S.B. 39 Enrolled

1

IMMIGRATION AMENDMENTS
2 2009 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Scott K. Jenkins
5 House Sponsor: Brad L. Dee
6
7 LONG TITLE
8 General Description:
9 This bill modifies provisions of the Identity Documents and Verification Act.
10 Highlighted Provisions:
11 This bill:
12 . defines a contract in relation to verification of the federal authorization status of a
13 new employee as an agreement for the procurement of services that is awarded
14 through a request for proposals process with a public employer;
15 . provides an exception from verification of lawful presence in the country for an
16 individual who is to receive a state public benefit under Title 49, Utah State
17 Retirement and Insurance Benefit Act; and
18 . makes certain technical changes.
19 Monies Appropriated in this Bill:
20 None
21 Other Special Clauses:
22 This bill takes effect on July 1, 2009.
23 Utah Code Sections Affected:
24 AMENDS:
25 63G-11-103 (Effective 07/01/09), as enacted by Laws of Utah 2008, Chapter 26
26 63G-11-104 (Effective 07/01/09), as enacted by Laws of Utah 2008, Chapter 26
27
28 Be it enacted by the Legislature of the state of Utah:
29 Section 1. Section 63G-11-103 (Effective 07/01/09) is amended to read:

30 63G-11-103 (Effective 07/01/09). Status verification system -- Registration and
31 use -- Performance of services -- Unlawful practice.
32 (1) As used in this section:
33 (a) "Contract" means an agreement for the procurement of goods or services that is
34 awarded through a request for proposals process with a public employer and includes a sole
35 source contract.
36 [(a)] (b) "Contractor" means a subcontractor, contract employee, staffing agency,
37 [trade union,] or any contractor regardless of its tier.
38 [(b)] (c) "Public employer" means a department, agency, instrumentality, or political
39 subdivision of the state.
40 [(c)] (d) (i) "Status Verification System" means an electronic system operated by the
41 federal government, through which an authorized official of a state agency or a political
42 subdivision of the state may inquire by exercise of authority delegated pursuant to 8 U.S.C.,
43 Sec. 1373, to verify the citizenship or immigration status of an individual within the
44 jurisdiction of the agency or political subdivision for a purpose authorized under this section.
45 (ii) "Status Verification System" includes:
46 (A) the electronic verification of the work authorization program of the Illegal
47 Immigration Reform and Immigration Responsibility Act of 1996, 8 U.S.C., Sec. 1324a,
48 known as the [Basic Pilot] E-verify Program;
49 (B) an equivalent federal program designated by the United States Department of
50 Homeland Security or other federal agency authorized to verify the work eligibility status of a
51 newly hired employee pursuant to the Immigration Reform and Control Act of 1986;
52 (C) the Social Security Number Verification Service or similar online verification
53 process implemented by the United States Social Security Administration; or
54 (D) an independent third-party system with an equal or higher degree of reliability as
55 the programs, systems, or processes described in Subsection (1)[(c)](d)(ii)(A), (B), or (C).
56 [(d)] (e) "Unauthorized alien" means an alien as defined in 8 U.S.C., Sec. 1324a(h)(3).
57 (2) (a) Each public employer shall register with and use a Status Verification System

58 to verify the federal employment authorization status of a new employee.
59 (b) This section shall be enforced without regard to race, religion, gender, ethnicity, or
60 national origin.
61 (3) (a) Beginning July 1, 2009:
62 (i) a public employer may not enter into a contract for the physical performance of
63 services within the state with a contractor unless the contractor registers and participates in the
64 Status Verification System to verify the work eligibility status of the contractor's new
65 employees that are employed in the state[.]; and
66 (ii) a contractor shall register and participate in the Status Verification System in order
67 to enter into a contract with a public employer.
68 (b) (i) For purposes of compliance with Subsection (3)(a), a contractor is individually
69 responsible for verifying the employment status of only new employees who work under the
70 contractor's supervision or direction and not those who work for another contractor or
71 subcontractor, except as otherwise provided in Subsection (3)(b)(ii).
72 (ii) Each contractor or subcontractor who works under or for another contractor shall
73 certify to the main contractor by affidavit that the contractor or subcontractor has verified
74 through the Status Verification System the employment status of each new employee of the
75 respective contractor or subcontractor.
76 (c) Subsection (3)(a) does not apply to a contract:
77 (i) entered into by the entities referred to in Subsection (3)(a) prior to July 1, 2009,
78 even though the contract may involve the physical performance of services within the state on
79 or after July 1, 2009; or
80 (ii) that involves underwriting, remarketing, broker-dealer activities, securities
81 placement, investment advisory, financial advisory, or other financial or investment banking
82 services.
83 (4) (a) It is unlawful for an employing entity in the state to discharge an employee
84 working in Utah who is a United States citizen or permanent resident alien and replace the
85 employee with, or have the employee's duties assumed by, an employee who:

86 (i) the employing entity knows, or reasonably should have known, is an unauthorized
87 alien hired on or after July 1, 2009; and
88 (ii) is working in the state in a job category:
89 (A) that requires equal skill, effort, and responsibility; and
90 (B) which is performed under similar working conditions, as defined in 29 U.S.C.,
91 Sec. 206 (d)(1), as the job category held by the discharged employee.
92 (b) An employing entity, which on the date of a discharge in question referred to in
93 Subsection (4)(a) is enrolled in and using the Status Verification System to verify the
94 employment eligibility of its employees in Utah who are hired on or after July 1, 2009, is
95 exempt from liability, investigation, or lawsuit arising from an action under this section.
96 (c) A cause of action for a violation of this Subsection (4) arises exclusively from the
97 provisions of this Subsection (4).
98 Section 2. Section 63G-11-104 (Effective 07/01/09) is amended to read:
99 63G-11-104 (Effective 07/01/09). Receipt of state, local, or federal public benefits
100 -- Verification -- Exceptions -- Fraudulently obtaining benefits -- Criminal penalties --
101 Annual report.
102 (1) Except as provided in Subsection (3) or where exempted by federal law, an agency
103 or political subdivision of the state shall verify the lawful presence in the United States of an
104 individual at least 18 years of age who has applied for:
105 (a) a state or local public benefit as defined in 8 U.S.C., Sec. 1621; or
106 (b) a federal public benefit as defined in 8 U.S.C., Sec. 1611, that is administered by
107 an agency or political subdivision of this state.
108 (2) This section shall be enforced without regard to race, religion, gender, ethnicity, or
109 national origin.
110 (3) Verification of lawful presence under this section is not required for:
111 (a) any purpose for which lawful presence in the United States is not restricted by law,
112 ordinance, or regulation;
113 (b) assistance for health care items and services that are necessary for the treatment of

114 an emergency medical condition, as defined in 42 U.S.C., Sec. 1396b(v)(3), of the individual
115 involved and are not related to an organ transplant procedure;
116 (c) short-term, noncash, in-kind emergency disaster relief;
117 (d) public health assistance for immunizations with respect to immunizable diseases
118 and for testing and treatment of symptoms of communicable diseases whether or not the
119 symptoms are caused by the communicable disease;
120 (e) programs, services, or assistance such as soup kitchens, crisis counseling and
121 intervention, and short-term shelter, specified by the United States Attorney General, in the
122 sole and unreviewable discretion of the United States Attorney General after consultation with
123 appropriate federal agencies and departments, which:
124 (i) deliver in-kind services at the community level, including through public or private
125 nonprofit agencies;
126 (ii) do not condition the provision of assistance, the amount of assistance provided, or
127 the cost of assistance provided on the income or resources of the individual recipient; and
128 (iii) are necessary for the protection of life or safety;
129 (f) the exemption for paying the nonresident portion of total tuition as set forth in
130 Section 53B-8-106 ; [and]
131 (g) an applicant for a license under Section 61-1-4 , if the applicant is registered with
132 the Financial Industry Regulatory Authority and files an application with the state Division of
133 Securities through the Central Registration Depository[.];
134 (h) a state public benefit to be given to an individual under Title 49, Utah State
135 Retirement and Insurance Benefit Act;
136 (i) a home loan that will be insured, guaranteed, or purchased by:
137 (i) the Federal Housing Administration, the Veterans Administration, or any other
138 federal agency; or
139 (ii) an enterprise as defined in 12 U.S.C., Sec. 4502; and
140 (j) a subordinate loan or a grant that will be made to an applicant in connection with a
141 home loan that does not require verification under Subsection (3)(i).

142 (4) An agency or political subdivision required to verify the lawful presence in the
143 United States of an applicant under this section shall require the applicant to certify under
144 penalty of perjury that:
145 (a) the applicant is a United States citizen; or
146 (b) the applicant is:
147 (i) a qualified alien as defined in 8 U.S.C., Sec. 1641; and
148 (ii) lawfully present in the United States.
149 (5) An agency or political subdivision shall verify a certification required under
150 Subsection (4)(b) through the Systematic Alien Verification for Entitlements Program,
151 hereafter referred to in this section as the "program," operated by the United States Department
152 of Homeland Security or an equivalent program designated by the Department of Homeland
153 Security.
154 (6) (a) An individual who knowingly and willfully makes a false, fictitious, or
155 fraudulent statement or representation in a certification under Subsection (4) is subject to the
156 criminal penalties applicable in this state for:
157 (i) making a written false statement under Subsection 76-8-504 (2); and
158 (ii) fraudulently obtaining public assistance program benefits under Sections
159 76-8-1205 and 76-8-1206 or unemployment compensation under Section 76-8-1301 .
160 (b) If the certification constitutes a false claim of U.S. citizenship under 18 U.S.C.,
161 Sec. 911, the agency or political subdivision shall file a complaint with the United States
162 Attorney General for the applicable district based upon the venue in which the application was
163 made.
164 (7) An agency or political subdivision may adopt variations to the requirements of this
165 section which:
166 (a) clearly improve the efficiency of or reduce delay in the verification process; or
167 (b) provide for adjudication of unique individual circumstances where the verification
168 procedures in this section would impose an unusual hardship on a legal resident of Utah.
169 (8) It is unlawful for an agency or a political subdivision of this state to provide a

170 state, local, or federal benefit, as defined in 8 U.S.C., Sec. 1611 and Sec. 1621, in violation of
171 the provisions of this section.
172 (9) Each state agency or department that administers a program of state or local public
173 benefits shall:
174 (a) provide an annual report to the governor, the president of the Senate, and the
175 speaker of the House regarding its compliance with this section; and
176 (b) (i) monitor the program for application verification errors and significant delays;
177 (ii) provide an annual report on the errors and delays to ensure that the application of
178 the program is not erroneously denying a state or local benefit to a legal resident of the state;
179 and
180 (iii) report delays and errors in the program to the United States Department of
181 Homeland Security.
182 Section 3. Effective date.
183 This bill takes effect on July 1, 2009.