Senate Bill No. 620
(By Senators McKenzie, Bowman, Oliverio, Yoder, Plymale, Wells,
Jenkins, Green, Barnes, Kessler, White, Hunter and Foster)
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[Introduced February 8, 2008; referred to the Committee on the
Judiciary; and then to the Committee on Finance.]
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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 foreign nationals; providing time limitation for
verification; requiring notification to certain entities;
providing rebuttable presumption that certain persons are
flight risks; 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 post-secondary 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 prohibited 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) The only cause of action for violation of this section is
a complaint to the Division of Labor pursuant to its powers set
forth in article one, chapter twenty-one of this code.
§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
subsection (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 July, two thousand eight.
NOTE: The purpose of this bill is to regulate illegal
immigration in West Virginia.
This article is new; therefore, strike-throughs and
underscoring have been omitted.