06 LC 18
5198
Senate
Bill 529
By:
Senators Rogers of the 21st, Hamrick of the 30th, Douglas of the 17th, Schaefer
of the 50th, Seabaugh of the 28th and others
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Title 13 of the Official Code of Georgia Annotated, relating to contracts,
Title 16 of the Official Code of Georgia Annotated, relating to crimes and
offenses, Title 34 of the Official Code of Georgia Annotated, relating to labor,
Title 35 of the Official Code of Georgia Annotated, relating to law enforcement,
and Title 50 of the Official Code of Georgia Annotated, relating to state
government, so as to provide for the comprehensive regulation of persons in this
state who are not lawfully present in the United States; to provide for a short
title; to provide for statutory construction; to provide for procedures and
requirements applicable to certain contracts or subcontracts; to prohibit
certain retaliation; to provide for enforcement, penalties, and exceptions; to
provide for offenses regarding involuntary servitude, trafficking of persons for
forced labor or services, and sexual servitude of a minor; to define certain
terms; to provide for penalties; to specify conditions under which certain
compensation paid by a taxpayer shall be disallowed as a business expense for
state income tax purposes; to provide for powers, duties, and authority of the
state revenue commissioner; to provide for a definition; to provide for a
legislative finding; to provide for exceptions; to provide for certain records;
to provide for verification of lawful presence with respect to certain persons
accused of crimes; to provide for requirements, procedures, and conditions
regarding applications for certain benefits; to provide for exceptions; to
provide for the promulgation of regulations; to provide for criminal and other
penalties; to provide for related matters; to provide for effective dates; to
provide for applicability; to repeal conflicting laws; and for other
purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
This
Act shall be known and may be cited as the "Georgia Security and Immigration
Compliance Act." All requirements of this Act concerning immigration or the
classification of immigration status shall be construed in conformity with
federal immigration law.
SECTION
2.
Title
13 of the Official Code of Georgia Annotated, relating to contracts, is amended
by adding a new article at the end of Chapter 10, to be designated Article 3, to
read as follows:
"ARTICLE
3
13-10-90.
As
used in this article, the term 'services' means any work performed by an
independent contractor wherein the service rendered does not consist primarily
of acquisition of equipment or materials or the rental of equipment, materials,
or supplies.
13-10-91.
(a)(1)
No department, agency, or instrumentality of the state or a political
subdivision of the state shall enter into a contract for the performance of
services within this state unless the contract provides that only persons who
are citizens or nationals of the United States or noncitizens authorized under
federal immigration law to perform such services shall perform the services
under the contract or any subcontract thereunder.
(2)
No contractor who enters a contract subject to paragraph (1) of this subsection
shall enter into a subcontract in connection with such contract for the
performance of services within this state unless the subcontract provides that
only persons who are citizens or nationals of the United States or noncitizens
authorized under federal immigration law to perform such services shall perform
the services under the subcontract or any subcontract thereunder.
(3)
Any contract entered into on or after July 1, 2007, subject to this Code section
which fails to provide for the requirements of this Code section may be changed
upon agreement of all parties thereto to meet the requirements of this Code
section; provided, however, that such remedial amendment to a noncompliant
contract shall not relieve any liability for violation of this Code section
prior to the remedial amendment.
(b)
No contractor that holds or has been awarded a contract to provide services
defined in Code Section 13-10-90 may retaliate against or take any adverse
action against any employee for reporting, or attempting to report, a violation
of this Code section to the contracting agency.
(c)
This Code section shall be enforced without regard to race, religion, gender,
ethnicity, or national origin.
(d)
Any person aggrieved by a failure by any agency or by a contractor of such
agency to comply with a requirement of this Code section shall be afforded an
opportunity for a hearing after reasonable notice in the manner provided for
under Chapter 13 of Title 50, the 'Georgia Administrative Procedure
Act.'
(e)
With respect to any contract for the performance of services within this state
entered into on or after July 1, 2007, any contractor or subcontractor who
knowingly violates any provision of this Code section shall be deemed to be in
material breech of the applicable contract, subject to termination of the
contract and shall be prohibited for a period of one year, commencing on the
date of such violation, from entering into any contract with any department,
agency, or instrumentality of the state or political subdivision of the
state.
(f)
The penalties specified under subsection (e) of this Code section shall not
apply in the case of a contractor or subcontractor who has enrolled in the
electronic employment authorization program authorized by the Basic Pilot
Program Extension and Expansion Act of 2003 (United States Pub. Law 108-156), or
a successor program designated for such purpose by the United States Department
of Homeland Security, prior to the commencement of services under a contract or
subcontract subject to the requirements of this Code section and who has
verified the employment eligibility of all employees hired during the period of
performance of such contract or subcontract.
(g)
The penalties specified under subsection (f) of this Code section shall not
apply with respect to a contractor in the event a subcontractor of the
contractor hires persons who are not citizens or nationals of the United States
or are not noncitizens authorized under federal immigration laws to perform
services under the contract and the contractor had no knowledge
thereof."
SECTION
3.
Title
16 of the Official Code of Georgia Annotated, relating to crimes and offenses,
is amended by adding a new Code section immediately following Code Section
16-5-45, to be designated Code Section 16-5-46, to read as follows:
"16-5-46.
(a)
As used in this Code section, the term:
(1)
'Blackmail' means a threat to expose any secret tending to subject any person to
hatred, contempt, or ridicule.
(2)
'Commercial sexual activity' means any sex act on account of which anything of
value is given, promised to, or received by any person.
(3)
'Financial harm' includes credit extortion, criminal violation of the usury
laws, or employment contracts that violate the statute of frauds.
(4)
'Forced labor or services' means labor or services that are performed or
provided by another person and are obtained or maintained through an
actoŕs:
(A)
Causing or threatening to cause serious harm to any person;
(B)
Physical restraining or threatening to physically restrain another
person;
(C)
Abusing or threatening to abuse the law or legal process;
(D)
Knowingly destroying, concealing, removing, confiscating, or possessing any
actual or purported passport or other immigration document, or any other actual
or purported government identification document, of another person;
(E)
Blackmail; or
(F)
Causing or threatening to cause financial harm to any person.
(5)
'Labor' means work of economic or financial value.
(6)
'Maintain' means, in relation to labor services, to secure continued performance
thereof, regardless of any initial agreement on the part of the victim to
perform such type of service.
(7)
'Obtain' means, in relation to labor or services, to secure performance
thereof.
(8)
'Services' means an ongoing relationship between a person and the actor in which
the person performs activities under the supervision of or for the benefit of
the actor. Commercial sexual activity and sexually explicit performances are
forms of 'services' within the meaning of this Code section. Nothing in this
paragraph shall be construed to legitimize or legalize
prostitution.
(9)
'Sexually explicit performance' means a live or public act or show intended to
arouse or satisfy the sexual desires or appeal to the prurient interests of
patrons.
(b)
Whoever knowingly subjects, or attempts to subject, another person to forced
labor or services shall, upon conviction thereof, be punished by imprisonment as
follows:
(1)
By causing or threatening to cause physical harm to any person, for not more
than 20 years;
(2)
By physically restraining or threatening to physically restrain another person,
for not more than 15 years;
(3)
By abusing or threatening to abuse the law or legal process, for not more than
ten years;
(4)
By knowingly destroying, concealing, removing, confiscating, or possessing any
actual or purported passport or other immigration document, or any other actual
or purported government identification document, of another person, for not more
than five years; or
(5)
By using blackmail, or using or threatening to cause financial harm to using
financial control over any person, for not more than three years.
(c)
Whoever knowingly recruits, entices, harbors, transports, provides, or obtains
by any means, or attempts to recruit, entice, harbor, transport, provide, or
obtain by any means, another person under 18 years of age, knowing that the
minor will engage in commercial sexual activity, sexually explicit performance,
or the production of pornography, or causes or attempts to cause a minor to
engage in commercial sexual activity, sexually explicit performance, or the
production of pornography, shall, upon conviction thereof, be punished by
imprisonment as follows:
(1)
In cases involving a minor between the ages of 15 and 17 years not involving
overt force or threat, for not more than 15 years;
(2)
In cases involving a minor under the age of 15 years not involving overt force
or threat, for not more than 20 years; or
(3)
In cases in which the violation involved overt force or threat, for not more
than 25 years.
(d)
Whoever:
(1)
Knowingly recruits, entices, harbors, transports, provides, or obtains by any
means, or attempts to recruit, entice, harbor, transport, provide, or obtain by
any means, another person, intending or knowing that the person will be
subjected to forced labor or services; or
(2)
Benefits, financially or by receiving anything of value, from participation in a
venture which has violated subsection (b) or (c) of this Code
section,
shall,
upon conviction thereof, be imprisoned for not more than 15 years.
(e)
In addition to any other amount of loss identified, the court shall order
restitution including the greater of the gross income or value to the defendant
of the
victiḿs
labor or services or the value of the
victiḿs
labor as guaranteed under the minimum wage and overtime provisions of the
federal Fair Labor Standards
Act."
SECTION
4.
Title
34 of the Official Code of Georgia Annotated, relating to labor and industrial
relations, is amended by adding a new Code section immediately following Code
Section 34-1-7, to be designated Code Section 34-1-8, to read as
follows:
"34-1-8.
(a)
As used in this Code section, the term 'Basic Pilot Program' means the
electronic verification of a work authorization program of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996, P.L. 104 - 208,
Division C, Section 403(a), 8 U.S.C. Section 1324 (a), and operated by the
United States Department of Homeland Security.
(b)
The General Assembly finds that the United States government has established and
maintains a national program for the electronic verification of work
authorization, the Basic Pilot Program, which enables employers to verify
promptly and accurately the employment eligibility of all job
applicants.
(c)(1)
No payment of compensation to an individual of $600.00 or more, whether in the
form of wages, salary, payment for labor, benefits, in-kind exchange, or
expenses, may be claimed and allowed as a deductible business expense for state
income tax purposes by a taxpayer unless the person to whom such compensation
was paid provides to the taxpayer a valid identification document from a list of
documents maintained by the Department of Driver Services as proof of lawful
presence in the United States. The provisions of this paragraph shall apply
whether or not an Internal Revenue Service form 1099 is issued in conjunction
with the payment.
(2)
The state revenue commissioner is authorized to prescribe forms and promulgate
rules and regulations deemed necessary in order to administer and effectuate
this subsection.
(d)
This Code section shall not apply to any business domiciled in this state
which:
(1)
Has enrolled and participates in the Basic Pilot Program; or
(2)
Is exempt from compliance with federal employment verification procedures under
federal law which makes the employment of unauthorized aliens
unlawful."
SECTION
5.
Title
35 of the Official Code of Georgia Annotated, relating to law enforcement, is
amended by adding a new Code section at the end of Article 1 of Chapter 2,
relating to general provisions relative to the Department of Public Safety, to
be designated Code Section 35-2-14, to read as follows:
"35-2-14.
(a)
Every person arrested for a violation of a criminal statute shall be required to
show proof of lawful presence in the United States.
(b)
The commissioner of the Department of Public Safety shall create, maintain, and
publish procedures by which lawful presence in the United States is
determined.
(c)
In the case of a natural person arrested for a violation of a criminal statute
where verification has not otherwise been made, verification shall be made
through a query to the Law Enforcement Support Center (LESC) of the United
States Department of Homeland Security or other office or agency designated for
that purpose by the Department of Homeland Security.
(d)
Any person who fails to prove lawful presence in the United States pursuant to
this Code section shall be reported by the arresting law enforcement office to
the Department of Public Safety and the United States Department of Homeland
Security."
SECTION
6.
Title
50 of the Official Code of Georgia Annotated, relating to state government, is
amended by adding a new chapter at the end thereof, to be designated Chapter 36,
to read as follows:
"CHAPTER
36
50-36-1.
(a)
The Department of Driver Services shall create, maintain, and publish a list of
documents that shall be used as proof of lawful presence in the United States.
For the purposes of this Code section, only documents found on such list shall
be used to establish proof of lawful presence in the United States.
(b)
A
driveŕs
license or identification card issued by any state which, on or after July 1,
2006, authorized such
driveŕs
license or identification card to be issued to persons not lawfully present in
the United States shall not be included on the list of documents prescribed in
subsection (a). A travel or identification document issued by a foreign
government shall not be included on the list of documents prescribed in
subsection (a) unless such document has been recognized by the United States
Department of Homeland Security as evidence of alien registration pursuant to
federal law.
(c)
Except as provided in subsection (e) of this Code section or where exempted by
federal law, on or after July 1, 2007, every agency of this state or a political
subdivision thereof shall verify the lawful presence in the United States of any
natural person 18 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
of this state or a political subdivision thereof. The commissioner of the
Department of Human Resources is authorized to establish procedures for
assisting any person who is denied public benefits, as defined in 8 U.S.C.
Section 1621 or 8 U.S.C. Section 1611, based on a failure to prove lawful
presence in the United States.
(d)
This Code section shall be enforced without regard to race, religion, gender,
ethnicity, or national origin.
(e)
Verification of lawful presence under this Code section shall not be
required:
(1)
For any purpose for which lawful presence in the United States is not required
by law, ordinance, or regulation; or
(2)
For prenatal care.
(f)
Verification of lawful presence in the United States by the agency or political
subdivision required to make such verification shall occur as
follows:
(1)
By presentation of an unexpired document described in subsection (a) of this
Code section; or
(2)(A)
Where a document described in subsection (a) of this Code section has not been
presented, the natural person who has applied for benefits may execute an
affidavit that he or she is a United States citizen or lawfully present in the
United States at the time of the application. A document or affidavit may be
verified by the agency or political subdivision to detect identity or document
fraud and false statements. Until such verification is made, the document or
affidavit may be presumed to be proof of lawful presence for the purposes of
this Code section.
(B)
Any person who knowingly and willfully executes an affidavit pursuant to
subparagraph (A) of this paragraph which contains a false statement shall be
guilty of a felony, and upon conviction thereof shall be punished by a fine of
not more than $1,000.00, by imprisonment for not less than one nor more than
five years, or both.
(g)
If the document described in subsection (a) of this Code section has been
presented to establish eligibility for federal public benefits as defined in 8
U.S.C. Section 1611 that are administered by an agency of this state or a
political subdivision thereof, verification for eligibility shall be made
through the Systematic Alien Verification of Entitlement (SAVE) program operated
by the United States Department of Homeland Security or a successor program
designated by the Department of Homeland Security.
(h)
The Department of Driver Services shall issue regulations, in accordance with
Chapter 13 of this title, the 'Georgia Administrative Procedure Act,' to
implement the provisions of this Code section.
(i)
With the concurrence of the Department of Driver Services, other agencies of
this state and political subdivisions thereof may adopt variations to such
regulations to improve efficiency or reduce delay in the verification process or
to provide for adjudication of unique individual circumstances where the
verification procedures in subsection (f) of this Code section would impose
unusual hardship on a legal resident of Georgia.
(j)
It shall be unlawful for any agency of this state or a political subdivision
thereof to provide any state, local, or federal benefit, as defined in 8 U.S.C.
Section 1621 or 8 U.S.C. Section 1611, to an alien in violation of this Code
section. Each state agency or department which administers any program of state
or local public benefits shall provide an annual report with respect to its
compliance with this Code
section."
SECTION
7.
(a)
Except as otherwise provided in this section, this Act shall become effective on
July 1, 2006.
(b) Section 2 of this Act shall become effective on July 1, 2006, and shall be applicable to all contracts executed on or after that date.
(c) Section 3 of this Act shall become effective on July 1, 2006, and shall not apply to any offense committed prior to July 1, 2006.
(d) Section 6 of this Act shall become effective on July 1, 2006, and shall apply to proceedings initiated on or after that date.
(b) Section 2 of this Act shall become effective on July 1, 2006, and shall be applicable to all contracts executed on or after that date.
(c) Section 3 of this Act shall become effective on July 1, 2006, and shall not apply to any offense committed prior to July 1, 2006.
(d) Section 6 of this Act shall become effective on July 1, 2006, and shall apply to proceedings initiated on or after that date.
SECTION
8.
All
laws and parts of laws in conflict with this Act are repealed.