting clause, etc.)

Section 1. [Short Title.] This Act shall be cited as “An Act Relating to the Issuance of Enhanced Drivers’ Licenses and Identicards to Facilitate Crossing the Canadian Border.”

Section 2. [Memorandum of Understanding, Enhanced Driver License, Identicard.] (1) The [department] may enter into a Memorandum of Understanding with any federal agency for the purposes of facilitating the crossing of the border between this state and the [Canadian province of British Columbia]. (2) The [department] may enter into an agreement with the [Canadian province of British Columbia] for the purposes of implementing a border-crossing initiative. (3) (a) The [department] may issue an enhanced driver’s license or Identicard for the purposes of crossing the border between this state and the [Canadian province of British Columbia] to an applicant who provides the [department] with proof of: United States citizenship, identity, and state residency. The [department] shall continue to offer a standard driver’s license and Identicard. If the [department] chooses to issue an enhanced driver’s license, the [department] must allow each applicant to choose between a standard driver’s license or Identicard, or an enhanced driver’s license or Identicard. (b) The [department] shall implement a one-to-many biometric matching system for the enhanced driver’s license or Identicard. An applicant for an enhanced driver’s license or

19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 Identicard shall submit a biometric identifier as designated by the [department]. The biometric identifier must be used solely for the purpose of verifying the identity of the holders and for any purpose set out in [insert citation]. Applicants are required to sign a declaration acknowledging their understanding of the one-to-many biometric match. (c) The enhanced driver’s license or Identicard must include reasonable security measures to protect the privacy of state residents, including reasonable safeguards to protect against unauthorized disclosure of data about this state’s residents. If the enhanced driver’s license or Identicard includes a Radio Frequency Identification Chip, or similar technology, the [department] shall ensure that the technology is encrypted or otherwise secure from unauthorized data access. (d) The requirements of this subsection are in addition to the requirements otherwise imposed on applicants for a driver’s license or Identicard. The [department] shall adopt such rules as necessary to meet the requirements of this subsection. From time to time the [department] shall review technological innovations related to the security of identity cards and amend the rules related to enhanced driver’s licenses and Identicards as the [director] deems consistent with this section and appropriate to protect the privacy of residents of this state. (e) Notwithstanding [insert citation], the [department] may make images associated with enhanced drivers’ licenses or Identicards from the negative file available to United States Customs and Border Agents for the purposes of verifying identity. (4) The [department] may set a fee for the issuance of enhanced drivers’ licenses and Identicards under this section.

Section 3. [Statewide Education Campaign about this Act.] The [department] shall develop and implement a statewide education campaign to educate citizens about the border crossing initiative authorized by this Act. The educational campaign must include information on the forms of travel for which the existing and enhanced driver’s license can be used. The campaign must include information on the time frames for implementation of laws that impact identification requirements at the border with [Canada].

Section 4. [Severability.] [Insert severability clause.]

Section 5. [Repealer.] [Insert repealer clause.]

Section 6. [Effective Date.] [Insert effective date.]