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Introduced Version House Bill 4054 History

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Key: Green = existing Code. Red = new code to be enacted
hb4054 intr
H. B. 4054


(By Delegates Moye, Campbell, Crosier, Gall, Staggers,

Canterbury, Barker, Stephens, Kessler, Argento and Varner)


[Introduced January 16, 2008; referred to the

Committee on Industry and Labor, Economic Development and Small Business then the Judiciary.]



A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §15-14-1, §15-14-2, §15-14-3, §15-14-4, §15-14-5, §15-14-6, §15-14-7, §15-14-8, §15-14-9, §15-14-10, §15-14-11, §15-14-12 and §15-14-13, all relating to illegal immigration; creating the West Virginia Taxpayer and Citizen Protection Act of 2008; stating legislative purpose; making certain acts unlawful; preserving provision of certain benefits and services; providing penalties; identification documentation; requiring issuance of identification documents to certain persons; providing exceptions; stating period of validity; providing for renewal under certain circumstances; providing exception for certain documents; providing presumption of validity for renewal, duplication or reissuance of driver licenses; requiring determination of citizenship status for persons charged with certain crimes; requiring verification of persons determined to be a foreign national; providing time limitation for verification; requiring notification to certain entities; providing rebuttable presumption that certain persons are a flight risk; defining terms; requiring participation in certain verification systems; prohibiting certain persons from entering into contracts after certain dates; providing exceptions; establishing certain discriminatory practices; providing exceptions; limiting certain cause of actions; requiring agencies and political subdivisions to verify lawful presence of persons applying for certain benefits; providing for nondiscriminatory treatment; excluding verification under certain circumstances; requiring execution of affidavits; requiring certain applicants to be verified through the Systematic Alien Verification for Entitlement Program; making certain actions subject to certain criminal penalties; authorizing adoption of variations to stated requirements; requiring certain entities to submit an annual compliance report; requiring certain entities to monitor certain program; requiring publication of annual reports and certain recommendations; requiring certain entities to submit a report of errors to certain agencies; requiring certain withholding of state income tax under certain circumstances; providing for tax liability for noncompliance; preventing certain misinterpretation; directing the Attorney General to negotiate terms of certain memorandum; requiring certain signatures; prohibiting certain actions by government entities; authorizing private rights of action under certain circumstances; requiring that certain persons be ineligible for postsecondary education benefits or resident tuition; providing exception for persons enrolled during or before certain school years; establishing a Fraudulent Documents Identification Unit within the West Virginia State Police subject to availability of funding; stating purposes; stating duties; providing for employment of sufficient employees; requiring certain periods of residence while attending certain schools; requiring satisfaction of certain admission standards; requiring presentation of certain documentation or filing of certain affidavits; requiring presentation of certain documents after filing of certain affidavits; requiring maintenance of documentation in certain records; providing qualifications for meeting certain criteria; prohibiting certain additional conditions for persons enrolled during or before certain school years; and providing an effective date.

Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §15-14-1, §15-14-2, §15-14-3, §15-14-4, §15-14-5, §15-14-6, §15-14-7, §15-14-8, §15-14-9, §15-14-10, §15-14-11, §15-14-12 and §15-14-13, all to read as follows:
ARTICLE 14. WEST VIRGINIA TAXPAYER AND CITIZEN PROTECTION ACT 2008.
§15-14-1. Purpose.
The State of West Virginia finds that illegal immigration is

causing economic hardship and lawlessness in this state and that illegal immigration is encouraged when public agencies within this state provide public benefits without verifying immigration status. The State of West Virginia further finds that when illegal immigrants have been harbored and sheltered in this state and encouraged to reside in this state through the issuance of identification cards that are issued without verifying immigration status, these practices impede and obstruct the enforcement of federal immigration law, undermine the security of our borders, and
impermissibly restrict the privileges and immunities of the citizens of West Virginia. Therefore, the people of the state of
West Virginia declare that it is a compelling public interest of this state to discourage illegal immigration by requiring all agencies within this state to fully cooperate with federal immigration authorities in the enforcement of federal immigration laws. The State of West Virginia also finds that other measures are necessary to ensure the integrity of various governmental programs and services.
§15-14-2. Prohibited acts.
(a) It is unlawful for any person to transport, move or attempt to transport in the State of West Virginia any alien knowing or in reckless disregard of the fact that the alien has come to, entered, or remained in the United States in violation of law, in furtherance of the illegal presence of the alien in the United States.
(b) It is unlawful for any person to conceal, harbor, or shelter from detection any alien in any place within the State of West Virginia, including any building or means of transportation, knowing or in reckless disregard of the fact that the alien has come to, entered, or remained in the United States in violation of law.
(c) Nothing in this section may be construed so as to prohibit or restrict the provision of any state or local public benefit described in 8 U.S.C., Section 1621(b),or regulated public health services provided by a private charity using private funds.
(d) Any person violating the provisions of subsection (a) or
(b) of this section is, and, upon conviction thereof, guilty of a felony and shall be imprisoned in a state correctional facility for not less than one year, or by a fine of not less than one thousand dollars, or by both such fine and imprisonment.
§15-14-3. Identification.
(a) The following entities may create, publish or otherwise manufacture an identification document, identification card, or identification certificate and may possess an engraved plate or other such device for the printing of such identification: Provided, That the name of the issuing entity shall be clearly printed upon the face of the identification:
(1) Businesses, companies, corporations, service organizations and federal, state and local governmental agencies for employee identification which is designed to identify the bearer as an employee;
(2) Businesses, companies, corporations and service organizations for customer identification which is designed to identify the bearer as a customer or member;
(3) Federal, state and local government agencies for purposes authorized or required by law or any legitimate purpose consistent with the duties of such an agency, including, but not limited to, voter identification cards, driver licenses, identification cards, passports, birth certificates and social security cards;
(4) Any public school or state or private educational institution, as defined by section one, article one, chapter eighteen of the Code of West Virginia, to identify the bearer as an administrator, faculty member, student or employee;
(5) Any professional organization or labor union to identify the bearer as a member of the professional organization or labor union; and
(6) Businesses, companies or corporations which manufacture medical-alert identification for the wearer thereof.
(b) All identification documents as provided in subdivision (3) or (4), subsection (a) of this section shall be issued only to United States citizens, nationals and legal permanent resident aliens.
(c) The provisions of subsection (b) of this section does not apply when an applicant presents, in person, valid documentary evidence of:
(1) A valid, unexpired immigrant or nonimmigrant visa status for admission into 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; or
(6) A pending application for adjustment of status to legal permanent residence status or conditional resident status. Upon approval, the applicant may be issued an identification document provided in subdivision (3) or (4), subsection (a) of this section. Such identification document shall be valid only during the period of 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. Any identification document issued pursuant to the provisions of 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 other authorized agency of the United States Department of Homeland Security.
(d) The provisions of this section shall not apply to an identification document described in subdivision (4), subsection (a) of this section that is only valid for use on the campus or facility of that educational institution and includes a statement of such restricted validity clearly and conspicuously printed upon the face of the identification document.
(e) Any driver license issued to a person who is not a United States citizen, national or legal permanent resident alien 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 (c) of this section:
Provided, That, at the time the application is made, the driver license has not expired, or been canceled, suspended or revoked. The requirements of subsection (c) of this section apply however, to a renewal, duplication or reissuance if the West Virginia State Police is notified by a local, state or federal government agency of information in the possession of the agency indicating a reasonable suspicion that the individual seeking such renewal, duplication or reassurance is present in the United States in violation of the law. The provisions of this subsection do not apply to United States citizens, nationals, or legal permanent resident aliens.
§
15-14-4. Determination of citizenship when charged with crime.
(a) When a person charged with a felony or with driving under the influence pursuant to section two, article five, chapter seventeen-c of the Code of West Virginia, is confined, for any period, in a jail operated by a Regional Jail Authority, a reasonable effort shall be made to determine the citizenship status of the person so confined.
(b) If the prisoner 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 such lawful status has not expired. If verification of 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 the Law-Enforcement Support Center 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 lawful immigration status of the prisoner cannot be verified, the keeper of the jail or other officer shall notify the United States Department of Homeland Security.
(c) For the purpose of determining the grant of or issuance of bond, it shall be a rebuttable presumption that a person whose citizenship status has been verified pursuant to subsection (b) of this section to be a foreign national who has not been lawfully admitted to the United States is at risk of flight.
§15-14-5. Status verification system.
Terms used in section six and seven of this article have the following meanings:
(1) "Status verification system" means an electronic system
operated by the federal government, through which an authorized official of an agency of the State of West Virginia or of a political subdivision therein may make an inquiry, by exercise of authority delegated pursuant to Section 1373 of Title 8 of the United States Code, to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by this article. The status verification system shall be deemed to include:
(A) The electronic verification of work authorization program of the Illegal Immigration Reform and Immigration Responsibility Act of 1996, P.L. 104-208, Division C, Section 403(a); 8 U.S.C., Section 1324a, and operated by the United States Department of Homeland Security, known as the Basic Pilot Program;
(B) Any equivalent federal program designated by the United States Department of Homeland Security or any other federal agency authorized to verify the work eligibility status of newly hired employees, pursuant to the Immigration Reform and Control Act of 1986 (IRCA), D.L. 99-603;
(C) Any other independent, third-party system with an equal or higher degree of reliability as the programs, systems or processes described in this paragraph; or
(D) The Social Security Number Verification Service, or such similar online verification process implemented by the United States Social Security Administration.
(2) "Public employer" means every department, agency or instrumentality of the state or a political subdivision of the state;
(3) "Subcontractor" means a subcontractor, contract employee, staffing agency, or any contractor regardless of its tier; and
(4) "Unauthorized alien" means an alien as defined in Section 1324a(h)(3) of Title 8 of the United States Code.
§15-14-6. Registration requirements.
(a) Every public employer shall register with and utilize a
status verification system as described in section six of this article to verify the federal employment authorization status of all new employees.
(b) After the first day of July, two thousand eight, no public employer may enter into a contract for the physical performance of services within this state unless the contractor registers and participates in the status verification system to verify the work eligibility status of all new employees.
(c) After the first day of July, two thousand eight, no contractor or subcontractor who enters into a contract with a public employer may enter into such a contract or subcontract in connection with the physical performance of services within this state unless the contractor or subcontractor registers and participates in the status verification system to verify information of all new employees.
(d) The provisions of this subsection do not apply to any contracts entered into prior to the effective date of this article even though such contracts may involve the physical performance of services within this state after the first day of July, two thousand eight.
(e) It is a discriminatory practice for an employing entity to discharge an employee working in West Virginia who is a United States citizen or permanent resident alien while retaining an employee who the employing entity knows, or reasonably should have known, is an unauthorized alien hired after the first day of July, two thousand eight, and who is working in West Virginia in a job category that requires equal skill, effort, and responsibility, and which is performed under similar working conditions, as defined by 29 U.S.C., Section 206(d)(1), as the job category held by the discharged employee.
(f) An employing entity which, on the date of the discharge in question, was currently enrolled in and used a Status Verification System to verify the employment eligibility of its employees in West Virginia hired after the first day of July, two thousand eight, is exempt from liability, investigation, or suit arising from any action under this section.
(g) No cause of action for a violation of this section arises anywhere in West Virginia law but from the provisions of this section.
§15-14-7. Verification of lawful presence.
(a) Except as provided in subsection (c) of this section or
where exempted by federal law, every agency or a political subdivision of this state shall verify the lawful presence in the United States of any natural person fourteen years of age or older who has applied for state or local public benefits, as defined in 8 U.S.C., Section 1621, or for federal public benefits, as defined in 8 U.S.C., Section 1611, that is administered by an agency or a political subdivision of this state.
(b) The provisions of this section shall be enforced without
regard to race, religion, gender, ethnicity, or national origin.
(c) Verification of lawful presence under the provisions of
this section shall not be required:
(1) For any purpose for which lawful presence in the United
States is not restricted by law, ordinance, or regulation;
(2) For assistance for health care items and services that are necessary for the treatment of an emergency medical condition, as defined in 42 U.S.C., Section 1396b(v)(3), of the alien involved and are not related to an organ transplant procedure;
(3) For short-term, noncash, in-kind emergency disaster relief;
(4) For public health assistance for immunizations with respect to diseases and for testing and treatment of symptoms of communicable diseases whether or not such symptoms are caused by a communicable disease; or
(5) For programs, services, or assistance such as soup kitchens, crisis counseling and intervention, and short-term shelter specified by the United States Attorney General, in the sole and unreviewable discretion of the United States Attorney General after consultation with appropriate federal agencies and departments which:
(A) Deliver in-kind services at the community level, including through public or private nonprofit agencies;
(B) Do not condition the provision of assistance, the amount of assistance provided, or the cost of assistance provided on the income or resources of the individual recipient; and
(C) Are necessary for the protection of life or safety.
(d) Verification of lawful presence in the United States by the agency or political subdivision required to make such verification shall require that the applicant execute an affidavit under penalty of perjury that:
(1) He or she is a United States citizen; or
(2) He or she is a qualified alien under the federal Immigration and Nationality Act and is lawfully present in the United States. The agency or political subdivision providing the state or local public benefits shall provide notary public services at no cost to the applicant.
(e) For any applicant who has executed the affidavit described in subdivision (2), subsection (d) of this section, eligibility for benefits shall be verified through the Systematic Alien Verification for Entitlements Program operated by the United States Department of Homeland Security or an equivalent program designated by the United States Department of Homeland Security. Until such eligibility verification is made, the affidavit may be presumed to be proof of lawful presence for the purposes of this section.
(f) Any person who knowingly and willfully makes a false, fictitious, or fraudulent statement of representation in an affidavit executed pursuant to subsection (d) of this section is subject to criminal penalties applicable in this state for fraudulently obtaining public assistance program benefits. If the affidavit constitutes a false claim of U.S. citizenship under 18 U.S.C., Section 911, a complaint shall be filed by the agency requiring the affidavit with the United States Attorney General for the applicable district based upon the venue in which the affidavit was executed.
(g) Agencies or political subdivisions of this state may adopt variations to the requirements of the provisions 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.
(h) It is unlawful for any agency or a political subdivision of this state to provide any state, local, or federal benefit, as defined in 8 U.S.C., Section 1621, or 8 U.S.C., Section 1611, in violation of the provisions of this section.
(i) Each state agency or department which administers any program of state or local public benefits shall provide an annual report to the Governor, the President of the Senate and the Speaker of the House of Delegates with respect to its compliance with the provisions of this section. Each agency or department shall monitor the Systematic Alien Verification for Entitlements Program for application verification errors and significant delays and shall provide an annual public report on such errors and significant delays and recommendations to ensure that the application of the Systematic Alien Verification of Entitlements Program is not erroneously denying benefits to legal residents of West Virginia. Errors shall also be reported to the United States Department of Homeland Security by each agency or department.
§15-14-8. Requirements for contractors.
(a) If an individual independent contractor, contracting for
the physical performance of services in this state, fails to provide to the contracting entity documentation to verify the independent contractor's employment authorization, pursuant to the prohibition against the use of unauthorized alien labor through contract set forth in 8 U.S.C., Section 1324a(a)(4), the contracting entity is required to withhold state income tax at the top marginal income tax rate as provided in subsection (a), article twenty-one, section four, chapter eleven of the Code of West Virginia as applied to compensation paid to such individual for the performance of such services within this state which exceeds the minimum amount of compensation the contracting entity is required to report as income on United States Internal Revenue Service Form 1099.
(b) Any contracting entity who fails to comply with the withholding requirements of this section is liable for the taxes required to have been withheld unless such contracting entity is exempt from federal withholding with respect to such individual pursuant to a properly filed Internal Revenue Service Form 8233 or its equivalent.
(c) Nothing in this section is intended to create, or should
be construed as creating, an employer-employee relationship between a contracting entity and an individual independent contractor.
§15-14-9. Duties of government agencies.
(a) The Attorney General is authorized and directed to negotiate the terms of a Memorandum of Understanding between the State of West Virginia and the United States Department of Justice or the United States Department of Homeland Security, as provided by Section 1357(g)of Title 8 of the United States Code, concerning the enforcement of federal immigration and customs laws, detention and removals, and investigations in the State of West Virginia.
(b) The Memorandum of Understanding negotiated pursuant to section (a) of this section shall be signed on behalf of this state by the Attorney General and the Governor or as otherwise required by the appropriate federal agency.
(c) No local government, whether acting through its governing body or by an initiative, referendum or any other process, may 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.
(d) Notwithstanding any other provision of law, no government entity or official within the State of West Virginia may prohibit, or in any way restrict, any government 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 individual.
(e) Notwithstanding any other provision of law, no person or
agency may 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 individual:
(1) Sending such information to, or requesting or receiving such information from, the United States Department of Homeland Security;
(2) Maintaining such information; or
(3) Exchanging such information with any other federal, state, or local government entity.
(f) The provisions of this section allow for a private right of action by any natural or legal person lawfully domiciled in this state to file for a writ of mandamus to compel any noncooperating local or state governmental agency to comply with such reporting laws.

§15-14-10. Eligibility of immigrants for educational benefits.
(a) An individual who is not lawfully present in the United States is not eligible on the basis of residence within the state for:
(1) Any post-secondary education benefit, including, but not limited to, scholarships or financial aid; or
(2) Resident tuition.
(b) The provisions of subsection (a) of this section do not apply to a student enrolled in a degree program at a postsecondary educational institution within The West Virginia State System of Higher Education during the 2008-2009 school year or any prior year who received a resident tuition benefit pursuant to any West Virginia statute at that institution.
§15-14-11. Fraudulent documents unit.
Subject to the availability of funding, the Department of Public Safety shall establish a Fraudulent Documents Identification (FDI) Unit for the primary purpose of investigating and apprehending persons or entities that participate in the sale or distribution of fraudulent documents used for identification purposes. The unit shall additionally specialize in fraudulent identification documents created and prepared for persons who are
unlawfully residing within the State of West Virginia. The department shall employ sufficient employees to investigate and implement an FDI Unit.

§15-14-12. Eligibility for resident tuition.

(a) The West Virginia Higher Education Policy Commission may adopt a policy which allows a student to enroll in an institution within The West Virginia State System of Higher Education and allows a student to be eligible for resident tuition if the student:
(1) Graduated from a public or private high school in this state or successfully completed a national development test in this state; and
(2) Resided in this state with a parent or legal guardian while attending classes at a public or private high school in this state for at least two years prior to graduation from high school.
(b) To be eligible for the provisions of subsection (a) of this section, an eligible student shall:
(1) Satisfy admission standards as determined by the West Virginia Higher Education Policy Commission for the appropriate type of institution and have secured admission to, and enrolled in, an institution within The West Virginia State System of Higher Education; and
(2) If the student cannot present to the institution valid documentation of United States nationality or an immigration status
permitting study at a postsecondary institution:
(A) Provide to the institution a copy of a true and correct application or petition filed with the United States Citizenship and Immigration Services to legalize the student's immigration status; or
(B) File an affidavit with the institution stating that the student will file an application to legalize his or her immigration status at the earliest opportunity the student is eligible to do so, but in no case later than:
(i) One year after the date on which the student enrolls for study at the institution; or
(ii) If there is no formal process to permit children of parents without lawful immigration status to apply for lawful status without risk of deportation, one year after the date the United States Citizenship and Immigration Services provide such a formal process, which shall be maintained in the institution's records for that student.
(c) Any student who completes the required criteria prescribed in this section, may not be disqualified on the basis of the student's immigration status from any scholarships or financial aid provided by this state.
(d) The provisions of this section do not impose any additional conditions to maintain resident tuition status at a postsecondary educational institution within The West Virginia State System of Higher Education on a student who was enrolled in a degree program and first received such resident tuition status at that institution during the two thousand eight school year or any prior year.
§15-14-13. Effective date.
This article shall become effective the first day of November, two thousand eight.



NOTE: The purpose of this bill is to regulate illegal immigration in West Virginia.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.
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