HB1969 97TH GENERAL ASSEMBLY

LRB097 09009 HEP 49143 b

97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012
HB1969

Introduced , by Rep. Randy Ramey, Jr.

SYNOPSIS AS INTRODUCED:

See Index

Creates the Taxpayers Protection Act. Prohibits any limitation on the enforcement of federal immigration laws to less than the full extent permitted by federal law. Provides that for any lawful stop, detention, or arrest made by a law enforcement official where reasonable suspicion exists that the person is an alien unlawfully present in the U.S., a reasonable attempt shall, where practicable, be made to determine the immigration status of the person. Provides that an arrested person shall have his or her immigration status determined by the federal government before release. Provides penalties for willful failure to carry an alien registration document and for a person who is an unauthorized alien to seek employment. Provides that an employer shall not knowingly or intentionally employ an unauthorized alien and provides for sanctions. Provides that race, color, or national origin may not be considered in implementing the requirements of the Act except to the extent permitted by the U.S. or Illinois Constitution. Provides that the Act shall not be construed to require an employer to take action the employer believes in good faith would violate federal or State law. Provides that employers must verify the employment eligibility of all new employees and creates the voluntary employer enhanced compliance program. Makes it unlawful to hire and pick up passengers for work if doing so blocks or impedes traffic. Provides penalties for transporting, moving, concealing, harboring, or shielding unlawful aliens. Amends various Acts to make conforming changes. Preempts home rule. Provides that the provisions of the Act are severable.

CORRECTIONAL BUDGET AND IMPACT NOTE ACT MAY APPLY

FISCAL NOTE ACT MAY APPLY

HOME RULE NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning aliens.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 1. Short title. This Act may be cited as the Taxpayers Protection Act.

Section 5. Intent. The General Assembly finds that there is a compelling interest in the cooperative enforcement of federal immigration laws throughout all of Illinois. The General Assembly declares that the intent of this Act is to make attrition through enforcement the public policy of all State and local government agencies in Illinois. The provisions of this Act are intended to work together to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States.

Section 10. Definitions. For purposes of this Act:

(a) "Agency" means any agency, department, board, or commission of this State or a county or municipality that issues a license for purposes of operating a business in this State.

(b) "Department" means the Illinois Department of Labor.

(c) "Employ" means hiring an employee on or after January 1, 2012.

(d) "Employee" means any person who provides services or labor for an employer in this State for wages or other remuneration, excluding an independent contractor.

(e) "Employer" means any individual or type of organization that transacts business in this State, that has a license issued by an agency in this State, and that employs one or more employees in this State. "Employer" includes this State, any political subdivision of this State, and self-employed persons. In the case of an independent contractor, "employer" means the independent contractor and does not mean the person or organization that uses the contract labor.

(f) "E-Verify program" means the employment verification pilot program as jointly administered by the United States Department of Homeland Security and the Social Security Administration or any of its successor programs.

(g) "Independent contractor" means any individual or entity that carries on an independent business, that contracts to do a piece of work according to the individual's or entity's own means and methods, and that is subject to control only as to results. Whether an individual or entity is an independent contractor is determined on a case-by-case basis through various factors, including whether the individual or entity: (i) supplies the tools or materials; (ii) makes services available to the general public; (iii) works or may work for a number of clients at the same time; (iv) has an opportunity for profit or loss as a result of labor or service provided; (v) invests in the facilities for work; (vi) directs the order or sequence in which the work is completed; or (vii) determines the hours when the work is completed. Independent contractor status applies to an individual who performs services and is not an employee pursuant to Section 3508 of the Internal Revenue Code.

(h) "Intentionally" means, with respect to a result or to conduct described by a statute defining an offense, that a person's objective is to cause that result or to engage in that conduct.

(i) "Knowingly employ an unauthorized alien" means the actions described in 8 U.S.C. 1324a. This term shall be interpreted consistently with 8 U.S.C. 1324a and any applicable federal rules and regulations.

(j) "License" means any agency permit, certificate, approval, registration, charter, or similar form of authorization that is required by law and that is issued by any agency for the purposes of operating a business in this State. This definition excludes professional licenses.

(k) "Social security number verification service" means the program administered by the Social Security Administration or any of its successor programs.

(l) "Solicit" means verbal or nonverbal communication by a gesture or a nod that would indicate to a reasonable person that a person is willing to be employed.

(m) "Unauthorized alien" means an alien who does not have the legal right or authorization under federal law to work in the United States as described in 8 U.S.C. 1324a(h)(3).

Section 15. Cooperation and assistance in enforcement of immigration laws; indemnification.

(a) No official or agency of this State or a political subdivision of this State may limit or restrict the enforcement of federal immigration laws to less than the full extent permitted by federal law.

(b) For any lawful stop, detention, or arrest made by a law enforcement official or a law enforcement agency of this State or a law enforcement official or a law enforcement agency of a political subdivision of this State in the enforcement of any other law of this State or ordinance of a county or municipality where reasonable suspicion exists that the person is an alien and is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person, except if the determination may hinder or obstruct an investigation. Any person who is arrested shall have the person's immigration status determined before the person is released. The person's immigration status shall be verified with the federal government pursuant to 8 U.S.C. 1373(c). A law enforcement official or agency of this State or a political subdivision of this State may not consider race, color, or national origin in implementing the requirements of this subsection (b) except to the extent permitted by the United States or Illinois Constitution. A person is presumed to not be an alien who is unlawfully present in the United States if the person provides to the law enforcement officer or agency any of the following:

(1) a valid Illinois driver's license;

(2) a valid Illinois Identification Card;

(3) if the entity requires proof of legal presence in the United States before issuance, any valid United States federal, State, or local government issued identification.

(c) If an alien who is unlawfully present in the United States is convicted of a violation of State or local law, on discharge from imprisonment or on the assessment of any monetary obligation that is imposed, the United States Immigration and Customs Enforcement or the United States Customs and Border Protection shall be immediately notified.

(d) Notwithstanding any other law, a law enforcement agency may securely transport an alien whom the agency has received verification is unlawfully present in the United States and who is in the agency's custody to a federal facility in this State or to any other point of transfer into federal custody that is outside the jurisdiction of the law enforcement agency. A law enforcement agency shall obtain judicial authorization before securely transporting an alien who is unlawfully present in the United States to a point of transfer that is outside of this State.

(e) In the implementation of this Section, an alien's immigration status may be determined by:

(1) a law enforcement officer who is authorized by the federal government to verify or ascertain an alien's immigration status;

(2) the United States Immigration and Customs Enforcement or the United States Customs and Border Protection pursuant to 8 U.S.C. 1373(c).

(f) Except as provided in federal law, officials or agencies of this State and political subdivisions of this State may not be prohibited or in any way be restricted from sending, receiving, or maintaining information relating to the immigration status, lawful or unlawful, of any individual or exchanging that information with any other federal, State, or local governmental entity for the following official purposes:

(1) determining eligibility for any public benefit, service, or license provided by any federal, State, or other political subdivision of this State;

(2) verifying any claim of residence or domicile if determination of residence or domicile is required under the laws of this State or a judicial order issued pursuant to a civil or criminal proceeding in this State;

(3) if the person is an alien, determining whether the person is in compliance with the federal registration laws prescribed by Title II, Chapter 7 of the federal Immigration and Nationality Act; and

(4) pursuant to 8 U.S.C. 1373 and 8 U.S.C. 1644.

(g) This Section does not implement, authorize, or establish and shall not be construed to implement, authorize, or establish the Real ID Act of 2005 (P.L. 109-13, Division B; 119 Stat. 302), including the use of a radio frequency identification chip.

(h) A person who is a legal resident of this State may bring an action in circuit court to challenge any official or agency of this State or a political subdivision of this State that adopts or implements a policy that limits or restricts the enforcement of federal immigration laws, including 8 U.S.C. 1373 and 1644, to less than the full extent permitted by federal law. If there is a judicial finding that an entity has violated this Section, the court shall order that the entity pay a civil penalty of not less than $500 and not more than $5,000 for each day that the policy has remained in effect after the filing of an action pursuant to this subsection.

(i) A court shall collect the civil penalty prescribed in subsection (h) of this Section and remit the civil penalty to the State Treasurer for deposit in the Immigration Law Enforcement Fund established by Section 55 of this Act.

(j) The court may award court costs and reasonable attorney's fees to any person or any official or agency of this State or a political subdivision of this State that prevails by an adjudication on the merits in a proceeding brought pursuant to this Section.

(k) Except in relation to matters in which the officer is adjudged to have acted in bad faith, a law enforcement officer is indemnified by the law enforcement officer's agency against reasonable costs and expenses, including attorney fees, incurred by the officer in connection with any action, suit, or proceeding brought pursuant to this Section in which the officer may be a defendant by reason of the officer being or having been a member of the law enforcement agency.

(l) This Section shall be implemented in a manner consistent with federal laws regulating immigration, protecting the civil rights of all persons, and respecting the privileges and immunities of United States citizens.

Section 20. Willful failure to complete or carry an alien registration document; assessment; exception; authenticated records; classification.

(a) In addition to any violation of federal law, a person is guilty of willful failure to complete or carry an alien registration document if the person is in violation of 8 U.S.C. 1304(e) or 1306(a).

(b) In the enforcement of this Section, an alien's immigration status may be determined by:

(1) a law enforcement officer who is authorized by the federal government to verify or ascertain an alien's immigration status; or

(2) the United States Immigration and Customs Enforcement or the United States Customs and Border Protection pursuant to 8 U.S.C. 1373(c).

(c) A law enforcement official or agency of this State or a political subdivision of this State may not consider race, color, or national origin in the enforcement of this Section except to the extent permitted by the United States or Illinois Constitution.

(d) A person who is sentenced pursuant to this Section is not eligible for suspension of sentence, probation, conditional discharge, pardon, commutation of sentence, or release from confinement on any basis except for medical treatment or work release as authorized by the Unified Code of Corrections or the County Jail Act until the sentence imposed by the court has been served or the person is eligible for release pursuant to Section 3 of the County Jail Good Behavior Allowance Act.

(e) In addition to any other penalty prescribed by law, the court shall order the person to pay jail costs.

(f) This Section does not apply to a person who maintains authorization from the federal government to remain in the United States.

(g) Any record that relates to the immigration status of a person is admissible in any court without further foundation or testimony from a custodian of records if the record is certified as authentic by the government agency that is responsible for maintaining the record.

(h) A violation of this Section is a Class C misdemeanor, except that the maximum fine is $100 and for a first violation of this Section, the court shall not sentence the person to more than 20 days in jail and for a second or subsequent violation, the court shall not sentence the person to more than 30 days in jail.

Section 25. Unlawful application, solicitation, or employment; classification; definitions.

(a) It is unlawful for a person who is unlawfully present in the United States and who is an unauthorized alien to knowingly apply for work, solicit work in a public place, or perform work as an employee or independent contractor in this State.

(b) A law enforcement official or agency of this State or a political subdivision of this State may not consider race, color, or national origin in the enforcement of this Section except to the extent permitted by the United States or Illinois Constitution.

(c) In the enforcement of this Section, an alien's immigration status may be determined by:

(1) a law enforcement officer who is authorized by the federal government to verify or ascertain an alien's immigration status;

(2) the United States Immigration and Customs Enforcement or the United States Customs and Border Protection pursuant to 8 U.S.C. 1373(c).

(d) Sentence. A violation of this Section is a Class B misdemeanor.

Section 30. Knowingly or intentionally employing unauthorized aliens; prohibition; false and frivolous complaints; violation; classification; license suspension and revocation; affirmative defense.

(a) An employer shall not knowingly or intentionally employ an unauthorized alien. If, in the case when an employer uses a contract, subcontract, or other independent contractor agreement to obtain the labor of an alien in this State, the employer knowingly or intentionally contracts with an unauthorized alien or with a person who employs or contracts with an unauthorized alien to perform the labor, the employer violates this subsection.

(b) The Department of Labor shall prescribe a complaint form for a person to allege a violation of subsection (a) of this Section. The complainant shall not be required to list the complainant's social security number on the complaint form or to have the complaint form notarized. On receipt of a complaint on a prescribed complaint form that an employer allegedly knowingly or intentionally employs an unauthorized alien, the Department or State's Attorney shall investigate whether the employer has violated subsection (a) of this Section. If a complaint is received but is not submitted on a prescribed complaint form, the Department or State's Attorney may investigate whether the employer has violated subsection (a) of this Section. This subsection shall not be construed to prohibit the filing of anonymous complaints that are not submitted on a prescribed complaint form. The Department or State's Attorney shall not investigate complaints that are based solely on race, color, or national origin. A complaint that is submitted to a State's Attorney shall be submitted to the State's Attorney in the county in which the alleged unauthorized alien is or was employed by the employer. The county sheriff or any other local law enforcement agency may assist in investigating a complaint. When investigating a complaint, the Department of Labor or State's Attorney shall verify the work authorization of the alleged unauthorized alien with the federal government pursuant to 8 U.S.C. 1373(c). In order to implement this Section, the Department may take evidence, administer oaths or affirmations, issue subpoenas requiring attendance and testimony of witnesses, and cause depositions to be taken. A State, county, or local official shall not attempt to independently make a final determination on whether an alien is authorized to work in the United States. An alien's immigration status or work authorization status shall be verified with the federal government pursuant to 8 U.S.C. 1373(c). A person who knowingly files a false and frivolous complaint under this subsection is guilty of a Class C misdemeanor.

(c) If, after an investigation, the Department of Labor or State's Attorney determines that the complaint is not false and frivolous:

(i) The Department or State's Attorney shall notify the United States Immigration and Customs Enforcement of the unauthorized alien.

(ii) The Department or State's Attorney shall notify the local law enforcement agency of the unauthorized alien.

(iii) The Department shall notify the appropriate State's Attorney to bring an action pursuant to subsection (d) of this Section if the complaint was originally filed with the Department.

(d) An action for a violation of subsection (a) of this Section shall be brought against the employer by the State's Attorney in the county where the unauthorized alien employee is or was employed by the employer. The State's Attorney shall not bring an action against any employer for any violation of subsection (a) of this Section that occurs before January 1, 2012. A second violation of this Section shall be based only on an unauthorized alien who is or was employed by the employer after an action has been brought for a violation of subsection (a) of this Section.

(e) For any action in court under this Section, the court shall expedite the action, including assigning the hearing at the earliest practicable date.

(f) On a finding of a violation of subsection (a) of this Section:

(i) For a first violation, as described in paragraph (iii) of this subsection, the court:

(1) Shall order the employer to terminate the employment of all unauthorized aliens.

(2) Shall order the employer to be subject to a probationary period for the business location where the unauthorized alien performed work. If an employer is found to have knowingly violated subsection (a) of this Section, the probationary period will be 3 years. If an employer is found to have intentionally violated subsection (a) of this Section, the probationary period will be 5 years. During the probationary period, the employer shall file quarterly reports with the State's Attorney of each new employee who is hired by the employer at the business location where the unauthorized alien performed work. Employers shall report by submitting a W-4 form or an equivalent form at the option of the employer. The report shall contain: (A) the employee's name, address, and social security number; and (B) the employer's name, address, and federal tax identification number.

(3) Shall order the employer to file a signed sworn affidavit with the State's Attorney within 3 business days after the order is issued. The affidavit shall state that the employer has terminated the employment of all unauthorized aliens in this State and that the employer will not intentionally or knowingly employ an unauthorized alien in this State. The court shall order the appropriate agencies to suspend all licenses subject to this paragraph that are held by the employer if the employer fails to file a signed sworn affidavit with the State's Attorney within 3 business days after the order is issued. All licenses that are suspended under this paragraph shall remain suspended until the employer files a signed sworn affidavit with the State's Attorney. Notwithstanding any other law, on filing of the affidavit the suspended licenses shall be reinstated immediately by the appropriate agencies. For the purposes of this paragraph, the licenses that are subject to suspension under this paragraph are all licenses that are held by the employer specific to the business location where the unauthorized alien performed work. If the employer does not hold a license specific to the business location where the unauthorized alien performed work, but a license is necessary to operate the employer's business in general, the licenses that are subject to suspension under this paragraph are all licenses that are held by the employer at the employer's primary place of business. On receipt of the court's order and notwithstanding any other law, the appropriate agencies shall suspend the licenses according to the court's order. The court shall send a copy of the court's order to the Department of Labor and the Department shall maintain the copy pursuant to subsection (g) of this Section.

(4) If an employer is found to have knowingly violated subsection (a) of this Section, the court may order the appropriate agencies to suspend all licenses described in paragraph (3) of this subsection that are held by the employer for not to exceed 10 business days. The court shall base its decision to suspend under this paragraph (4) on any evidence or information submitted to it during the action for a violation of this subsection and shall consider the following factors, if relevant: (A) the number of unauthorized aliens employed by the employer; (B) any prior misconduct by the employer; (C) the degree of harm resulting from the violation; (D) whether the employer made good faith efforts to comply with any applicable requirements; (E) the duration of the violation; (F) the role of the directors, officers, or principals of the employer in the violation; and (G) any other factors the court deems appropriate.

(5) If an employer is found to have intentionally violated subsection (a) of this Section, the court shall order the appropriate agencies to suspend all licenses described in paragraph (3) of this subsection that are held by the employer for a minimum of 10 days. The court shall base its decision on the length of the suspension under this paragraph (5) on any evidence or information submitted to it during the action for a violation of this subsection and shall consider the following factors, if relevant: (A) the number of unauthorized aliens employed by the employer; (B) any prior misconduct by the employer; (C) the degree of harm resulting from the violation; (D) whether the employer made good faith efforts to comply with any applicable requirements; (E) the duration of the violation; (F) the role of the directors, officers, or principals of the employer in the violation; or (G) any other factors the court deems appropriate.

(ii) For a second violation, as described in paragraph (iii) of this subsection, the court shall order the appropriate agencies to permanently revoke all licenses that are held by the employer specific to the business location where the unauthorized alien performed work. If the employer does not hold a license specific to the business location where the unauthorized alien performed work, but a license is necessary to operate the employer's business in general, the court shall order the appropriate agencies to permanently revoke all licenses that are held by the employer at the employer's primary place of business. On receipt of the order and notwithstanding any other law, the appropriate agencies shall immediately revoke the licenses.

(iii) The violation shall be considered:

(1) A first violation by an employer at a business location if the violation did not occur during a probationary period ordered by the court under this subsection for that employer's business location.

(2) A second violation by an employer at a business location if the violation occurred during a probationary period ordered by the court under this subsection for that employer's business location.

(g) The Department of Labor shall maintain copies of court orders that are received pursuant to subsection (f) of this Section and shall maintain a database of the employers and business locations that have a first violation of subsection (a) of this Section and make the court orders available on the Department's website.

(h) On determining whether an employee is an unauthorized alien, the court shall consider only the federal government's determination pursuant to 8 U.S.C. 1373(c). The federal government's determination creates a rebuttable presumption of the employee's lawful status. The court may take judicial notice of the federal government's determination and may request the federal government to provide automated or testimonial verification pursuant to 8 U.S.C. 1373(c).

(i) For the purposes of this Section, proof of verifying the employment authorization of an employee through the E-Verify program creates a rebuttable presumption that an employer did not knowingly or intentionally employ an unauthorized alien.

(j) For the purposes of this Section, an employer that establishes that it has complied in good faith with the requirements of 8 U.S.C. 1324a(b) establishes an affirmative defense that the employer did not knowingly or intentionally employ an unauthorized alien. An employer is considered to have complied with the requirements of 8 U.S.C. 1324a(b), notwithstanding an isolated, sporadic, or accidental technical or procedural failure to meet the requirements, if there is a good faith attempt to comply with the requirements.

(k) It is an affirmative defense to a violation of subsection (a) of this Section that the employer was entrapped. To claim entrapment, the employer must admit by the employer's testimony or other evidence the substantial elements of the violation. An employer who asserts an entrapment defense has the burden of proving the following by a preponderance of the evidence:

(i) The idea of committing the violation started with law enforcement officers or their agents rather than with the employer.

(ii) The law enforcement officers or their agents urged and induced the employer to commit the violation.

(iii) The employer was not predisposed to commit the violation before the law enforcement officers or their agents urged and induced the employer to commit the violation.

(l) An employer does not establish entrapment if the employer was predisposed to violate subsection (a) of this Section and the law enforcement officers or their agents merely provided the employer with an opportunity to commit the violation. It is not entrapment for law enforcement officers or their agents merely to use a ruse or to conceal their identity. The conduct of law enforcement officers and their agents may be considered in determining if an employer has proven entrapment.

Section 35. Employer actions; federal or State law compliance. This Act shall not be construed to require an employer to take any action that the employer believes in good faith would violate federal or State law.

Section 40. Voluntary employer enhanced compliance program.

(a) The Department of Labor shall establish the voluntary employer enhanced compliance program. The program is voluntary and an employer is not required to enroll in the program.

(b) An employer that is on probation under Section 30 or 35 of this Act may not enroll in the voluntary employer enhanced compliance program. A court shall not consider non-enrollment in the voluntary employer enhanced compliance program as a factor when determining whether to suspend or revoke a license under Section 30 or 35 of this Act.

(c) To enroll in the voluntary employer enhanced compliance program, an employer shall submit a signed sworn affidavit to the Department. The affidavit shall state that the employer agrees to perform all of the following actions in good faith:

(i) After hiring an employee, the employer shall verify the employment eligibility of the employee through the E-Verify program.

(ii) To ensure the accuracy of reporting wages to the Social Security Administration, the employer shall verify the accuracy of social security numbers through the social security number verification service for any employee who is not verified through the E-Verify program. Within 30 days after enrolling in the voluntary employer enhanced compliance program, the employer shall submit the necessary information to the social security number verification service, including the full name, the social security number, the date of birth, and the gender of each employee. On receipt of a failed verification result, the employer shall notify the employee of the date on which the employer received the failed result and instruct the employee to resolve the discrepancy with the Social Security Administration within 90 days after that date. The employer and employee shall resolve any failed result within 90 days after the date on which the employer received the failed result. If the failed result is not resolved within the 90-day period but the employer and employee are continuing to actively and consistently work toward resolving the failed result with the Social Security Administration, the 90-day period does not apply as long as the employer and employee have documented proof of these ongoing efforts to resolve the failed result in good faith and have provided the documented proof to the Department. The employer shall verify the accuracy of the social security numbers and resolve any failed verification results in a consistent manner for all employees.

(iii) In response to a written request by the Department or State's Attorney stating the name of an employee for whom a complaint has been received under Section 30 or 35 of this Act, the employer shall provide the Department or State's Attorney the documents indicating that the employee was verified through the E-Verify program or that the accuracy of the employee's wage report was verified through the social security number verification service under this Section.

(d) An employer that is enrolled in the voluntary employer enhanced compliance program shall not be in violation of subsection (a) of Section 30 of this Act or subsection (a) of Section 35 of this Act regarding an employee named in a complaint under Section 30 or 35 of this Act if the employer has completed both of the following:

(i) In good faith verified the employment eligibility of the employee named in the complaint through the E-Verify program or in good faith verified the accuracy of the social security number of the employee named in the complaint through the social security number verification system as required by paragraphs (i) and (ii) of subsection (c) of this Section.

(ii) Provided the Department or State's Attorney with the documents, as required by paragraph (iii) of subsection (c) of this Section, indicating that the employer verified the employee named in the complaint.

(e) The Department shall maintain a list of employers enrolled in the voluntary employer enhanced compliance program and make the list available on the Department's website.

(f) The Department shall develop a form of recognition that an employer may display to the general public for enrolling in the voluntary employer enhanced compliance program.

(g) If an employer does not fully comply with this Section, the Department shall terminate the employer's enrollment in the voluntary employer enhanced compliance program. At any time, an employer may voluntarily withdraw from the voluntary employer enhanced compliance program by notifying the Department. Beginning on the date of termination or withdrawal, subsection (d) of this Section no longer applies to the employer and the employer shall immediately remove any form of recognition from public display that is authorized under this Section.

Section 45. Immigration Law Enforcement Fund. The Immigration Law Enforcement Fund is established in the State treasury consisting of moneys deposited pursuant to Section 15 of this Act and moneys appropriated by the General Assembly. The Department of State Police shall administer the Fund. Moneys in the Fund are subject to appropriation by the General Assembly and shall be used for immigration enforcement and for county jail reimbursement costs relating to illegal immigration.

Section 50. Home rule preemption. This Act is a denial and limitation of home rule powers and functions under subsection (h) of Section 6 of Article VII of the Illinois Constitution.

Section 105. The State Finance Act is amended by adding Section 5.786 as follows:

(30 ILCS 105/5.786 new)

Sec. 5.786. The Immigration Law Enforcement Fund.

Section 110. The Illinois Vehicle Code is amended by adding Sections 11-1308 and 11-1309 as follows:

(625 ILCS 5/11-1308 new)

Sec. 11-1308. Unlawful stopping to hire and pick up passengers for work.

(a) It is unlawful for an occupant of a motor vehicle that is stopped on a street, roadway, or highway to attempt to hire or hire and pick up passengers for work at a different location if the motor vehicle blocks or impedes the normal movement of traffic.

(b) It is unlawful for a person to enter a motor vehicle that is stopped on a street, roadway, or highway in order to be hired by an occupant of the motor vehicle and to be transported to work at a different location if the motor vehicle blocks or impedes the normal movement of traffic.

(c) Sentence. A violation of this Section is a Class B misdemeanor.

(d) In the implementation of this Section, an alien's immigration status may be determined by:

(1) a law enforcement officer who is authorized by the federal government to verify or ascertain an alien's immigration status;

(2) the United States Immigration and Customs Enforcement or the United States Customs and Border Protection pursuant to 8 U.S.C. 1373(c).

(625 ILCS 5/11-1309 new)

Sec. 11-1309. Unlawful transporting, moving, concealing, harboring, or shielding of unlawful aliens; vehicle impoundment; exception, classification.

(a) It is unlawful for a person who is in violation of a criminal offense to:

(1) transport or move or attempt to transport or move an alien in this State, in furtherance of the illegal presence of the alien in the United States, in a means of transportation if the person knows or recklessly disregards the fact that the alien has come to, has entered or remains in the United States in violation of law;

(2) conceal, harbor, or shield or attempt to conceal, harbor, or shield an alien from detection in any place in this State, including any building or any means of transportation, if the person knows or recklessly disregards the fact that the alien has come to, has entered or remains in the United States in violation of law; or

(3) encourage or induce an alien to come to or reside in this State if the person knows or recklessly disregards the fact that such coming to, entering, or residing in this State is or will be in violation of law.

(b) A means of transportation that is used in the commission of a violation of this Section is subject to mandatory vehicle immobilization or impoundment.

(c) A law enforcement official or agency of this State or a political subdivision of this State may not consider race, color, or national origin in the enforcement of this Section except to the extent permitted by the United States or Illinois Constitution.

(d) In the enforcement of this Section, an alien's immigration status may be determined by:

(1) a law enforcement officer who is authorized by the federal government to verify or ascertain an alien's immigration status; or

(2) the United States Immigration and Customs Enforcement or the United States Customs and Border Protection pursuant to 8 U.S.C. 1373(c).

(e) This Section does not apply to a child protective services worker acting in the worker's official capacity or a person who is acting in the capacity of a first responder, an ambulance attendant, or an emergency medical technician and who is transporting or moving an alien in this State pursuant to the Emergency Medical Services (EMS) Systems Act.

(f) A person who violates this Section is guilty of a Class B misdemeanor and is subject to a fine of at least $1,000, except that a violation of this Section that involves 10 or more illegal aliens is a Class 4 felony and the person is subject to a fine of at least $1,000 for each alien who is involved.

Section 115. The Criminal Code of 1961 is amended by changing Section 36-1 as follows:

(720 ILCS 5/36-1) (from Ch. 38, par. 36-1)

Sec. 36-1. Seizure. Any vessel, vehicle or aircraft used with the knowledge and consent of the owner in the commission of, or in the attempt to commit as defined in Section 8-4 of this Code, an offense prohibited by (a) Section 9-1, 9-3, 10-2, 11-6, 11-15.1, 11-19.1, 11-19.2, 11-20.1, 12-4.1, 12-4.2, 12-4.2-5, 12-4.3, 12-4.6, 12-7.3, 12-7.4, 12-13, 12-14, 16-1 if the theft is of precious metal or of scrap metal, 18-2, 19-1, 19-2, 19-3, 20-1, 20-2, 24-1.2, 24-1.2-5, 24-1.5, 28-1, or 29D-15.2 of this Code, paragraph (a) of Section 12-4 of this Code, paragraph (a) of Section 12-15 or paragraphs (a), (c) or (d) of Section 12-16 of this Code, or paragraph (a)(6) or (a)(7) of Section 24-1 of this Code; (b) Section 21, 22, 23, 24 or 26 of the Cigarette Tax Act if the vessel, vehicle or aircraft contains more than 10 cartons of such cigarettes; (c) Section 28, 29 or 30 of the Cigarette Use Tax Act if the vessel, vehicle or aircraft contains more than 10 cartons of such cigarettes; (d) Section 44 of the Environmental Protection Act; (e) 11-204.1 of the Illinois Vehicle Code; (f) (1) driving under the influence of alcohol or other drug or drugs, intoxicating compound or compounds or any combination thereof under Section 11-501 of the Illinois Vehicle Code during a period in which his or her driving privileges are revoked or suspended where the revocation or suspension was for driving under the influence of alcohol or other drug or drugs, intoxicating compound or compounds or any combination thereof, Section 11-501.1, paragraph (b) of Section 11-401, or for reckless homicide as defined in Section 9-3 of the Criminal Code of 1961; (2) driving while under the influence of alcohol, other drug or drugs, intoxicating compound or compounds or any combination thereof and has been previously convicted of reckless homicide or a similar provision of a law of another state relating to reckless homicide in which the person was determined to have been under the influence of alcohol, other drug or drugs, or intoxicating compound or compounds as an element of the offense or the person has previously been convicted of committing a violation of driving under the influence of alcohol or other drug or drugs, intoxicating compound or compounds or any combination thereof and was involved in a motor vehicle accident that resulted in death, great bodily harm, or permanent disability or disfigurement to another, when the violation was a proximate cause of the death or injuries; (3) the person committed a violation of driving under the influence of alcohol or other drug or drugs, intoxicating compound or compounds or any combination thereof under Section 11-501 of the Illinois Vehicle Code or a similar provision for the third or subsequent time; (4) the person committed the violation while he or she did not possess a driver's license or permit or a restricted driving permit or a judicial driving permit or a monitoring device driving permit; or (5) the person committed the violation while he or she knew or should have known that the vehicle he or she was driving was not covered by a liability insurance policy, or (d)(1)(I); (g) an offense described in subsection (g) of Section 6-303 of the Illinois Vehicle Code; or (h) an offense described in subsection (e) of Section 6-101 of the Illinois Vehicle Code; or (i) an offense described in Section 11-1309 of the Illinois Vehicle Code; may be seized and delivered forthwith to the sheriff of the county of seizure.

Within 15 days after such delivery the sheriff shall give notice of seizure to each person according to the following method: Upon each such person whose right, title or interest is of record in the office of the Secretary of State, the Secretary of Transportation, the Administrator of the Federal Aviation Agency, or any other Department of this State, or any other state of the United States if such vessel, vehicle or aircraft is required to be so registered, as the case may be, by mailing a copy of the notice by certified mail to the address as given upon the records of the Secretary of State, the Department of Aeronautics, Department of Public Works and Buildings or any other Department of this State or the United States if such vessel, vehicle or aircraft is required to be so registered. Within that 15 day period the sheriff shall also notify the State's Attorney of the county of seizure about the seizure.

In addition, any mobile or portable equipment used in the commission of an act which is in violation of Section 7g of the Metropolitan Water Reclamation District Act shall be subject to seizure and forfeiture under the same procedures provided in this Article for the seizure and forfeiture of vessels, vehicles and aircraft, and any such equipment shall be deemed a vessel, vehicle or aircraft for purposes of this Article.

When a person discharges a firearm at another individual from a vehicle with the knowledge and consent of the owner of the vehicle and with the intent to cause death or great bodily harm to that individual and as a result causes death or great bodily harm to that individual, the vehicle shall be subject to seizure and forfeiture under the same procedures provided in this Article for the seizure and forfeiture of vehicles used in violations of clauses (a), (b), (c), or (d) of this Section.

If the spouse of the owner of a vehicle seized for an offense described in subsection (g) of Section 6-303 of the Illinois Vehicle Code, a violation of subdivision (d)(1)(A), (d)(1)(D), (d)(1)(G), (d)(1)(H), or (d)(1)(I) of Section 11-501 of the Illinois Vehicle Code, or Section 9-3 of this Code makes a showing that the seized vehicle is the only source of transportation and it is determined that the financial hardship to the family as a result of the seizure outweighs the benefit to the State from the seizure, the vehicle may be forfeited to the spouse or family member and the title to the vehicle shall be transferred to the spouse or family member who is properly licensed and who requires the use of the vehicle for employment or family transportation purposes. A written declaration of forfeiture of a vehicle under this Section shall be sufficient cause for the title to be transferred to the spouse or family member. The provisions of this paragraph shall apply only to one forfeiture per vehicle. If the vehicle is the subject of a subsequent forfeiture proceeding by virtue of a subsequent conviction of either spouse or the family member, the spouse or family member to whom the vehicle was forfeited under the first forfeiture proceeding may not utilize the provisions of this paragraph in another forfeiture proceeding. If the owner of the vehicle seized owns more than one vehicle, the procedure set out in this paragraph may be used for only one vehicle.

Property declared contraband under Section 40 of the Illinois Streetgang Terrorism Omnibus Prevention Act may be seized and forfeited under this Article.

(Source: P.A. 96-313, eff. 1-1-10; 96-710, eff. 1-1-10; 96-1000, eff. 7-2-10; 96-1267, eff. 7-26-10; 96-1289, eff. 1-1-11; revised 9-16-10.)

Section 120. The Code of Criminal Procedure of 1963 is amended by changing Section 107-2 as follows:

(725 ILCS 5/107-2) (from Ch. 38, par. 107-2)

Sec. 107-2. (1) Arrest by Peace Officer.

(1) A peace officer may arrest a person when:

(a) He has a warrant commanding that such person be arrested; or

(b) He has reasonable grounds to believe that a warrant for the person's arrest has been issued in this State or in another jurisdiction; or

(c) He has reasonable grounds to believe that the person is committing or has committed an offense; or .

(d) He or she has reasonable grounds to believe that the person to be arrested has committed an offense that makes the person removable from the United States.

(2) Whenever a peace officer arrests a person, the officer shall question the arrestee as to whether he or she has any children under the age of 18 living with him or her who may be neglected as a result of the arrest or otherwise. The peace officer shall assist the arrestee in the placement of the children with a relative or other responsible person designated by the arrestee. If the peace officer has reasonable cause to believe that a child may be a neglected child as defined in the Abused and Neglected Child Reporting Act, he shall report it immediately to the Department of Children and Family Services as provided in that Act.

(3) A peace officer who executes a warrant of arrest in good faith beyond the geographical limitation of the warrant shall not be liable for false arrest.

(Source: P.A. 86-298; revised 9-16-10.)

Section 125. The Right to Privacy in the Workplace Act is amended by changing Section 12 as follows:

(820 ILCS 55/12)

Sec. 12. Use of Employment Eligibility Verification Systems.

(a) On and after the effective date of this amendatory Act of the 97th General Assembly, every employer, after hiring an employee, shall verify the employment eligibility of the employee through the E-Verify program and shall keep a record of the verification for the duration of the employee's employment or at least 3 years, whichever is longer.

(b) In addition to any other requirement for an employer to receive an economic development incentive from a government entity, the employer shall register with and participate in the E-Verify program. Before receiving the economic development incentive, the employer shall provide proof to the government entity that the employer is registered with and is participating in the E-Verify program. If the government entity determines that the employer is not complying with this subsection, the government entity shall notify the employer by certified mail of the government entity's determination of noncompliance and the employer's right to appeal the determination. On a final determination of noncompliance, the employer shall repay all monies received as an economic development incentive to the government entity within 30 days of the final determination.

(c) For the purposes of this subsection:

"Economic development incentive" means any grant, loan, or performance-based incentive from any government entity that is awarded after September 30, 2012. Economic development incentive does not include any tax provision under Chapter 35.

"Government entity" means this State and any political subdivision of this State that receives and uses tax revenues.

(d) Every 3 months the Department of Labor shall request from the United States Department of Homeland Security a list of employers from this State that are registered with the E-Verify program. On receipt of the list of employers, the Department of Labor shall make the list available on the Department's website.

(a) Prior to choosing to voluntarily enroll in any Electronic Employment Verification System, including the E-Verify program and the Basic Pilot program, as authorized by 8 U.S.C. 1324a, Notes, Pilot Programs for Employment Eligibility Confirmation (enacted by P.L. 104-208, div. C, title IV, subtitle A), employers are urged to consult the Illinois Department of Labor's website for current information on the accuracy of E-Verify and to review and understand an employer's legal responsibilities relating to the use of the voluntary E-Verify program.

(a-1) The Illinois Department of Labor (IDOL) shall post on its website information or links to information from the United States Government Accountability Office, Westat, or a similar reliable source independent of the Department of Homeland Security regarding: (1) the accuracy of the E-Verify databases; (2) the approximate financial burden and expenditure of time that use of E-Verify requires from employers; and (3) an overview of an employer's responsibilities under federal and state law relating to the use of E-Verify.

(e) (b) Upon initial enrollment in an Employment Eligibility Verification System or within 30 days after the effective date of this amendatory Act of the 96th General Assembly, an employer enrolled in E-Verify or any other Employment Eligibility Verification System must attest, under penalty of perjury, on a form prescribed by the IDOL available on the IDOL website:

(1) that the employer has received the Basic Pilot or E-Verify training materials from the Department of Homeland Security (DHS), and that all employees who will administer the program have completed the Basic Pilot or E-Verify Computer Based Tutorial (CBT); and

(2) that the employer has posted the notice from DHS indicating that the employer is enrolled in the Basic Pilot or E-Verify program and the anti-discrimination notice issued by the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), Civil Rights Division, U.S. Department of Justice in a prominent place that is clearly visible to both prospective and current employees. The employer must maintain the signed original of the attestation form prescribed by the IDOL, as well as all CBT certificates of completion and make them available for inspection or copying by the IDOL at any reasonable time.

(f) (c) It is a violation of this Act for an employer enrolled in an Employment Eligibility Verification System, including the E-Verify program and the Basic Pilot program:

(1) to fail to display the notices supplied by DHS and OSC in a prominent place that is clearly visible to both prospective and current employees;

(2) to allow any employee to use an Employment Eligibility Verification System prior to having completed CBT;

(3) to fail to take reasonable steps to prevent an employee from circumventing the requirement to complete the CBT by assuming another employee's E-Verify or Basic Pilot user identification or password;

(4) to use the Employment Eligibility Verification System to verify the employment eligibility of job applicants prior to hiring or to otherwise use the Employment Eligibility Verification System to screen individuals prior to hiring and prior to the completion of a Form I-9;

(5) to terminate an employee or take any other adverse employment action against an individual prior to receiving a final nonconfirmation notice from the Social Security Administration or the Department of Homeland Security;

(6) to fail to notify an individual, in writing, of the employer's receipt of a tentative nonconfirmation notice, of the individual's right to contest the tentative nonconfirmation notice, and of the contact information for the relevant government agency or agencies that the individual must contact to resolve the tentative nonconfirmation notice;

(7) to fail to safeguard the information contained in the Employment Eligibility Verification System, and the means of access to the system (such as passwords and other privacy protections). An employer shall ensure that the System is not used for any purpose other than employment verification of newly hired employees and shall ensure that the information contained in the System and the means of access to the System are not disseminated to any person other than employees who need such information and access to perform the employer's employment verification responsibilities.

(g) (c-1) Any claim that an employer refused to hire, segregated, or acted with respect to recruitment, hiring, promotion, renewal or employment, selection for training or apprenticeship, discharge, discipline, tenure or terms, privileges, or conditions of employment without following the procedures of the Employment Eligibility Verification System, including the Basic Pilot and E-Verify programs, may be brought under paragraph (G)(2) of Section 2-102 of the Illinois Human Rights Act.

(h) (c-2) It is a violation of this Section for an individual to falsely pose as an employer in order to enroll in an Employment Eligibility Verification System or for an employer to use an Employment Eligibility Verification System to access information regarding an individual who is not an employee of the employer.

(d) Preemption. Neither the State nor any of its political subdivisions, nor any unit of local government, including a home rule unit, may require any employer to use an Employment Eligibility Verification System, including under the following circumstances:

(1) as a condition of receiving a government contract;

(2) as a condition of receiving a business license; or

(3) as penalty for violating licensing or other similar laws.

(i) This Section subsection (d) is a denial and limitation of home rule powers and functions under subsection (h) of Section 6 of Article VII of the Illinois Constitution.

(Source: P.A. 95-138, eff. 1-1-08; 96-623, eff. 1-1-10; 96-1000, eff. 7-2-10.)

Section 197. Severability. The provisions of this Act are severable under Section 1.31 of the Statute on Statutes.