The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Rules
BILL: CS/SB 1718
INTRODUCER: Rules Committee and Senator Ingoglia
SUBJECT: Immigration
DATE: March 17, 2023
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Cibula/Stokes
/Vickers
Twogood
RC
Fav/CS
2. FP
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/SB 1718 amends various Florida statutes to address provisions related to individuals in this
state who may be unauthorized aliens. Specifically the bill:
Expands the crime of human smuggling to include concealing, harboring, or shielding a
person who has entered the United States, in violation of the law, from detection;
Enhances the crime of human smuggling in certain circumstances;
Allows a law enforcement agency to send relevant information obtained pursuant to
enforcement of s. 448.095, F.S., to a federal immigration agency;
Amends the state’s domestic security statutes to provide the necessary authority for the
department to coordinate with and provide assistance to the Federal Government in the
enforcement of federal immigration laws, and responses to immigration enforcement
incidents within or affecting Florida;
Revises requirements for public and private employers for employment verification,
including requiring an employer to retain employment verification documentation used for at
least 5 years; altering the defenses for employers using I-9 Form or E-Verify; and amending
the penalties for an employer’s noncompliance with the employment verification law,
including allowing for private employers the suspension and revocation of licenses in certain
circumstances and the imposition of fines;
Increases the fines associated with violation of laws prohibiting the employment of
unauthorized aliens;
REVISED: BILL: CS/SB 1718 Page 2
Creates a third degree felony for an unauthorized alien to knowingly use a false identification
document, or who fraudulently uses an identification document of another person, to obtain
employment;
Prohibits a county or municipality from providing funds to any person, entity, or organization
for the purpose of issuing an identification card or other document to an individual who does
not provide proof of lawful presence in the United States;
Prohibits a person from operating a motor vehicle if his or her driver’s license is issued by
another state which exclusively provides such a license to undocumented immigrants who are
unable to prove lawful presence in the United States when the licenses are issued;
Provides that certain existing exemptions from obtaining a Florida driver license for
nonresidents do not apply for undocumented immigrants;
Repeals the statute that allows an applicant to the Florida Bar who is an unauthorized
immigrant to be admitted to the Bar by the Florida Supreme Court if certain conditions are
met;
Requires a person who is in the custody of a law enforcement agency and is subject to an
immigration detainer to submit a DNA sample when he or she is booked into a jail,
correctional, or juvenile facility;
Requires any hospital that accepts Medicaid to include a question on its admission or
registration forms inquiring about whether the patient is a United States citizen, is lawfully
present in the United States, or is not lawfully present in the United States; and
Requires each hospital to provide a quarterly report to the Agency of Health Care
Administration, detailing the number of visits or admissions by patients who responded to the
above question in each category.
The bill is expected to have a significant, negative fiscal impact to the Department of Economic
Opportunity. The bill is not expected to have a significant fiscal impact on other state agencies or
local governments.
The bill is effective July 1, 2023.
II. Present Situation:
General Overview
The Federal Government is responsible for both establishing and enforcing immigration laws.
Congress has enacted legislation, which the federal courts have interpreted, and the body of
immigration law has developed. The responsibility for enforcing immigration laws rests with the
Department of Homeland Security’s (DHS) U.S. Immigration and Customs Enforcement (ICE)
and its Enforcement and Removal Operations. It is the mission of Enforcement and Removal
Operations to identify, apprehend, and remove aliens who are a risk to national security or public
safety, enter the country illegally, or seek to undermine the integrity of the country’s immigration
laws or border control efforts.
1
1
U.S. Immigration and Customs Enforcement, Enforcement and Removal Operations, Mission, available at
https://www.ice.gov/ero (last visited March 10, 2023). BILL: CS/SB 1718 Page 3
In federal fiscal year 2020, the U.S. Border Patrol and Office of Field Operations had 646,822
enforcement actions for the year; in 2021, that total increased to over 1.9 million actions, an
increase of over 200 percent. The total enforcement actions in federal fiscal year 2022 was about
2.8 million, another 41 percent increase, and to date for 2023, the total is already over 1 million.
These statistics include individuals “encountered at ports of entry who are seeking lawful
admission into the United States but are determined to be inadmissible, individuals presenting
themselves to seek humanitarian protection under our laws, and individuals who withdraw an
application for admission and return to their countries of origin within a short timeframe.” The
total also includes encounters that led to apprehensions or expulsions; apprehensions refer to
individuals who were physically controlled or temporarily detained due to being unlawfully
present in the United States.
2
In addition to the dramatic increase in border encounters, the recidivism rate has also increased.
“Recidivism refers to percentage of individuals apprehended more than one time by the Border
Patrol within a fiscal year.” In federal fiscal year 2019, the rate was only 7 percent. However,
that climbed to an increase of 26 percent in federal fiscal year 2020 and 27 percent in federal
fiscal year 2021.
3
Encounters with criminal noncitizens were:
FFY 2020 FFY 2021 FFY 2022
FFY 2023
to date
9,447 17,330 29,021 9,445
“Criminal noncitizens refers to noncitizens who have been convicted of crime, whether in the
United States or abroad, so long as the conviction is for conduct which is deemed criminal by the
United States.”
4
The Governor has issued two Executive Orders attempting to address the enforcement of
immigration laws and the immigration crisis the state has on its borders.
5
On September 28, 2021, the Governor issued Executive Order No. 21-223, Biden Border Crisis.
Finding that the detrimental effects of an unsecured southwest border of the United States would
reverberate beyond border states, including increased crime, such as drug trafficking and human
trafficking and smuggling, diminished economic opportunities for American workers, and
stresses on education and healthcare systems. The order prohibited state agencies from assisting
with the transport of aliens apprehended at the southwest border into Florida; and required state
agencies to use the federal Systematic Alien Verification for Entitlements program to confirm
2
U.S. Customs and Border Protection, CBP Enforcement Statistics Fiscal Year 2023, available at
https://www.cbp.gov/newsroom/stats/cbp-enforcement-statistics (last visited March 11, 2023). The federal fiscal year is
October to September.
3
Id.
4
Id.
5
See State of Florida, Office of the Governor, Executive Order No. 21-223, September 28, 2021, available at
https://www.flgov.com/wp-content/uploads/2021/09/EO_21-223.pdf (last visited March 10, 2023) and State of Florida,
Office of the Governor, Executive Order No. 23-03, January 6, 2023, available at https://www.flgov.com/wp-
content/uploads/2023/01/EO-23-03.pdf (last visited March 10, 2023). BILL: CS/SB 1718 Page 4
the eligibility of persons before providing any funds, resources, or other benefits. The order
specifically:
Directs the Florida Department of Law Enforcement (FDLE) and the Florida Highway
Patrol to determine on an ongoing basis the number and identities of all illegal aliens
6
whom the DHS, as well as any other federal departments or agencies, federal contractors,
or affiliated non-governmental organizations, transport to Florida and to detain any
aircraft, bus, or other vehicle used to transport illegal aliens to the state in the commission
of a state offense, including state laws against human trafficking.
Requests state attorneys and statewide prosecutor to report monthly to the Governor’s
Office and the FDLE on information related to illegal aliens and crimes, which the
department was to make available on its website.
Directs the Agency for Health Care Administration (AHCA), in coordination with the
Department of Children and Families, the Department of Health, and county health
departments, to use all lawful means to determine the amount of state and local funds
spent on health care, including emergency care, for illegal aliens each fiscal year. The
AHCA was also directed to require managed care plans and hospitals to report any
Medicaid or other governmental expenditures incurred for illegal aliens for each fiscal
year beginning in 2021. Such information was to be made available to the Governor’s
Office and posted on the websites for the AHCA and the Department of Health.
Directs the Department of Children and Families to determine the amount and purpose of
state funds expended by the department on illegal aliens for each fiscal year. Such
information was to be made available to the Governor’s Office and posted on the website
for the department. The department was also directed to review resettlement of
unaccompanied alien children
7
in Florida and make determinations on resettlement under
state laws; to the extent that such resettlement did not constitute “evidence of need” under
Florida law, the department was directed to not grant or renew licenses to family foster
homes, residential child-caring agencies, or child-placing agencies that applied to house
unaccompanied minors and to prohibit these entities from accepting additional children if
they already housed unaccompanied alien children. These entities were also required, as a
part of licensure, to conduct in-person welfare checks on these children and report to the
department, if the department determined that such checks were permitted by state law.
Directs the FDLE, in consultation with the Attorney General, to conduct regular audits of
businesses in Florida to ensure that businesses were complying with state law to verify
the employment eligibility of new employees. The department was ordered to prioritize
audits of publicly traded corporations or companies with more than 200 employees that
operate in sectors of the economy known for employing illegal aliens. If any violation
was found, the department was to notify the Department of Economic Opportunity
(DEO) to take appropriate action under state law.
Requires any executive agency to report any evidence found of a crime perpetuated by an
illegal alien to the FDLE; and to take all appropriate action under state law, including the
imposition of fines or revocation of licenses, of any violation of law by a private
6
Defined in the order to have the same meaning as under 8 U.S.C. s. 1101(a)(3); except that the order specified that lawful
immigration status does not include parole under 8 U.S.C. s. 1182(d)(5).
7
Defined in the order to have the same meaning as under 6 U.S.C. s. 279(g)(2). BILL: CS/SB 1718 Page 5
contractor or non-governmental organization involved in the resettlement of illegal
aliens.
8
On January 6, 2023, the Governor issued Executive Order No. 23-03, Emergency Management –
Illegal Migration. Based on findings of unprecedented interdictions, attempts of entry, and
border patrol encounters, the Governor designated the migration of unauthorized aliens to
Florida as likely to constitute a major disaster and designated the director of the Division of
Emergency Management as the state coordinating officer for the disaster with direction to
execute response, recovery, and mitigation plans necessary to cope with the emergency. The
order also activates the Florida National Guard, as needed, to assist with the efforts. The order
waives contracting policies and requirements, allows for expenditure of state funds through the
Emergency Preparedness and Response Fund, and authorizes medical professionals, social
workers, and counselors with good and valid licenses issued by other states to provide
humanitarian aid services.
9
Federal Immigration Law
The federal government has broad power over immigration and alien status.
10
This broad power
is enforced through an extensive set of rules governing alien admission, removal, and conditions
for continued presence within the United States, including the Immigration and Nationality
Act.
11
While the federal government’s authority over immigration is well established, the United
States Supreme Court has recognized that not “every state enactment which in any way deals
with aliens is a regulation of immigration and thus per se preempted” by the federal
government.
12
Human Smuggling
It is estimated that there are 3 million illegal entries into the United States each year, over and
above the amount of encounters that the U.S. Border Patrol has with border-crossers. Full-time
professional criminals are facilitating the smuggling of immigrants across the border which
generates over $6.75 billion a year from human smuggling.
13
Federal law governs whether a
person is legally authorized to enter or remain in this country and provides criminal penalties for
illegally transporting a person into the country. Specifically, 8 U.S.C. s. 1324 provides criminal
penalties for any person who:
Knowing that a person is an alien, brings to or attempts to bring to the United States in any
manner whatsoever such person at a place other than a designated port of entry or place other
than as designated by the Commissioner of Immigration and Naturalization, regardless of
whether such alien has received prior official authorization to come to, enter, or reside in the
8
State of Florida, Office of the Governor, Executive Order No. 21-223, September 28, 2021, available at
https://www.flgov.com/wp-content/uploads/2021/09/EO_21-223.pdf (last visited March 10, 2023)
9
State of Florida, Office of the Governor, Executive Order No. 23-03, January 6, 2023, available at
https://www.flgov.com/wp-content/uploads/2023/01/EO-23-03.pdf (last visited March 10, 2023).
10
Arizona v. United States, 567 U.S. 387 (2012).
11
8 U.S.C. s. 1108, et seq.
12
De Canas v. Bica, 424 U.S. 351, 355 (1976).
13
United Nations Office on Drugs and Crime, Transnational Organized Crime: Let’s put them out of business, available at
https://www.unodc.org/toc/en/crimes/migrant-smuggling.html (last visited March 10, 2023). BILL: CS/SB 1718 Page 6
United States and regardless of any future official action which may be taken with respect to
such alien;
Knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in
the United States in violation of law, transports or moves or attempts to transport or move
such alien within the United States, by means of transportation or otherwise, in furtherance of
such violation of law;
Knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in
the United States in violation of law, conceals, harbors, or shields from detection, or attempts
to conceal, harbor, or shield from detection, such alien in any place, including any building
or any means of transportation; or
Encourages or induces an alien to come to, enter, or reside in the United States, knowing or
in reckless disregard of the fact that such coming to, entry, or residence is or will be in
violation of law.
14
Before 2009, Florida law did not specifically provide criminal penalties for transporting a person
into the state who is illegally entering or remaining in the United States. In 2009, the Florida
Legislature created s. 787.07, F.S., providing criminal penalties for human smuggling.
15
Currently, s. 787.07, F.S., provides it is a third degree felony
16
for a person to transport an
individual into this state, when the person, who is doing the transporting, knows or should know
that the person he or she is transporting is illegally entering the United States from another
country.
Federal Immigration Enforcement
In 2019, the Legislature passed federal immigration enforcement legislation.
17
The act sought to
ensure that state and local entities and law enforcement agencies cooperate with federal
government officials to enforce, and not obstruct, immigration laws. In its most general and
broad terms, the law prohibits sanctuary policies and requires law enforcement agencies to
support the enforcement of federal immigration law.
18
When local law enforcement agencies
work with federal immigration officials, aliens who have committed serious crimes are more
easily identified and removed.
Specifically, s. 908.104(2), F.S., allows a law enforcement agency
19
to take the following actions
with respect to information regarding a person’s immigration status:
Sending the information to or requesting, receiving, or reviewing the information from a
federal immigration agency for purposes of ch. 908, F.S.
14
8 U.S.C. s. 1324(a).
15
Chapter 2009-160, L.O.F.
16
A third degree felony is punishable by up to five years imprisonment and up to a $5,000 fine. Sections 775.082, 775.083,
and 775.084, F.S.
17
Chapter 2019-102, L.O.F. The law was challenged in City of South Miami v. DeSantis, 408 F.Supp.3d 1266 (S.D. Fla.
Sept. 21, 2021). Three provisions were enjoined but severable from the remainder of the law. The case was appealed to the
Eleventh Circuit Court of Appeals on October 20, 2021, and is now pending.
18
See ch. 908, F.S.
19
Section 908.102(4), F.S., defines a “law enforcement agency” to mean an agency in this state charged with enforcement of
state, county, municipal, or federal laws or with managing custody of detained persons in this state and includes municipal
police departments, sheriffs’ offices, state police departments, state university and college police departments, county
correctional agencies, and the Department of Corrections. BILL: CS/SB 1718 Page 7
Recording and maintaining the information for purposes of ch. 908, F.S.
Exchanging the information with a federal immigration agency or another state entity, local
governmental entity, or law enforcement agency for purposes of ch. 908, F.S.
Using the information to comply with an immigration detainer.
Using the information to confirm the identity of a person who is detained by a law
enforcement agency.
Domestic Security
The mission of the FDLE is to “promote public safety and strengthen domestic security by
providing services in partnership with local, state, and federal criminal justice agencies to
prevent, investigate, and solve crimes while protecting Florida’s citizens and visitors.”
20
FDLE’s Executive Director serves as the Chief of Domestic Security in Florida and oversees
Office of Domestic Security. The office works with federal, state, and local officials to prepare
for, prevent, protect, respond to, and recover from domestic security incidents within or affecting
the state.
21
There are three primary components to Florida’s domestic security governance structure: the
regional domestic security task forces, the domestic security coordinating group, and the
domestic security oversight council.
22
The regional domestic security task forces consist of local and multi-disciplinary representatives
who collectively support the domestic security mission and provide the necessary link between
the state and local communities. There are seven regional domestic security task forces located in
Pensacola, Tallahassee, Jacksonville, Orlando, Tampa, Ft. Myers, and Miami.
23
Regional domestic security task forces advise the FDLE and the Chief of Domestic Security on
the development and implementation of a statewide strategy to address prevention, preparation,
protection, response, and recovery efforts related to the state’s domestic security. The task forces
also coordinate the resources of local, state, and federal to ensure that such efforts are not
fragmented and duplicative.
24
The domestic security coordinating group (DSCG) provides the structure for federal, state, and
local response to domestic security incidents. The DSCG is made up of representatives and
subject matter experts from the regional domestic security task forces, designated urban areas,
other key organization liaisons and private sector representatives who come together to address
domestic security incidents.
25
20
Florida Department of Law Enforcement, FDLE Home, About FDLE, available at https://www.fdle.state.fl.us/About-Us
(last visited March 10, 2023).
21
Section 943.0311(1), F.S.
22
Florida Department of Law Enforcement, FDLE Home, Domestic Security, Domestic Security Organization,
Organization¸ available at http://www.fdle.state.fl.us/Domestic-Security/Organization.aspx (last visited March 10, 2023).
23
Id.
24
Section 943.0312, F.S.
25
2021 Domestic Security Annual Report, Making Florida Safer, p. 3, available at https://www.fdle.state.fl.us/Domestic-
Security/Documents/2021DSAnnualReportFINAL.aspx (last visited March 10, 2023). BILL: CS/SB 1718 Page 8
The domestic security oversight council was established in 2004 to provide direction, leadership,
and recommendations to the Governor and the Legislature on domestic security.
26
The council’s
membership is made up of voting and nonvoting members. Voting members include but are not
limited to the Executive Director of the Division of Emergency Management, the Attorney
General, and the Adjutant General of the Florida National Guard. Nonvoting membership
includes but is not limited to, the Executive Director of the Department of Highway Safety and
Motor Vehicles, a representative of the United States Coast Guard, and a special agency in
charge from an office of the Federal Bureau of Investigations within Florida.
27
The council duties include providing guidance to the regional domestic security task forces and
the DSCG with respect to statewide policies and operational protocols that support domestic
security efforts. The council must also review statewide or multiagency mobilizations and
responses to major domestic security incidents and recommend suggestions for training,
improvement of response efforts, or improvement of coordination within the state.
28
Employment Verification
Federal Law – I-9 Form and E-Verify
Under the Immigration Reform and Control Act of 1986 (IRCA),
29
it is illegal for any United
States employer to knowingly:
Hire, recruit, or refer for a fee an alien knowing he or she is unauthorized to work;
Continue to employ an alien knowing he or she has become unauthorized; or
Hire, recruit or refer for a fee, any person (citizen or alien) without following the record
keeping requirements of the IRCA.
30
The employment verification process begins when an employee accepts an offer of
employment.
31
Between this point and the employee’s first day on the job, an employee must
present documents that establish his or her identity and eligibility to work
32
by completing
Section 1 of the Form I-9, which requires the employee’s name, address, social security number
(SSN), and citizenship status under penalty of perjury.
33
By the end of the third day on the job, the employer is required to complete Section 2, which
states under penalty of perjury that certain employee-provided documents that establish the
employee’s eligibility were reviewed.
34
Most employers are not required to continue the
26
Id.
27
Section 943.0313(1), F.S.
28
Section 943.0313(5), F.S.
29
Public Law 99-603, 100 Stat. 3359.
30
8 U.S.C. s. 1324a.
31
U.S. Citizenship and Immigration Services, Complete and Correct Form I-9, available at https://www.uscis.gov/i-9-
central/complete-and-correct-form-i-9 (last visited March 11, 2023).
32
An employer may rely on a U.S. passport; resident alien card, alien registration card, or other document designated by the
U.S. Attorney General that contains a photograph and other personal identifying information, authorizes employment in the
U.S., and is tamper resistant. Alternatively, an employer may review a combination of documents that establish the
individual’s identity, e.g., a SSN, and a document that establishes the individual’s identity, e.g., a driver’s license.
33
See 8 C.F.R. § 274a.2(b)(1)(i)(A).
34
8 U.S.C. s. 1324a. See 8 C.F.R. § 274a.2(b)(1)(ii). BILL: CS/SB 1718 Page 9
verification of employment eligibility process beyond this step. However, for those who choose
to use or are required to use E-Verify, the process continues.
In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act
(IIRIRA),
35
which, among other provisions, created various employment eligibility verification
programs, including the Basic Pilot program, now referred to as E-Verify. E-Verify is an
Internet-based system through which an employer can verify that a newly hired employee is
authorized to work in the United States. E-Verify is operated by the USICS in partnership with
the Social Security Administration (SAA). It is free for employers to use and provides an
automated link to Government records to help employers confirm the employment eligibility of
new hires.
36
Originally, the program was available in five of the seven states that had the highest populations
of unauthorized aliens and was initially authorized for only 4 years. However, Congress has
consistently extended the program’s life. It expanded the program in 2004, making it available in
all 50 states. In 2008, the federal government began requiring any entity that maintained or
applied for federal contracts to use E-Verify.
37
As of December 31, 2022, there were
1,093,292 employers enrolled in the system with a usage rate of 16.51 percent and a total of
296,690 case checks for the calendar year. As of March 2023, Florida accounts for 81,511
employer accounts with 66,385 actively enrolled employers.
38
The employer opens a “case” for the employee on the E-Verify system and enters basic
information from the employee’s Form I-9 (name, address, SSN) into the case.
39
Then, the
E-Verify system checks the submitted information to records that are available to the DHS and
SSA, and issues one of several possible results to the employer:
Employment Authorized - The employee’s information matched records available to the
DHS and/or SSA.
E-Verify Needs More Time - This case was referred to the DHS for further verification.
Tentative Nonconfirmation (Mismatch) - Information did not match records available to
the DHS and/or SSA. Additional action is required.
Case in Continuance - The employee has contacted the DHS or visited an SSA field office,
but more time is needed to determine a final case result.
35
Public Law 104-208.
36
U.S. Citizenship and Immigration Services, How do I use E-Verify? available at https://www.e-
verify.gov/sites/default/files/everify/guides/E4en.pdf (last visited March 11, 2023).
37
E-Verify, History and Milestones, available at https://www.e-verify.gov/about-e-verify/history-and-milestones (last visited
March 11, 2023).
38
E-Verify, E-Verify Usage Statistics, click “Show the Data Table” for a download csv, available at https://www.e-
verify.gov/about-e-verify/e-verify-data/e-verify-usage-statistics and How To Find Participating Employers, for a list of
Florida employers, available at https://www.e-verify.gov/about-e-verify/e-verify-data/how-to-find-participating-
employers?hiringstates[]=11&field_account_status_value=All&items_per_page=10 (last visited March 11, 2023).
39
E-Verify, Verification Process, for details on how the system works, available at https://www.e-
verify.gov/employers/verification-process (last visited March 11, 2023). Before using E-Verify, an employer must enroll and
sign a Memorandum of Understanding that provides the terms of agreement between the employer and the DHS.
See E-Verify, The E-Verify Memorandum of Understanding for Employers, available at https://www.e-
verify.gov/sites/default/files/everify/memos/MOUforEVerifyEmployer.pdf (last visited March 11, 2023). BILL: CS/SB 1718 Page 10
Close Case and Resubmit – The DHS or SSA requires that the employer to close the case
and create a new case for the employee. This result may be issued when the employee’s
United States passport, passport card, or driver’s license information is incorrect.
Final Nonconfirmation - E-Verify cannot confirm the employee’s employment eligibility
after the employee contacted the DHS or SSA, the time for resolving the case expired, or the
DHS closed the case without confirming the employee’s employment eligibility for some
other reason.
40
If the result is Tentative Nonconfirmation, then the employer must notify the employee, who
must take further action to verify his or her eligibility. If the result is E-Verify Needs More Time
or Case in Continuance, then the E-Verify system needs more time to process the case.
41
Defenses for Employers
An employer using the I-9 Form, establishing good faith compliance with the law, has
established an affirmative defense that the person or entity has not violated the federal law with
respect to such hiring, recruiting, or referring.
42
An employer taking the additional steps to use the E-Verify system to verify employment
eligibility may establish a rebuttable presumption that the person or entity has not violated the
federal law with respect to such hiring, recruiting, or referring.
43
The IRCA provides sanctions to be imposed on employers who knowingly employ aliens who
are not authorized to work.
44
Federal law contains no criminal sanction for working without
authorization, although document fraud is a civil violation.
45
The United States Citizenship and
Immigration Services (USCIS) enforces these provisions.
46
E-Verify Results in Federal Fiscal Year 2022
47
In federal fiscal year 2022, E-Verify processed 48,042,413 cases, 98.43 percent of which were
automatically confirmed as “work authorized.” Another 1.61 percent were confirmed after an
initial “mismatch” and of these 1.54 percent were ultimately found to be not work authorized.
48
In the remaining 1.54 percent of cases, the employees were not found to be authorized to work in
the United States. The majority of these were cases that were not resolved by the end of Fiscal
Year 2019 for various reasons, including because the case was awaiting further action by either
the employer or employee at the end of the fiscal year or because the employer closed the case as
“self-terminated.”
49
40
Id.
41
Id.
42
8 U.S.C. s. 1324a(a)(3).
43
8 U.S.C. s. 1324a notes, Pilot Programs for Employment Eligibility Confirmation.
44
8 U.S.C. s. 1324a(a)(1)-(2).
45
8 U.S.C. s. 1324c.
46
8 U.S.C. s. 1324a.
47
E-Verify, E-Verify Performance, available at https://www.e-verify.gov/about-e-verify/e-verify-data/e-verify-performance
(last visited March 11, 2023).
48
Id.
49
Id. BILL: CS/SB 1718 Page 11
E-Verify Operational Disturbances
During the January 2019 partial federal government shut down, the E-Verify system was
unavailable. As a result, employers were unable to enroll in E-Verify, contact customer support
representatives, create an E-Verify case, or view or take action on a case, among other
functions.
50
The DHS issued guidance that extended the 3-day rule to permit employers
additional time to submit new employee information to E-Verify and gave employees additional
time to resolve a case.
51
Florida Law
Public employers and their contractors, and subcontractors thereof, are required to register and
use E-Verify to verify the work authorization status of all newly hired employees.
52
Subcontractors who contact with contractors must provide an affidavit to the contractor stating
that they do not employ, contract with, or subcontract with unauthorized aliens. The contractor
must keep a copy of such affidavit for the duration of the contract.
53
A private employer that transacts business in Florida, has a license issued by an agency,
54
and
employs workers in Florida is required to use the I-9 Form or E-Verify or a substantially
equivalent system to verify that new hires or retained contract employees are authorized to work
in the United States.
55
If the employer uses the I-9 system, the employer must retain a copy of the
documentation for at least 3 years after the individual’s initial date of employment.
56
A private employer that complies with the law may not be held civilly or criminally liable under
state law for hiring, continuing to employ, or refusing to hire an unauthorized alien if the
information obtained indicated that the individual’s work authorization status was not that of an
50
National Law Review, When the Government Shuts Down: The Impact on E-Verify, I-9’s, and Visas, January 25, 2019,
available at https://www.natlawreview.com/article/when-government-shuts-down-impact-e-verify-i-9-s-and-visas (last visited
March 11, 2023).
51
U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, E-Verify Resumes Operation,
January 27, 2019, available at https://www.e-verify.gov/e-verify-resumes-operation (last visited March 11, 2023). Due to the
lapse in federal funding, the E-Verify system was not in operation from December 22, 2018, to January 26, 2019. E-Verify
restarted on Sunday, January 27, 2019. Department of Homeland Security, U.S. Citizenship and Immigration Services,
January 2019, E-Verify Incidents, April 23, 2019, available at https://www.e-verify.gov/about-e-verify/e-verify-data/e-verify-
enhancements/january-2019 (last visited March 11, 2023).
52
Section 448.095(2), F.S. This section was enacted in 2020. Previously, pursuant to Executive Order 11-116, state agencies
under the direction of the Governor were required to use E-Verify for all newly hired employees. The order also required an
agency to include a provision in contracts to require a contractor (and any subcontractors thereof) to use E-Verify for all new
hires for the duration of the contract. State of Florida, Office of the Governor, Executive Order No. 11-116, May 27, 2011,
available at http://edocs.dlis.state.fl.us/fldocs/governor/orders/2011/11-116-suspend.pdf (last visited March 11, 2023).
53
Section 448.095(2)(b), F.S.
54
Defined in s. 448.095(1)(g) as a permit, a certificate, an approval, a registration, a charter, or any similar form of
authorization required by state law and issued by an agency for the purpose of operating a business in this state. The term
includes, but is not limited to, an article of incorporation; a certificate of partnership, a partnership registration, or an article
of organization; a grant of authority issued pursuant to state or federal law; or a transaction privilege tax license.
55
A private employer does not include a public employer, an employee leasing company that has a written agreement or
understanding with its client company that places the primary obligation for compliance with this section upon the client
company; or an occupant or owner of a private residence that hires casual labor or a licensed independent contractor.
Section 448.095(3), F.S.
56
Section 448.095(3), F.S. BILL: CS/SB 1718 Page 12
unauthorized alien. Further, using either the I-9 Form or E-Verify creates a rebuttable
presumption that the private employer did not knowingly employ an unauthorized alien.
57
A person may not knowingly employ, hire, recruit, or refer an alien for private or public
employment within the state if the alien is not authorized to work under “the immigration laws”
or by the United States Attorney General.
58
A first offense of this prohibition is a noncriminal
violation punishable by a fine of up to $500, regardless of the number of aliens with respect to
which the violation occurred; each subsequent offense is a second degree misdemeanor,
punishable by up to 60 days in jail and a fine not to exceed $500, with each unauthorized alien
employed as a separate violation.
59
The FDLE, the Attorney General, a state attorney, or the statewide prosecutor is authorized to
request documentation from a private employer used to verify an individual’s employment
eligibility. Ultimately, the federal government’s determination of verification of an individual’s
employment status stands and one of the authorized state agencies may not make an independent
determination as to whether a person is an unauthorized alien.
60
A private employer that does not use the I-9 Form or E-Verify, or does not maintain the I-9 Form
documentation for 3 years, will be required by the DEO to provide an affidavit stating that the
private employer will comply with the law, has terminated the employment of all unauthorized
aliens in this state, and will not intentionally or knowingly employ an unauthorized alien in this
state.
61
If the private employer does not provide the required affidavit within 30 days after the request by
the DEO, the appropriate licensing agency
62
must suspend all applicable licenses held by the
private employer until the private employer provides the DEO with the required affidavit. If a
private employer does not provide the required affidavit within the required time period three
times within any 36-month period, then the appropriate licensing agency must revoke all
applicable licenses held by the private employer. The licenses subject to suspension or
revocation are:
All licenses that are held by the private employer specific to the business location where the
unauthorized alien performed work.
If the private 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 private
employer’s business in general, then the provision apply to all licenses that are held by the
private employer at the private employer’s primary place of business.
63
57
Id.
58
Section 448.09(1), F.S.
59
Section 448.09(2), F.S. See ss. 775.082 and 775.083, F.S.
60
Section 448.095(3), F.S.
61
Id.
62
The term “agency” means any agency, department, board, or commission of this state or a county or municipality in this
state that issues a license to operate a business in this state.
63
Id. BILL: CS/SB 1718 Page 13
Mandatory Use of E-Verify in Other States
At least 19 other states require the use of E-Verify by public employers, contractors or
subcontractors of public employers, or private employers.
The following states require private employers, as well as public employers and their contractors
and subcontractors, to use E-Verify: North Carolina;
64
Mississippi;
65
Georgia;
66
Arizona;
67
Alabama;
68
Utah;
69
and South Carolina.
70
The following states require only public employers and their contractors to use E-Verify:
Indiana;
71
Nebraska;
72
Missouri;
73
Colorado;
74
Oklahoma;
75
Texas;
76
and Virginia.
77
Some states’ approaches do not fall squarely into the above categories. For example, Tennessee
requires only private employers that have 50 or more employees to use E-Verify.
78
Pennsylvania
requires public contractors and private construction employers to use E-Verify.
79
In Michigan,
only contractors of the Michigan Department of Transportation must use E-Verify.
80
Finally,
West Virginia requires contractors whose employees work on the Capitol grounds to use
E-Verify.
81
Community or Municipal Identification Cards
A local government may issue an identification card (ID card) itself or through partnership with
an organization to provide benefits to local residents. An ID card issued by a local government
may aid those without state-issued identification to obtain access to services, provide identity, or
participate in local programs only open to local residents.
The FaithAction International House has worked with local communities nation-wide to issue
community IDs. The goal is to provide ID cards to individuals who may not currently have
access to government issued forms of ID, including new immigrants and refugees, homeless and
64
N.C.G.S. § 160A-169.1 (municipalities); 153A-99.1 (counties); 143-48.5, 143-133.3 (public contractors); 64-26 (private
employers that have more than 25 employees); 126-7.1 (state agencies).
65
Miss. Code § 71-11-3.
66
Ga. Code § 13-10-91 (public employers and contractors); 36-60-6 (private employers that have more than 10 employees).
67
Ariz. Rev. Stat. § 41-4401 (public contractors); 23-214 (private and public employers).
68
Ala. Code § 31-13-15.
69
Utah Code § 63G-12-301 (private employers having 15 or more employees, unless the employee has a guest worker
permit), 63G-12-302 (public employers and contractors). Under both statutes, the employers may use E-Verify or another
federal verification program.
70
S.C. Code § 41-8-20 (private employers); 8-14-20 (public employers and contractors).
71
Ind. Code § 22-5-1.7-11.1.
72
Nev. Rev. St. § 4-114.
73
Miss. Stat. § 285.530.
74
Colo. Rev. Stat. § 8-17.5-102.
75
25 Okl. St. § 1313 (public employers and contractors must use E-Verify or another federal verification program).
76
Tex. Nat. Res. Code § 81.072 (public contractors); Tex. Gov. Code § 673.002 (state agencies)
77
Va. Code § 40.1-11.2 (state agencies), 2.2-4308.2 (public contractors).
78
Tenn. Code § 50-1-703.
79
43 Penn. Stat. § 167.3 (public contractors); 43 Penn. Stat. §168.3 (private construction employers).
80
Act 200, Public Acts of 2012, Sec. 381.
81
W. Va. Code, § 15-2D-3. BILL: CS/SB 1718 Page 14
elderly individuals, and those recently returning from jail. “The FaithAction ID provides card
holders with a verifiable form of identification that can be used as a tool by law enforcement,
health centers, schools, nonprofits, businesses, and cultural arts organizations to better identify,
serve, and protect them.”
82
FaithAction International House provides that ID card is not a state
issued form of identification, which is clearly noted on the back of the card; therefore it cannot
be used to vote, does not entitle the cardholder to any social welfare benefits; does not have any
impact on an individual’s immigration status. Individuals may pay a small fee for the card, or the
card may be issued for free, and must attend an ID drive event that provide an orientation on the
benefits and limitations of the card.
83
In Florida, Miami-Dade County, Broward County, Palm Beach County, and Alachua County
have partnered with local organizations to offer a Community ID card.
84
For example, Broward
County Legal Aid assists to issue the Community IDs, requiring attendance at an ID drive or an
office appointment, where the individual brings documentation such as a passport issued by the
individual’s country (expired or current), a foreign national card (expired or current), or other
documentation and proof that the individual is a county resident. There is no inquiry into the
individual’s immigration status. The cards are geared towards “formerly incarcerated persons,
foster youth, transgender persons, the homeless, new immigrants, refugees, or anyone who might
face difficulties obtaining a state-issued ID.”
85
The card “helps residents identify themselves to
law enforcement, schools, banks, health centers, city departments, and social service agencies.”
86
Other local governments issue resident ID cards that are conditioned on presentation of a
government-issued ID like a valid driver’s license or passport and proof of residency.
87
Cardholders can access discounted rates at fishing piers, city-owned recreational facilities,
reduced pricing on programs and activities, and free entrance to certain events. Cards may
require a small fee or may be provided for free and require renewal annually or may be valid for
up to three years, depending on the locality.
82
FaithAction International House, FaithAction ID Program and Network, available at https://faithaction.org/faithaction-id-
program-and-network/ (last visited March 11, 2023).
83
Id.
84
See Branches Trist & Dan Bell Family Empowerment Center, Miami-Dade Community ID, available at
https://miamiid.org/; Broward Legal Aid, Broward Community ID, available at
https://www.browardlegalaid.org/communityid/; Legal Aid Society of Palm Beach County, Community ID of the Palm
Beaches, available at https://legalaidpbc.org/2018/05/01/veteran-will-clinic-65/; Human Rights Coalition of Alachua County,
The HRC Community ID, available at https://hrcalachua.com/community-id-program/ (last visited March 11, 2023). The City
of Tallahassee approved a Community ID program to be run through the Legal Aid Foundation of Tallahassee in 2021 as a
2-year pilot program; see Tallahassee Democrat, Karl Etters, Jack Porter's city-funded ID card program approved in 'no bid'
deal, but questions remain, available at https://www.tallahassee.com/story/news/2021/11/05/tallahassee-city-funded-id-card-
program-works/6254350001/ (last visited March 11, 2023).
85
Broward Legal Aid, Broward Community ID, available at https://www.browardlegalaid.org/communityid/ (last visited
March 11, 2023).
86
Id.
87
City of Aventura, Aventura ID Card, available at https://www.cityofaventura.com/221/Aventura-ID-Card; City of Delray
Beach, Residency (Activities) Identification Cards, available at https://www.delraybeachfl.gov/government/city-
departments/city-clerk/residency-identification-cards; City of Sunny Isles Beach, Resident ID Card, available at
https://www.sibfl.net/ccs/residentid/; The Villages, Resident ID Card Information, available at
https://districtgov.org/departments/Community-Service/idCards.aspx (last visited March 11, 2023). BILL: CS/SB 1718 Page 15
Driver Licenses
Section 322.03, F.S., prohibits a person from driving any motor vehicle upon a Florida highway
unless such person has a valid driver license issued under ch. 322, F.S. However, an individual is
exempt from obtaining a Florida driver license if he or she is a nonresident who is:
At least 16 years of age and possesses a valid noncommercial driver license issued to him or
her in his or her home state or country and operating a type of motor vehicle for which a
Class E driver license is required in this state.
At least 18 years of age and possesses a valid noncommercial driver license issued to him or
her in his or her home state or country and operating a motor vehicle, other than a
commercial motor vehicle, in this state.
88
Section 322.08, F.S., establishes requirements governing the issuance of driver licenses by the
Department of Highway Safety and Motor Vehicles (DHSMV). An applicant for a driver license
or identification card is required to provide his or her SSN for the purpose of identification. This
information is electronically verified with the federal SSA to confirm identity, as required by the
Real ID Act of 2005. Applicants are required to provide proof of identity that is satisfactory to
the DHSMV. The following documents constitute acceptable proof of identification:
A certified copy of a United States birth certificate;
A valid, unexpired passport or passport card;
A Certificate of Naturalization issued by the DHS;
A valid, unexpired alien registration receipt card (green card);
A Consular Report of Birth Abroad; and
A valid, employment authorization card issued by the DHSMV.
89
The DHSMV is authorized to require an applicant for an original driver license to produce
certain DHS or foreign documents to prove nonimmigrant classification for the sole purpose of
establishing continuous lawful presence in the United States.
90
Section 322.12, F.S., authorizes the DHSMV to waive the Class E knowledge (written) and skills
requirements if an applicant for an original driver license presents a valid driver license from
another state, province of Canada, or the United States Armed Forces when applying for a
Florida driver license of equal or lesser classification.
Driver License Compact and Reciprocity
The Driver License Compact was created to provide uniformity among member jurisdictions
when exchanging information with other members on convictions, records, licenses,
withdrawals, and other data pertinent to the licensing process. Uniformity helps ease
administrative costs and meets the underlying tenet of the agreement that each driver nationwide
have only one driver license and one driver control record.
88
Section 322.04(1)(c) and (d), F.S.
89
Section 322.08(2)(c), F.S.
90
Section 322.08(2)(c)8., F.S. BILL: CS/SB 1718 Page 16
Section 322.02(4), F.S., authorizes the DHSMV to enter into reciprocal driver license
agreements with other jurisdictions within the United States and its territories and possessions
and with foreign countries or political entities equivalent to Florida state government within a
foreign country. Generally, valid driver licenses issued by any state in the United States are valid
when visiting another state. However, exceptions do exist for state-specific laws, such as
required driving ages.
91
States Issuing Driver Licenses to Undocumented Immigrants
States issue driver’s licenses under the constitutional authority of the 10th Amendment. In 2005,
Congress enacted the Real ID Act, creating standards for state-issued driver’s licenses, including
evidence of lawful status. Currently, 18 states and the District of Columbia have enacted laws to
allow undocumented immigrants to obtain driver’s licenses. These states – California, Colorado,
Connecticut, Delaware, Hawaii, Illinois, Maryland, Massachusetts, Nevada, New Jersey, New
Mexico, New York, Oregon, Rhode Island, Utah, Vermont, Virginia, and Washington – issue a
license (or a “driving privilege card”) if an applicant provides certain documentation, such as a
foreign birth certificate, foreign passport, or consular card and evidence of current residency in
the state.
92
Since 1993, beginning in the State of Washington, states have offered undocumented immigrants
the ability to obtain state driver licenses to encourage otherwise unlicensed drivers to pass driver
license testing and obtain vehicle insurance.
93
Following the Real ID Act, noncompliant cards must have a recognizable feature on their face to
distinguish the license from those issued to legal residents. Possession of a Real ID compliant
driver license is not federally required for operating a motor vehicle. The DHS cautions against
assuming that possession of a noncompliant card indicates that an individual is undocumented.
Individuals may choose to obtain a noncompliant card for reasons unrelated to lawful presence in
the United States.
94
Admission to Practice Law
In 2014 the Legislature provided that an applicant to the Florida Bar who is an unauthorized
immigrant may be admitted to the Bar by the Florida Supreme Court if certain conditions are
met.
95
The Legislature acted following an advisory opinion from the Florida Supreme Court that
related to whether undocumented immigrants are eligible for admission to the Florida Bar.
96
The
Court held that federal law prohibits specified categories of aliens from obtaining certain public
91
FindLaw, Driver’s Licenses FAQ, November 27, 2017, available at https://www.findlaw.com/traffic/drivers-license-
vehicle-info/driver-s-licenses-faq.html (last visited March 12, 2023).
92
National Conference of State Legislatures, States Offering Driver’s Licenses to Immigrants, January 16, 2023, available at
https://www.ncsl.org/immigration/states-offering-drivers-licenses-to-immigrants (last visited March 10, 2023).
93
Britannica ProCon, States (and DC) That Allow Undocumented Immigrants to Obtain Driver’s Licenses,
November 14, 2022, available at States (and DC) That Allow Undocumented Immigrants to Obtain Driver's Licenses -
Immigration - ProCon.org (last visited March 12, 2023).
94
Department of Homeland Security, Real ID Frequently Asked Questions for the Public, available at
https://www.dhs.gov/archive/real-id-public-faqs (last visited March 12, 2023).
95
Chapter 2014-35, L.O.F.
96
Florida Board of Bar Examiners Re: Question as to Whether Undocumented Immigrants are Eligible for Admission to the
Florida Bar. No. SC11-2568 (March 6, 2014). BILL: CS/SB 1718 Page 17
benefits, which includes a professional license that is provided by appropriated funds of a state.
However, the federal law in question allows a state to provide such a benefit through the
enactment of a state law that affirmatively provides for such eligibility.
97
Section 454.021(3), F.S., allows the Florida Supreme Court to admit an applicant for admission
to the Florida Bar if such applicant has:
Been brought to the United States as a minor;
Been present in the United States for more than 10 years;
Received documented employment authorization from the U.S. Citizenship and Immigration
Services;
Been issued a SSN;
Registered with the Selective Service System if required to do so under the federal Military
Selective Service Act; and
Otherwise fulfilled all requirements for admission to practice of law in this state.
DNA Database
Section 943.325, F.S., created the DNA database within the FDLE in 1989 and required persons
convicted of certain sex crimes to provide blood samples to be tested for genetic markers for the
purpose of personal identification of the person submitting the sample.
98
The results from the
blood samples were then entered into a DNA database maintained by the FDLE to be available in
a statewide automated personal identification system for classifying, matching, and storing DNA
analyses.
99
Since its creation, the statewide DNA database has evolved to the point where the FDLE now
accepts oral swab samples (known samples) from qualifying offenders. A qualifying offender
means:
Any person who is:
o Committed to a county jail;
o Committed to or under the supervision of the Department of Corrections, including a
person incarcerated in a private correctional institution;
o Committed to or under the supervision of the Department of Juvenile Justice;
o Transferred to this state under the Interstate Compact on Juveniles, part XIII of
ch. 985, F.S.; or
o Accepted under Article IV of the Interstate Corrections Compact, part III of
ch. 941, F.S.;
100
And who is:
o Convicted of any felony offense or attempted felony offense in this state or of a similar
offense in another jurisdiction;
o Convicted of:
A misdemeanor offense of: stalking; voyeurism; exposing minors to harmful motion
pictures, exhibitions, shows, presentations, or representations; computer pornography,
97
8 U.S.C. s. 1621(d) (2012).
98
Ch. 89-335, L.O.F.
99
Id.
100
Section 943.325(2)(g)1.a.-e., F.S. BILL: CS/SB 1718 Page 18
prohibited computer usage, or traveling to meet a minor; or direct observation,
videotaping, or visual surveillance of customers in a merchant’s dressing room;
101
or
An offense that was found to have been committed for the purpose of benefiting,
promoting, or furthering the interests of a criminal gang;
102
or
o Arrested for any felony offense or attempted felony offense in this state.
103
The collection of samples from a person booked into a jail, correctional facility, or juvenile
facility for a felony has been a phased-in process. The process started in January 2011 and was
completed 2020.
104
Heath Data
In response to Executive Order No. 21-223, the AHCA issued a corresponding data request to all
Florida hospitals with an attached questionnaire.
105
On August 18, 2022, the AHCA reported the
results of the data request finding that total costs attributed to illegal aliens were $312.92 million
and that hospitals were paid for $103.49 million of those costs. The local funds expended for
inpatient and outpatient services cost $700,000, while state and federal funds expended were
$104.91 million and $5.30 million, respectively. The report also stated that 142 of 316 facilities
indicated that charity care provided included illegal aliens.
106
There is some indication that the
reported data may be incomplete, however, as many health care facilities do not question patients
about their immigration status and struggled to meet the data reporting requirement.
107
Hospitals
Hospitals are regulated by the AHCA under ch. 395, F.S., and the general licensure provisions of
part II, of ch. 408, F.S. Hospitals offer a range of health care services with beds for use beyond
24 hours by individuals requiring diagnosis, treatment, or care.
108
Hospitals must make regularly
available at least clinical laboratory services, diagnostic X-ray services, and treatment facilities
for surgery or obstetrical care, or other definitive medical treatment.
109
101
These offenses are: stalking; voyeurism; certain acts in connection with obscene, or lewd, materials; renting, selling, or
loaning harmful motion pictures, exhibitions, shows, presentations, or representations to minors; computer pornography,
prohibited computer usage, or traveling to meet a minor; direct observation, videotaping, or visual surveillance of customers
in a merchant’s dressing room.
102
“Criminal gang” means a formal or informal ongoing organization, association, or group that has as one of its primary
activities the commission of criminal or delinquent acts, and that consists of three or more persons who have a common name
or common identifying signs, colors, or symbols, including, but not limited to, terrorist organizations and hate groups.
Section 874.03. F.S.
103
Section 943.325(2)(g)2.a.-c., F.S.
104
Section 943.325(3)(b), F.S. and FDLE Long Range Program Plan, September 30, 2021, p. 12, available at
http://floridafiscalportal.state.fl.us/Document.aspx?ID=23192&DocType=PDF (last visited March 10, 2023).
105
AHCA Data Request - EO 21-223, available at https://ahca.myflorida.com/docs/AHCA_Data_Request-EO_21-223.pdf
(last visited March 11, 2023). The questionnaire is available as a link on the data request.
106
Cost of Services on the Health Care System, Executive Order 21-223, Data for SFY 2020-2021, August 18, 2022,
available at https://ahca.myflorida.com/Executive/Communications/Press_Releases/pdf/Executive_Order_21-
223_Update_01302023.pdf (last visited March 11, 2023).
107
Hospitals unable to meet undocumented patient data demand from Gov. DeSantis, The Gainesville Sun, Javon L. Harris,
June 9, 2022, available at https://www.gainesville.com/story/news/2022/06/09/florida-hospitals-unable-meet-immigration-
data-demand-desantis/7499186001/ (last visited March 11, 2023).
108
Section 395.002(12), F.S.
109
Id. BILL: CS/SB 1718 Page 19
The AHCA must maintain an inventory of hospitals with an emergency department.
110
The
inventory must list all services within the capability of each hospital, and such services must
appear on the face of the hospital’s license. As of March 2, 2023, there are 323 licensed hospitals
in the state.
111
Section 395.1055, F.S., authorizes the AHCA to adopt rules for hospitals. Separate standards
may be provided for general and specialty hospitals.
112
The rules for general and specialty
hospitals must include minimum standards to ensure:
A sufficient number of qualified types of personnel and occupational disciplines are on duty
and available at all times to provide necessary and adequate patient care;
Infection control, housekeeping, sanitary conditions, and medical record procedures are
established and implemented to adequately protect patients;
A comprehensive emergency management plan is prepared and updated annually;
Licensed facilities are established, organized, and operated consistent with established
standards and rules; and
Licensed facility beds conform to minimum space, equipment, and furnishing standards.
113
The minimum standards for hospital licensure are contained in Chapter 59A-3, F.A.C.
The Emergency Medical Treatment and Labor Act (EMTALA)
In 1986, Congress enacted EMTALA to ensure public access to emergency services regardless of
ability to pay. Section 1867 of the Social Security Act imposes specific obligations on Medicare-
participating hospitals that offer emergency services to provide a medical screening examination
when a request is made for examination or treatment for an emergency medical condition
(EMC), including active labor, regardless of an individual’s ability to pay. Hospitals are then
required to provide stabilizing treatment for patients with EMCs. If a hospital is unable to
stabilize a patient within its capability, or if the patient requests, an appropriate transfer should
be implemented.
114
Impermissible Delays
EMTALA prohibits a participating hospital from delaying providing the appropriate medical
screening examination or treatment required for specified reasons. The act allows a hospital to
follow “reasonable registration processes;” however, such registration processes “may not
unduly discourage individuals from remaining for further evaluation.”
115
Interpretive guidelines
issued by the federal Centers for Medicare and Medicaid Services for these provisions state that
“the registration process permitted in the dedicated [emergency department] typically consists of
110
Section 395.1041(2), F.S.
111
Agency for Health Care Administration, Florida Health Finder Report, available at
https://quality.healthfinder.fl.gov/facilitylocator/ListFacilities.aspx (reports generated on Mar. 3, 2023) (last visited
March 10, 2023).
112
Section 395.1055(2), F.S.
113
Section 395.1055(1), F.S.
114
Emergency Medical Treatment & Labor Act (EMTALA), Centers for Medicare and Medicaid Services, last updated
December 5, 2022, available at https://www.cms.gov/regulations-and-guidance/legislation/emtala (last visited
March 10, 2023).
115
See 42 CFR s. 489.24(d)(4)(iv) BILL: CS/SB 1718 Page 20
collecting demographic information, insurance information, whom to contact in an emergency
and other relevant information.”
116
III. Effect of Proposed Changes:
Human Smuggling
Section 10 of the bill amends the human smuggling crime in s. 787.07, F.S., to provide that a
person commits a third degree felony when he or she knowingly and willfully:
Transports into or within this state an individual whom who the person knows, or reasonably
should know, has entered the United States in violation of law and has not been inspected by
the Federal Government since his or her unlawful entry; or
Conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from
detection, in any place within this state, including any temporary or permanent structure or
through any means of transportation, an individual whom the person knows, or reasonably
should know, has entered the United States in violation of law and has not been inspected by
the Federal Government since his or her unlawful entry from another country.
The bill provides that a person commits a separate offense for each individual he or she
transports, conceals, harbors, or shields from detection, or attempts to transport, conceal, harbor,
or shield from detection, into this state in violation of this section.
The bill also enhances the offense of human smuggling to a second degree felony
117
if a person:
Commits five or more separate offenses under this section during a single episode; or
Has a prior conviction
118
for human smuggling and commits a subsequent violation of human
smuggling.
Proof that a person presents identification or gave false information to a law enforcement officer
who is conducting an investigation for human smuggling, gives rise to an inference that such
person was aware that the transported, concealed, harbored, or shielded individual has entered
the United States in violation of the law and had not been inspected by the Federal Government
since his or her unlawful entry.
The bill requires a person who is arrested for the crime of human smuggling must be held in
custody for a court to determine pretrial release in accordance with chapter 903, F.S.
116
State Operations Manual Appendix V – Interpretive Guidelines – Responsibilities of Medicare Participating Hospitals in
Emergency Cases, Centers for Medicare and Medicaid Services, (Rev. 191, 07-19-19), p. 56, available at
https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/Downloads/som107ap_v_emerg.pdf (last visited
March 10, 2023).
117
A second degree felony is punishable by up to 15 years imprisonment and up to a $10,000 fine. Sections 775.082 775.083,
and 775.084 F.S.
118
The term “conviction” means a determination of guilt that is the result of a plea agreement or a trial, regardless of whether
adjudication is withheld or a plea of nolo contendere is entered. BILL: CS/SB 1718 Page 21
Federal Immigration Enforcement
Section 11 of the bill amends s. 908.104, F.S., to add to the actions a law enforcement agency
may take regarding the information regarding a person’s immigration status. Specifically, the bill
allows a law enforcement agency to send relevant information obtained pursuant to enforcement
of s. 448.095, F.S., to a federal immigration agency.
119
Further, Section 14 creates s.
943.0311(2), F.S., to require the Chief of Domestic Security of the FDLE to ensure compliance
with s. 448.095, F.S., by regularly coordinating random audits and notifying the DEO of any
violations found.
Domestic Security
Sections 12-16 of the bill amend the FDLE’s domestic security statutes to provide the necessary
authority for the department to coordinate with and provide assistance to the Federal
Government in the enforcement of federal immigration laws, responses to immigration
enforcement incidents within or affecting Florida. The bill also directs the department to
coordinate and direct the law enforcement, initial emergency, and other initial responses to other
matters of concerning the domestic security of Florida as it relates to immigration enforcement
incidents.
Specifically, the bill amends the:
Legislative findings in s. 943.03101, F.S., to include immigration enforcement coordination
and require the department to take the lead in such coordination in preparation and response
to immigration enforcement incidents within or affecting Florida.
Regional domestic security task forces to:
o Direct each task force to cooperate with and provide assistance to the Federal
Government in the enforcement of federal immigration laws within or affecting Florida;
o Facilitate responses to immigration enforcement incidents within or affecting Florida;
o Establish training standards including curricula and materials related to effective response
to immigration enforcement incidents; and
o Work to ensure that hate-driven acts against ethnic groups that may have been targeted as
a result of immigration enforcement incidents within or affecting Florida are
appropriately investigated and responded to.
Domestic security oversight council to:
o Include the need of executive direction and leadership as it relates to immigration
enforcement incidents to the council’s legislative findings;
o Provide guidance to the regional domestic security task forces and other domestic
security working groups to make recommendations to the Governor and the Legislature
regarding expenditure of funds and resources related to cooperating with and providing
assistance to the Federal Government in the enforcement of federal immigration laws;
o Include representatives from the DHS, ICE, and U.S. Customs and Border Protection as
nonvoting members of the council; and
119
“Federal immigration agency” means the United States Department of Justice and the United States Department of
Homeland Security, a division within such an agency, including United States Immigration and Customs Enforcement and
United States Customs and Border Protection, any successor agency, and any other federal agency charged with the
enforcement of immigration law. Section 908.102(1), F.S. BILL: CS/SB 1718 Page 22
o Specify immigration enforcement incidents and coordination with and providing
assistance to the Federal Government in the enforcement of federal immigration laws are
part of the council’s duties of oversight of the state’s domestic security efforts.
Employment Verification
Section 7 of the bill amends s. 448.095, F.S., related to public and private employer verification
of employment eligibility. The bill requires private employers to also verify the employment
status of an individual before recruiting or referring for a fee the individual for employment,
similar to federal law.
120
Under the bill, an employer must retain employment verification documentation for at least
5 years. If the employer used the E-Verify system, the official verification generated by the
system is also required to be retained.
The bill alters the defenses for employers using I-9 Form or E-Verify, similar to federal law. An
employer using the I-9 Form, establishing good faith compliance with the law, has established an
affirmative defense that the person or entity has not violated the federal law with respect to such
hiring, recruiting, or referring. An employer taking the additional steps to use, and all public
employers, contractors, and subcontractors required to use, the E-Verify system to verify
employment eligibility may establish a rebuttable presumption that the person or entity has not
violated the federal law with respect to such hiring, recruiting, or referring, as applicable.
The bill clarifies that an employer that obtains knowledge that an employee is or has become an
unauthorized alien may not continue to employ that person.
121
Current law allows the FDLE, the Attorney General, a state attorney, or the statewide prosecutor
to request documentation from a private employer used to verify an individual’s employment
eligibility. The bill authorizes the above persons or entities to request such documentation from
public employers, contractors, or subcontractors. The bill also allows the DEO to request such
information from employers.
Under the bill, if the FDLE, the Attorney General, a state attorney, or the statewide prosecutor
determines or finds that an employer has violated the state’s employment verification law, then
the person or entity must notify the DEO of such violation. A private employer that does not use
the I-9 Form or E-Verify or does not maintain the documentation as required has to provide the
DEO with an affidavit as discussed in the Present Situation. A public employer, contractor, or
subcontractor is also required by the bill to provide the DEO with such an affidavit if a violation
is found.
120
See 8 U.S.C. s. 1324a(a)(1)(A).
121
See 8 U.S.C. s. 1324a(a)(2). BILL: CS/SB 1718 Page 23
However, the bill amends the penalties for a private employer’s noncompliance with the
employment verification law:
If the private employer does not provide the required affidavit within 30 days after the
request by the DEO, then the DEO must notify the appropriate licensing agencies to suspend
all applicable licenses held by the private employer.
o The licensing agency must provide the private employer with notification that the
suspension shall last until the private employer provides the DEO with the required
affidavit.
o Upon receipt of the required affidavit, the DEO will notify the appropriate licensing
agencies to reinstate the licenses held by the private employer.
If a private employer does not provide the required affidavit within the required time period
three times within any 24-month period, then the appropriate licensing agency must revoke
all applicable licenses held by the private employer.
The DEO is authorized to impose a fine if the private employer violated the employment
verification law and knowingly employed an unauthorized alien in violation of the law.
o For a first violation, the fine is $5,000 for each unauthorized alien employed as a result of
noncompliance with the law.
o For a second violation that occurs within 24 months of the first, the fine is $7,500 for
each unauthorized alien employed as a result of noncompliance with the law. All
applicable licenses held by the private employer will be suspended for 120 days.
o For a third or subsequent violation that occurs within 24 months of the first, the fine is
$10,000 for each unauthorized alien employed as a result of noncompliance with the law.
All applicable licenses held by the private employer will be revoked.
Enforcement of penalties by the DEO are subject to ch. 120, F.S., and the DEO must provide
notice to the private employer, including a statement of facts and notice of the opportunity to
request a hearing. All fines collected will be deposited into the General Revenue Fund.
The bill also repeals the definition of department as a clarifying change due to other amendments
made to the statute.
Section 6 of the bill amends s. 448.09, F.S., related to employment of unauthorized aliens. The
bill increases the fine applied to the first offense from up to $500 to up to $1,000; and for each
subsequent offense increases the fine from up to $500 to up to $2,500.
122
The bill also creates a
new penalty for an unauthorized alien who knowingly uses a false identification document, or
who fraudulently uses an identification document of another person, for the purpose of obtaining
employment. The act is a felony of the third degree, punishable by a term of imprisonment of up
to 5 years and a fine of up to $5,000.
123
Identification Cards
Sections 1 and 2 of the bill create ss. 125.0156 and 166.246, F.S., to prohibit any county or
municipality from providing funds to any person, entity, or organization for the purpose of
122
Section 448.09(2), F.S. See ss. 775.082 and 775.083, F.S.
123
Sections 775.082 and 775.083, F.S. BILL: CS/SB 1718 Page 24
issuing an ID card or other document to an individual who does not provide proof of lawful
presence in the United States.
Local governments currently participating in the FaithAction International House or other
program to issue ID cards will be required to amend their programs to require proof of lawful
presence in the United States if the local governments provide any funds to the organizations
issuing the cards.
Driver Licenses
Sections 3 of the bill creates s. 322.033, F.S., which provides if a driver license is of a class of
licenses issued by another state exclusively to undocumented immigrants who are unable to
prove lawful presence in the United States when the licenses are issued, the driver license, or
other permit purporting to authorize the holder to operate a motor vehicle on public roadways, is
invalid in this state and does not authorize the holder to operate a motor vehicle in this state.
Such classes of licenses include licenses that are issued exclusively to undocumented immigrants
or licenses that are substantially the same as licenses issued to citizens, residents, or those
lawfully present in the United States but have markings establishing that the license holder did
not exercise the option of providing proof of lawful presence.
A law enforcement officer or other authorized representative of the DHSMV who stops a person
driving with an invalid license as described and driving without a valid license shall issue a
citation to the driver for driving without a license in violation of s. 322.03, F.S.
Currently, s. 322.39, F.S., provides that a person convicted of a violation of ch. 322, F.S., is
guilty of a second degree misdemeanor, punishable by a fine of up to $500 or a term of
imprisonment of up to 60 days.
124
In order to facilitate the enforcement of the new provision related to invalid licenses issued by
other states to undocumented immigrants and to aid in providing notice to the public and visitors
of these invalid licenses, the DHSMV must maintain on its website a list of out-of-state classes
of driver licenses that are invalid in this state.
Section 4 of the bill amends s. 322.04, F.S., to exclude from certain existing exemptions from
obtaining a Florida driver license certain nonresidents who have invalid licenses under the new
provisions contained in s. 322.033, F.S., relating to proof of the licensee’s lawful presence in the
United States.
Admission to Practice Law
Effective November 1, 2026, Section 8 of the bill repeals s. 454.021(3), F.S., and the provisions
that allowed an applicant to the Florida Bar who is an unauthorized immigrant to be admitted to
the Bar by the Florida Supreme Court if certain conditions were met.
124
See ss. 775.082 or 775.083, F.S. BILL: CS/SB 1718 Page 25
The bill specifies in Section 9 of the bill that the repeal of s. 454.021(3), F.S., does not affect the
validity of any license to practice law issued pursuant to s. 454.021(3), F.S., before November 1,
2026.
DNA Database
Section 17 of the bill amends the definition of “qualifying offender” to add a person who is in
the custody of a law enforcement agency and is subject to an immigration detainer. A qualifying
offender must submit a DNA sample when he or she is booked into a jail or a correctional or
juvenile facility. The bill also specifies that a person who becomes a qualifying offender solely
because of the issuance of an immigration detainer by a federal immigration agency must submit
a DNA sample when the law enforcement agency having custody of the offender receives the
detainer.
Health Data
Section 5 of the bill creates s. 395.3027, F.S. to require any hospital that accepts Medicaid to
include a question on its admission or registration forms, that may be answered by the patient or
the patient’s representative, inquiring about whether the patient is a United States citizen, is
lawfully present in the United States, or is not lawfully present in the United States. The question
must be followed by a statement indicating that the response to the question will not affect
patient care or result in a report of the patient’s immigration status to immigration authorities.
The bill requires each hospital to provide a quarterly report to the AHCA, within 30 days of the
end of each quarter, detailing the number of visits or admissions by patients who responded to
the above question in each category. The AHCA must, in turn, provide a report to the Governor
and the Legislature by March 1 of each year compiling the data received from the hospitals. In
addition, the annual report must describe the costs of uncompensated care provided to patients
not lawfully in the country, the impact of uncompensated care on the cost or ability of hospitals
to provide services to the public and on hospital funding needs, and other related information.
The AHCA is authorized to adopt rules specific to the format of the quarterly report and the
format of the question that hospitals must include on their admission or registration forms. The
bill specifies that the rules may not require disclosure of patient names to the AHCA.
Effective Date
The bill take effect July 1, 2023, except for Section 8, relating to admissions to practice law in
Florida.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
The bill does not require cities and counties to expend funds or limit their authority to
raise revenue or receive state-shared revenues as specified by Art. VII, s. 18 of the State
Constitution. BILL: CS/SB 1718 Page 26
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
Section 19 of Article VII, Florida Constitution requires increased taxes or fees to be
passed in a separate bill and by two-thirds vote of the membership of each house of the
Legislature. This bill does not increase any taxes or fees, and thus the increased tax or fee
requirements do not apply.
E. Other Constitutional Issues:
None.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
Individuals found in violation of employment laws related to knowingly employing
unauthorized aliens will be subject to stronger penalties. Employers who violate laws
related to employment verification and knowingly employ unauthorized aliens in
violation of the employment verification law will be subject to stronger penalties.
Individuals using false documentation or identification to obtain employment may be
subject to a third degree felony.
Organizations that partner with local governments to issue Community ID cards that do
not require proof of lawful presence in the United States may experience a loss in
revenue if the local government ends the partnership program or no longer provides
funding.
Individuals in Florida with out-of-state driver’s licenses that are issued exclusively to
undocumented immigrants may be subject to penalties or may be required to obtain a
Florida driver’s license to operate in this state.
Hospitals will be required to change their forms, if the question is not already included on
the forms; however this cost is anticipated to be minimal. BILL: CS/SB 1718 Page 27
C. Government Sector Impact:
The bill may have a positive indeterminate (unquantifiable increase in prison beds) fiscal
impact on the DOC. The bill expands the crime of human smuggling to make concealing,
harboring, or shielding a person who has entered the United States, in violation of the
law, from detection a third degree felony. The bill also enhances the crime of human
smuggling to a second degree felony in certain circumstances. The Criminal Justice
Impact Conference, which provides the final, official estimate of the prison bed impact, if
any, of legislation, has not yet reviewed the bill.
The bill amends the FDLE’s domestic security statutes to provide the necessary authority
for the department to coordinate with and provide assistance to the Federal Government
in the enforcement of federal immigration laws, responses to immigration enforcement
incidents within or affecting Florida. The FDLE has the necessary framework and
governance structure for domestic security in place. Any changes needed can be
addressed within existing resources.
The FDLE is already conducting audits of private employers in Florida, pursuant to the
Governor’s Executive Order in 2021, and the provisions of the bill requiring regular
coordination of random audits or the ability to conduct audits of public employers,
contractors, or subcontractors, should not have a negative fiscal impact on the
department.
The DEO currently does not have a robust enforcement section and will incur costs to
establish positions and enforce the provisions of this section. The department has not yet
submitted an analysis of the fiscal impact of the bill at this time. The impact is anticipated
to be a significant cost to the DEO.
There may be an insignificant, positive fiscal impact from fees for individuals who have
to obtain a Florida driver’s license who were previously exempt. The DHSMV can
maintain the list of invalid licenses on its website within existing resources. The bill may
also have a positive indeterminate (unquantifiable increase in jail beds) fiscal impact on
county jails because the bill creates a new second degree misdemeanor for those
individuals caught driving with an out-of-state license made invalid under the bill.
The ACHA can collect the information and create the report required by the bill with
minimal fiscal impact. In 2022, in response to Executive Order No. 21-223, the AHCA
issued a similar report. However, see Section VII. Related Issues, below.
VI. Technical Deficiencies:
None.
VII. Related Issues:
Section 5 of the bill requires hospitals to report to the AHCA the number of patients who
responded to the added question about immigration status on their admission or registration
forms in specified ways. The bill also requires the AHCA to compile a report to the Governor BILL: CS/SB 1718 Page 28
and the Legislature detailing the data gathered from the reports above as well as indicating
specified costs of services provided to patients not in the country lawfully. However, the bill
does not require hospitals to report such costs of services to the AHCA, only the number of
patients served; as such, the AHCA may lack the required information to provide an accurate
report to the Governor and the Legislature on the actual costs of services provided to patients not
in the country lawfully.
Section 10 of the bill expands the crime of human smuggling. In 2010, the Governor of Arizona
signed S.B. 1070 which contained criminal penalties for human smuggling.
125
The federal
government sought to declare S.B. 1070 invalid arguing it was preempted by federal law and
violated the Supremacy Clause of the United States Constitution. The Supreme Court ruled that
the Arizona law was preempted by federal law.
126
To the extent that the expansion of the offense
of human smuggling is similar to the Arizona’s S.B. 1070, it may be preempted by federal law.
VIII. Statutes Affected:
This bill substantially amends the following sections of the Florida Statutes: 322.04, 448.09,
448.095, 454.021, 787.07, 908.104, 943.03, 943.03101, 943.0311, 943.0312, 943.0313, and
943.325.
This bill creates the following sections of the Florida Statutes: 125.0156, 166.246, 322.033, and
395.3027.
IX. Additional Information:
A. Committee Substitute – Statement of Substantial Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
CS by Rules on March 15, 2023:
The CS:
Clarifies that the individual who is being smuggled must have entered the United
States in violation of the law and that the offense of human smuggling is enhanced if
a person has a prior conviction and commits a subsequent violation;
Requires public employers, contractors, and subcontractors to:
o Retain the employment verification records for 5 years;
o Provide employment verification records to certain specified agencies; and
o Provide an affidavit to the DEO under certain conditions.
Provides public employers, contractors, and subcontractors with a rebuttable
presumption defense in hiring using the E-Verify system and that such an employer
may not continue employment of an individual if the employer later finds out the
person is an unauthorized alien.
125
U.S v. Arizona, 2010 WL 2653363, Complaint. (July 6, 2010).
126
U.S. v. Arizona, 119 F.Supp. 3d. 955, (2014). BILL: CS/SB 1718 Page 29
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.