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ILLEGAL IMMIGRATION BILLS (SB 81 and SB 39) Provided as a Courtesy for the School Construction Training and Education

ILLEGAL IMMIGRATION BILLS (SB 81 and SB 39) Provided as a Courtesy for the School Construction Training and Education Seminar on May 4, 2011. By Alan S. Bachman Assistant Attorney General Assigned to: Division of Facilities Construction & Management

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ILLEGAL IMMIGRATION BILLS (SB 81 and SB 39) Provided as a Courtesy for the School Construction Training and Education

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  1. ILLEGAL IMMIGRATION BILLS(SB 81 and SB 39)Provided as a Courtesy for the School Construction Training and Education Seminar on May 4, 2011 • By Alan S. Bachman • Assistant Attorney General • Assigned to: • Division of Facilities Construction & Management • Division of Purchasing and General Services • Capitol Preservation Board • This presentation will include applicable Utah laws, statutes and documents regarding illegal immigration. • There is a handout showing updates and additional laws from the 2011 Legislative Session.

  2. 2011 Legislature – New LawsConsult with your own legal counsel • The 2011 Legislature has passed several new laws regarding immigration. Those laws are provided in a separate handout. • However, many of those laws do not go into effect until May of 2011. Some of the laws involve the same sections of the Code. Legislative Research and General Counsel’s Office (LRGC) is working on merging language and following the direction in some of the bills as to which language takes precedence. Therefore, this Power Point will be updated in the near future and can be emailed to those requesting it. • This presentation today will focus on the highlights of the legislation. Since the new laws are not in effect at this time and LRGC has issued the new statutory language, this only creates a greater need for anyone working with these laws to consult with their legal counsel prior to implementation.

  3. SB 81 Illegal immigration • The 2008 Utah Legislature enacted SB81 which is the foundation bill for our topic today. • The bill was set to take effect on July 1, 2009

  4. Citizenship of Incarcerated Persons (SB 81) • Title 17 Counties Chapter 22 SheriffSection 9.5 Citizenship determination of incarcerated persons. 17-22-9.5.Citizenship determination of incarcerated persons.(1) The sheriff shall make a reasonable effort to determine the citizenship status of a person charged with a felony or driving under the influence under Section 41-6a-502 when the person is confined to the county jail for a period of time.     (2) If the confined person is a foreign national, the sheriff shall make a reasonable effort to verify that the person:     (a) has been lawfully admitted into the United States; and     (b) the person's lawful status has not expired.  (3) (a) If the sheriff cannot verify the confined person's lawful status from documents in the person's possession, the sheriff shall attempt to verify that status within 48 hours of the person's confinement at the jail through contacting:     (i) the Law Enforcement Support Center of the United States Department of Homeland Security; or     (ii) an office or agency designated for citizenship status verification by the United States Department of Homeland Security.     (b) The sheriff shall notify the United States Department of Homeland Security of a person whose lawful citizenship status cannot be verified under Subsection (2) or (3)(a).     (4) It is a rebuttable presumption for the purpose of determining the grant or issuance of a bond that a person who is verified under this section as a foreign national not lawfully admitted into the United States is at risk of flight.Enacted by Chapter 26, 2008 General Session

  5. 32A-4-103 Liquor License statute (changes from SB 81) • Utah Code • Title 32A Alcoholic Beverage Control ActChapter 4 Public Liquor LicensesSection 103 Qualifications. • 32A-4-103 Amended by SB81 (Repealed 07/01/11).Qualifications.     (1) (a) The commission may not grant a restaurant liquor license to any person who has been convicted of:ETC ETC • We are not going to review this statute as part of the scope today. However, note that it was repealed • Appears to be replaced by:   32B-1-301.Title.             1531          This part is known as "Qualifications and Background."             1532          Section 15. Section 32B-1-302 is enacted to read:             1533          32B-1-302.Definitions.             1534          Reserved             1535          Section 16. Section 32B-1-303 is enacted to read:             1536          32B-1-303.Qualifications related to employment with the department.             1537          (1) The department may not employ a person if that person has been convicted of:             1538          (a) a felony under a federal law or state law;             1539          (b) a violation of a federal law, state law, or local ordinance concerning the sale, offer             1540      for sale, warehousing, manufacture, distribution, transportation, or adulteration of an alcoholic             1541      product; •              (Note: You can check the Utah Code on line for the balance of these provisions.

  6. Identity Documents and Verification(changes from SB 81) • 63G-11-101.Title.     This chapter is known as "Identity Documents and Verification." Enacted by Chapter 26, 2008 General SessionDownload Code Section Zipped WordPerfect 63G11_010100.ZIP 1,646 Bytes • (note – renumbered after SB 81)

  7. 63G-11-102 (SB81 cont’d)Note – this has been amended by HB 116, 2011 Legis and likely renumbered 63G-12-401. • Title 63G General GovernmentChapter 11 Identity Documents and VerificationSection 102 Creation of identity documents -- Issuance to citizens, nationals, and legal permanent resident aliens -- Exceptions. • 63G-12-401 [63G-11-102].Creation of identity documents -- Issuance to citizens, nationals, and legal permanent resident aliens -- Exceptions.     (1) The following entities may create, publish, or otherwise manufacture an identification document, identification card, or identification certificate and possess an engraved plate or other device for the printing of an identification document:  (a) a federal, state, or local government agency for employee identification, which is designed to identify the bearer as an employee;     (b) a federal, state, or local government agency for purposes authorized or required by law or a legitimate purpose consistent with the duties of the agency, including such documents as voter identification cards, identification cards, passports, birth certificates, and Social Security cards; and     (c) a public school or state or private educational institution to identify the bearer as an administrator, faculty member, student, or employee.     (2) The name of the issuing entity shall be clearly printed upon the face of the identification document.

  8. 63G-11-102 (SB 81 cont’d) • (3) Except as otherwise provided in Subsections (4) and (5) or by federal law, an entity providing an identity document, card, or certificate under Subsection (1)(b) or (c) shall issue the document, card, or certificate only to:     (a) a United States citizen;     (b) a national; or     (c) a legal permanent resident alien.(4) (a) Subsection (3) does not apply to an applicant for an identification document who presents, in person, valid documentary evidence of the applicant's:     (i) unexpired immigrant or nonimmigrant visa status for admission into the United States;     (ii) pending or approved application for asylum in the United States;     (iii) admission into the United States as a refugee;     (iv) pending or approved application for temporary protected status in the United States;     (v) approved deferred action status; or     (vi) pending application for adjustment of status to legal permanent resident or conditional resident.     (b) (i) An entity listed in Subsection (1)(b) or (c) may issue a Subsection (1)(b) or (c) identification document to an applicant who satisfies the requirements of Subsection (4)(a).     (ii) Except as otherwise provided by federal law, the document is valid only:     (A) during the period of time of the individual's authorized stay in the United States; or     (B) for one year from the date of issuance if there is no definite end to the individual's period of authorized stay.

  9. 63G-11-102 (SB 81 cont’d) • (iii) An entity issuing an identification document under this Subsection (4) shall clearly indicate on the document:     (A) that it is temporary; and     (B) its expiration date.     (c) An individual may renew a document issued under this Subsection (4) only upon presentation of valid documentary evidence that the status by which the individual originally 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.     (5) (a) Subsection (3) does not apply to an identification document issued under Subsection (1)(c) that:     (i) is only valid for use on the educational institution's campus or facility; and     (ii) includes a statement of the restricted use conspicuously printed upon the face of the identification document.     (b) Subsection (3) does not apply to a license certificate, driving privilege card, or identification card issued or renewed under Title 53, Chapter 3, Uniform Driver License Act.     (c) Subsection (3) does not apply to a public transit pass issued by a public transit district as defined in Title 17B, Chapter 2a, Part 8, Public Transit District Act, that:     (i) is only valid for use on the public transit system; and     (ii) includes a statement of the restricted use conspicuously printed on the face of the public transit pass. • (d) Subsection (3) does not apply to a permit issued under Section 63G-12-207. {HB 166, 2011}(6) This section shall be enforced without regard to race, religion, gender, ethnicity, or national origin.

  10. 63G-11-103 Status Verification(SB 81 as amended by SB 39) All as amended by Chapter 138, 2009 General Session(NOTE: SB 39 took effect on July 1, 2009) (NOTE: This will likely be renumbered 63G-12-302 under HB 116, 2011 Legis.) • Title 63G General GovernmentChapter 11 Identity Documents and VerificationSection 103 Status verification system -- Registration and use -- Performance of services -- Unlawful practice. • 63G-11-103.Status verification system -- Registration and use -- Performance of services -- Unlawful practice.     (1) As used in this section:(a) "Contract" means an agreement for the procurement of goods or services that is awarded through a request for proposals process with a public employer and includes a sole source contract. [Note – this was amended in 2009 by SB39 and narrows the relationship to contracts to RFPS and sole sources within them. We will discuss this in depth. Not apply to change orders, for instance.] • Not apply to “low bid, multi-step and other types of procurements that are not RFPS or sole sources within RFPS. • NOTE: However, most contractors dealing with public entities in low bid situations, etc. will likely want to be able to respond to an RFP – so it is wise for them all to e-verify.

  11. 63G-11-103, cont’d, Contractor, etc. (SB 81 as amended by SB 39 cont’d) • (b) "Contractor" means a subcontractor, contract employee, staffing agency, or any contractor regardless of its tier. [note – at any tier]    • (following language in red deleted by HB 116, 2011 legis.) • {(c) "Public employer" means a department, agency, instrumentality, or political subdivision of the state.

  12. 63G-11-103, cont’d, Status Verification System defined(SB 81 as amended by SB 39 cont’d) • (d) (i) "Status Verification System" means an electronic system operated by the federal government, through which an authorized official of a state agency or a political subdivision of the state may inquire by exercise of authority delegated pursuant to 8 U.S.C., Sec. 1373, to verify the citizenship or immigration status of an individual within the jurisdiction of the agency or political subdivision for a purpose authorized under this section.     (ii) "Status Verification System" includes:     (A) the electronic verification of the work authorization program of the Illegal Immigration Reform and Immigration Responsibility Act of 1996, 8 U.S.C., Sec. 1324a, known as the E-verify Program;     (B) an equivalent federal program designated by the United States Department of Homeland Security or other federal agency authorized to verify the work eligibility status of a newly hired employee pursuant to the Immigration Reform and Control Act of 1986;]

  13. 63G-11-103, cont’d, Status Verification System defined (SB 81 as amended by SB 39 cont’d) • (C) the Social Security Number Verification Service or similar online verification process implemented by the United States Social Security Administration; or[Note – this has been found to be difficult to find]   • (D) an independent third-party system with an equal or higher degree of reliability as the programs, systems, or processes described in Subsection (1)(d)(ii)(A), (B), or (C).(Note: be cautious here – as some of these people may be charging for services that you can obtain for free through the Federal Website.)   

  14. Unauthorized Alien63G-11-103, cont’d, Status Verification System defined(SB 81 as amended by SB 39 cont’d) • (e) "Unauthorized alien" means an alien as defined in 8 U.S.C., Sec. 1324a(h)(3).

  15. Register and use E-verify for new employees63G-11-103, cont’d, Status Verification System defined(SB 81 as amended by SB 39 cont’d) • (2) (a) Subject to Subsection (5) {Each}, a public employer shall register with and use a Status Verification System to verify the federal employment authorization status of a new employee.[Note – employee not defined!] • (b) This section shall be enforced without regard to race, religion, gender, ethnicity, or national origin.     (3) (a) Subject to Subsection (5), beginning {Beginning} July 1, 2009:     (i) a public employer may not enter into a contract [ note – defined as RFP or sole source in RFP] for the physical performance of services within the state with a contractor unless the contractor registers and participates in the Status Verification System to verify the work eligibility status of the contractor's new employees that are employed in the state; and     (ii) a contractor shall register and participate in the Status Verification System in order to enter into a contract with a public employer.     (b) (i) For purposes of compliance with Subsection (3)(a), a contractor is individually responsible for verifying the employment status of only new employees who work under the contractor's supervision or direction and not those who work for another contractor or subcontractor, except as otherwise provided in Subsection (3)(b)(ii).(ii) Each contractor or subcontractor who works under or for another contractor shall certify to the main contractor by affidavit that the contractor or subcontractor has verified through the Status Verification System the employment status of each new employee of the respective contractor or subcontractor.

  16. 63G-11-103, cont’d, (SB 81 as amended by SB 39 cont’d) • [Note: does not apply to these contracts]. • (c) Subsection (3)(a) does not apply to a contract:     (i) entered into by the entities referred to in Subsection (3)(a) prior to July 1, 2009, even though the contract may involve the physical performance of services within the state on or after July 1, 2009; or(ii) that involves underwriting, remarketing, broker-dealer activities, securities placement, investment advisory, financial advisory, or other financial or investment banking services.

  17. Unlawful replacement, 63G-11-103, cont’d, (SB 81 as amended by SB 39 cont’d) •    (4) (a) It is unlawful for an employing entity in the state to discharge an employee working in Utah who is a United States citizen or permanent resident alien and replace the employee with, or have the employee's duties assumed by, an employee who:     (i) the employing entity knows, or reasonably should have known, is an unauthorized alien hired on or after July 1, 2009; and   (ii) is working in the state in a job category:     (A) that requires equal skill, effort, and responsibility; and     (B) which is performed under similar working conditions, as defined in 29 U.S.C., Sec. 206 (d)(1), as the job category held by the discharged employee.  (b) An employing entity, which on the date of a discharge in question referred to in Subsection (4)(a) is enrolled in and using the Status Verification System to verify the employment eligibility of its employees in Utah who are hired on or after July 1, 2009, is exempt from liability, investigation, or lawsuit arising from an action under this section.     (c) A cause of action for a violation of this Subsection (4) arises exclusively from the provisions of this Subsection (4). • Amended by Chapter 138, 2009 General SessionDownload Code Section Zipped WordPerfect 63G11_010300.ZIP 4,081 Bytes<< Previous Section (63G-11-102)Next Section (63G-11-104) >>

  18. HB 116, 2011 Legis., amendments to this section • H.B. 116 Enrolled Copy • - 38 - • 1038 (5) On and after the program start date: • 1039 (a) a public employer, after hiring an employee, shall verify the employment eligibility • 1040 of the new employee: • 1041 (i) through the status verification system if the individual does not hold a permit; and • 1042 (ii) through the u-verify program if the individual holds a permit; and • 1043 (b) a contractor is considered to be in compliance with this section if, after hiring an • 1044 employee, the contractor verifies the employment eligibility of the new employee: • 1045 (i) through the status verification system if the individual does not hold a permit; and • 1046 (ii) through the u-verify program if the individual holds a permit.

  19. [Note: E-verification website] • The information to register for E-verify and to access the E-verify system is located on the website for US Citizenship and Immigration Services at http://www.uscis.gov/portal/site/uscis. • There is also a link on the US Homeland Security website at http://www.dhs.gov/files/programs • Also, by following the links on this website, you can find manuals and other information that assist with the e-verification process.

  20. [Further Note: FROM E-VERIFICATION WEBSITE]: • E-VerifyU.S. law requires companies to employ only individuals who may legally work in the United States – either U.S. citizens, or foreign citizens who have the necessary authorization. This diverse workforce contributes greatly to the vibrancy and strength of our economy, but that same strength also attracts unauthorized employment.E-Verify is an Internet-based system that allows businesses to determine the eligibility of their employees to work in the United States. E-Verify is fast, free and easy to use – and it’s the best way employers can ensure a legal workforce.E-Verify is constantly improving to better serve you.  To learn more check out What's New. • Last updated: 08/09/2010

  21. Benefits63G-11-104, (SB 81,amended by SB 39 and amended by Chapter 191, 2010 General Session) (Note: this was amended by HB 116, 2011 Legis. and will likely be renumbered 63G-12-402) If red font is in brackets it is deleted language. • Title 63G General GovernmentChapter 11 Identity Documents and VerificationSection 104 Receipt of state, local, or federal public benefits -- Verification -- Exceptions -- Fraudulently obtaining benefits -- Criminal penalties -- Annual report. • 63G-12-402. {63G-11-104. }Receipt of state, local, or federal public benefits -- Verification -- Exceptions -- Fraudulently obtaining benefits -- Criminal penalties -- Annual report.{(1) As used in this section, "federal program" means the Systematic Alien Verification for Entitlements Program operated by the United States Department of Homeland Security or an equivalent program designated by the Department of Homeland Security.} (Note: deleted by HB 116.)

  22. 18 years or older – certain benefits63G-11-104 cont’d,(SB 81,amended by SB 39 and amended by Chapter 191, 2010 General Session) • (1) {(2)} Except as provided in Subsection (3) {(4)} or when exempted by federal law, an agency or political subdivision of the state shall verify the lawful presence in the United States of an individual at least 18 years of age who applies for:     (a) a state or local public benefit as defined in 8 U.S.C. Sec. 1621; or     (b) a federal public benefit as defined in 8 U.S.C. Sec. 1611, that is administered by an agency or political subdivision of this state.

  23. HB 497 2011 Legis. 76-9-1008 • Note that the 2011 Legislature enacted HB 497. • Section 76-8-1008 reads that: • 76-9-1008. Proof of immigration status to receive public benefits. • 210 (1) (a) An agency that provides state or local public benefits as defined in 8 U.S.C. Sec. • 211 1621 shall comply with Section 63G-11-104 and shall also comply with this section, except: • 212 (i) as provided in Subsection 63G-11-104(4)(g) or (k); or • 213 (ii) when compliance is exempted by federal law or when compliance could reasonably • 214 be expected to be grounds for the federal government to withhold federal Medicaid funding. • 215 (b) The agency shall verify a person's lawful presence in the United States by requiring • 216 that the applicant under this section sign a certificate under penalty of perjury, stating that the • 217 applicant: • 218 (i) is a United States citizen; or • 219 (ii) is a qualified alien as defined by 8 U.S.C. Sec. 1641. • 220 (c) The certificate under Subsection (1)(b) shall include a statement advising the signer • 221 that providing false information subjects the signer to penalties for perjury. • 222 (d) The signature under this Subsection (1) may be executed in person or • 223 electronically. • Enrolled Copy H.B. 497 • - 9 - • 224 (e) When an applicant who is a qualified alien has executed the certificate under this • 225 section, the applicant's eligibility for benefits shall be verified by the agency through the federal • 226 SAVE program or an equivalent program designated by the United States Department of • 227 Homeland Security.

  24. HB 497 (2011) cont’d. • 228 (2) Any person who knowingly and willfully makes a false, fictitious, or fraudulent • 229 statement of representation in a certificate executed under this section is guilty of public • 230 assistance fraud under Section 76-8-1205. • 231 (3) If the certificate constitutes a false claim of United States citizenship under 18 • 232 U.S.C. Sec. 911, the agency requiring the certificate shall file a complaint with the United • 233 States Attorney for the applicable federal judicial district based upon the venue in which the • 234 certificate was executed. • 235 (4) Agencies may, with the concurrence of the Utah Attorney General, adopt variations • 236 to the requirements of the provisions of this section that provide for adjudication of unique • 237 individual circumstances where the verification procedures in this section would impose • 238 unusual hardship on a legal resident of this state. • 239 (5) If an agency under Subsection (1) receives verification that a person making an • 240 application for any benefit, service, or license is not a qualified alien, the agency shall provide • 241 the information to the local law enforcement agency for enforcement of Section 76-8-1205 • 242 unless prohibited by federal mandate. • 243 Section 9. Section 76-9-1009 is enacted to read: • 244 76-9-1009. Implementation to be consistent with federal law and civil rights. • 245 All state and local agencies shall implement this part in a manner that is consistent with • 246 federal laws that regulate immigration, protect the civil rights of all persons, and establish the • 247 privileges and immunities of United States citizens.

  25. [NOTE] 8 U.S.C. Sec. 1621 (4 slides) • 8 U.S.C.A. § 1621 • Title 8. Aliens and Nationality • Chapter 14. Restricting Welfare and Public Benefits for Aliens • Subchapter II. Eligibility for State and Local Public Benefits Programs • § 1621. Aliens who are not qualified aliens or nonimmigrants ineligible for State and local public benefits(a) In general • Notwithstanding any other provision of law and except as provided in subsections (b) and (d) of this section, an alien who is not-- • (1) a qualified alien (as defined in section 1641 of this title), • (2) a nonimmigrant under the Immigration and Nationality Act [8 U.S.C.A. § 1101 et seq.], or • (3) an alien who is paroled into the United States under section 212(d)(5) of such Act [8 U.S.C.A. § 1182(d)(5)] for less than one year, • is not eligible for any State or local public benefit (as defined in subsection (c) of this section).

  26. [NOTE] 8 U.S.C. Sec. 1621 (cont’d) • (b) Exceptions • Subsection (a) of this section shall not apply with respect to the following State or local public benefits: • (1) Assistance for health care items and services that are necessary for the treatment of an emergency medical condition (as defined in section 1396b(v)(3) of Title 42) of the alien involved and are not related to an organ transplant procedure. • (2) Short-term, non-cash, in-kind emergency disaster relief. • (3) Public health assistance for immunizations with respect to immunizable diseases and for testing and treatment of symptoms of communicable diseases whether or not such symptoms are caused by a communicable disease. • (4) Programs, services, or assistance (such as soup kitchens, crisis counseling and intervention, and short-term shelter) specified by the Attorney General, in the Attorney General's sole and unreviewable discretion 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 individual recipient's income or resources; and (C) are necessary for the protection of life or safety.

  27. [NOTE] 8 U.S.C. Sec. 1621 (cont’d) • (c) “State or local public benefit” defined • (1) Except as provided in paragraphs (2) and (3), for purposes of this subchapter the term “State or local public benefit” means-- • (A) any grant, contract, loan, professional license, or commercial license provided by an agency of a State or local government or by appropriated funds of a State or local government; and • (B) any retirement, welfare, health, disability, public or assisted housing, postsecondary education, food assistance, unemployment benefit, or any other similar benefit for which payments or assistance are provided to an individual, household, or family eligibility unit by an agency of a State or local government or by appropriated funds of a State or local government.

  28. [ NOTE] 8 U.S.C. Sec. 1621 (cont’d) • (2) Such term shall not apply-- • (A) to any contract, professional license, or commercial license for a nonimmigrant whose visa for entry is related to such employment in the United States, or to a citizen of a freely associated state, if section 141 of the applicable compact of free association approved in Public Law 99-239 or 99-658 (or a successor provision) is in effect; • (B) with respect to benefits for an alien who as a work authorized nonimmigrant or as an alien lawfully admitted for permanent residence under the Immigration and Nationality Act [8 U.S.C.A. § 1101 et seq.] qualified for such benefits and for whom the United States under reciprocal treaty agreements is required to pay benefits, as determined by the Secretary of State, after consultation with the Attorney General; or • (C) to the issuance of a professional license to, or the renewal of a professional license by, a foreign national not physically present in the United States. • (3) Such term does not include any Federal public benefit under section 1611(c) of this title. • (d) State authority to provide for eligibility of illegal aliens for State and local public benefits • A State may provide that an alien who is not lawfully present in the United States is eligible for any State or local public benefit for which such alien would otherwise be ineligible under subsection (a) of this section only through the enactment of a State law after August 22, 1996, which affirmatively provides for such eligibility.

  29. [NOTE] 8 U.S.C. Sec. 1611 (5 slides) • U.S.C.A. § 1611 • United States Code Annotated • Title 8. Aliens and Nationality • Chapter 14. Restricting Welfare and Public Benefits for Aliens • Subchapter I. Eligibility for Federal Benefits • § 1611. Aliens who are not qualified aliens ineligible for Federal public benefits • a) In general • Notwithstanding any other provision of law and except as provided in subsection (b) of this section, an alien who is not a qualified alien (as defined in section 1641 of this title) is not eligible for any Federal public benefit (as defined in subsection (c) of this section).

  30. [NOTE] 8 U.S.C. Sec. 1611 (cont’d) • (b) Exceptions • (1) Subsection (a) of this section shall not apply with respect to the following Federal public benefits: • (A) Medical assistance under title XIX of the Social Security Act [42 U.S.C.A § 1396 et seq.] (or any successor program to such title) for care and services that are necessary for the treatment of an emergency medical condition (as defined in section 1903(v)(3) of such Act [42 U.S.C.A. § 1396b(v)(3)]) of the alien involved and are not related to an organ transplant procedure, if the alien involved otherwise meets the eligibility requirements for medical assistance under the State plan approved under such title (other than the requirement of the receipt of aid or assistance under title IV of such Act [42 U.S.C.A § 601 et seq.], supplemental security income benefits under title XVI of such Act [42 U.S.C.A. § 1381 et seq.], or a State supplementary payment). • (B) Short-term, non-cash, in-kind emergency disaster relief.

  31. [NOTE] 8 U.S.C. Sec. 1611 (cont’d) • (C) Public health assistance (not including any assistance under title XIX of the Social Security Act [42 U.S.C.A. § 1396 et seq.]) for immunizations with respect to immunizable diseases and for testing and treatment of symptoms of communicable diseases whether or not such symptoms are caused by a communicable disease. • (D) Programs, services, or assistance (such as soup kitchens, crisis counseling and intervention, and short-term shelter) specified by the Attorney General, in the Attorney General's sole and unreviewable discretion after consultation with appropriate Federal agencies and departments, which (i) deliver in-kind services at the community level, including through public or private nonprofit agencies; (ii) do not condition the provision of assistance, the amount of assistance provided, or the cost of assistance provided on the individual recipient's income or resources; and (iii) are necessary for the protection of life or safety. • (E) Programs for housing or community development assistance or financial assistance administered by the Secretary of Housing and Urban Development, any program under Title V of the Housing Act of 1949 [42 U.S.C.A. § 1471 et seq.], or any assistance under section 1926c of Title 7, to the extent that the alien is receiving such a benefit on August 22, 1996.

  32. [NOTE] 8 U.S.C. Sec. 1611 (cont’d) • (2) Subsection (a) of this section shall not apply to any benefit payable under title II of the Social Security Act [42 U.S.C.A. § 401 et seq.] to an alien who is lawfully present in the United States as determined by the Attorney General, to any benefit if nonpayment of such benefit would contravene an international agreement described in section 233 of the Social Security Act [42 U.S.C.A. § 433], to any benefit if nonpayment would be contrary to section 202(t) of the Social Security Act [42 U.S.C.A. § 402(t)], or to any benefit payable under title II of the Social Security Act to which entitlement is based on an application filed in or before August 1996. • (3) Subsection (a) of this section shall not apply to any benefit payable under title XVIII of the Social Security Act (relating to the medicare program) [42 U.S.C.A. § 1395 et seq.] to an alien who is lawfully present in the United States as determined by the Attorney General and, with respect to benefits payable under part A of such title [42 U.S.C.A. § 1395c et seq.], who was authorized to be employed with respect to any wages attributable to employment which are counted for purposes of eligibility for such benefits. • (4) Subsection (a) of this section shall not apply to any benefit payable under the Railroad Retirement Act of 1974 [45 U.S.C.A. § 231 et seq.] or the Railroad Unemployment Insurance Act [45 U.S.C.A. § 351 et seq.] to an alien who is lawfully present in the United States as determined by the Attorney General or to an alien residing outside the United States. • (5) Subsection (a) of this section shall not apply to eligibility for benefits for the program defined in section 1612(a)(3)(A) of this title (relating to the supplemental security income program), or to eligibility for benefits under any other program that is based on eligibility for benefits under the program so defined, for an alien who was receiving such benefits on August 22, 1996. • (

  33. [NOTE] 8 U.S.C. Sec. 1611 (cont’d) • (c) “Federal public benefit” defined • (1) Except as provided in paragraph (2), for purposes of this chapter the term “Federal public benefit” means-- • (A) any grant, contract, loan, professional license, or commercial license provided by an agency of the United States or by appropriated funds of the United States; and • (B) any retirement, welfare, health, disability, public or assisted housing, postsecondary education, food assistance, unemployment benefit, or any other similar benefit for which payments or assistance are provided to an individual, household, or family eligibility unit by an agency of the United States or by appropriated funds of the United States. • (2) Such term shall not apply-- • (A) to any contract, professional license, or commercial license for a nonimmigrant whose visa for entry is related to such employment in the United States, or to a citizen of a freely associated state, if section 141 of the applicable compact of free association approved in Public Law 99-239 or 99-658 (or a successor provision) is in effect; • (B) with respect to benefits for an alien who as a work authorized nonimmigrant or as an alien lawfully admitted for permanent residence under the Immigration and Nationality Act [8 U.S.C.A. § 1101 et seq.] qualified for such benefits and for whom the United States under reciprocal treaty agreements is required to pay benefits, as determined by the Attorney General, after consultation with the Secretary of State; or • (C) to the issuance of a professional license to, or the renewal of a professional license by, a foreign national not physically present in the United States.

  34. Non-discriminatory63G-11-104 {63G-12-402} cont’d,(SB 81,amended by SB 39 and amended by Chapter 191, 2010 General Session) (Red font on this slide and following slides shows changed from HB 116, 2011 Legis and if in brackets, it is language that is deleted.) • (2) {(3)} This section shall be enforced without regard to race, religion, gender, ethnicity, or national origin.

  35. Exceptions63G-11-104 cont’d,{63G-12-402}(SB 81,amended by SB 39 and amended by Chapter 191, 2010 General Session) • (3) {(4)} Verification of lawful presence under this section is not required for:     (a) any purpose for which lawful presence in the United States is not restricted by law, ordinance, or regulation;     (b) assistance for health care items and services that:     (i) are necessary for the treatment of an emergency medical condition, as defined in 42 U.S.C. Sec. 1396b(v)(3), of the individual involved; and     (ii) are not related to an organ transplant procedure;     (c) short-term, noncash, in-kind emergency disaster relief;     (d) public health assistance for immunizations with respect to immunizable diseases and for testing and treatment of symptoms of communicable diseases whether or not the symptoms are caused by the communicable disease;     (e) 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, that:     (i) deliver in-kind services at the community level, including through public or private nonprofit agencies;     (ii) 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     (iii) are necessary for the protection of life or safety;

  36. 63G-11-104 cont’d,{63G-12-402}(SB 81,amended by SB 39 and amended by Chapter 191, 2010 General Session) •   (f) the exemption for paying the nonresident portion of total tuition as set forth in Section 53B-8-106;     (g) an applicant for a license under Section 61-1-4, if the applicant:     (i) is registered with the Financial Industry Regulatory Authority; and     (ii) files an application with the state Division of Securities through the Central Registration Depository;(h) a state public benefit to be given to an individual under Title 49, Utah State Retirement and Insurance Benefit Act;(i) a home loan that will be insured, guaranteed, or purchased by:     (i) the Federal Housing Administration, the Veterans Administration, or any other federal agency; or(ii) an enterprise as defined in 12 U.S.C. Sec. 4502; •      (j) a subordinate loan or a grant that will be made to an applicant in connection with a home loan that does not require verification under Subsection (4)(i); and(k) an applicant for a license issued by the Department of Commerce, if the applicant provides the Department of Commerce:     (i) certification, under penalty of perjury, that the applicant is:     (A) a United States citizen;     (B) a qualified alien as defined in 8 U.S.C. Sec. 1641; or     (C) lawfully present in the United States; and     (ii) a valid driver license number for a driver license issued by:     (A) Utah on or after January 1, 2010; or     (B) a state other than Utah that as part of issuing the driver license verifies an individual's lawful presence in the United States.

  37. Certification regarding benefits that apply63G-11-104 cont’d,{63G-12-402}(SB 81,amended by SB 39 and amended by Chapter 191, 2010 General Session) • (4) (a) {(5) }An agency or political subdivision required to verify the lawful presence in the United States of an applicant under this section shall require the applicant to certify under penalty of perjury that:     (i) (a) the applicant is a United States citizen; or     (ii) (b) the applicant is:(A) {(i)} a qualified alien as defined in 8 U.S.C. Sec. 1641; and(B) {(ii)} lawfully present in the United States. • (5) {(6)} An agency or political subdivision shall verify a certification required under Subsection 4(b) {(5)(b)} through the federal SAVE program.

  38. False Certification63G-11-104 cont’d,{63G-12-402}(SB 81,amended by SB 39 and amended by Chapter 191, 2010 General Session) • (6) {(7)} (a) An individual who knowingly and willfully makes a false, fictitious, or fraudulent statement or representation in a certification under Subsection (3) {(4)} (k) or (4) {(5)} is subject to the criminal penalties applicable in this state for:     (i) making a written false statement under Subsection 76-8-504(2); and     (ii) fraudulently obtaining:     (A) public assistance program benefits under Sections 76-8-1205 and 76-8-1206; or     (B) unemployment compensation under Section 76-8-1301.     (b) If the certification constitutes a false claim of United States citizenship under 18 U.S.C. Sec. 911, the agency or political subdivision shall file a complaint with the United States Attorney General for the applicable district based upon the venue in which the application was made.(c) If an agency or political subdivision receives verification that a person making an application for a benefit, service, or license is not a qualified alien, the agency or political subdivision shall provide the information to the Office of the Attorney General unless prohibited by federal mandate. (HB 116, 2011 Legis.)

  39. Variations63G-11-104 cont’d,{63G-12-402}(SB 81,amended by SB 39 and amended by Chapter 191, 2010 General Session) • (7) {(8)} An agency or political subdivision may adopt variations to the requirements of this section that:     (a) clearly improve the efficiency of or reduce delay in the verification process; or     (b) provide for adjudication of unique individual circumstances where the verification procedures in this section would impose an unusual hardship on a legal resident of Utah.

  40. Unlawful acts of agencies, political subdivisions63G-11-104 cont’d,{63G-12-402}(SB 81,amended by SB 39 and amended by Chapter 191, 2010 General Session) • (8) {(9)} It is unlawful for an agency or a political subdivision of this state to provide a state, local, or federal benefit, as defined in 8 U.S.C. Sec. 1611 and 1621, in violation of this section.

  41. Annual Report63G-11-104 cont’d,{63G-12-402}(SB 81,amended by SB 39 and amended by Chapter 191, 2010 General Session) • (9) {(10)} A state agency or department that administers a program of state or local public benefits shall:     (a) provide an annual report to the governor, the president of the Senate, and the speaker of the House regarding its compliance with this section; and     (b) (i) monitor the federal SAVE program for application verification errors and significant delays; •      (ii) provide an annual report on the errors and delays to ensure that the application of the federal SAVE program is not erroneously denying a state or local benefit to a legal resident of the state; and     (iii) report delays and errors in the federal program to the United States Department of Homeland Security. Amended by Chapter 191, 2010 General Session

  42. 76-10-2901 Transporting, Harboring --Criminal Code (SB 81 as renumbered) (changes in red from HB 497 with depeted language in brackets) New language from HB 116 in green font. • Title 76 Utah Criminal CodeChapter 10 Offenses Against Public Health, Safety, Welfare, and MoralsSection 2901 Transporting or harboring aliens -- Definition -- Penalty. • 76-10-2901.Transporting or harboring aliens -- Definition -- Penalty.     (1) As used in {For purposes of} this part; • (a) Except as provided in Subsection (1)(b), "alien" means an individual who is illegally present in the United States. • (b) On or after the program start date, as defined in Section 63G-12-102, “alien” does not include an individual who holds a valid permit, as defined in Section 63G-12-102.     (2) It is unlawful for a person to:     (a) transport, move, or attempt to transport into this state or {for a distance of greater than 100 miles} within the state an alien for commercial advantage or private financial gain,knowing or in reckless disregard of the fact that the alien is in the United States in violation of federal law, in furtherance of the illegal presence of the alien in the United States; {or}     (b) knowingly, with the intent to violate federal immigration law, conceal, harbor, or shelter from detection an alien in a place within this state, including a building or means of transportation for commercial advantage or private financial gain, knowing or in reckless disregard of the fact that the alien is in the United States in violation of federal law.

  43. 76-10-2901 cont’d • (c) encourage or induce an alien to come to, enter, or reside in this state, knowing or in • reckless disregard of the fact that the alien's coming to, entry, or residence is or will be in • violation of law; or • (d) engage in any conspiracy, for commercial advantage or private financial gain, to • 265 commit any of the offenses listed in this Subsection (2).

  44. 76-10-2901 cont’d -- Transporting, Harboring --Criminal Code(SB 81 as renumbered) • PENALITES: • (3) (a) A person who violates Subsection (2)(a), (c) or (d) is guilty of a third degree felony.     (b) A person who violates Subsection (2)(b) is guilty of a class A misdemeanor.

  45. 76-10-2901 cont’d -- Transporting, Harboring --Criminal Code(SB 81 as renumbered)Exceptions •    (4) Nothing in this part prohibits or restricts the provision of:     (a) a state or local public benefit described in 8 U.S.C., {Section} Sec. 1621(b); or     (b) charitable or humanitarian assistance, including medical care, housing, counseling, food, victim assistance, religious services and sacraments, and transportation to and from a location where the assistance is provided, by a charitable, educational, or religious organization or its employees, agents, or volunteers, using private funds.

  46. 76-10-2901 cont’d -- Transporting, Harboring --Criminal Code (SB 81 been renumbered) • (5) (a) It is not a violation of this part for a religious denomination or organization or an agent, officer, or member of a religious denomination or organization to encourage, invite, call, allow, or enable an alien to perform the vocation of a minister or missionary for the denomination or organization in the United States as a volunteer who is not compensated as an employee, notwithstanding the provision of room, board, travel, medical assistance, and other basic living expenses.(b) Subsection (5)(a) applies only to an alien who has been a member of the religious denomination or organization for at least one year. Enacted by Chapter 26, 2008 General Session (renumbered)

  47. 77-7-2 Arrest by peace offiers • Section 11. Section 77-7-2 is amended to read: • 77-7-2. Arrest by peace officers. • A peace officer may make an arrest under authority of a warrant or may, without • warrant, arrest a person: • (1) (a) for any public offense committed or attempted in the presence of any peace • officer; and • (b) as used in this Subsection (1), "presence" includes all of the physical senses or any • device that enhances the acuity, sensitivity, or range of any physical sense, or records the • observations of any of the physical senses; • (2) when the peace officer has reasonable cause to believe a felony or a class A • misdemeanor has been committed and has reasonable cause to believe that the person arrested • has committed it; • (3) when the peace officer has reasonable cause to believe the person has committed a • public offense, and there is reasonable cause for believing the person may: • (a) flee or conceal himself to avoid arrest; • (b) destroy or conceal evidence of the commission of the offense; or • (c) injure another person or damage property belonging to another person; [or]

  48. 77-7-2 Cont’d. • (4) when the peace officer has reasonable cause to believe the person has committed • the offense of failure to disclose identity under Section 76-8-301.5[.]; or • (5) when the peace officer has reasonable cause to believe that the person is an alien: • (a) subject to a civil removal order issued by an immigration judge; • (b) regarding whom a civil detainer warrant has been issued by the federal Department of Homeland Security; or • (c) who has been charged or convicted in another state with one or more aggravated felonies as defined by 8 U.S.C. Sec. 1101(a)(43).

  49. Benefits (e.g. Child Care licenses) – example State Health Dept. • The licensing/certification process has an individual owner of a Child Care Center or the home provider that is considered the licensee to submit the signed Legal Status Attestation (see attachment) and required documentation of legal status before the license or certificate is issued as one of the steps in the licensing process issued by the Utah Department of Health, Bureau of Child Development, Child Care Licensing Program. (Child Care Licensing Program) • On the Legal Status Attestation there is a section that indicates what is accepted for documentation by the Program. For qualified aliens this is where the SAVE System comes in.  The SAVE System is different from E-Verify. Most employers use the E-Verify System, but with the interpretation of the Senate Bill, this Program uses the SAVE System. The Systematic Alien Verification for Entitlements (SAVE) Program is an intergovernmental, information-sharing initiative designed to aid Federal, state and local benefit-issuing agencies and licensing bureaus in verifying a non-citizen applicant's immigration status, thereby ensuring that only eligible non-citizens receive public benefits and licenses. The Health Dept. Program pays approximately $300 per year to access this system, which is the minimum requirement. I have attached some information from SAVE.

  50. “SAVE” system • Here is a link to the SAVE System: • http://www.workingimmigrants.com/2006/06/homeland_securitys_save_progra_1.html’ • The “Save” system was determined to be used by the Child Care Licensing Program because they don’t use the Form I-9. • We have a “Save” program guide and a SAVE Program Transaction Charges documentwhich is a handout at this presentation. • (information provided to me from Health Dept. Child Care Licensing Program follows) • E-Verify is an Internet-based system that allows an employer, using information reported on an employee's Form I-9, Employment Eligibility Verification, to determine the eligibility of that employee to work in the United States. There is no charge to employers to use E-Verify. The E-Verify system is operated by the Department of Homeland Security in partnership with the Social Security Administration. The link for E-Verify: • http://www.dhs.gov/files/programs/gc_1185221678150.shtm

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