MISSISSIPPI LEGISLATURE

2019 Regular Session

To: Universities and Colleges

By: Representative Denny

House Bill 729

AN ACT TO PROHIBIT COLLEGE OR UNIVERSITY STUDENTS WHO ARE UNLAWFULLY PRESENT IN THE UNITED STATES FROM RECEIVING CERTAIN TYPES OF FINANCIAL AID, INCLUDING INSTITUTIONAL AID AWARDED BY PUBLIC POSTSECONDARY EDUCATIONAL INSTITUTIONS AND STATE-ADMINISTERED POSTSECONDARY GRANTS AND SCHOLARSHIPS AWARDED BY ALL POSTSECONDARY EDUCATIONAL INSTITUTIONS; TO SPECIFY THE DOCUMENTATION WHICH MAY BE USED TO VERIFY A STUDENT'S LAWFUL PRESENCE IN THE UNTIED STATES; TO REQUIRE ALL POSTSECONDARY EDUCATIONAL INSTITUTIONS TO CERTIFY TO THE BOARD OF TRUSTEES OF STATE INSTITUTIONS OF HIGHER LEARNING THAT THEY HAVE NOT KNOWINGLY AWARDED FINANCIAL AID TO A STUDENT WHO IS UNLAWFULLY PRESENT IN THE UNITED STATES; TO PROVIDE THAT UNLAWFUL ALIENS SHALL NOT BE PROHIBITED FROM RECEIVING FINANCIAL ASSISTANCE FROM NONPROFIT ORGANIZATIONS; TO SPECIFY THAT CERTAIN ENTITIES WHICH CONTRACT WITH THE STATE OR ANY POLITICAL SUBDIVISION THEREOF MUST PROVIDE AFFIDAVITS ATTESTING TO PARTICIPATION IN THE FEDERAL WORK AUTHORIZATION PROGRAMS; TO BRING FORWARD SECTIONS 37-103-23 AND 71-11-3, MISSISSIPPI CODE OF 1972, FOR THE PURPOSE OF POSSIBLE AMENDMENTS; AND FOR RELATED PURPOSES.

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

     SECTION 1.  (1)  No covered student unlawfully present in the United States shall receive any benefit of postsecondary education financial assistance.  Educational institutions awarding postsecondary education financial assistance to covered students shall verify that these students are United States citizens, permanent residents, or lawfully present in the United States.

     (2)  The following documents, in hard copy or electronic form, may be used to document that a covered student is a United States citizen, permanent resident, or is lawfully present in the United States:

          (a)  The Free Application for Student Aid Institutional Student Information Record;

          (b)  A state-issued driver's license;

          (c)  A state-issued nondriver's identification card;

          (d)  Documentary evidence recognized by the Department of Public Safety when processing an application for a driver's license or nondriver's identification card;

          (e)  A United States birth certificate;

          (f)  A United States military identification card; or

          (g)  Any document issued by the federal government that confirms an alien's lawful presence in the United States.

     (3)  All postsecondary institutions shall annually certify to the Board of Trustees of State Institutions of Higher Learning and the Postsecondary Educational Financial Assistance Board that they have not knowingly awarded postsecondary education financial assistance to a covered student who is unlawfully present in the United States.

     (4)  As used in this section, the following terms shall have the meaning ascribed herein:

          (a)  "Covered student" means a student eighteen (18) years of age or older, who has graduated from high school and is attending classes on the campus of a postsecondary educational institution during regularly scheduled academic sessions;

          (b)  "Postsecondary education financial assistance" means an institutional financial aid awarded by postsecondary educational institutions and state-administered postsecondary grants and scholarships awarded by all postsecondary educational institutions to covered students.

          (c)  "Alien" means any person who is not a citizen or national of the United States, who:

              (i)  Enters or attempts to enter the United States at any time or place other than as designated by immigration officers; or

              (ii)  Eludes examination or inspection by immigration officers; or

              (iii)  Attempts to enter or obtains entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact.

     SECTION 2.  (1)  No alien unlawfully present in the United States shall receive any state or local public benefit, except for state or local public benefits that may be offered under 8 USCS 1621(b).  Nothing in this section shall be construed to prohibit the rendering of emergency medical care, prenatal care, services offering alternatives to abortion, emergency assistance, or legal assistance to any person.

     (2)  As used in this section, "public benefit" means:

          (a)  Any grant, contract, or loan provided by an agency of state or local government;

          (b)  Any retirement, welfare, health, postsecondary education state grants and scholarships, disability, housing or food assistance benefit under which payments, assistance, credits, or reduced rates or fees are provided.  The term "public benefit" shall not include postsecondary education financial assistance as defined in Section 1 of this act, any municipal permit, or contracts or agreements between public utility providers and their customers or unemployment benefits payable under Chapter 5, Title 71, Mississippi Code of 1972.  The unemployment compensation program shall verify the lawful presence of an alien for the purpose of determining eligibility for benefits in accordance with its own procedures.

     (3)  In addition to providing proof of other eligibility requirements, at the time of application for any state or local public benefit, an applicant who is eighteen (18) years of age or older shall provide affirmative proof that the applicant is a citizen or a permanent resident of the United States or is lawfully present in the United States.  However, in the case of state grants and scholarships, such proof shall be provided before the applicant receives any state postsecondary education financial assistance.  Such affirmative proof shall include documentary evidence recognized by the Department of Public Safety when processing an application for a driver's license, as well as any document issued by the federal government that confirms an alien's lawful presence in the United States.  In processing applications for public benefits, an employee of an agency of state or local government shall not inquire about the legal status of a custodial parent or guardian applying for a public benefit on behalf of his or her dependent child who is a citizen or permanent resident of the United States.

     (4)  An applicant who cannot provide the proof required under this section at the time of application may alternatively sign an affidavit under oath, attesting to either United States citizenship or classification by the United States as an alien lawfully admitted for permanent residence, in order to receive temporary benefits or a temporary identification document as provided in this section.  The affidavit shall be on or consistent with forms prepared by the state or local government agency administering the state or local public benefits and shall include the applicant's social security number or any applicable federal identification number and an explanation of the penalties under state law for obtaining public assistance benefits fraudulently.

     (5)  An applicant who has provided the sworn affidavit required under subsection (4) of this section is eligible to receive temporary public benefits as follows:

          (a)  For ninety (90) days or until such time that it is determined that the applicant is not lawfully present in the United States, whichever is earlier; or

          (b)  Indefinitely if the applicant provides a copy of a completed application for a birth certificate that is pending in Mississippi or some other state.  An extension granted under this subsection shall terminate upon the applicant's receipt of a birth certificate or a determination that a birth certificate does not exist because the applicant is not a United States citizen.

     (6)  An applicant who is an alien shall not receive any state or local public benefit unless the alien's lawful presence in the United States is first verified by the federal government.  State and local agencies administering public benefits in this state shall cooperate with the United States Department of Homeland Security in achieving verification of an alien's lawful presence in the United States in furtherance of this section.  The system utilized may include the Systematic Alien Verification for Entitlements Program operated by the United States Department of Homeland Security.  After an applicant's lawful presence in the United States has been verified through the Systematic Alien Verification for Entitlements Program, no additional verification is required within the same agency of the state or local government.

     (7)  The provisions of this section shall not be construed to require any nonprofit organization duly registered with the Internal Revenue Service to enforce the provisions of this section, nor does it prohibit such an organization from providing aid.

     (8)  Any agency that administers public benefits shall provide assistance in obtaining appropriate documentation to persons applying for public benefits who sign the affidavit required by subsection (4) of this section stating they are eligible for such benefits but lack the documents required under subsection (3) of this section.

     SECTION 3.  (1)  In compliance with the "Mississippi Employment Protection Act," Section 71-11-3, no business entity or employer shall knowingly employ, hire for employment, or continue to employ an unauthorized alien to perform work within the State of Mississippi.

     (2)  As a condition for the award of any contract or grant in excess of Five Thousand Dollars ($5,000.00) by the state or by any political subdivision of the state to a business entity, or for any business entity receiving a state-administered or subsidized tax credit, tax abatement, or loan from the state, the business entity shall, by sworn affidavit and provision of documentation, affirm its enrollment and participation in a federal work authorization program with respect to the employees working in connection with the contracted services.  Every such business entity shall also sign an affidavit affirming that it does not knowingly employ any person who is an unauthorized alien in connection with the contracted services.  Any entity contracting with the state or any political subdivision of the state shall only be required to provide the affidavits required in this subsection to the state and any political subdivision of the state with which it contracts, on an annual basis.  During or immediately after an emergency, the requirements of this subsection that a business entity enroll and participate in a federal work authorization program shall be suspended for fifteen working days.  As used in this subsection, "emergency" includes the following natural and manmade disasters:  major snow and ice storms, floods, tornadoes, severe weather, earthquakes, hazardous material incidents, nuclear power plant accidents, other radiological hazards, and major mechanical failures of a public utility facility.

     (3)  All public employers shall enroll and actively participate in a federal work authorization program.

     (4)  An employer may enroll and participate in a federal work authorization program and shall verify the employment eligibility of every employee in the employer's hire whose employment commences after the employer enrolls in a federal work authorization program.  The employer shall retain a copy of the dated verification report received from the federal government. Any business entity that participates in such program shall have an affirmative defense that such business entity has not violated subsection (1) of this section.

     (5)  A general contractor or subcontractor shall not be liable when such general contractor or subcontractor contracts with its direct subcontractor who violates subsection (1) of this section, if the contract binding the contractor and subcontractor affirmatively states that the direct subcontractor is not knowingly in violation of subsection (1) of this section and shall not henceforth be in such violation and the contractor or subcontractor receives a sworn affidavit under the penalty of perjury attesting to the fact that the direct subcontractor's employees are lawfully present in the United States.

     SECTION 4.  Section 37-103-23, Mississippi Code of 1972, is brought forward as follows:

     37-103-23.  All aliens are classified as nonresidents.

     SECTION 5.  Section 71-11-3, Mississippi Code of 1972, is brought forward as follows:

     71-11-3.  (1)  This chapter shall be known as the "Mississippi Employment Protection Act."

     (2)  The provisions of this section shall be enforced without regard to race, gender, religion, ethnicity or national origin.

     (3)  For the purpose of this section only, the following words shall have the meanings ascribed herein unless the content clearly states otherwise:

          (a)  "Employer" is any person or business that is required by federal or state law to issue a United States Internal Revenue Service Form W-2 or Form 1099 to report income paid to employed or contracted personnel in Mississippi.

          (b)  "Employee" is any person or entity that is hired to perform work within the State of Mississippi and to whom a United States Internal Revenue Service Form W-2 or Form 1099 must be issued.

          (c)  "Third-party employer" is any person or company that provides workers for another person or company.  This includes, but is not limited to, leasing companies and contract employers.

          (d)  "Status verification system" means the electronic verification of work authorization program of the Illegal Immigration Reform and Immigration Responsibility Act of 1996, Public Law 104-208, Division C, Section 403(a); 8 USC, Section 1324a, and operated by the United States Department of Homeland Security, known as the E-Verify Program.

          (e)  "Unauthorized alien" means an alien as defined in Section 1324a(h)(3) of Title 8 of the United States Code.

          (f)  "Public employer" means every department, agency or instrumentality of the state or a political subdivision of the state.

          (g)  "Subcontractor" means a subcontractor, contract employee, staffing agency or any contractor regardless of its tier.

     (4)  (a)  Employers in the State of Mississippi shall only hire employees who are legal citizens of the United States of America or are legal aliens.  For purposes of this section, a legal alien is an individual who was lawfully present in the United States at the time of employment and for the duration of employment, or was permanently residing in the United States under color of law at the time of employment and for the duration of employment.

          (b)  (i)  Every employer shall register with and utilize the status verification system to verify the federal employment authorization status of all newly hired employees.

              (ii)  No contractor or subcontractor shall hire any employee unless the contractor or subcontractor registers and participates in the status verification system to verify the work eligibility status of all newly hired employees.

              (iii)  No contractor or subcontractor who enters into a contract with a public employer shall enter into such a contract or subcontract unless the contractor or subcontractor registers and participates in the status verification system to verify information of all newly hired employees.

          (c)  The provision of this section shall not apply to any contracts entered into on or before July 1, 2008.

          (d)  It shall be a discriminatory practice for an employer to discharge an employee working in Mississippi who is a United States citizen or permanent resident alien while retaining an employee who the employing entity knows, or reasonably should have known, is an unauthorized alien hired after July 1, 2008, and who is working in Mississippi in a job category that requires equal skill, effort and responsibility, and which is performed under similar working conditions, as defined by 29 USC, Section 206(d)(1), as the job category held by the discharged employee.

          (e)  An employing entity which, on the date of the discharge in question, was enrolled in and used the status verification system to verify the employment eligibility of its employees in Mississippi hired after July 1, 2008, shall be exempt from liability, investigation or suit arising from any action under this section.

          (f)  No cause of action for a violation of this section shall lie under any other Mississippi law but shall arise solely from the provisions of this section.

     (5)  Any employer that complies with the requirements of this section shall be held harmless by the Mississippi Department of Employment Security, provided the employer is not directly involved in the creation of any false documents, and provided that the employer did not knowingly and willfully accept false documents from the employee.

     (6)  (a)  All third-party employers that conduct business in Mississippi shall register to do business in Mississippi with the Mississippi Department of Employment Security before placing employees into the workforce in Mississippi.

          (b)  Third-party employers shall provide proof of registration and any participation in the status verification system to any Mississippi employer with whom they do business.

     (7)  (a)  State of Mississippi agencies and political subdivisions, public contractors and public subcontractors and private employers with two hundred fifty (250) or more employees shall meet verification requirements not later than July 1, 2008.

          (b)  Employers with at least one hundred (100) but less than two hundred fifty (250) employees shall meet verification requirements not later than July 1, 2009.

          (c)  Employers with at least thirty (30) but less than one hundred (100) employees shall meet verification requirements not later than July 1, 2010.

          (d)  All employers shall meet verification requirements not later than July 1, 2011.

          (e)  (i)  Any employer violating the provisions of this section shall be subject to the cancellation of any state or public contract, resulting in ineligibility for any state or public contract for up to three (3) years, the loss of any license, permit, certificate or other document granted to the employer by any agency, department or government entity in the State of Mississippi for the right to do business in Mississippi for up to one (1) year, or both.

              (ii)  The contractor or employer shall be liable for any additional costs incurred by the agencies and institutions of the State of Mississippi, or any of its political subdivisions, because of the cancellation of the contract or the loss of any license or permit to do business in the state.

              (iii)  Any person or entity penalized under this section shall have the right to appeal to the appropriate entity bringing charges or to the circuit court of competent jurisdiction.

          (f)  The Department of Employment Security, State Tax Commission, Secretary of State, Department of Human Services and the Attorney General shall have the authority to seek penalties under this section and to bring charges for noncompliance against any employer or employee.

     (8)  (a)  There shall be no liability under this section in the following circumstances:

              (i)  An employer who hires an employee through a state or federal work program that requires verification of the employee's social security number and provides for verification of the employee's lawful presence in the United States in an employment-authorized immigration status;

              (ii)  Any candidate for employment referred by the Mississippi Department of Employment Security, if the Mississippi Department of Employment Security has verified the social security number and provides for verification of the candidate's lawful presence in the United States in an employment-authorized immigration status; or

              (iii)  Individual homeowners who hire workers on their private property for noncommercial purposes, unless required by federal law to do so.

          (b)  (i)  Compliance with the sections of this statute shall not exempt the employer from regulations and requirements related to any federal laws or procedures related to employers.

              (ii)  This section shall not be construed as an attempt to preempt federal law.

          (c)  (i)  It shall be a felony for any person to accept or perform employment for compensation knowing or in reckless disregard that the person is an unauthorized alien with respect to employment during the period in which the unauthorized employment occurred.  Upon conviction, a violator shall be subject to imprisonment in the custody of the Department of Corrections for not less than one (1) year nor more than five (5) years, a fine of not less than One Thousand Dollars ($1,000.00) nor more than Ten Thousand Dollars ($10,000.00), or both.

              (ii)  For purposes of determining bail for persons who are charged under this section, it shall be a rebuttable presumption that a defendant who has entered and remains in the United States unlawfully is deemed at risk of flight for purposes of bail determination.

     SECTION 6.  This act shall take effect and be in force from and after July 1, 2019.