MISSISSIPPI LEGISLATURE

2007 Regular Session

To: Labor; Ways and Means

By: Representative Malone

House Bill 628

AN ACT TO CREATE THE OFFICE OF IMMIGRATION WITHIN THE MISSISSIPPI DEPARTMENT OF PUBLIC SAFETY; TO PROVIDE DEFINITIONS FOR THE ACT; TO PROVIDE POWERS AND DUTIES OF SUCH OFFICE; TO REQUIRE ANY EMPLOYER THAT HIRES ILLEGAL IMMIGRANTS TO REGISTER WITH THE OFFICE OF IMMIGRATION; TO PROVIDE THAT SUCH EMPLOYER SHALL PAY A FEE TO RECEIVE A REGISTRATION CARD FOR A CERTAIN PERIOD OF TIME; TO PROVIDE RENEWAL FEES FOR SUCH REGISTRATION CARDS; TO REQUIRE ILLEGAL IMMIGRANTS WHO ARE HIRED IN THIS STATE TO OBTAIN AN EMPLOYMENT-IDENTIFICATION CARD FROM THE OFFICE OF IMMIGRATION; TO PROVIDE THAT A FEE SHALL BE CHARGED FOR RENEWAL AND LOST EMPLOYMENT-IDENTIFICATION CARDS; TO PROVIDE PENALTIES FOR FRAUDULENT AND OTHER USES OF THE EMPLOYMENT-IDENTIFICATION CARD; TO REQUIRE ANY EMPLOYER THAT HIRES ILLEGAL IMMIGRANTS TO DEDUCT AND WITHHOLD A CERTAIN PERCENT OF WAGES PAID TO AN ILLEGAL IMMIGRANT AND REMIT SUCH AMOUNT TO THE STATE TAX COMMISSION; TO AUTHORIZE THE STATE TAX COMMISSION TO PROMULGATE RULES AND REGULATIONS TO ADMINISTER CERTAIN PROVISIONS OF THIS ACT; TO AMEND SECTION 45-1-2, MISSISSIPPI CODE OF 1972, TO ADD THE OFFICE OF IMMIGRATION TO THE LIST OF EXISTING DEPARTMENTS WITHIN THE DEPARTMENT OF PUBLIC SAFETY; AND FOR RELATED PURPOSES.

     BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

     SECTION 1.  Purpose.  The purpose of this act is create the Office of Immigration within the Department of Public Safety to regulate illegal immigrants who are employed in the State of Mississippi and to levy a tax upon all wages earned in this state by such illegal immigrants.  Nothing in this act provides any immunity from criminal prosecution, civil liability or deportation of illegal immigrants found in this state.

     SECTION 2.  For the purposes of Sections 1 through 12 of this act the following words have the meanings ascribed in this section unless the context clearly requires otherwise:

          (a)  "Department" means the Department of Public Safety.

          (b)  "Commissioner" means the Commissioner of Public                    Safety.

          (c) "Employer" means any company, corporation, partnership, business, enterprise or other legal entity doing business in the State of Mississippi that employs one or more illegal immigrants.

     (d)  "Employment-Identification card" means a card issued by the Office of Immigration to an illegal immigrant hired by an employer.

     (e)  "Illegal immigrant" means any person who does not meet one of the following descriptions:

          (i)   Is a citizen or national of the United States;

          (ii)  Is an alien lawfully admitted for permanent or temporary residence in the United States;

          (iii)  Has conditional permanent resident status in the United States;

          (iv)  Has an approved application for asylum in the United States or has entered into the United States in refugee status;

          (v)  Has a valid, unexpired nonimmigrant visa or nonimmigrant visa status for entry into the United States;

          (vi)  Has a pending application for asylum in the United States;

          (vii)  Has a pending or approved application for temporary protected status in the United States;

          (viii)  Has approved deferred action status; or

          (ix)  Has a pending application for adjustment of status to that of an alien lawfully admitted for permanent residence in the United States or conditional permanent resident status in the United States.

     (f)  "Office" means Office of Immigration within the Mississippi Department of Public Safety.

     (g)  "Registration card" means the card issued by the Office of Immigration to any employer.

     SECTION 3.  (1)  Every employer who hires an illegal immigrant shall register with the Office of Immigration.  Every employer that registers under the provisions of this section shall be issued a registration card by the Office of Immigration identifying such employer as one that hires illegal immigrants.  The card shall be issued for a twelve-month period and shall expire at midnight on the last day of the twelfth month.

     (2)  A fee of One Thousand Dollars ($1,000.00) shall be collected for the issuance of an original or renewal registration card.

     SECTION 4.  (1)  There is created the Office of Immigration within the Department of Public Safety to regulate activities of illegal immigrants.

     (2)  The Commissioner of the Department of Public Safety shall appoint an Executive Director for the Office of Immigration.

     (3)  The Office of Immigration shall exercise the following powers and duties in carrying out the purposes of this act:

          (a) Require every employer to provide any documents provided by illegal immigrants to such employer;

          (b)  Communicate with the State Tax Commission and provide any information needed by the Tax commission regarding any employer registered with the office.

          (c) Promulgate and adopt rules and regulations and policies in accordance with the Mississippi Administrative Procedures Law to implement, administer and enforce the provisions of Sections 1 through 12 of this act.

     SECTION 5.  (1)  An illegal immigrant who works in the State of Mississippi shall obtain an employment-identification card.  The card shall be issued to such immigrant by the Office of Immigration that is certified by the immigrant and attested by the Executive Director of the Office of Immigration as to the true name, correct age and such other identifying data as required by the office.

      (2)  Data for the issuance of an employment-identification card shall include a birth certificate or other document to establish the age and identity of the applicant and such other identifying data as is required on an application prescribed by the Office of Immigration.

     (3)  The office shall assign an "identifying code" to each illegal immigrant who obtains an employment-identification card and place such code on the face of each card.  The "identifying code" shall not change for the illegal immigrant once assigned by the office.

     SECTION 6.  (1)  Each applicant for an original employment-identification card issued pursuant to Sections 1 through 12 of this act shall be issued a card for a six-month period.  Each card shall expire at midnight on the last day of the sixth month.

     (2)  All renewal identification cards shall be for six-month periods and may be renewed any time during the sixth month upon application and payment of the required fee.

     (3)  A fee of One Hundred Dollars ($100.00) shall be collected for the issuance of an original or renewal employment-identification card plus the applicable photograph fee as provided in subsection (4) of this section.  The employment-identification card fee of One Hundred Dollars ($100.00) shall be deposited into the State General Fund.  The photograph fee shall be deposited into a special photograph fee account or the State General Fund as provided under subsection (4) of this section.

     (4)  The commissioner, by rule or regulation, shall establish an employment-identification card photograph fee which shall be the actual cost of the photograph rounded off to the next highest dollar.  Monies collected for the photograph fee shall be deposited into a special photograph fee account which the Office of Immigration shall use to pay the actual cost of producing the photographs.  Any monies collected in excess of the actual costs of the photography shall be deposited to the General Fund of the State of Mississippi.

     (5)  The office shall maintain a record of all employment-identification cards issued, except for those cards cancelled, surrendered or denied renewal.

     SECTION 7.  (1)  If an employment-identification card issued under this act is lost, destroyed or mutilated, or a new name is required, the person to whom it was issued may obtain a duplicate by furnishing satisfactory proof of such fact to the department. The same identifying data shall be furnished for a duplicate as for an original card.  A fee of Thirty-five Dollars ($35.00) plus the applicable photograph fee shall be collected for the first  duplicate card issued and a fee of Fifty Dollars ($50.00) plus the applicable photograph fee shall be collected for the second and each subsequent duplicate copy.  However, whenever a duplicate copy of an employment-identification card is issued only because a new name is required and the previously issued identification card is returned to the department, the fee for the issuance of such duplicate shall be Fifteen Dollars ($15.00) plus the applicable photograph fee, regardless of whether the duplicate is the first, second or subsequent duplicate copy.  All fees collected under this section, except photograph fees, shall be deposited into the State General Fund.  Photograph fees collected under this section shall be deposited into a special photograph fee account or into the State General Fund in the same manner as photograph fees collected from the issuance of drivers' licenses under Section 63-1-43.

     (2)  Any person who loses an employment-identification card and who, after obtaining a duplicate, finds the original card shall promptly surrender the original card to the department.

     (3)  All employment-identification cards shall be centrally issued by the Office of Immigration, adequately describe the registrant, bear a color photograph of the registrant, and include other such identifying data as required by the office.

     SECTION 8.  (1)  No person shall:

          (a)  Display, or cause or permit to be displayed, or have in his possession, any cancelled, fictitious, fraudulently altered or fraudulently obtained employment-identification cards;

          (b)  Lend an employment-identification card to any person or knowingly permit the use thereof by another;

          (c)  Display or represent any employment-identification card not issued to him as being his card;

          (d)  Permit any unlawful use of an employment-identification card issued to him;

          (e)  Do any act forbidden or fail to perform any act required by this act;

          (f)  Photograph, photostat, duplicate or in any way reproduce, manufacture, sell or distribute any employment-identification card or facsimile thereof so that it could be mistaken for a valid employment-identification card; or

          (g)  Display or have in his possession any photograph, photostat, duplicate, reproduction or facsimile of an employment-identification card unless authorized by the provisions of Sections 1 through 12 of this act.

     (2)  Any person convicted of a violation of any provision of paragraphs (a), (b), (c), (d), (e) or (g) of subsection (1) of this section is guilty of a misdemeanor and shall be punished by a fine of not more than Five Hundred Dollars ($500.00) or by imprisonment for not more than thirty (30) days, or by both such fine and imprisonment.

     (3)  Any person under twenty-one (21) years of age at the time of the offense who is convicted of a violation of paragraph (f) of subsection (1) of this section shall be punished as follows:

          (a)  A first offense shall be a misdemeanor punishable by a fine of not more than Five Hundred Dollars ($500.00), or by imprisonment for not more than six (6) months, or by both such fine and imprisonment.

          (b)  A second or subsequent offense, the offenses being committed within a period of five (5) years, shall be a misdemeanor punishable by a fine of not more than Five Thousand Dollars ($5,000.00), or by imprisonment for not more than one (1) year, or by both such fine and imprisonment.

     (4)  Any person twenty-one (21) years of age or older at the time of the offense who is convicted of a violation of paragraph (f) of subsection (1) of this section is guilty of a felony and shall be punished by a fine of not less than Five Thousand Dollars ($5,000.00), or imprisonment for not more than three (3) years, or by both such fine and imprisonment.

     SECTION 9.  No public entity or public official shall be liable for any loss or injury resulting directly or indirectly from false or inaccurate information contained in an employment-identification card issued pursuant to Sections 1 through 12 of this act.

     SECTION 10.  (1)  Every employer making payments of wages to illegal immigrant employees under the provisions of Sections 1 through 12 of this act shall deduct and withhold from such wages  an amount equal to five percent (5%) of the total wages paid to such illegal immigrant employee.  Employers that lease illegal immigrant employees by a contract of employment with a leasing employer may be considered the employer for withholding purposes.  In such cases, payments to the leasing company may be attached for such withholding upon default by the leasing firm.

     Employers that lease illegal immigrant employees to other employers are required to maintain separate ledgers of account for these employees.  These lease employers shall furnish the Tax Commission annually a summary of wages paid, number of such employees and amounts withheld by location. In addition, the Tax Commissioner shall require employers that lease illegal immigrant employees to businesses to give a cash bond or an approved surety bond in an amount sufficient to cover twice the estimated tax liability for a period of three (3) months.  This bond shall be filed with the Tax Commissioner prior to beginning business in this state.  Failure to comply with this provision shall subject such employer to the penalties provided under law for failure to provide information to the Tax Commission.

      (2)  (a)  Except as otherwise provided in this subsection, every employer required to deduct and withhold from wages under Sections 1 through 12 of this act shall, for each calendar quarter, on or before the fifteenth day of the month following the close of such calendar quarter, file a withholding return as prescribed by the Tax Commissioner and pay over to the Tax Commissioner the full amount required to be deducted and withheld from wages by such employer for the calendar quarter.  Provided that the Tax Commissioner may, by regulation, provide that every such employer shall, on or before the fifteenth day of each month, pay over to the Tax Commissioner or a depository designated by the Tax Commissioner, the amount required to be deducted and withheld by such employer for the preceding month, if such amount is One Hundred Dollars ($100.00) or more.  Returns and payments placed in the mail must be postmarked by the due date in order to be timely filed, except when the due date falls on a weekend or holiday, returns and payments placed in the mail must be postmarked by the first working day following the due date in order to be considered timely filed.

          (b)  The Tax Commissioner may promulgate rules and regulations to require or permit filing periods of any duration, in lieu of monthly or quarterly filing periods, for any taxpayer or group thereof under the provisions of Sections 1 through 12 of this act.

     (3)  Notwithstanding any of the other provisions of this section, all transient employers and all employers engaged in any business that is seasonal shall make a return and pay over to the Tax Commissioner on a monthly basis, the full amounts required to be deducted and withheld from the wages by such employer for the calendar month.  Such returns and payments to the Tax Commissioner by such employers shall be made on or before the fifteenth day of the month following the month for which such amounts were deducted and withheld from the wages of his employees.  The Tax Commissioner shall have the authority to issue reasonable rules and regulations designating or classifying said transient and seasonal employers.

     (4)  If the Tax Commissioner, in any case, has justifiable reason to believe that the collection of funds required to be withheld by any employer as provided in this section is in jeopardy, he may require the employer to file a return and pay such amount required to be withheld at any time.

     (5)  Every employer who fails to withhold or pay to the Tax Commissioner any sums required by this section to be withheld and paid, shall be personally and individually liable therefor; and any sum or sums withheld in accordance with the provisions of this section shall be deemed to be held in trust for the State of Mississippi and shall be recorded by the employer in a ledger account so as to clearly indicate the amount of tax withheld and that the amount is the property of the State of Mississippi.

     (6)  Once an employer has become liable to file a quarterly return of withholding, he must continue to file a quarterly report, even though no amount has been withheld, until such time as he notifies the Tax Commissioner, in writing, that he no longer has illegal immigrant employees or that he is no longer liable for such quarterly returns.

     (7)  Once an employer has become liable to file a monthly return of withholding, he must continue to file a monthly report, even though no amount has been withheld until such time as he notifies the Tax Commissioner, in writing, that he no longer has employees or that he is no longer liable for such monthly returns.

     SECTION 11.  Nothing in Sections 1 through 12 of this act shall be construed to supersede any federal law that prohibits illegal immigrants from working in the United States or provides penalties for violation of such laws. 

     SECTION 12.  The Tax Commissioner may promulgate and adopt rules and regulations and policies in accordance with the Mississippi Administrative Procedures Law to implement, administer and enforce the provisions of Sections 1 through 12 of this act.

     SECTION 13.  Section 45-1-2, Mississippi Code of 1972, is amended as follows:

     45-1-2.  (1)  The Executive Director of the Department of Public Safety shall be the Commissioner of Public Safety.

     (2)  The Commissioner of Public Safety shall establish the organizational structure of the Department of Public Safety, which shall include the creation of any units necessary to implement the duties assigned to the department and consistent with specific requirements of law including, but not limited to:

          (a)  Office of Public Safety Planning;

          (b)  Office of Medical Examiner;

          (c)  Office of Mississippi Highway Safety Patrol;

          (d)  Office of Crime Laboratories;

          (e)  Office of Law Enforcement Officers' Training Academy;

          (f)  Office of Support Services;

          (g)  Office of Narcotics, which shall be known as the Bureau of Narcotics; * * *

          (h)  Office of Homeland Security; and

          (i)  Office of Immigration.

     (3)  The department shall be headed by a commissioner, who shall be appointed by and serve at the pleasure of the Governor.  The appointment of the commissioner shall be made with the advice and consent of the Senate.  The commissioner may assign to the appropriate offices such powers and duties as deemed appropriate to carry out the department's lawful functions.

     (4)  The commissioner of the department shall appoint heads of offices, who shall serve at the pleasure of the commissioner.  The commissioner shall have the authority to organize the offices established by subsection (2) of this section as deemed appropriate to carry out the responsibilities of the department.  The organization charts of the department shall be presented annually with the budget request of the Governor for review by the Legislature.

     (5)  The commissioner of the department shall appoint, from within the Department of Public Safety, a statewide safety training officer who shall serve at the pleasure of the commissioner and whose duty it shall be to perform public training for both law enforcement and private persons throughout the state concerning proper emergency response to the mentally ill, terroristic threats or acts, domestic conflict, other conflict resolution, and such other matters as the commissioner may direct.

     SECTION 14.  This act shall take effect and be in force from and after July 1, 2007.