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Third Substitute H.B. 116
This document includes Senate 2nd Reading Floor Amendments incorporated into the bill on Fri, Mar 4, 2011 at 6:27 PM by rday. -->
8 LONG TITLE
9 General Description:
10 This bill modifies general government provisions to address issues related to
11 immigration and aliens.
12 Highlighted Provisions:
13 This bill:
14 . addresses the exemption from paying the instate portion of tuition;
15 . enacts the Utah Immigration Accountability and Enforcement Act, including:
16 . defining terms;
17 . creating the Immigration Act Restricted Account;
18 . addressing information related to immigration status being sent, received, or
20 . requiring implementation to be consistent with federal laws, civil rights, and
21 other constitutional protections;
22 . providing for severability of specified provisions;
23 . establishing the guest worker program;
24 . addressing federal waivers, exemptions, or authorizations;
25 . providing for coordination with other federal or state laws or programs,
26 including income tax withholding and the imposition of a fee;
27 . providing for when a permit is to be obtained and the uses for a permit;
28 . addressing eligibility criteria to obtain or maintain a permit;
29 . establishing the application and renewal process;
30 . imposing conditions during permit term;
31 . addressing proficiency standards for English;
32 . addressing verification of permits and the protected status of information;
33 . addressing prohibited conduct;
34 . providing for administrative and criminal penalties;
35 . providing for sharing of information related to enforcement;
36 . addressing employee verification and employer sanctions for employing an
37 unauthorized alien who does not hold a permit;
38 . consolidating provisions in various parts of the Utah Code into the chapter; and
39 . imposing additional requirements to verify lawful presence in the United States
40 to receive certain public benefits;
41 . provides a repeal date for the Private Employer Verification Act;
42 . creates the Identity Theft Restricted Account from which victims of identity theft
43 may be paid actual damages;
44 . enacts the Illegal Immigration Enforcement Act, including:
45 . defining terms;
46 . providing for when a law enforcement officer is required or permitted to request
47 verification of immigration status;
48 . establishing what documents are to be provided a law enforcement officer; and
49 . requiring implementation to be consistent with federal law, civil rights, and
50 other constitutional protections; and
51 . makes technical and conforming amendments.
52 Money Appropriated in this Bill:
54 Other Special Clauses:
55 This bill coordinates with H.B. 497, Utah Illegal Immigration Enforcement Act, by
56 providing substantive amendments.
57 Utah Code Sections Affected:
59 53B-8-106, as enacted by Laws of Utah 2002, Chapter 230
60 63G-2-206, as last amended by Laws of Utah 2009, Chapter 344
61 63G-2-305, as last amended by Laws of Utah 2010, Chapters 6, 113, and 247
62 63J-1-602.4, as enacted by Laws of Utah 2010, Chapter 265
63 67-5-22.7, as enacted by Laws of Utah 2009, Chapter 30
64 76-10-2901, as enacted by Laws of Utah 2008, Chapter 26
65 77-7-2, as last amended by Laws of Utah 2008, Chapter 293
67 63G-12-101, Utah Code Annotated 1953
68 63G-12-102, Utah Code Annotated 1953
69 63G-12-103, Utah Code Annotated 1953
70 63G-12-104, Utah Code Annotated 1953
71 63G-12-105, Utah Code Annotated 1953
72 63G-12-106, Utah Code Annotated 1953
73 63G-12-201, Utah Code Annotated 1953
74 63G-12-202, Utah Code Annotated 1953
75 63G-12-203, Utah Code Annotated 1953
76 63G-12-204, Utah Code Annotated 1953
77 63G-12-205, Utah Code Annotated 1953
78 63G-12-206, Utah Code Annotated 1953
79 63G-12-207, Utah Code Annotated 1953
80 63G-12-208, Utah Code Annotated 1953
81 63G-12-209, Utah Code Annotated 1953
82 63G-12-210, Utah Code Annotated 1953
83 63G-12-211, Utah Code Annotated 1953
84 63G-12-212, Utah Code Annotated 1953
85 63G-12-301, Utah Code Annotated 1953
86 63G-12-303, Utah Code Annotated 1953
87 63G-12-304, Utah Code Annotated 1953
88 63G-12-305, Utah Code Annotated 1953
89 63G-12-306, Utah Code Annotated 1953
90 63I-2-173, Utah Code Annotated 1953
91 76-9-1001, Utah Code Annotated 1953
92 76-9-1002, Utah Code Annotated 1953
93 76-9-1003, Utah Code Annotated 1953
94 76-9-1004, Utah Code Annotated 1953
95 76-9-1005, Utah Code Annotated 1953
96 RENUMBERS AND AMENDS:
97 63G-12-302, (Renumbered from 63G-11-103, as last amended by Laws of Utah 2009,
98 Chapter 138)
99 63G-12-401, (Renumbered from 63G-11-102, as last amended by Laws of Utah 2010,
100 Chapter 281)
101 63G-12-402, (Renumbered from 63G-11-104, as last amended by Laws of Utah 2010,
102 Chapter 191)
103 Utah Code Sections Affected by Coordination Clause:
104 76-9-1001, Utah Code Annotated 1953
105 76-9-1002, Utah Code Annotated 1953
106 76-9-1003, Utah Code Annotated 1953
107 76-9-1004, Utah Code Annotated 1953
108 76-9-1005, Utah Code Annotated 1953
109 76-10-2901, as enacted by Laws of Utah 2008, Chapter 26
110 77-7-2, as last amended by Laws of Utah 2008, Chapter 293
112 Be it enacted by the Legislature of the state of Utah:
113 Section 1. Section 53B-8-106 is amended to read:
114 53B-8-106. Resident tuition -- Requirements -- Rules.
115 (1) If allowed under federal law, a student, other than a nonimmigrant alien within the
116 meaning of paragraph (15) of subsection (a) of Section 1101 of Title 8 of the United States
117 Code, shall be exempt from paying the nonresident portion of total tuition if the student:
118 (a) attended high school in this state for three or more years;
119 (b) graduated from a high school in this state or received the equivalent of a high
120 school diploma in this state; and
121 (c) registers as an entering student at an institution of higher education not earlier than
122 the fall of the 2002-03 academic year.
123 (2) In addition to the requirements under Subsection (1), a student without lawful
124 immigration status shall file an affidavit with the institution of higher education stating that the
125 student has filed an application to legalize [
126 application as soon as [
127 (3) The State Board of Regents shall make rules for the implementation of this section.
128 (4) Nothing in this section limits the ability of institutions of higher education to assess
129 nonresident tuition on students who do not meet the requirements under this section.
130 (5) S. [
131 addition to complying with
131a exempt from paying the nonresident
132 portion of total tuition S. [
133 S. [
134 63G-12-102 ; or
135 S. [
136 S. [
137 nonresident portion of total tuition, but is not exempt under Subsection (5)(a), the student loses
138 the exemption as of the first day of the term or semester immediately following the program
139 start date.
140 Section 2. Section 63G-2-206 is amended to read:
141 63G-2-206. Sharing records.
142 (1) A governmental entity may provide a record that is private, controlled, or protected
143 to another governmental entity, a government-managed corporation, a political subdivision, the
144 federal government, or another state if the requesting entity:
145 (a) serves as a repository or archives for purposes of historical preservation,
146 administrative maintenance, or destruction;
147 (b) enforces, litigates, or investigates civil, criminal, or administrative law, and the
148 record is necessary to a proceeding or investigation;
149 (c) is authorized by state statute to conduct an audit and the record is needed for that
151 (d) is one that collects information for presentence, probationary, or parole purposes; or
152 (e) (i) is:
153 (A) the Legislature;
154 (B) a legislative committee;
155 (C) a member of the Legislature; or
156 (D) a legislative staff member acting at the request of the Legislature, a legislative
157 committee, or a member of the Legislature; and
158 (ii) requests the record in relation to the Legislature's duties including:
159 (A) the preparation or review of a legislative proposal or legislation;
160 (B) appropriations; or
161 (C) an investigation or review conducted by the Legislature or a legislative committee.
162 (2) (a) A governmental entity may provide a private, controlled, or protected record or
163 record series to another governmental entity, a political subdivision, a government-managed
164 corporation, the federal government, or another state if the requesting entity provides written
166 (i) that the record or record series is necessary to the performance of the governmental
167 entity's duties and functions;
168 (ii) that the record or record series will be used for a purpose similar to the purpose for
169 which the information in the record or record series was collected or obtained; and
170 (iii) that the use of the record or record series produces a public benefit that outweighs
171 the individual privacy right that protects the record or record series.
172 (b) A governmental entity may provide a private, controlled, or protected record or
173 record series to a contractor or a private provider according to the requirements of Subsection
175 (3) (a) A governmental entity shall provide a private, controlled, or protected record to
176 another governmental entity, a political subdivision, a government-managed corporation, the
177 federal government, or another state if the requesting entity:
178 (i) is entitled by law to inspect the record;
179 (ii) is required to inspect the record as a condition of participating in a state or federal
180 program or for receiving state or federal funds; or
181 (iii) is an entity described in Subsection (1)(a), (b), (c), (d), or (e).
182 (b) Subsection (3)(a)(iii) applies only if the record is a record described in Subsection
183 63G-2-305 (4).
184 (4) Before disclosing a record or record series under this section to another
185 governmental entity, another state, the United States, a foreign government, or to a contractor
186 or private provider, the originating governmental entity shall:
187 (a) inform the recipient of the record's classification and the accompanying restrictions
188 on access; and
189 (b) if the recipient is not a governmental entity to which this chapter applies, obtain the
190 recipient's written agreement which may be by mechanical or electronic transmission that it
191 will abide by those restrictions on access unless a statute, federal regulation, or interstate
192 agreement otherwise governs the sharing of the record or record series.
193 (5) A governmental entity may disclose a record to another state, the United States, or a
194 foreign government for the reasons listed in Subsections (1) and (2) without complying with
195 the procedures of Subsection (2) or (4) if disclosure is authorized by executive agreement,
196 treaty, federal statute, compact, federal regulation, or state statute.
197 (6) (a) Subject to Subsections (6)(b) and (c), an entity receiving a record under this
198 section is subject to the same restrictions on disclosure of the record as the originating entity.
199 (b) A contractor or a private provider may receive information under this section only
201 (i) the contractor or private provider's use of the record or record series produces a
202 public benefit that outweighs the individual privacy right that protects the record or record
204 (ii) the record or record series it requests:
205 (A) is necessary for the performance of a contract with a governmental entity;
206 (B) will only be used for the performance of the contract with the governmental entity;
207 (C) will not be disclosed to any other person; and
208 (D) will not be used for advertising or solicitation purposes; and
209 (iii) the contractor or private provider gives written assurance to the governmental
210 entity that is providing the record or record series that it will adhere to the restrictions of this
211 Subsection (6)(b).
212 (c) The classification of a record already held by a governmental entity and the
213 applicable restrictions on disclosure of that record are not affected by the governmental entity's
214 receipt under this section of a record with a different classification that contains information
215 that is also included in the previously held record.
216 (7) Notwithstanding any other provision of this section, if a more specific court rule or
217 order, state statute, federal statute, or federal regulation prohibits or requires sharing
218 information, that rule, order, statute, or federal regulation controls.
219 (8) The following records may not be shared under this section:
220 (a) records held by the Division of Oil, Gas, and Mining that pertain to any person and
221 that are gathered under authority of Title 40, Chapter 6, Board and Division of Oil, Gas, and
222 Mining; [
223 (b) records of publicly funded libraries as described in Subsection 63G-2-302 (1)(c)[
225 (c) a record described in Section 63G-12-210 .
226 (9) Records that may evidence or relate to a violation of law may be disclosed to a
227 government prosecutor, peace officer, or auditor.
228 Section 3. Section 63G-2-305 is amended to read:
229 63G-2-305. Protected records.
230 The following records are protected if properly classified by a governmental entity:
231 (1) trade secrets as defined in Section 13-24-2 if the person submitting the trade secret
232 has provided the governmental entity with the information specified in Section 63G-2-309 ;
233 (2) commercial information or nonindividual financial information obtained from a
234 person if:
235 (a) disclosure of the information could reasonably be expected to result in unfair
236 competitive injury to the person submitting the information or would impair the ability of the
237 governmental entity to obtain necessary information in the future;
238 (b) the person submitting the information has a greater interest in prohibiting access
239 than the public in obtaining access; and
240 (c) the person submitting the information has provided the governmental entity with
241 the information specified in Section 63G-2-309 ;
242 (3) commercial or financial information acquired or prepared by a governmental entity
243 to the extent that disclosure would lead to financial speculations in currencies, securities, or
244 commodities that will interfere with a planned transaction by the governmental entity or cause
245 substantial financial injury to the governmental entity or state economy;
246 (4) records the disclosure of which could cause commercial injury to, or confer a
247 competitive advantage upon a potential or actual competitor of, a commercial project entity as
248 defined in Subsection 11-13-103 (4);
249 (5) test questions and answers to be used in future license, certification, registration,
250 employment, or academic examinations;
251 (6) records the disclosure of which would impair governmental procurement
252 proceedings or give an unfair advantage to any person proposing to enter into a contract or
253 agreement with a governmental entity, except, subject to Subsections (1) and (2), that this
254 Subsection (6) does not restrict the right of a person to have access to, once the contract or
255 grant has been awarded, a bid, proposal, or application submitted to or by a governmental
256 entity in response to:
257 (a) a request for bids;
258 (b) a request for proposals;
259 (c) a grant; or
260 (d) other similar document;
261 (7) records that would identify real property or the appraisal or estimated value of real
262 or personal property, including intellectual property, under consideration for public acquisition
263 before any rights to the property are acquired unless:
264 (a) public interest in obtaining access to the information outweighs the governmental
265 entity's need to acquire the property on the best terms possible;
266 (b) the information has already been disclosed to persons not employed by or under a
267 duty of confidentiality to the entity;
268 (c) in the case of records that would identify property, potential sellers of the described
269 property have already learned of the governmental entity's plans to acquire the property;
270 (d) in the case of records that would identify the appraisal or estimated value of
271 property, the potential sellers have already learned of the governmental entity's estimated value
272 of the property; or
273 (e) the property under consideration for public acquisition is a single family residence
274 and the governmental entity seeking to acquire the property has initiated negotiations to acquire
275 the property as required under Section 78B-6-505 ;
276 (8) records prepared in contemplation of sale, exchange, lease, rental, or other
277 compensated transaction of real or personal property including intellectual property, which, if
278 disclosed prior to completion of the transaction, would reveal the appraisal or estimated value
279 of the subject property, unless:
280 (a) the public interest in access outweighs the interests in restricting access, including
281 the governmental entity's interest in maximizing the financial benefit of the transaction; or
282 (b) when prepared by or on behalf of a governmental entity, appraisals or estimates of
283 the value of the subject property have already been disclosed to persons not employed by or
284 under a duty of confidentiality to the entity;
285 (9) records created or maintained for civil, criminal, or administrative enforcement
286 purposes or audit purposes, or for discipline, licensing, certification, or registration purposes, if
287 release of the records:
288 (a) reasonably could be expected to interfere with investigations undertaken for
289 enforcement, discipline, licensing, certification, or registration purposes;
290 (b) reasonably could be expected to interfere with audits, disciplinary, or enforcement
292 (c) would create a danger of depriving a person of a right to a fair trial or impartial
294 (d) reasonably could be expected to disclose the identity of a source who is not
295 generally known outside of government and, in the case of a record compiled in the course of
296 an investigation, disclose information furnished by a source not generally known outside of
297 government if disclosure would compromise the source; or
298 (e) reasonably could be expected to disclose investigative or audit techniques,
299 procedures, policies, or orders not generally known outside of government if disclosure would
300 interfere with enforcement or audit efforts;
301 (10) records the disclosure of which would jeopardize the life or safety of an
303 (11) records the disclosure of which would jeopardize the security of governmental
304 property, governmental programs, or governmental recordkeeping systems from damage, theft,
305 or other appropriation or use contrary to law or public policy;
306 (12) records that, if disclosed, would jeopardize the security or safety of a correctional
307 facility, or records relating to incarceration, treatment, probation, or parole, that would interfere
308 with the control and supervision of an offender's incarceration, treatment, probation, or parole;
309 (13) records that, if disclosed, would reveal recommendations made to the Board of
310 Pardons and Parole by an employee of or contractor for the Department of Corrections, the
311 Board of Pardons and Parole, or the Department of Human Services that are based on the
312 employee's or contractor's supervision, diagnosis, or treatment of any person within the board's
314 (14) records and audit workpapers that identify audit, collection, and operational
315 procedures and methods used by the State Tax Commission, if disclosure would interfere with
316 audits or collections;
317 (15) records of a governmental audit agency relating to an ongoing or planned audit
318 until the final audit is released;
319 (16) records prepared by or on behalf of a governmental entity solely in anticipation of
320 litigation that are not available under the rules of discovery;
321 (17) records disclosing an attorney's work product, including the mental impressions or
322 legal theories of an attorney or other representative of a governmental entity concerning
324 (18) records of communications between a governmental entity and an attorney
325 representing, retained, or employed by the governmental entity if the communications would be
326 privileged as provided in Section 78B-1-137 ;
327 (19) (a) (i) personal files of a state legislator, including personal correspondence to or
328 from a member of the Legislature; and
329 (ii) notwithstanding Subsection (19)(a)(i), correspondence that gives notice of
330 legislative action or policy may not be classified as protected under this section; and
331 (b) (i) an internal communication that is part of the deliberative process in connection
332 with the preparation of legislation between:
333 (A) members of a legislative body;
334 (B) a member of a legislative body and a member of the legislative body's staff; or
335 (C) members of a legislative body's staff; and
336 (ii) notwithstanding Subsection (19)(b)(i), a communication that gives notice of
337 legislative action or policy may not be classified as protected under this section;
338 (20) (a) records in the custody or control of the Office of Legislative Research and
339 General Counsel, that, if disclosed, would reveal a particular legislator's contemplated
340 legislation or contemplated course of action before the legislator has elected to support the
341 legislation or course of action, or made the legislation or course of action public; and
342 (b) notwithstanding Subsection (20)(a), the form to request legislation submitted to the
343 Office of Legislative Research and General Counsel is a public document unless a legislator
344 asks that the records requesting the legislation be maintained as protected records until such
345 time as the legislator elects to make the legislation or course of action public;
346 (21) research requests from legislators to the Office of Legislative Research and
347 General Counsel or the Office of the Legislative Fiscal Analyst and research findings prepared
348 in response to these requests;
349 (22) drafts, unless otherwise classified as public;
350 (23) records concerning a governmental entity's strategy about collective bargaining or
351 pending litigation;
352 (24) records of investigations of loss occurrences and analyses of loss occurrences that
353 may be covered by the Risk Management Fund, the Employers' Reinsurance Fund, the
354 Uninsured Employers' Fund, or similar divisions in other governmental entities;
355 (25) records, other than personnel evaluations, that contain a personal recommendation
356 concerning an individual if disclosure would constitute a clearly unwarranted invasion of
357 personal privacy, or disclosure is not in the public interest;
358 (26) records that reveal the location of historic, prehistoric, paleontological, or
359 biological resources that if known would jeopardize the security of those resources or of
360 valuable historic, scientific, educational, or cultural information;
361 (27) records of independent state agencies if the disclosure of the records would
362 conflict with the fiduciary obligations of the agency;
363 (28) records of an institution within the state system of higher education defined in
364 Section 53B-1-102 regarding tenure evaluations, appointments, applications for admissions,
365 retention decisions, and promotions, which could be properly discussed in a meeting closed in
366 accordance with Title 52, Chapter 4, Open and Public Meetings Act, provided that records of
367 the final decisions about tenure, appointments, retention, promotions, or those students
368 admitted, may not be classified as protected under this section;
369 (29) records of the governor's office, including budget recommendations, legislative
370 proposals, and policy statements, that if disclosed would reveal the governor's contemplated
371 policies or contemplated courses of action before the governor has implemented or rejected
372 those policies or courses of action or made them public;
373 (30) records of the Office of the Legislative Fiscal Analyst relating to budget analysis,
374 revenue estimates, and fiscal notes of proposed legislation before issuance of the final
375 recommendations in these areas;
376 (31) records provided by the United States or by a government entity outside the state
377 that are given to the governmental entity with a requirement that they be managed as protected
378 records if the providing entity certifies that the record would not be subject to public disclosure
379 if retained by it;
380 (32) transcripts, minutes, or reports of the closed portion of a meeting of a public body
381 except as provided in Section 52-4-206 ;
382 (33) records that would reveal the contents of settlement negotiations but not including
383 final settlements or empirical data to the extent that they are not otherwise exempt from
385 (34) memoranda prepared by staff and used in the decision-making process by an
386 administrative law judge, a member of the Board of Pardons and Parole, or a member of any
387 other body charged by law with performing a quasi-judicial function;
388 (35) records that would reveal negotiations regarding assistance or incentives offered
389 by or requested from a governmental entity for the purpose of encouraging a person to expand
390 or locate a business in Utah, but only if disclosure would result in actual economic harm to the
391 person or place the governmental entity at a competitive disadvantage, but this section may not
392 be used to restrict access to a record evidencing a final contract;
393 (36) materials to which access must be limited for purposes of securing or maintaining
394 the governmental entity's proprietary protection of intellectual property rights including patents,
395 copyrights, and trade secrets;
396 (37) the name of a donor or a prospective donor to a governmental entity, including an
397 institution within the state system of higher education defined in Section 53B-1-102 , and other
398 information concerning the donation that could reasonably be expected to reveal the identity of
399 the donor, provided that:
400 (a) the donor requests anonymity in writing;
401 (b) any terms, conditions, restrictions, or privileges relating to the donation may not be
402 classified protected by the governmental entity under this Subsection (37); and
403 (c) except for an institution within the state system of higher education defined in
404 Section 53B-1-102 , the governmental unit to which the donation is made is primarily engaged
405 in educational, charitable, or artistic endeavors, and has no regulatory or legislative authority
406 over the donor, a member of the donor's immediate family, or any entity owned or controlled
407 by the donor or the donor's immediate family;
408 (38) accident reports, except as provided in Sections 41-6a-404 , 41-12a-202 , and
409 73-18-13 ;
410 (39) a notification of workers' compensation insurance coverage described in Section
411 34A-2-205 ;
412 (40) (a) the following records of an institution within the state system of higher
413 education defined in Section 53B-1-102 , which have been developed, discovered, disclosed to,
414 or received by or on behalf of faculty, staff, employees, or students of the institution:
415 (i) unpublished lecture notes;
416 (ii) unpublished notes, data, and information:
417 (A) relating to research; and
418 (B) of:
419 (I) the institution within the state system of higher education defined in Section
420 53B-1-102 ; or
421 (II) a sponsor of sponsored research;
422 (iii) unpublished manuscripts;
423 (iv) creative works in process;
424 (v) scholarly correspondence; and
425 (vi) confidential information contained in research proposals;
426 (b) Subsection (40)(a) may not be construed to prohibit disclosure of public
427 information required pursuant to Subsection 53B-16-302 (2)(a) or (b); and
428 (c) Subsection (40)(a) may not be construed to affect the ownership of a record;
429 (41) (a) records in the custody or control of the Office of Legislative Auditor General
430 that would reveal the name of a particular legislator who requests a legislative audit prior to the
431 date that audit is completed and made public; and
432 (b) notwithstanding Subsection (41)(a), a request for a legislative audit submitted to the
433 Office of the Legislative Auditor General is a public document unless the legislator asks that
434 the records in the custody or control of the Office of Legislative Auditor General that would
435 reveal the name of a particular legislator who requests a legislative audit be maintained as
436 protected records until the audit is completed and made public;
437 (42) records that provide detail as to the location of an explosive, including a map or
438 other document that indicates the location of:
439 (a) a production facility; or
440 (b) a magazine;
441 (43) information:
442 (a) contained in the statewide database of the Division of Aging and Adult Services
443 created by Section 62A-3-311.1 ; or
444 (b) received or maintained in relation to the Identity Theft Reporting Information
445 System (IRIS) established under Section 67-5-22 ;
446 (44) information contained in the Management Information System and Licensing
447 Information System described in Title 62A, Chapter 4a, Child and Family Services;
448 (45) information regarding National Guard operations or activities in support of the
449 National Guard's federal mission;
450 (46) records provided by any pawn or secondhand business to a law enforcement
451 agency or to the central database in compliance with Title 13, Chapter 32a, Pawnshop and
452 Secondhand Merchandise Transaction Information Act;
453 (47) information regarding food security, risk, and vulnerability assessments performed
454 by the Department of Agriculture and Food;
455 (48) except to the extent that the record is exempt from this chapter pursuant to Section
456 63G-2-106 , records related to an emergency plan or program prepared or maintained by the
457 Division of Homeland Security the disclosure of which would jeopardize:
458 (a) the safety of the general public; or
459 (b) the security of:
460 (i) governmental property;
461 (ii) governmental programs; or
462 (iii) the property of a private person who provides the Division of Homeland Security
464 (49) records of the Department of Agriculture and Food relating to the National
465 Animal Identification System or any other program that provides for the identification, tracing,
466 or control of livestock diseases, including any program established under Title 4, Chapter 24,
467 Utah Livestock Brand and Anti-theft Act or Title 4, Chapter 31, Livestock Inspection and
469 (50) as provided in Section 26-39-501 :
470 (a) information or records held by the Department of Health related to a complaint
471 regarding a child care program or residential child care which the department is unable to
472 substantiate; and
473 (b) information or records related to a complaint received by the Department of Health
474 from an anonymous complainant regarding a child care program or residential child care;
475 (51) unless otherwise classified as public under Section 63G-2-301 and except as
476 provided under Section 41-1a-116 , an individual's home address, home telephone number, or
477 personal mobile phone number, if:
478 (a) the individual is required to provide the information in order to comply with a law,
479 ordinance, rule, or order of a government entity; and
480 (b) the subject of the record has a reasonable expectation that this information will be
481 kept confidential due to:
482 (i) the nature of the law, ordinance, rule, or order; and
483 (ii) the individual complying with the law, ordinance, rule, or order;
484 (52) the name, home address, work addresses, and telephone numbers of an individual
485 that is engaged in, or that provides goods or services for, medical or scientific research that is:
486 (a) conducted within the state system of higher education, as defined in Section
487 53B-1-102 ; and
488 (b) conducted using animals;
489 (53) an initial proposal under Title 63M, Chapter 1, Part 26, Government Procurement
490 Private Proposal Program, to the extent not made public by rules made under that chapter;
491 (54) information collected and a report prepared by the Judicial Performance
492 Evaluation Commission concerning a judge, unless Section 20A-7-702 or Title 78A, Chapter
493 12, Judicial Performance Evaluation Commission Act, requires disclosure of, or makes public,
494 the information or report;
495 (55) (a) records of the Utah Educational Savings Plan created under Section
496 53B-8a-103 if the disclosure of the records would conflict with its fiduciary obligations;
497 (b) proposals submitted to the Utah Educational Savings Plan; and
498 (c) contracts entered into by the Utah Educational Savings Plan and the related
500 (56) records contained in the Management Information System created in Section
501 62A-4a-1003 ;
502 (57) records provided or received by the Public Lands Policy Coordinating Office in
503 furtherance of any contract or other agreement made in accordance with Section 63J-4-603 ;
504 (58) information requested by and provided to the Utah State 911 Committee under
505 Section 53-10-602 ;
506 (59) recorded Children's Justice Center investigative interviews, both video and audio,
507 the release of which are governed by Section 77-37-4 ; [
508 (60) in accordance with Section 73-10-33 :
509 (a) a management plan for a water conveyance facility in the possession of the Division
510 of Water Resources or the Board of Water Resources; or
511 (b) an outline of an emergency response plan in possession of the state or a county or
513 (61) a record described in Section 63G-12-210 .
514 Section 4. Section 63G-12-101 is enacted to read:
518 63G-12-101. Title.
519 This chapter is known as the "Utah Immigration Accountability and Enforcement Act."
520 Section 5. Section 63G-12-102 is enacted to read:
521 63G-12-102. Definitions.
522 As used in this chapter:
523 (1) "Basic health insurance plan" means a health plan that is actuarially equivalent to a
524 federally qualified high deductible health plan.
525 (2) "Department" means the S. [
527 (3) "Employee" means an individual employed by an employer under a contract for
529 (4) "Employer" means a person who has one or more employees employed in the same
530 business, or in or about the same establishment, under any contract of hire, express or implied,
531 oral or written.
532 (5) "E-verify program" means the electronic verification of the work authorization
533 program of the Illegal Immigration Reform and Immigration Responsibility Act of 1996, 8
534 U.S.C. Sec. 1324a, known as the e-verify program;
535 (6) "Family member" means for an undocumented individual:
536 (a) a member of the undocumented individual's immediate family;
537 (b) the undocumented individual's grandparent;
538 (c) the undocumented individual's sibling;
539 (d) the undocumented individual's grandchild;
540 (e) the undocumented individual's nephew;
541 (f) the undocumented individual's niece;
542 (g) a spouse of an individual described in this Subsection (6); or
543 (h) an individual who is similar to one listed in this Subsection (6).
544 (7) "Federal SAVE program" means the Systematic Alien Verification for Entitlements
545 Program operated by the United States Department of Homeland Security or an equivalent
546 program designated by the Department of Homeland Security.
547 (8) "Guest worker" means an undocumented individual who holds a guest worker
549 (9) "Guest worker permit" means a permit issued in accordance with Section
550 63G-12-207 to an undocumented individual who meets the eligibility criteria of Section
551 63G-12-205 .
552 (10) "Immediate family" means for an undocumented individual:
553 (a) the undocumented individual's spouse; or
554 (b) a child of the undocumented individual if the child is:
555 (i) under 21 years of age; and
556 (ii) unmarried.
557 (11) "Immediate family permit" means a permit issued in accordance with Section
558 63G-12-207 to an undocumented individual who meets the eligibility criteria of Section
559 63G-12-206 .
560 (12) "Permit" means a permit issued under Part 2, Guest Worker Program, and
562 (a) a guest worker permit; and
563 (b) an immediate family permit.
564 (13) "Permit holder" means an undocumented individual who holds a permit.
565 (14) "Private employer" means an employer who is not the federal government or a
566 public employer.
567 (15) "Program start date" means the day on which the department is required to
568 implement the program under Subsection 63G-12-202 (3).
569 (16) "Public employer" means an employer that is:
570 (a) the state of Utah or any administrative subunit of the state;
571 (b) a state institution of higher education, as defined in Section 53B-3-102 ;
572 (c) a political subdivision of the state including a county, city, town, school district,
573 local district, or special service district; or
574 (d) an administrative subunit of a political subdivision.
575 (17) "Program" means the Guest Worker Program described in Section 63G-12-201 .
576 (18) "Relevant contact information" means the following for an undocumented
578 (a) the undocumented individual's name;
579 (b) the undocumented individual's residential address;
580 (c) the undocumented individual's residential telephone number;
581 (d) the undocumented individual's personal email address;
582 (e) the name of the person with whom the undocumented individual has a contract for
584 (f) the name of the contact person for the person listed in Subsection (18)(e);
585 (g) the address of the person listed in Subsection (18)(e);
586 (h) the telephone number for the person listed in Subsection (18)(e);
587 (i) the names of the undocumented individual's immediate family members;
588 (j) the names of the family members who reside with the undocumented individual;
590 (k) any other information required by the department by rule made in accordance with
591 Chapter 3, Utah Administrative Rulemaking Act.
592 (19) "Restricted account" means the Immigration Act Restricted Account created in
593 Section 63G-12-103 .
594 (20) "Serious felony" means a felony under:
595 (a) Title 76, Chapter 5, Offenses Against the Person;
596 (b) Title 76, Chapter 5a, Sexual Exploitation of Children;
597 (c) Title 76, Chapter 6, Offenses Against Property;
598 (d) Title 76, Chapter 7, Offenses Against the Family;
599 (e) Title 76, Chapter 8, Offenses Against the Administration of Government;
600 (f) Title 76, Chapter 9, Offenses Against Public Order and Decency; and
601 (g) Title 76, Chapter 10, Offenses Against Public Health, Safety, Welfare, and Morals.
602 (21) (a) "Status verification system" means an electronic system operated by the federal
603 government, through which an authorized official of a state agency or a political subdivision of
604 the state may inquire by exercise of authority delegated pursuant to 8 U.S.C. Sec. 1373, to
605 verify the citizenship or immigration status of an individual within the jurisdiction of the
606 agency or political subdivision for a purpose authorized under this section.
607 (b) "Status verification system" includes:
608 (i) the e-verify program;
609 (ii) an equivalent federal program designated by the United States Department of
610 Homeland Security or other federal agency authorized to verify the work eligibility status of a
611 newly hired employee pursuant to the Immigration Reform and Control Act of 1986;
612 (iii) the Social Security Number Verification Service or similar online verification
613 process implemented by the United States Social Security Administration; or
614 (iv) an independent third-party system with an equal or higher degree of reliability as
615 the programs, systems, or processes described in Subsection (21)(b)(i), (ii), or (iii).
616 (22) "Unauthorized alien" is as defined in 8 U.S.C. Sec. 1324a(h)(3).
617 (23) "Undocumented individual" means an individual who:
618 (a) lives or works in the state; and
619 (b) is not in compliance with the Immigration and Nationality Act, 8 U.S.C. Sec. 1101
620 et seq. with regard to presence in the United States.
621 (24) "U-verify program" means the verification procedure developed by the department
622 in accordance with Section 63G-12-210 .
623 Section 6. Section 63G-12-103 is enacted to read:
624 63G-12-103. Immigration Act Restricted Account.
625 (1) There is created a restricted account within the General Fund known as the
626 "Immigration Act Restricted Account."
627 (2) (a) The restricted account shall consist of:
628 (i) a fee collected under this chapter;
629 (ii) a fine collected under Section 63G-12-207 ;
630 (iii) civil penalties imposed under Section 63G-12-211 or 63G-12-307 ;
631 (iv) money appropriated to the restricted account by the Legislature; and
632 (v) interest earned on the restricted account.
633 (b) The restricted account shall earn interest.
634 (3) The Legislature may appropriate money from the restricted account to:
635 (a) the department and the Office of the Governor to pay the costs associated with the
636 implementation of Section 63G-12-202 ;
637 (b) the department to administer this chapter;
638 (c) the State Tax Commission for costs associated with implementing Section
639 63G-12-203 ;
640 (d) the attorney general for costs associated with:
641 (i) litigation related to this chapter;
642 (ii) a multi-agency strike force created under Section 67-5-22.7 ; or
643 (iii) a memorandum of understanding executed under Section 67-5-28 ; and
644 (e) the Identity Theft Restricted Account created in Section 67-5-22.7 .
645 Section 7. Section 63G-12-104 is enacted to read:
646 63G-12-104. Determining immigration status -- Transfer or maintenance of
648 Except as limited by federal law and this chapter, any state or local governmental
649 agency is not restricted or prohibited in any way from sending, receiving, or maintaining
650 information related to the lawful or unlawful immigration status of an individual by
651 communicating with any federal, state, or local governmental entity for any lawful purpose,
653 (1) determining an individual's eligibility for any public benefit, service, or license
654 provided by any federal agency, by this state, or by a political subdivision of this state;
655 (2) confirming an individual's claim of residence or domicile if determination is
656 required by state law or a judicial order issued pursuant to a civil or criminal proceeding in this
658 (3) if the individual is an alien, determining if the individual is in compliance with the
659 federal registration laws under 8 U.S.C. Sec. 1301 through 1306; or
660 (4) a valid request for verification of the citizenship or immigration status of any
661 person pursuant to 8 U.S.C. Sec. 1373.
662 Section 8. Section 63G-12-105 is enacted to read:
663 63G-12-105. Implementation to be consistent with federal law and civil rights.
664 A state or local agency shall implement this chapter in a manner that:
665 (1) is consistent with federal laws that regulate immigration;
666 (2) protects the civil rights of all persons; and
667 (3) respects the privileges and immunities of United States citizens.
668 Section 9. Section 63G-12-106 is enacted to read:
669 63G-12-106. Severability.
670 (1) If a provision of Part 2, Guest Worker Program, or the application of a provision to
671 a person or circumstance is held invalid, the remainder of this chapter may not be given effect
672 without the invalid provision or application so that the provisions of this chapter are not
674 (2) The following provisions are severable from this chapter:
675 (a) Title 76, Chapter 9, Part 10, Illegal Immigration Enforcement Act;
676 (b) Section 76-10-2901 ; and
677 (c) Section 77-7-2 .
678 Section 10. Section 63G-12-201 is enacted to read:
680 63G-12-201. Department to create program.
681 (1) The department shall administer a program known as the "Guest Worker Program"
682 created by this part. Under this program, the department shall:
683 (a) seek one or more waivers, exemptions, or authorizations to implement the program
684 as provided in Section 63G-12-202 ;
685 (b) issue a permit as provided in Section 63G-12-207 ;
686 (c) establish fees in accordance with Section 63J-1-504 for a filing or service required
687 by this part;
688 (d) take action under Section 63G-12-211 ; and
689 (e) report annually to the governor and the Legislature.
690 (2) The department may make rules in accordance with Chapter 3, Utah Administrative
691 Rulemaking Act, to the extent expressly provided for in this part.
692 (3) In implementing this part, the department shall cooperate with other state agencies
693 to minimize any duplication in databases or services required under this part.
694 Section 11. Section 63G-12-202 is enacted to read:
695 63G-12-202. Federal waivers, exemptions, or authorizations -- Implementation
696 without waiver, exemption, or authorization.
697 (1) The department, under the direction of the governor, shall seek one or more federal
698 waivers, exemptions, or authorizations to implement the program.
699 (2) The governor shall actively participate in the effort to obtain one or more federal
700 waivers, exemptions, or authorizations under this section.
701 (3) The department shall implement the program the sooner of:
702 (a) 120 days after the day on which the governor finds that the state has the one or
703 more federal waivers, exemptions, or authorizations needed to implement the program; or
704 (b) July 1, 2013.
705 Section 12. Section 63G-12-203 is enacted to read:
706 63G-12-203. Coordination with other federal or state laws or programs.
707 (1) To the extent feasible, the department shall coordinate the implementation of the
708 program with other existing state and federal laws that relate to immigration and labor,
709 including laws pertaining to obtaining the privilege to drive and to report citizenship status.
710 (2) (a) If a permit holder is not issued a Social Security number, the State Tax
711 Commission shall, by rule made in accordance with Chapter 3, Utah Administrative
712 Rulemaking Act, provide a means for a person who receives services from a permit holder to
713 withhold from compensation paid to the permit holder an amount to be determined by State
714 Tax Commission rule that, as closely as possible, equals the income taxes that would be
715 imposed by state law if the permit holder were an employee with a Social Security number.
716 (b) If a waiver, exemption, or authorization described in Section 63G-12-202 provides
717 for the issuance of a Social Security number to a permit holder, a person who receives services
718 from a permit holder is required to withhold from compensation as provided in Title 59,
719 Chapter 10, Part 4, Withholding of Tax.
720 (c) The rules described in Subsection (2)(a) shall be substantially similar to Title 59,
721 Chapter 10, Part 4, Withholding of Tax.
722 (d) To the extent feasible and consistent with a waiver, exemption, or authority entered
723 into under Section 63G-12-202 , the State Tax Commission shall work with the applicable
724 federal government agencies to ensure that the withholding provided for under this Subsection
725 (2) is compatible with a federal process by which employment taxes are collected that would be
726 imposed under federal law if a permit holder were an employee with a Social Security number.
727 (e) (i) The State Tax Commission shall impose a fee on a person who hires a permit
728 holder as an employee in accordance with this Subsection (2)(e):
729 (A) if as of the program start date the federal government does not collect or provide
730 for the withholding of federal employment taxes;
731 (B) beginning the first day of the calendar quarter immediately following the program
732 start date; and
733 (C) ending the last day of the calendar quarter in which the federal government begins
734 to collect or provide for the withholding of federal employment taxes.
735 (ii) The State Tax Commission shall set the fee equal to the amount that, as closely as
736 possible, equals the federal employment taxes that would be imposed by federal law if the
737 permit holder were hired as an employee with a Social Security number.
738 (iii) The State Tax Commission shall collect the fee in the same manner that it collects
739 state income taxes withheld in accordance with this Subsection (2).
740 (iv) The State Tax Commission may make rules in accordance with Chapter 3, Utah
741 Administrative Rulemaking Act, to establish the procedures for the collection of the fee.
742 (v) The State Tax Commission shall deposit the fee into the restricted account.
743 (vi) The State Tax Commission may have access to a record of the department made
744 under Section 63G-12-210 to the extent necessary to impose a fee under this Subsection (2)(e).
745 (3) The department shall facilitate the use in this state of other employer based work
746 programs that meet the needs of Utah employers by using workers who are not working in Utah
747 and who are not United States citizens. Nothing in this part prevents a person from using an
748 employer based work program described in this Subsection (3) that exists under the auspices of
749 a foreign government in cooperation with the United States government.
750 (4) A permit holder is not eligible for unemployment compensation.
751 Section 13. Section 63G-12-204 is enacted to read:
752 63G-12-204. Obtaining a permit -- Uses of permit.
753 (1) An undocumented individual shall obtain a permit:
754 (a) before providing services to a person in this state under a contract for hire; or
755 (b) in accordance with Subsection (2), by no later than 30 days from the day on which
756 the undocumented individual enters into a contract for hire.
757 (2) (a) By rule made in accordance with Chapter 3, Utah Administrative Rulemaking
758 Act, the department shall provide a procedure under which a person may hire an undocumented
759 individual who does not hold a permit pending the undocumented individual obtaining a permit
760 within 30 days of the day on which the undocumented individual is hired to provide services.
761 (b) An undocumented individual may not provide services under a contract for hire to a
762 person for more than 30 days during a two-year calendar period without obtaining a permit as
763 provided under this part.
764 (3) Subject to Subsection (4), a permit is considered an identification document for
765 purposes of Section 63G-12-401 , and may be used as identification or proof of the permit
766 holder's age for any state or local government required purpose.
767 (4) An undocumented individual may not use a permit:
768 (a) to establish entitlement to a federal, state, or local benefit as described in Section
769 63G-12-402 ; or
770 (b) to obtain work or provide services in a state other than Utah.
771 Section 14. Section 63G-12-205 is enacted to read:
772 63G-12-205. Eligibility criteria to obtain and maintain a guest worker permit.
773 (1) To be eligible to obtain or maintain a guest worker permit, an undocumented
774 individual shall:
775 (a) (i) be 18 years of age or older; or
776 (ii) if younger than 18 years of age, have the permission of a parent or guardian;
777 (b) live in Utah;
778 (c) have worked or lived in Utah before May 10, 2011;
779 (d) provide relevant contact information and regularly update the relevant contact
780 information in a manner required by rule made in accordance with Chapter 3, Utah
781 Administrative Rulemaking Act;
782 (e) provide documentation of a contract for hire under which the undocumented
783 individual begins to provide services within at least 30 days of the day on which the
784 undocumented individual obtains the permit;
785 (f) (i) agree to a criminal background check described in Subsection (3); and
786 (ii) not have been convicted of, pled guilty to, pled no contest to, pled guilty in a
787 similar manner to, or resolved by diversion or its equivalent to a serious felony;
788 (g) provide evidence satisfactory to the department that the person would not be
789 inadmissible for public health grounds under 8 U.S.C. Sec. 1182;
790 (h) (i) be covered by a basic health insurance plan; or
791 (ii) provide evidence satisfactory to the department that the undocumented individual
792 has no medical debt that is past due and agrees to have no medical debt that is past due during
793 the term of the permit; and
794 (i) (i) hold a driving privilege card issued in accordance with Section 53-3-207 ; or
795 (ii) provide evidence satisfactory to the department that the undocumented individual
796 will not drive a motor vehicle in the state.
797 (2) The department may by rule made in accordance with Chapter 3, Utah
798 Administrative Rulemaking Act, provide for the documentation required to establish eligibility
799 under Subsection (1). When making a rule under this section, the department shall use federal
800 standards as a guideline to avoid unnecessary duplication and additional costs.
801 (3) (a) The department shall require an undocumented individual applying for a guest
802 worker permit, or renewing a guest worker permit, to submit to a criminal background check as
803 a condition of receiving or renewing the guest worker permit.
804 (b) An undocumented individual required to submit to a criminal background check
805 under Subsection (3)(a), shall:
806 (i) submit a fingerprint card in a form acceptable to the department; and
807 (ii) consent to a fingerprint background check by:
808 (A) the Utah Bureau of Criminal Identification; and
809 (B) the Federal Bureau of Investigation, including the secure communities program
810 when possible.
811 (c) For an undocumented individual who submits a fingerprint card and consents to a
812 fingerprint background check under Subsection (3)(b), the department may request:
813 (i) criminal background information maintained pursuant to Title 53, Chapter 10, Part
814 2, Bureau of Criminal Identification, from the Bureau of Criminal Identification; and
815 (ii) complete Federal Bureau of Investigation criminal background checks through the
816 national criminal history system and secure communities program.
817 (d) Information obtained by the department from the review of criminal history records
818 received under this Subsection (3) shall be used by the department to determine eligibility to
819 obtain a permit.
820 (e) The department shall:
821 (i) pay to the Federal Bureau of Investigation the costs incurred by the Federal Bureau
822 of Investigation in providing the department criminal background information under this
823 Subsection (3); and
824 (ii) in accordance with Section 63J-1-504 , charge the undocumented individual
825 applying for the permit a fee equal to the aggregate of the costs incurred by the department
826 under this Subsection (3) and the amount paid under Subsection (3)(e)(i).
827 Section 15. Section 63G-12-206 is enacted to read:
828 63G-12-206. Eligibility to obtain and maintain an immediate family permit.
829 To be eligible to obtain or maintain an immediate family permit, an undocumented
830 individual shall:
831 (1) live in Utah;
832 (2) be a member of a guest worker's immediate family; and
833 (3) provide relevant contact information and regularly update the relevant contact
834 information in a manner required by rule made in accordance with Chapter 3, Utah
835 Administrative Rulemaking Act.
836 Section 16. Section 63G-12-207 is enacted to read:
837 63G-12-207. Application and renewal process.
838 (1) The department may not issue a permit under this part until the program is
839 implemented under Section 63G-12-202 .
840 (2) The department shall:
841 (a) create a permit that:
842 (i) is of impervious material that is resistant to wear or damage; and
843 (ii) minimizes the risk that the permit may be forged, falsified, or counterfeited; and
844 (b) ensure that a permit:
845 (i) includes a photograph of the undocumented individual to whom the permit is
847 (ii) prominently states the day on which the permit expires; and
848 (iii) prominently states the type of permit.
849 (3) A permit expires two years from the day on which the department issues the permit.
850 (4) (a) Before an undocumented individual may apply for an initial permit under this
851 part the undocumented individual shall commit to pay a fine equal to:
852 (i) $1,000, if the undocumented individual enters into the United States legally, but at
853 the time of paying the fine is not in compliance with the Immigration and Nationality Act, 8
854 U.S.C. Sec. 1101 et seq. with regard to presence in the United States; or
855 (ii) $2,500, if the undocumented individual enters into the United States illegally.
856 (b) The department by rule made in accordance with Chapter 3, Utah Administrative
857 Rulemaking Act, shall make rules that provide for:
858 (i) how an undocumented individual demonstrates a commitment to pay the fine
859 required under Subsection (4)(a);
860 (ii) one or more payment plans that an undocumented individual may use to pay a fine
861 required under Subsection (4)(a); and
862 (iii) the consequences for failure to pay the entire amount of a fine required under
863 Subsection (4)(a).
864 (5) After committing to pay the fine in accordance with Subsection (4), to apply for or
865 renew a permit, an undocumented individual shall submit to the department, in a form
866 acceptable under this part:
867 (a) an application;
868 (b) documentation of meeting the criteria in Section 63G-12-205 or 63G-12-206 ;
869 (c) for a renewal, documentation of efforts to comply with Section 63G-12-209 ;
870 (d) a signed statement verifying the information in the application and documentation;
872 (e) a fee established by the department in accordance with Section 63J-1-504 .
873 (6) If an undocumented individual submits a complete application under Subsection (5)
874 and the department determines that the undocumented individual meets the criteria of Section
875 63G-12-205 or 63G-12-206 , the department shall issue or renew:
876 (a) a guest worker permit, if the undocumented individual qualifies under Section
877 63G-12-205 ; and
878 (b) an immediate family permit, if the undocumented individual qualifies under
879 Section 63G-12-206 .
880 (7) An undocumented individual may appeal a denial of a permit under this section in
881 accordance with Chapter 4, Administrative Procedures Act.
882 (8) (a) If a waiver, exemption, or authorization provides for the following, in addition
883 to the requirements of Subsection (5), for an application to be considered complete for
884 purposes of Subsection (6) an undocumented individual applying for a guest worker permit
886 (i) post a bond with the department in the amount of $10,000 against which the
887 department may bring an action for a violation of this part; or
888 (ii) provide written certification by the undocumented individual's country of origin in
889 accordance with Subsection (8)(b) of a guarantee of compliance with this part.
890 (b) (i) In accordance with Chapter 3, Utah Administrative Rulemaking Act, the
891 department shall make rules providing for what the department would consider being a
892 "guarantee of compliance" by a country of origin for purposes of Subsection (8)(a).
893 (ii) A rule made under this Subsection (8)(b) shall provide that the department may not
894 accept a guarantee of compliance from a specific foreign country if the department determines
895 a significant percentage of the guest workers who submit a guarantee of compliance from that
896 foreign country cannot be located after or during the term of a guest worker permit.
897 Section 17. Section 63G-12-208 is enacted to read:
898 63G-12-208. Conditions during permit term.
899 (1) A permit holder shall continue to meet the eligibility criteria under Section
900 63G-12-205 or 63G-12-206 for the type of permit held by the permit holder.
901 (2) A permit is automatically revoked if after issuance of the permit:
902 (a) the permit holder to whom it is issued is convicted of, pleads guilty to, pleads no
903 contest to, pleads guilty in a similar manner to, or has resolved by diversion or its equivalent a
904 serious felony;
905 (b) for a guest worker permit, the permit holder to whom it is issued does not provide
906 services under a contract for hire for more than one year; or
907 (c) for an immediate family permit, the guest worker permit under which the
908 immediate family member's permit is issued is revoked or expires under this part.
909 Section 18. Section 63G-12-209 is enacted to read:
910 63G-12-209. Proficiency standards for English.
911 (1) A permit holder shall in good faith use best efforts to become proficient in the
912 English language at or above the equivalent to an intermediate level on a language proficiency
913 assessment test used by the State Office of Education for purposes of secondary school
915 (2) An undocumented individual shall pay the costs of complying with this section.
916 Section 19. Section 63G-12-210 is enacted to read:
917 63G-12-210. Verification of valid permit -- Protected status of information.
918 (1) (a) The department shall develop a verification procedure by rule made in
919 accordance with Chapter 3, Utah Administrative Rulemaking Act, for a person who hires a
920 permit holder to verify with the department that the permit is valid as required by Section
921 63G-12-301 .
922 (b) The verification procedure adopted under this Subsection (1) shall:
923 (i) be substantially similar to the employer requirements to verify federal employment
924 status under the e-verify program; and
925 (ii) provide that an undocumented individual may appeal a determination that a permit
926 is invalid in accordance with Chapter 4, Administrative Procedures Act.
927 (2) Subject to Section 63G-12-212 , a record under this part is a protected record under
928 Chapter 2, Government Records Access and Management Act, except that a record may not be
929 shared under Section 63G-2-206 , unless:
930 (a) requested by the Office of Legislative Auditor General in accordance with Section
931 36-12-15 ;
932 (b) disclosed to the State Tax Commission as provided in Subsection
933 63G-12-203 (2)(e)(vi); or
934 (c) disclosed to a federal government entity in accordance with this part or a waiver,
935 exemption, or authorization described in Section 63G-12-202 .
936 (3) The state is not liable to any person for:
937 (a) the design, implementation, or operation of a verification procedure under this part;
938 (b) the collection and disclosure of information as part of a verification procedure
939 under this part; or
940 (c) the determination that a permit is invalid.
941 Section 20. Section 63G-12-211 is enacted to read:
942 63G-12-211. Prohibited conduct -- Administrative penalties -- Criminal penalties.
943 (1) A permit holder may not file for or receive unemployment benefits.
944 (2) A person may not:
945 (a) furnish false or forged information or documentation in support of an application;
946 (b) alter the information on a permit;
947 (c) if the person is a guest worker, be reported absent from work for 10 consecutive
948 days without the approval of the person who hires the guest worker;
949 (d) allow an individual to use a permit if the individual is not entitled to use the permit;
950 (e) display or represent that a permit is issued to an individual, if the permit is not
951 issued to the individual;
952 (f) display a revoked permit as a valid permit;
953 (g) knowingly or with reckless disregard acquire, use, display, or transfer an item that
954 purports to be a valid permit, but that is not a valid permit; or
955 (h) otherwise violate this part.
956 (3) For a violation described in Subsections (1) and (2), the department may:
957 (a) suspend, limit, or revoke and repossess a permit;
958 (b) impose a civil penalty not to exceed $750 for each violation; or
959 (c) take a combination of actions under this section.
960 (4) A person is guilty of a class B misdemeanor if the person:
961 (a) furnishes false or forged information or documentation in support of an application;
963 (b) alters the information on a permit.
964 Section 21. Section 63G-12-212 is enacted to read:
965 63G-12-212. Sharing of information related to enforcement.
966 (1) The department shall provide the notice described in Subsection (2), if the
967 department determines that an undocumented individual:
968 (a) has the undocumented individual's permit revoked; or
969 (b) permits the undocumented individual's permit to expire and the department has
970 reason to believe that the undocumented individual continues to reside in the state.
971 (2) (a) The department shall provide the notice required by Subsection (1) to:
972 (i) Utah's attorney general; S. and
975 (b) The notice described in Subsection (2)(a) shall:
976 (i) include:
977 (A) the last known address of the undocumented individual; and
978 (B) the basis of the notice described in Subsection (1); and
979 (ii) be sent promptly after the day on which the time to appeal, if any, the action that is
980 the basis for the notification under Subsection (1) ends.
981 Section 22. Section 63G-12-301 is enacted to read:
983 63G-12-301. Employing unauthorized alien -- Verification of employment
985 (1) On and after the program start date, an employer may not knowingly employ an
986 unauthorized alien who does not hold a permit.
987 (2) On and after the program start date, a private employer employing 15 or more
988 employees within the state for each working day in each of 20 calendar weeks or more in the
989 current or preceding calendar year, after hiring an employee, shall verify the employment
990 eligibility of the new employee:
991 (a) through the e-verify program if the individual does not hold a permit; and
992 (b) through the u-verify program if the individual holds a permit.
993 (3) A private employer shall keep a record of the verification required by Subsection
994 (2) for the longer of:
995 (a) the duration of the employee's employment; or
996 (b) at least three years from the date of verification.
997 (4) On and after the program start date, a private employer shall terminate the
998 employment of an undocumented individual if the undocumented individual is determined by
999 the department to not hold a valid permit.
1000 Section 23. Section 63G-12-302 , which is renumbered from Section 63G-11-103 is
1001 renumbered and amended to read:
1003 use -- Performance of services -- Unlawful practice.
1004 (1) As used in this section:
1005 (a) "Contract" means an agreement for the procurement of goods or services that is
1006 awarded through a request for proposals process with a public employer and includes a sole
1007 source contract.
1008 (b) "Contractor" means a subcontractor, contract employee, staffing agency, or any
1009 contractor regardless of its tier.
1029 (2) (a) [
1030 Status Verification System to verify the federal employment authorization status of a new
1032 (b) This section shall be enforced without regard to race, religion, gender, ethnicity, or
1033 national origin.
1034 (3) (a) [
1035 (i) a public employer may not enter into a contract for the physical performance of
1036 services within the state with a contractor unless the contractor registers and participates in the
1037 Status Verification System to verify the work eligibility status of the contractor's new
1038 employees that are employed in the state; and
1039 (ii) a contractor shall register and participate in the Status Verification System in order
1040 to enter into a contract with a public employer.
1041 (b) (i) For purposes of compliance with Subsection (3)(a), a contractor is individually
1042 responsible for verifying the employment status of only new employees who work under the
1043 contractor's supervision or direction and not those who work for another contractor or
1044 subcontractor, except as otherwise provided in Subsection (3)(b)(ii).
1045 (ii) Each contractor or subcontractor who works under or for another contractor shall
1046 certify to the main contractor by affidavit that the contractor or subcontractor has verified
1047 through the Status Verification System the employment status of each new employee of the
1048 respective contractor or subcontractor.
1049 (c) Subsection (3)(a) does not apply to a contract:
1050 (i) entered into by the entities referred to in Subsection (3)(a) prior to July 1, 2009,
1051 even though the contract may involve the physical performance of services within the state on
1052 or after July 1, 2009; or
1053 (ii) that involves underwriting, remarketing, broker-dealer activities, securities
1054 placement, investment advisory, financial advisory, or other financial or investment banking
1056 (4) (a) It is unlawful for an employing entity in the state to discharge an employee
1057 working in Utah who is a United States citizen or permanent resident alien and replace the
1058 employee with, or have the employee's duties assumed by, an employee who:
1059 (i) the employing entity knows, or reasonably should have known, is an unauthorized
1060 alien hired on or after July 1, 2009; and
1061 (ii) is working in the state in a job category:
1062 (A) that requires equal skill, effort, and responsibility; and
1063 (B) which is performed under similar working conditions, as defined in 29 U.S.C., Sec.
1064 206 (d)(1), as the job category held by the discharged employee.
1065 (b) An employing entity, which on the date of a discharge in question referred to in
1066 Subsection (4)(a) is enrolled in and using the Status Verification System to verify the
1067 employment eligibility of its employees in Utah who are hired on or after July 1, 2009, is
1068 exempt from liability, investigation, or lawsuit arising from an action under this section.
1069 (c) A cause of action for a violation of this Subsection (4) arises exclusively from the
1070 provisions of this Subsection (4).
1071 (5) On and after the program start date:
1072 (a) a public employer, after hiring an employee, shall verify the employment eligibility
1073 of the new employee:
1074 (i) through the status verification system if the individual does not hold a permit; and
1075 (ii) through the u-verify program if the individual holds a permit; and
1076 (b) a contractor is considered to be in compliance with this section if, after hiring an
1077 employee, the contractor verifies the employment eligibility of the new employee:
1078 (i) through the status verification system if the individual does not hold a permit; and
1079 (ii) through the u-verify program if the individual holds a permit.
1080 Section 24. Section 63G-12-303 is enacted to read:
1081 63G-12-303. Liability protections.
1082 (1) On or after the program start date, a private employer may not be held civilly liable
1083 under state law in a cause of action for the private employer's unlawful hiring of an
1084 unauthorized alien if:
1085 (a) the private employer complies with Subsection 63G-12-301 (2); and
1086 (b) the information obtained after verification under Subsection 63G-12-301 (2)
1087 indicates that:
1088 (i) the employee's federal legal status allowed the private employer to hire the
1089 employee; or
1090 (ii) on and after the program start date, the employee held a valid permit.
1091 (2) On or after the program start date, a private employer may not be held civilly liable
1092 under state law in a cause of action for the private employer's refusal to hire an individual if:
1093 (a) the private employer complies with Subsection 63G-12-301 (2); and
1094 (b) the information obtained after verification under Subsection 63G-12-301 (2)
1095 indicates that the employee:
1096 (i) was an unauthorized alien; and
1097 (ii) on and after the program start date, does not hold a valid permit.
1098 (3) This chapter does not create a cause of action, on the basis of discrimination or
1099 otherwise, for not hiring an individual who holds a permit.
1100 (4) This section applies to a private employer that verifies the employment eligibility of
1101 a new employee as described in Subsection 63G-12-301 (2) regardless of whether the private
1102 employer has less than 15 employees within the state.
1103 Section 25. Section 63G-12-304 is enacted to read:
1104 63G-12-304. Voluntary registration by private employer certifying participation
1105 in verification.
1106 (1) (a) On or after the program start date, a private employer may register with the
1107 department certifying that the private employer is in compliance with Subsection
1108 63G-12-301 (2).
1109 (b) A private employer may register with the department under this section regardless
1110 of whether the private employer is required to comply with Subsection 63G-12-301 (2).
1111 (2) To register or renew a registration with the department under this part, a private
1112 employer shall:
1113 (a) file a registration statement with the department that certifies compliance with
1114 Subsection 63G-12-301 (2); and
1115 (b) pay a fee established by the department in accordance Section 63J-1-504 that
1116 reflects the cost of registering employers under this section and publishing the list described in
1117 Subsection (5).
1118 (3) A registration under this part expires every two years on the anniversary of the day
1119 on which the registration is filed with the department.
1120 (4) In accordance with Chapter 3, Utah Administrative Rulemaking Act, the
1121 department may make rules to provide for:
1122 (a) the form of a registration statement under this section;
1123 (b) the process of filing a registration statement under this section; and
1124 (c) the process of renewing a registration statement under this section.
1125 (5) On and after the program start date, the department shall publish electronically a
1126 list of private employers who register under this section on a website accessible to the general
1127 public without a charge.
1128 (6) The department shall coordinate with the Department Commerce to transfer the
1129 registration operated by the Department of Commerce to the department effective on the
1130 program start date.
1131 Section 26. Section 63G-12-305 is enacted to read:
1132 63G-12-305. Administrative actions -- Defenses.
1133 (1) On and after the program start date and in accordance with Chapter 4,
1134 Administrative Procedures Act, the department may bring agency action against a private
1135 employer who violates Subsection 63G-12-301 (1) to impose a penalty described in Section
1136 63G-12-306 .
1137 (2) (a) To determine whether an employee is an unauthorized alien for purposes of
1138 Subsection (1), the department shall consider only the federal government's determination
1139 pursuant to 8 U.S.C. Sec. 1373(c).
1140 (b) The federal government's determination creates a rebuttable presumption of the
1141 employee's lawful status. The department may request the federal government to provide
1142 automated or testimonial verification pursuant to 8 U.S.C. Sec. 1373(c).
1143 (3) For the purposes of this part, proof of verifying the employment authorization in
1144 accordance with Subsection 63G-12-301 (2) creates a rebuttable presumption that an employer
1145 did not knowingly employ an unauthorized alien who does not hold a valid permit.
1146 (4) (a) For the purposes of this section, an employer that establishes that the employer
1147 has complied in good faith with the requirements of 8 U.S.C. Sec. 1324a(b) establishes an
1148 affirmative defense that the employer did not knowingly employ an unauthorized alien.
1149 (b) An employer is considered to have complied with the requirements of 8 U.S.C. Sec.
1150 1324a(b), notwithstanding an isolated, sporadic, or accidental technical or procedural failure to
1151 meet the requirements, if there is a good faith attempt to comply with the requirements.
1152 Section 27. Section 63G-12-306 is enacted to read:
1153 63G-12-306. Penalties.
1154 (1) As used in this section:
1155 (a) "Applicable license" means a license issued under:
1156 (i) Title 32B, Alcoholic Beverage Control Act;
1157 (ii) Title 58, Occupations and Professions; or
1158 (iii) Title 61, Securities Division - Real Estate Division.
1159 (b) "First violation" means the first time the department imposes a penalty under this
1160 section, regardless of the number of individuals the private employer hired in violation of
1161 Subsection 63G-12-301 (1).
1162 (c) "Second violation" means the second time the department imposes a penalty under
1163 this section, regardless of the number of individuals the private employer hired in violation of
1164 Subsection 63G-12-301 (1).
1165 (d) "Third or subsequent violation" means a violation of Subsection 63G-12-301 (1)
1166 committed after a second violation.
1167 (2) (a) On or after the program start date, a private employer who violates Subsection
1168 63G-12-301 (1) is subject to a penalty provided in this section under an action brought by the
1169 department in accordance with Section 63B-12-305 .
1170 (b) For a first violation of Subsection 63G-12-301 (1), the department shall impose a
1171 civil penalty on the private employer not to exceed $100 for each individual employed by the
1172 private employer during the time period specified in the notice of agency action who is an
1173 unauthorized alien who does not hold a valid permit.
1174 (c) For a second violation of Subsection 63G-12-301 (1), the department shall impose a
1175 civil penalty on the private employer not to exceed $500 for each individual employed by the
1176 private employer during the time period specified in the notice of agency action who is an
1177 unauthorized alien who does not hold a valid permit.
1178 (d) For a third or subsequent violation of Subsection 63-12-301 (1), the department
1180 (i) order the revocation of the one or more applicable licenses that are issued to an
1181 owner, officer, director, manager, or other individual in a similar position for the private
1182 employer for a period not to exceed one year; or
1183 (ii) if no individual described in Subsection (2)(d)(i) holds an applicable license,
1184 impose a civil penalty on the private employer not to exceed $10,000.
1185 (3) (a) If the department finds a third or subsequent violation, the department shall
1186 notify the Department of Commerce and the Department of Alcoholic Beverage Control once
1187 the department's order:
1188 (i) is not appealed, and the time to appeal has expired; or
1189 (ii) is appealed, and is affirmed, in whole or in part on appeal.
1190 (b) The notice required under Subsection (3)(a) shall state:
1191 (i) that the department has found a third or subsequent violation;
1192 (ii) that any applicable license held by an individual described in Subsection (2)(d)(i) is
1193 to be revoked; and
1194 (iii) the time period for the revocation, not to exceed one year.
1195 (c) The department shall base its determination of the length of revocation under this
1196 section on evidence or information submitted to the department during the action under which
1197 a third or subsequent violation is found, and shall consider the following factors, if relevant:
1198 (i) the number of unauthorized aliens who do not hold a permit that are employed by
1199 the private employer;
1200 (ii) prior misconduct by the private employer;
1201 (iii) the degree of harm resulting from the violation;
1202 (iv) whether the private employer made good faith efforts to comply with any
1203 applicable requirements;
1204 (v) the duration of the violation;
1205 (vi) the role of the individuals described in Subsection (2)(d)(i) in the violation; and
1206 (vii) any other factor the department considers appropriate.
1207 (4) Within 10 business days of receipt of notice under Subsection (3), the Department
1208 of Commerce and the Department of Alcoholic Beverage Control shall:
1209 (a) (i) if the Department of Commerce or Alcoholic Beverage Control Commission has
1210 issued an applicable license to an individual described in Subsection (2)(d)(i), notwithstanding
1211 any other law, revoke the applicable license; and
1212 (ii) notify the department that the applicable license is revoked; or
1213 (b) if the Department of Commerce or Alcoholic Beverage Control Commission has
1214 not issued an applicable license to an individual described in Subsection (2)(d)(i), notify the
1215 department that an applicable license has not been issued to an individual described in
1216 Subsection (2)(d)(i).
1217 (5) If an individual described in Subsection (2)(d)(i) is licensed to practice law in the
1218 state and the department finds a third or subsequent violation of Subsection 63G-12-301 (1), the
1219 department shall notify the Utah State Bar of the third and subsequent violation.
1220 Section 28. Section 63G-12-401 , which is renumbered from Section 63G-11-102 is
1221 renumbered and amended to read:
1224 citizens, nationals, and legal permanent resident aliens -- Exceptions.
1225 (1) The following entities may create, publish, or otherwise manufacture an
1226 identification document, identification card, or identification certificate and possess an
1227 engraved plate or other device for the printing of an identification document:
1228 (a) a federal, state, or local government agency for employee identification, which is
1229 designed to identify the bearer as an employee;
1230 (b) a federal, state, or local government agency for purposes authorized or required by
1231 law or a legitimate purpose consistent with the duties of the agency, including such documents
1232 as voter identification cards, identification cards, passports, birth certificates, and Social
1233 Security cards; and
1234 (c) a public school or state or private educational institution to identify the bearer as an
1235 administrator, faculty member, student, or employee.
1236 (2) The name of the issuing entity shall be clearly printed upon the face of the
1237 identification document.
1238 (3) Except as otherwise provided in Subsections (4) and (5) or by federal law, an entity
1239 providing an identity document, card, or certificate under Subsection (1)(b) or (c) shall issue
1240 the document, card, or certificate only to:
1241 (a) a United States citizen;
1242 (b) a national; or
1243 (c) a legal permanent resident alien.
1244 (4) (a) Subsection (3) does not apply to an applicant for an identification document
1245 who presents, in person, valid documentary evidence of the applicant's:
1246 (i) unexpired immigrant or nonimmigrant visa status for admission into the United
1248 (ii) pending or approved application for asylum in the United States;
1249 (iii) admission into the United States as a refugee;
1250 (iv) pending or approved application for temporary protected status in the United
1252 (v) approved deferred action status; or
1253 (vi) pending application for adjustment of status to legal permanent resident or
1254 conditional resident.
1255 (b) (i) An entity listed in Subsection (1)(b) or (c) may issue a Subsection (1)(b) or (c)
1256 identification document to an applicant who satisfies the requirements of Subsection (4)(a).
1257 (ii) Except as otherwise provided by federal law, the document is valid only:
1258 (A) during the period of time of the individual's authorized stay in the United States; or
1259 (B) for one year from the date of issuance if there is no definite end to the individual's
1260 period of authorized stay.
1261 (iii) An entity issuing an identification document under this Subsection (4) shall clearly
1262 indicate on the document:
1263 (A) that it is temporary; and
1264 (B) its expiration date.
1265 (c) An individual may renew a document issued under this Subsection (4) only upon
1266 presentation of valid documentary evidence that the status by which the individual originally
1267 qualified for the identification document has been extended by the United States Citizenship
1268 and Immigration Services or other authorized agency of the United States Department of
1269 Homeland Security.
1270 (5) (a) Subsection (3) does not apply to an identification document issued under
1271 Subsection (1)(c) that:
1272 (i) is only valid for use on the educational institution's campus or facility; and
1273 (ii) includes a statement of the restricted use conspicuously printed upon the face of the
1274 identification document.
1275 (b) Subsection (3) does not apply to a license certificate, driving privilege card, or
1276 identification card issued or renewed under Title 53, Chapter 3, Uniform Driver License Act.
1277 (c) Subsection (3) does not apply to a public transit pass issued by a public transit
1278 district as defined in Title 17B, Chapter 2a, Part 8, Public Transit District Act, that:
1279 (i) is only valid for use on the public transit system; and
1280 (ii) includes a statement of the restricted use conspicuously printed on the face of the
1281 public transit pass.
1282 (d) Subsection (3) does not apply to a permit issued under Section 63G-12-207 .
1283 (6) This section shall be enforced without regard to race, religion, gender, ethnicity, or
1284 national origin.
1285 Section 29. Section 63G-12-402 , which is renumbered from Section 63G-11-104 is
1286 renumbered and amended to read:
1288 -- Verification -- Exceptions -- Fraudulently obtaining benefits -- Criminal penalties --
1289 Annual report.
1294 an agency or political subdivision of the state shall verify the lawful presence in the United
1295 States of an individual at least 18 years of age who applies for:
1296 (a) a state or local public benefit as defined in 8 U.S.C. Sec. 1621; or
1297 (b) a federal public benefit as defined in 8 U.S.C. Sec. 1611, that is administered by an
1298 agency or political subdivision of this state.
1300 ethnicity, or national origin.
1302 (a) any purpose for which lawful presence in the United States is not restricted by law,
1303 ordinance, or regulation;
1304 (b) assistance for health care items and services that:
1305 (i) are necessary for the treatment of an emergency medical condition, as defined in 42
1306 U.S.C. Sec. 1396b(v)(3), of the individual involved; and
1307 (ii) are not related to an organ transplant procedure;
1308 (c) short-term, noncash, in-kind emergency disaster relief;
1309 (d) public health assistance for immunizations with respect to immunizable diseases
1310 and for testing and treatment of symptoms of communicable diseases whether or not the
1311 symptoms are caused by the communicable disease;
1312 (e) programs, services, or assistance such as soup kitchens, crisis counseling and
1313 intervention, and short-term shelter, specified by the United States Attorney General, in the
1314 sole and unreviewable discretion of the United States Attorney General after consultation with
1315 appropriate federal agencies and departments, that:
1316 (i) deliver in-kind services at the community level, including through public or private
1317 nonprofit agencies;
1318 (ii) do not condition the provision of assistance, the amount of assistance provided, or
1319 the cost of assistance provided on the income or resources of the individual recipient; and
1320 (iii) are necessary for the protection of life or safety;
1321 (f) the exemption for paying the nonresident portion of total tuition as set forth in
1322 Section 53B-8-106 ;
1323 (g) an applicant for a license under Section 61-1-4 , if the applicant:
1324 (i) is registered with the Financial Industry Regulatory Authority; and
1325 (ii) files an application with the state Division of Securities through the Central
1326 Registration Depository;
1327 (h) a state public benefit to be given to an individual under Title 49, Utah State
1328 Retirement and Insurance Benefit Act;
1329 (i) a home loan that will be insured, guaranteed, or purchased by:
1330 (i) the Federal Housing Administration, the Veterans Administration, or any other
1331 federal agency; or
1332 (ii) an enterprise as defined in 12 U.S.C. Sec. 4502;
1333 (j) a subordinate loan or a grant that will be made to an applicant in connection with a
1334 home loan that does not require verification under Subsection [
1335 (k) an applicant for a license issued by the Department of Commerce, if the applicant
1336 provides the Department of Commerce:
1337 (i) certification, under penalty of perjury, that the applicant is:
1338 (A) a United States citizen;
1339 (B) a qualified alien as defined in 8 U.S.C. Sec. 1641; or
1340 (C) lawfully present in the United States; and
1341 (ii) a valid driver license number for a driver license issued by:
1342 (A) Utah on or after January 1, 2010; or
1343 (B) a state other than Utah that as part of issuing the driver license verifies an
1344 individual's lawful presence in the United States.
1346 the United States of an applicant under this section shall require the applicant to certify under
1347 penalty of perjury that:
1352 (b) The certificate required under this Subsection (4) shall include a statement advising
1353 the signer that providing false information subjects the signer to penalties for perjury.
1355 Subsection [
1357 fraudulent statement or representation in a certification under Subsection [
1358 (4) is subject to the criminal penalties applicable in this state for:
1359 (i) making a written false statement under Subsection 76-8-504 (2); and
1360 (ii) fraudulently obtaining:
1361 (A) public assistance program benefits under Sections 76-8-1205 and 76-8-1206 ; or
1362 (B) unemployment compensation under Section 76-8-1301 .
1363 (b) If the certification constitutes a false claim of United States citizenship under 18
1364 U.S.C. Sec. 911, the agency or political subdivision shall file a complaint with the United
1365 States Attorney General for the applicable district based upon the venue in which the
1366 application was made.
1367 (c) If an agency or political subdivision receives verification that a person making an
1368 application for a benefit, service, or license is not a qualified alien, the agency or political
1369 subdivision shall provide the information to the Office of the Attorney General unless
1370 prohibited by federal mandate.
1372 this section that:
1373 (a) clearly improve the efficiency of or reduce delay in the verification process; or
1374 (b) provide for adjudication of unique individual circumstances where the verification
1375 procedures in this section would impose an unusual hardship on a legal resident of Utah.
1377 state, local, or federal benefit, as defined in 8 U.S.C. Sec. 1611 and 1621, in violation of this
1380 public benefits shall:
1381 (a) provide an annual report to the governor, the president of the Senate, and the
1382 speaker of the House regarding its compliance with this section; and
1383 (b) (i) monitor the federal SAVE program for application verification errors and
1384 significant delays;
1385 (ii) provide an annual report on the errors and delays to ensure that the application of
1386 the federal SAVE program is not erroneously denying a state or local benefit to a legal resident
1387 of the state; and
1388 (iii) report delays and errors in the federal SAVE program to the United States
1389 Department of Homeland Security.
1390 Section 30. Section 63I-2-173 is enacted to read:
1391 63I-2-173. Repeal dates -- Title 13.
1392 Title 13, Chapter 47, Private Employer Verification Act, is repealed on the program
1393 start date, as defined in Section 63G-12-102 .
1394 Section 31. Section 63J-1-602.4 is amended to read:
1395 63J-1-602.4. List of nonlapsing funds and accounts -- Title 61 through Title 63M.
1396 (1) The Utah Housing Opportunity Restricted Account created in Section 61-2-204 .
1397 (2) Funds paid to the Division of Real Estate for the cost of a criminal background
1398 check for a mortgage loan license, as provided in Section 61-2c-202 .
1399 (3) Funds paid to the Division of Real Estate for the cost of a criminal background
1400 check for principal broker, associate broker, and sales agent licenses, as provided in Section
1401 61-2f-204 .
1402 (4) Certain funds donated to the Department of Human Services, as provided in
1403 Section 62A-1-111 .
1404 (5) Certain funds donated to the Division of Child and Family Services, as provided in
1405 Section 62A-4a-110 .
1406 (6) Appropriations to the Division of Services for People with Disabilities, as provided
1407 in Section 62A-5-102 .
1408 (7) Certain donations to the Division of Substance Abuse and Mental Health, as
1409 provided in Section 62A-15-103 .
1410 (8) Assessments for DUI violations that are forwarded to an account created by a
1411 county treasurer, as provided in Section 62A-15-503 .
1412 (9) The Risk Management Fund created under Section 63A-4-201 .
1413 (10) The Child Welfare Parental Defense Fund created in Section 63A-11-203 .
1414 (11) The Constitutional Defense Restricted Account created in Section 63C-4-103 .
1415 (12) A portion of the funds appropriated to the Utah Seismic Safety Commission, as
1416 provided in Section 63C-6-104 .
1417 (13) Funding for the Medical Education Program administered by the Medical
1418 Education Council, as provided in Section 63C-8-102 .
1419 (14) Certain money payable for commission expenses of the Pete Suazo Utah Athletic
1420 Commission, as provided under Section 63C-11-301 .
1421 (15) Funds collected for publishing the Division of Administrative Rules' publications,
1422 as provided in Section 63G-3-402 .
1423 (16) The Immigration Act Restricted Account created in Section 63G-12-103 .
1425 provided in Section 63H-1-504 .
1427 Development's Enterprise Zone Act, as provided in Section 63M-1-416 .
1429 63M-1-1406 .
1431 Restricted Account, as provided in Section 63M-1-2003 .
1433 Authority, created under Section 63M-2-301 , as provided under Section 63M-2-302 .
1435 Section 63M-1-2303 .
1436 Section 32. Section 67-5-22.7 is amended to read:
1437 67-5-22.7. Multi-agency strike force to combat violent and other major felony
1438 crimes associated with illegal immigration and human trafficking -- Fraudulent
1439 Documents Identification Unit.
1440 (1) The Office of the Attorney General is authorized to administer and coordinate the
1441 operation of a multi-agency strike force to combat violent and other major felony crimes
1442 committed within the state that are associated with illegal immigration and human trafficking.
1443 (2) The office shall invite officers of the U.S. Immigration and Customs Enforcement
1444 and state and local law enforcement personnel to participate in this mutually supportive,
1445 multi-agency strike force to more effectively utilize their combined skills, expertise, and
1447 (3) The strike force shall focus its efforts on detecting, investigating, deterring, and
1448 eradicating violent and other major felony criminal activity related to illegal immigration and
1449 human trafficking.
1450 (4) In conjunction with the strike force and subject to available funding, the Office of
1451 the Attorney General shall establish a Fraudulent Documents Identification Unit:
1452 (a) for the primary purpose of investigating, apprehending, and prosecuting individuals
1453 or entities that participate in the sale or distribution of fraudulent documents used for
1454 identification purposes; [
1455 (b) to specialize in fraudulent identification documents created and prepared for
1456 individuals who are unlawfully residing within the state[
1457 (c) to administer the Identity Theft Victims Restricted Account created under
1458 Subsection (5).
1459 (5) (a) There is created a restricted account in the General Fund known as the "Identity
1460 Theft Victims Restricted Account."
1461 (b) The Identity Theft Victims Restricted Account shall consist of money appropriated
1462 to the Identity Theft Victims Restricted Account by the Legislature.
1463 (c) Subject to appropriations from the Legislature, beginning on the program start date,
1464 as defined in 63G-12-102 , the Fraudulent Documents Identification Unit may expend the
1465 money in the Identity Theft Victims Restricted Account to pay a claim as provided in this
1466 Subsection (5) to a person who is a victim of identity theft prosecuted under Section 76-6-1102
1467 or 76-10-1801 .
1468 (d) To obtain payment from the Identity Theft Victims Restricted Account, a person
1469 shall file a claim with the Fraudulent Documents Identification Unit by no later than one year
1470 after the day on which an individual is convicted, pleads guilty, pleads no contest to, pleads
1471 guilty in a similar manner to, or resolved by diversion or its equivalent an offense under
1472 Section 76-6-1102 or 76-10-1801 for the theft of the identity of the person filing the claim.
1473 (e) A claim filed under this Subsection (5) shall include evidence satisfactory to the
1474 Fraudulent Documents Identification Unit:
1475 (i) that the person is the victim of identity theft described in Subsection (5)(d); and
1476 (ii) of the actual damages experienced by the person as a result of the identity theft that
1477 are not recovered from a public or private source.
1478 (f) The Fraudulent Documents Identification Unit shall pay a claim from the Identity
1479 Theft Victims Restricted Account:
1480 (i) if the Fraudulent Documents Identification Unit determines that the person has
1481 provided sufficient evidence to meet the requirements of Subsection (5)(e);
1482 (ii) in the order that claims are filed with the Fraudulent Documents Identification
1483 Unit; and
1484 (iii) to the extent that it there is money in the Identity Theft Victims Restricted
1486 (g) If there is insufficient money in the Identity Theft Victims Restrict Account when a
1487 claim is filed under this Subsection (5) to pay the claim in full, the Fraudulent Documents
1488 Identification Unit may pay a claim when there is sufficient money in the account to pay the
1489 claim in the order that the claims are filed.
1491 and the Legislature's Law Enforcement and Criminal Justice Interim Committee by December
1492 1, together with any proposed recommendations for modifications to this section.
1493 Section 33. Section 76-9-1001 is enacted to read:
1495 76-9-1001. Title.
1496 This part is known as the "Illegal Immigration Enforcement Act."
1497 Section 34. Section 76-9-1002 is enacted to read:
1498 76-9-1002. Definitions.
1499 As used in this part:
1500 (1) "Alien" means a person who is not a citizen or national of the United States.
1501 (2) "Law enforcement agency" means an entity of the federal government, a state, or a
1502 political subdivision of a state, including a state institution of higher education, that exists
1503 primarily to prevent and detect crime and enforce criminal laws, statutes, and ordinances.
1504 (3) "Law enforcement officer" has the same meaning as in Section 53-13-103 .
1505 (4) "Lawfully present in the United States" is as defined in 8 C.F.R. Sec. 103.12,
1506 except that on or after the program start date, as defined in Section 63G-12-102 , an individual
1507 who holds a valid permit, as defined in Section 63G-12-102 , is considered lawfully present in
1508 the United States for purposes of this part.
1509 (5) "Verify immigration status" or "verification of immigration status" means the
1510 determination of a person's immigration status by:
1511 (a) a law enforcement officer who is authorized by a federal agency to determine an
1512 alien's immigration status; or
1513 (b) the United States Department of Homeland Security, including Immigration and
1514 Customs Enforcement, or other federal agency authorized to provide immigration status as
1515 provided by 8 U.S.C. Sec. 1373(c).
1516 Section 35. Section 76-9-1003 is enacted to read:
1517 76-9-1003. Detention or arrest -- Determination of immigration status.
1518 (1) (a) Except as otherwise provided in this Subsection (1), a law enforcement officer:
1519 (i) shall request verification of the immigration status of an individual when the law
1520 enforcement officer acting in the enforcement of a state law or local ordinance:
1521 (A) conducts a lawful stop, detention, or arrest of the individual for an alleged offense
1522 that is a class A misdemeanor or a felony; and
1523 (B) the individual is unable to provide to the law enforcement officer a document listed
1524 in Section 76-9-1004 ; and
1525 (ii) may request verification of the immigration status of an individual when the law
1526 enforcement officer acting in the enforcement of a state law or local ordinance:
1527 (A) conducts a lawful stop, detention, or arrest of the individual for an alleged offense
1528 that is a class B misdemeanor or a class C misdemeanor; and
1529 (B) the individual is unable to provide to the law enforcement officer a document listed
1530 in Section 76-9-1004 .
1531 (b) In an individual case, the law enforcement officer may forego a request for
1532 verification of immigration status under Subsection (1)(a) if the verification of immigration
1533 status could hinder or obstruct a criminal investigation.
1534 (c) Subsection (1)(a) does not apply to a law enforcement officer who is acting as a
1535 school resource officer for any elementary or secondary school.
1536 (d) Subsection (1)(a) does not apply to a law enforcement officer for a county, city, or
1537 town if the county, city, or town has only one law enforcement officer on duty and response
1538 support from another law enforcement agency is not available.
1539 (2) When a law enforcement officer makes a lawful stop, detention, or arrest under
1540 Subsection (1) of the operator of a vehicle, and while investigating or processing the primary
1541 offense, the law enforcement officer makes observations that give the officer reasonable
1542 suspicion that the operator or a passenger in the vehicle is violating Section 76-5-309 ,
1543 76-5-310 , or 76-10-2901 , the law enforcement officer shall, to the extent possible within a
1544 reasonable period of time:
1545 (a) detain the one or more occupants of the vehicle to investigate the suspected
1546 violation; and
1547 (b) request verification of immigration status of the one or more occupants of the
1549 (3) When an individual described in Subsection (1) is issued a citation or is arrested
1550 and booked into a jail, juvenile detention facility, or correctional facility, the citing law
1551 enforcement officer or the booking law enforcement officer shall ensure that a request for
1552 verification of immigration status of the cited or arrested individual is submitted as promptly as
1553 is reasonably possible.
1554 (4) The law enforcement agency that has custody of an individual verified to be an
1555 alien who is not lawfully present in the United States shall request that the United States
1556 Department of Homeland Security issue a detainer requesting transfer of the illegal alien into
1557 federal custody.
1558 (5) A law enforcement officer may not consider race, color, or national origin in
1559 implementing this section, except to the extent permitted by the constitutions of the United
1560 States and this state.
1561 Section 36. Section 76-9-1004 is enacted to read:
1562 76-9-1004. Documents to be provided a law enforcement officer -- Statement to
1563 law enforcement officer of citizenship.
1564 A document specified in Subsection 76-9-1003 (1) includes the following:
1565 (1) a valid Utah driver license issued on or after January 1, 2010;
1566 (2) a valid Utah identification card issued under Section 53-3-804 issued on or after
1567 January 1, 2010;
1568 (3) a valid tribal enrollment card or other valid form of tribal membership
1569 identification that includes photo identification;
1570 (4) notwithstanding Section 53-3-207 , a valid driving privilege card issued under
1571 Section 53-3-207 ;
1572 (5) a valid permit issued under Section 63G-12-207 ;
1573 (6) a valid permit to carry a concealed firearm issued under Section 53-5-704 ; or
1574 (7) a valid identification document that:
1575 (a) includes a photo or biometric identifier of the holder of the document; and
1576 (b) is issued by a federal, state, or local governmental agency that requires proof or
1577 verification of legal presence in the United States as a condition of issuance of the document.
1578 Section 37. Section 76-9-1005 is enacted to read:
1579 76-9-1005. Implementation to be consistent with federal law and civil rights.
1580 A state or local agency shall implement this part in a manner that is consistent with
1581 federal laws that regulate immigration, protect the civil rights of all persons, and establish the
1582 privileges and immunities of United States citizens.
1583 Section 38. Section 76-10-2901 is amended to read:
1584 76-10-2901. Transporting or harboring aliens -- Definition -- Penalty.
1585 (1) [
1586 (a) Except as provided in Subsection (1)(b), "alien" means an individual who is
1587 illegally present in the United States.
1588 (b) On or after the program start date, as defined in Section 63G-12-102 , "alien" does
1589 not include an individual who holds a valid permit, as defined in Section 63G-12-102 .
1590 (2) It is unlawful for a person to:
1591 (a) transport, move, or attempt to transport into this state or for a distance of greater
1592 than 100 miles within the state an alien for commercial advantage or private financial gain,
1593 knowing or in reckless disregard of the fact that the alien is in the United States in violation of
1594 federal law, in furtherance of the illegal presence of the alien in the United States; [
1595 (b) knowingly, with the intent to violate federal immigration law, conceal, harbor, or
1596 shelter from detection an alien in a place within this state, including a building or means of
1597 transportation for commercial advantage or private financial gain, knowing or in reckless
1598 disregard of the fact that the alien is in the United States in violation of federal law[
1599 (c) encourage or induce an alien to come to, enter, or reside in this state, knowing or in
1600 reckless disregard of the fact that the alien's coming to, entry, or residence is or will be in
1601 violation of law; or
1602 (d) engage in a conspiracy, for commercial advantage or private financial gain, to
1603 commit S. [
1604 (3) (a) A person who violates Subsection (2)(a), (c), or (d) is guilty of a third degree
1606 (b) A person who violates Subsection (2)(b) is guilty of a class A misdemeanor.
1607 (4) Nothing in this part prohibits or restricts the provision of:
1608 (a) a state or local public benefit described in 8 U.S.C., Section 1621(b); or
1609 (b) charitable or humanitarian assistance, including medical care, housing, counseling,
1610 food, victim assistance, religious services and sacraments, and transportation to and from a
1611 location where the assistance is provided, by a charitable, educational, or religious organization
1612 or its employees, agents, or volunteers, using private funds.
1613 (5) (a) It is not a violation of this part for a religious denomination or organization or
1614 an agent, officer, or member of a religious denomination or organization to encourage, invite,
1615 call, allow, or enable an alien to perform the vocation of a minister or missionary for the
1616 denomination or organization in the United States as a volunteer who is not compensated as an
1617 employee, notwithstanding the provision of room, board, travel, medical assistance, and other
1618 basic living expenses.
1619 (b) Subsection (5)(a) applies only to an alien who has been a member of the religious
1620 denomination or organization for at least one year.
1621 Section 39. Section 77-7-2 is amended to read:
1622 77-7-2. Arrest by peace officers.
1623 A peace officer may make an arrest under authority of a warrant or may, without
1624 warrant, arrest a person:
1625 (1) (a) for any public offense committed or attempted in the presence of any peace
1626 officer; and
1627 (b) as used in this Subsection (1), "presence" includes all of the physical senses or any
1628 device that enhances the acuity, sensitivity, or range of any physical sense, or records the
1629 observations of any of the physical senses;
1630 (2) when the peace officer has reasonable cause to believe a felony or a class A
1631 misdemeanor has been committed and has reasonable cause to believe that the person arrested
1632 has committed it;
1633 (3) when the peace officer has reasonable cause to believe the person has committed a
1634 public offense, and there is reasonable cause for believing the person may:
1635 (a) flee or conceal himself to avoid arrest;
1636 (b) destroy or conceal evidence of the commission of the offense; or
1637 (c) injure another person or damage property belonging to another person; [
1638 (4) when the peace officer has reasonable cause to believe the person has committed
1639 the offense of failure to disclose identity under Section 76-8-301.5 [
1640 (5) when the peace officer has reasonable cause to believe that the person is an alien:
1641 (a) subject to a civil removal order issued by an immigration judge;
1642 (b) regarding whom a civil detainer warrant has been issued by the federal Department
1643 of Homeland Security; or
1644 (c) who has been charged or convicted in another state with one or more aggravated
1645 felonies as defined by 8 U.S.C. Sec. 1101(a)(43).
1646 Section 40. Coordinating H.B. 116 with H.B. 497 -- Substantive amendments.
1647 If this H.B. 116 and H.B. 497, Utah Illegal Immigration Enforcement Act, both pass, it
1648 is the intent of the Legislature that Sections 76-9-1001 through 76-9-1005 enacted in H.B. 497
1649 supersede Sections 76-9-1001 through 76-9-1005 in this bill.
Legislative Review Note
as of 3-4-11 9:29 AM
As required by legislative rule and practice, the Office of Legislative Research and General
Counsel provides the following legislative review note to assist the Legislature in making its
own determination as to the constitutionality of the bill. The note is based on an analysis of
relevant state and federal constitutional law as applied to the bill. The note is not written for the
purpose of influencing whether the bill should become law, but is written to provide
information relevant to legislators' consideration of this bill. The note is not a substitute for the
judgment of the judiciary, which has authority to determine the constitutionality of a law in the
context of a specific case.
The Constitution of the United States grants authority to the federal government to regulate
foreign commerce and to adopt a uniform rule of naturalization. The United States Supreme
Court has also found inherent federal authority to regulate immigration on the basis of federal
sovereignty and the power to engage in foreign affairs: this is sometimes referred to as the
"plenary power," which in more recent years has been made subject to certain constitutional
limits. See, e.g., Zadvydas v. Davis, 533 U.S. 678 (2001); Fong Yue Ting v. United States, 149
U.S. 698 (1893); Hernandez-Carrera v. Carlson, 547 F.3d 1237 (10th Cir. 2009). Federal
immigration law generally consists of both civil and criminal laws regarding admission of
foreign nationals, including the criteria and means for selection and the basis and procedure for
removal; citizenship by birth or by naturalization; criminal actions, such as transporting or
harboring an alien; and related laws such as access to public benefits, employment of
unauthorized aliens, issuance of driver licenses, etc. The key federal statute is the Immigration
and Nationality Act, 8 U.S.C. Sec. 1101 et seq. (INA).
When a state regulates in the area of immigration, the issue arises of whether the state action is
preempted by federal law. To determine whether preemption exists, courts generally examine
whether the state regulation fails at least one of three tests: Is it preempted because of a
conflict with federal law? Is it preempted because federal law has so occupied the field that
states are not allowed to regulate in the area? Is there an express preemption of state action?
The bill addresses areas also addressed by federal law such as accessing and disclosing
immigration information. Significantly, this bill provides a means by which a person may
employ an unauthorized alien in this state if the unauthorized alien is issued a state permit, and
the bill imposes state specific penalties that include both fines and loss of professional licenses
for hiring an unauthorized alien without a permit. Federal law, in 8 U.S.C. Sec. 1324a, makes
it unlawful to hire, recruit ,or refer for a fee, an alien for employment in the United States
knowing that the alien is an unauthorized alien. This section further provides that "The
provisions of this section preempt any State or local law imposing civil or criminal sanctions
(other than through licensing and similar laws) upon those who employ, or recruit or refer for a
fee for employment, unauthorized aliens."
The bill requires the executive branch to seek waivers that would authorize the state program,
but provides for implementation in the absence of such a waiver. Although federal law contains
measures to allow cooperation between the federal government and a state, the INA and related
regulations do not have an express process to provide a waiver that grants states authority to act
in areas that are governed by federal law. In the absence of an effective waiver recognized as
valid by the courts, under current law, there is a high probability that a court would find that
portions of this bill as unconstitutional because they are preempted by federal law as applied
through the Supremacy Clause of the Constitution of the United States.