PRINTER'S NO.  1412

  

THE GENERAL ASSEMBLY OF PENNSYLVANIA

  

HOUSE BILL

 

No.

1184

Session of

2009

  

  

INTRODUCED BY READSHAW, SIPTROTH, SOLOBAY, BARRAR, CASORIO, CUTLER, EVERETT, FAIRCHILD, GOODMAN, GRUCELA, HALUSKA, KAUFFMAN, KORTZ, KOTIK, MOUL, MUSTIO, RAPP, SEIP, STEVENSON, SWANGER, HORNAMAN AND VULAKOVICH, APRIL 3, 2009

  

  

REFERRED TO COMMITTEE ON INTERGOVERNMENTAL AFFAIRS, APRIL 3, 2009  

  

  

  

AN ACT

  

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Amending the act of April 9, 1929 (P.L.177, No.175), entitled

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"An act providing for and reorganizing the conduct of the

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executive and administrative work of the Commonwealth by the

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Executive Department thereof and the administrative

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departments, boards, commissions, and officers thereof,

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including the boards of trustees of State Normal Schools, or

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Teachers Colleges; abolishing, creating, reorganizing or

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authorizing the reorganization of certain administrative

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departments, boards, and commissions; defining the powers and

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duties of the Governor and other executive and administrative

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officers, and of the several administrative departments,

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boards, commissions, and officers; fixing the salaries of the

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Governor, Lieutenant Governor, and certain other executive

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and administrative officers; providing for the appointment of

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certain administrative officers, and of all deputies and

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other assistants and employes in certain departments, boards,

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and commissions; and prescribing the manner in which the

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number and compensation of the deputies and all other

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assistants and employes of certain departments, boards and

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commissions shall be determined," providing for immigration

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matters; and imposing penalties and duties on the Department

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of Labor and Industry, Pennsylvania State Police, Secretary

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of State and Attorney General.

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The General Assembly of the Commonwealth of Pennsylvania

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hereby enacts as follows:

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Section 1.  The act of April 9, 1929 (P.L.177, No.175), known

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as The Administrative Code of 1929, is amended by adding an

 


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article to read:

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ARTICLE XXVIII-D

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IMMIGRATION MATTERS

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Section 2801-D.  Short title.

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This article shall be known and may be cited as the Taxpayer

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and Citizen Protection Act of 2009.

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Section 2802-D.  Legislative findings and declarations.

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The General Assembly finds and declares as follows:

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(1)  Illegal immigration is causing economic hardship and

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lawlessness in this Commonwealth and illegal immigration is

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encouraged by public agencies within this Commonwealth that

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provide public benefits without verifying immigration status.

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(2)  Illegal immigrants have been harbored, sheltered and

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encouraged to reside in this Commonwealth through the

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issuance of identification cards that are issued without

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verifying immigration status.

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(3)  These practices impede and obstruct the enforcement

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of Federal immigration law, undermine the security of our

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borders and impermissibly restrict the privileges and

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immunities of the citizens of this Commonwealth.

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(4)  It is, therefore, a compelling public interest of

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the Commonwealth to discourage illegal immigration by

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requiring all agencies within this Commonwealth to fully

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cooperate with Federal immigration authorities in the

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enforcement of Federal immigration laws.

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(5)  The Commonwealth also finds that other measures are

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necessary to ensure the integrity of various governmental

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programs and services.

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Section 2803-D.  Prohibitions.

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(a)  Transportation.--It shall be unlawful for any person to

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transport, move or attempt to transport within the United States

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any alien knowing or in reckless disregard of the fact that the

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alien has come to, entered or remained in the United States in

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violation of law, in furtherance of the illegal presence of the

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alien in the United States.

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(b)  Concealment.--It shall be unlawful for any person to

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conceal, harbor or shelter from detection an alien in any place,

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including any building or means of transportation, knowing or in

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reckless disregard of the fact that the alien has come to,

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entered or remained in the United States in violation of law.

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(c)  Penalty.--Any person violating the provisions of

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subsection (a) or (b) commits a misdemeanor of the third degree.

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Section 2804-D.  Identification papers.

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(a)  Creation.--The following entities may create, publish or

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otherwise manufacture an identification document, identification

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card or identification certificate and may possess an engraved

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plate or other device for the printing of identification,

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provided that the name of the issuing entity shall be clearly

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printed upon the face of the identification:

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(1)  Federal, State and local government agencies for

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purposes authorized or required by law or any legitimate

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purpose consistent with the duties of an agency, including,

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but not limited to, voter identification cards, driver's

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licenses, nondriver identification cards, passports, birth

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certificates and Social Security cards.

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(2)  Any public school, State or private educational

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institution to identify the bearer as an administrator,

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faculty member, student or employee.

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(b)  Issuance.--All identification papers provided for in

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subsection (a)(1) or (2) shall be issued only to United States

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citizens, legal permanent resident aliens or holders of valid

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unexpired nonimmigrant visas.

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(c)  Exceptions.--The provisions of subsection (b) shall not

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apply when an applicant presents, in person, valid documentary

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evidence of one of the following:

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(1)  A valid, unexpired immigrant or nonimmigrant visa

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status for admission into the United States.

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(2)  A pending or approved application for asylum in the

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United States.

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(3)  An admission into the United States in refugee

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status.

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(4)  A pending or approved application for temporary

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protected status in the United States.

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(5)  An approved deferred action status.

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(6)  A pending application for adjustment of status to

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legal permanent resident status or conditional resident

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status.

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Upon approval, the applicant may be issued an identification

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document provided for in subsection (a)(1) or (2).

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(d)  Duration of validity.--The identification papers shall

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be valid only during the period of time of the authorized stay

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of the applicant in the United States or, if there is no

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definite end to the period of authorized stay, for a period of

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one year.

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(e)  Marking and expiration.--Any identification document

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issued pursuant to this section shall clearly indicate that it

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is temporary and shall state the date that the identification

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document expires.

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(f)  Renewal.--The identification document may be renewed

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only upon presentation of valid documentary evidence that the

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status by which the applicant qualified for the identification

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document has been extended by the United States Immigration and

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Naturalization Service or the Bureau of Citizenship and

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Immigration Services of the United States Department of Homeland

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Security.

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(g)  Presumption.--A driver's license for which an

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application has been made for renewal, duplication or reissuance

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shall be presumed to have been issued in accordance with the

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provisions of subsection (c), provided that, at the time the

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application is made, the driver's license has not expired or

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been canceled, suspended or revoked. The requirements of

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subsection (c) shall apply, however, to a renewal, duplication

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or reissuance if the Pennsylvania State Police are notified by a

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Federal, State or local agency that the individual seeking the

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renewal, duplication or reissuance is neither a citizen of the

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United States nor legally in the United States.

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Section 2805-D.  Determination of citizenship status.

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(a)  Arrest.--When a person charged with a felony or with

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driving under the influence under 75 Pa.C.S. § 3802 (relating to

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driving under influence of alcohol or controlled substance) is

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confined for any period, a reasonable effort shall be made to

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determine the citizenship status of the person confined.

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(b)  Verification.--If the prisoner is a foreign national,

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the keeper of the jail or other officer shall make a reasonable

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effort to verify that the prisoner has been lawfully admitted to

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the United States and, if lawfully admitted, that the lawful

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status has not expired. If verification of lawful status cannot

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be made from documents in the possession of the prisoner,

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verification shall be made within 48 hours through a query to

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the Law Enforcement Support Center of the United States

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Department of Homeland Security or other office or agency

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designated for that purpose by the United States Department of

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Homeland Security. If the prisoner is determined not to be

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lawfully admitted to the United States, the keeper of the jail

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or other officer shall notify the United States Department of

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Homeland Security.

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(c)  Flight risk.--For the purpose of determining the grant

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of or issuance of bond, a person whose citizenship status has

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been verified pursuant to subsection (b) to be a foreign

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national who has not been lawfully admitted to the United States

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shall be deemed to be a risk of flight.

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Section 2806-D.  Basic pilot program.

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(a)  Registration of public employers.--Every public employer

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shall register and participate in the basic pilot program to

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verify the work authorization status of all new employees.

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(b)  Contracting for services.--

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(1)  No public employer shall enter into a contract for

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the physical performance of services within this Commonwealth

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unless the contractor registers and participates in the basic

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pilot program to verify the work authorization status of all

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new employees.

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(2)  No contractor or subcontractor who enters a contract

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with a public employer shall enter into a contract or

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subcontract in connection with the physical performance of

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services within this Commonwealth unless the contractor or

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subcontractor registers and participates in the basic pilot

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program to verify information of all new employees.

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(3)  The discharge of any United States citizen or

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permanent resident alien employee by an employer of this

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Commonwealth, who, on the date of the discharge employed an

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unauthorized alien, shall be an unfair method of competition

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and an unfair or deceptive act or practice in or affecting

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trade and commerce in this Commonwealth within the meaning of

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section 3 of the act of December 17, 1968 (P.L.1224, No.387),

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known as the Unfair Trade Practices and Consumer Protection

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Law. The discharged employee shall have a private cause of

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action for the unfair method of competition and an unfair or

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deceptive act or practice in or affecting trade and commerce.

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(c)  Enforcement.--The provisions of this section shall be

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enforced without regard to race or national origin.

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(d)  Department of Labor and Industry.--The Department of

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Labor and Industry shall prescribe forms and promulgate rules

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and regulations deemed necessary in order to administer and

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effectuate the provisions of this section and publish the rules

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and regulations on the Department of Labor and Industry's public

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website.

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(e)  Definitions.--The following words and phrases when used

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in this section shall have the meanings given to them in this

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subsection unless the context clearly indicates otherwise:

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"Basic pilot program."  The electronic verification of work

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authorization program of the Illegal Immigration Reform and

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Immigrant Responsibility Act of 1996 (Public Law 104-208, 110

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Stat. 3009-655) and operated by the United States Department of

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Homeland Security or any equivalent Federal work authorization

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program operated by the United States Department of Homeland

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Security or any other designated Federal agency authorized to

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verify the work authorization status of newly hired employees

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under the Immigration Reform and Control Act of 1986 (Public Law

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99-603, 100 Stat. 3359).

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"Public employer."  Every department, agency or

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instrumentality of the Commonwealth or a political subdivision

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of the Commonwealth.

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"Subcontractor."  A subcontractor, contract employee or

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staffing agency.

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Section 2807-D.  Verification of lawful presence.

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(a)  General rule.--Except as provided in subsection (c) or

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where exempted by Federal law, every Commonwealth agency or

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political subdivision of the Commonwealth shall verify the

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lawful presence in the United States of any natural person 14

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years of age or older who has applied for State or local public

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benefits as defined in 8 U.S.C. § 1621 (relating to aliens who

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are not qualified aliens or nonimmigrants ineligible for State

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and local public benefits) or for Federal public benefits, as

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defined in 8 U.S.C. § 1611 (relating to aliens who are not

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qualified aliens ineligible for Federal public benefits)

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administered by a Commonwealth agency or a political subdivision

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of this Commonwealth.

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(b)  Discrimination prohibited.--The provisions of this

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section shall be enforced without regard to race, religion,

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gender, ethnicity or national origin.

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(c)  Exceptions.--Verification of lawful presence under the

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provisions of this section shall not be required:

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(1)  for any purpose for which lawful presence in the

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United States is not restricted by law, ordinance or

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regulation;

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(2)  for assistance for health care items and services

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that are necessary for the treatment of an emergency medical

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condition, as defined in 42 U.S.C. § 1396b(v)(3) (relating to

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payment to states), of the alien involved and are not related

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to an organ transplant procedure;

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(3)  for short-term, noncash, in-kind emergency disaster

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relief;

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(4)  for programs, services or assistance for soup

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kitchens, crisis counseling and intervention and short-term

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shelter specified by the United States Attorney General, in

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the sole and unreviewable discretion of the United States

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Attorney General after consultation with appropriate Federal

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agencies and departments, which:

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(i)  deliver in-kind services at the community level,

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including through public or private nonprofit agencies;

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(ii)  do not condition the provision of assistance,

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the amount of assistance provided or the cost of

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assistance provided on the income or resources of the

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individual recipient; and

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(iii)  are necessary for the protection of life or

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safety;

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(5)  for public health assistance for immunizations with

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respect to diseases and for testing and treatment of symptoms

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of communicable diseases whether or not the symptoms are

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caused by a communicable disease; or

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(6)  for prenatal care.

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(d)  Affidavit.--Verification of lawful presence in the

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United States by the agency or political subdivision required to

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make the verification shall require that the applicant execute

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an affidavit under penalty of perjury that applicant is:

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(1)  a United States citizen; or

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(2)  a qualified alien under the Immigration and

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Nationality Act (66 Stat. 163, 8 U.S.C. § 1101 et seq.) and

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is lawfully present in the United States.

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(e)  Eligibility verification.--For any applicant who has

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executed the affidavit described in subsection (d)(2),

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eligibility for benefits shall be made through the Systematic

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Alien Verification of Entitlement Program operated by the United

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States Department of Homeland Security or a successor program

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designated by the United States Department of Homeland Security.

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Until the eligibility verification is made, the affidavit may be

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presumed to be proof of lawful presence for the purposes of this

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section.

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(f)  False statements.--Any person who knowingly and

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willfully makes a false, fictitious or fraudulent statement of

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representation in an affidavit executed under subsection (d)

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shall be subject to criminal penalties applicable in this

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Commonwealth for fraudulently obtaining public assistance

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program benefits. If the affidavit constitutes a false claim of

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United States citizenship under 18 U.S.C. § 911 (relating to

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citizen of the United States), a complaint shall be filed by the

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agency requiring the affidavit with the United States Attorney

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for the Middle District of Pennsylvania.

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(g)  Adoption of variations.--Commonwealth agencies or

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political subdivisions of this Commonwealth may adopt variations

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to the requirements of this section which demonstrably improve

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the efficiency or reduce delay in the verification process or

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which provide for adjudication of unique individual

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circumstances where the verification procedures in this section

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would impose undue hardship on a legal resident of this

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Commonwealth.

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(h)  Prohibition.--It shall be unlawful for a Commonwealth

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agency or a political subdivision of the Commonwealth to provide

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any Federal, State or local benefit, as defined in 8 U.S.C. §

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1611 or § 1621, in violation of the provisions of this section.

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(i)  Annual report.--Each Commonwealth agency or department

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which administers a program of State or local public benefits

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shall provide an annual report to the Secretary of State with

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respect to its compliance with this section. Errors shall be

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reported to the United States Department of Homeland Security by

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the Secretary of State. The Secretary of State shall monitor the

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Systematic Alien Verification of Entitlement Program and its

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verification application errors and significant delays and shall

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provide an annual public report on the errors and significant

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delays and make recommendations to ensure that the application

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of the Systematic Alien Verification of Entitlement Program is

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not erroneously denying benefits to legal residents of this

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Commonwealth.

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Section 2808-D.  Employers.

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(a)  Withholding requirement.--The employer shall be required

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to withhold 6% of the amount of compensation paid to an

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individual, which compensation is required to be reported on

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Form 1099 and with respect to which the individual has failed to

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provide a valid Social Security number issued by the United

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States Social Security Administration.

21

(b)  Tax liability.--Any employer who fails to comply with

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the withholding requirements of this section shall be liable for

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the taxes required to have been withheld unless the employer is

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exempt from the Federal withholding requirement with respect to

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the individual pursuant to a properly filed Internal Revenue

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Service Form 8233 or its equivalent and has provided a copy of

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the form to the Department of Revenue.

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Section 2809-D.  Memorandum of Understanding.

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(a)  Attorney General.--The Attorney General is authorized

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and directed to negotiate the terms of a Memorandum of

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Understanding between the Commonwealth and the United States

2

Department of Justice or the United States Department of

3

Homeland Security concerning the enforcement of Federal

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immigration and custom laws, detention and removals, and

5

investigations in this Commonwealth.

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(b)  Signatories.--The Memorandum of Understanding negotiated

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pursuant to subsection (a) shall be signed on behalf of the

8

Commonwealth by the Governor and the Attorney General or as

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otherwise required by the appropriate Federal agency.

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(c)  Local governments.--No local government, whether acting

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through its governing body or by an initiative, referendum or

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any other process, shall enact any ordinance or policy that

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limits or prohibits a law enforcement officer, local official or

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local government employee from communicating or cooperating with

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Federal officials with regard to the immigration status of any

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person within this Commonwealth.

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(d)  Commonwealth entities.--Notwithstanding any other

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provision of law, no government entity or official within this

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Commonwealth may prohibit or in any way restrict a government

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entity or official from sending to or receiving from the United

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States Department of Homeland Security information regarding the

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citizenship or immigration status, lawful or unlawful, of an

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individual.

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(e)  Persons or agencies.--Notwithstanding any other

25

provision of law, no person or agency may prohibit or in any way

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restrict a public employee from doing any of the following with

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respect to information regarding the immigration status, lawful

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or unlawful, of any individual:

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(1)  sending the information to or requesting or

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receiving the information from the United States Department

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of Homeland Security;

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(2)  maintaining the information; or

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(3)  exchanging the information with any other Federal,

4

State or local government entity.

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(f)  Writ of mandamus.--The provisions of this section shall

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allow any natural or legal person lawfully domiciled in this

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Commonwealth to file for a writ of mandamus to compel any

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noncooperating State or local governmental agency to comply with

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the reporting laws.

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Section 2.  This act shall take effect in 60 days.

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