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2011 SESSION

11104893D
HOUSE BILL NO. 1727
AMENDMENT IN THE NATURE OF A SUBSTITUTE
(Proposed by the House Committee for Courts of Justice
on February 4, 2011)
(Patron Prior to Substitute--Delegate Carrico)
A BILL to amend the Code of Virginia by adding in Chapter 1 of Title 40.1 a section numbered 40.1-11.3, relating to Virginia employer participation in E-Verify program.

Be it enacted by the General Assembly of Virginia:

1. That the Code of Virginia is amended by adding in Chapter 1 of Title 40.1 a section numbered 40.1-11.3 as follows:

§ 40.1-11.3. Employer participation in E-Verify program; "Virginia Fair Employment Act."

A. As used in this section, unless the context requires a different meaning:

"Employer" (i) includes, in addition to the persons included in the definition of "employer" set forth in § 40.1-2, any person who uses a contract or subcontract to obtain the labor of an alien within the Commonwealth, knowing that such alien is an unauthorized alien with respect to performing such labor and (ii) does not include any agency of the Commonwealth that is subject to the provisions of § 40.1-11.2.

"E-Verify program" means the electronic verification of work authorization program of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (P.L. 104-208), Division C, Title IV, § 403(a), as amended, operated by the United State Department of Homeland Security, or a successor work authorization program designated by the United States Department of Homeland Security or other federal agency authorized to verify the work authorization status of newly hired employees under the Immigration Reform and Control Act of 1986 (P.L. 99-603).

"Public contractor" means a nongovernmental contractor that has entered into a public contract with an agency of the Commonwealth or of a locality, and shall include any subcontractor that subcontracts with such contractor to perform work or provide services pursuant to such public contract, but shall exclude the following:

1. Contracts or subcontracts with an annual value of less than $600;

2. Work performed by persons not subject to the employment verification requirements of 8 U.S.C. § 1324a;

3. Contracts for the supply of commercially available off-the-shelf items, or items that are commercial items sold in substantial quantities in the commercial marketplace and offered to the agency in the same form available in the commercial market place, or with minor modifications;

4. Contracts for food and agricultural products shipped as bulk cargo, including items such as grains, oils, and produce; and

5. Subcontracts that only provide supplies, such as food, fuel, or construction materials.

B. As a condition of doing business in the Commonwealth and as a condition of obtaining and retaining any permit or license issued by any agency of the Commonwealth, every employer that employs 15 or more employees within the Commonwealth shall:

1. Be enrolled in the E-Verify program by December 1, 2013; and

2. On and after December 1, 2013, use the E-Verify program for each newly hired employee who is to perform work within the Commonwealth.

C. As a condition of doing business in the Commonwealth and as a condition of obtaining and retaining any permit or license issued by any agency of the Commonwealth, every public contractor that contracts with an agency of the Commonwealth or locality for work to be performed within the Commonwealth shall:

1. Be enrolled in the E-Verify program by December 1, 2013; and

2. On and after December 1, 2013, use the E-Verify program for each newly hired employee who is to perform work within the Commonwealth.

D. Every locality shall:

1. Be enrolled in the E-Verify program by December 1, 2013; and

2. On and after December 1, 2013, use the E-Verify program for each newly hired employee who is to perform work within the Commonwealth.

E. If an employer or public contractor subject to the provisions of this section is not enrolled in and using the E-Verify program as required by subsection B or C:

1. Each agency of the Commonwealth that has issued a license to such employer or public contractor, after notice and opportunity for hearing pursuant to the Administrative Process Act (§ 2.2-4000 et seq.), shall suspend or revoke any license issued by it to such employer or public contractor. The provisions of this subdivision may be suspended if it is found that good cause exists for why the employer or public contractor is not enrolled in or using the E-Verify program as required by this section. An employer or public contractor shall have the right to appeal to circuit court an agency decision to revoke or suspend a license as provided in Article 5 (§ 2.2-4025 et seq.) of Chapter 40 of Title 2.2. An employer or public contractor that has had its license revoked or suspended pursuant to this subdivision shall be entitled to reinstatement of the license upon establishing that (i) if the license revocation or suspension was attributable to the employer or public contractor not being enrolled in the E-Verify program, the employer or public contractor has enrolled in the E-Verify program or (ii) if the license revocation or suspension was attributable to the employer or public contractor not using the E-Verify program, the employer or public contractor has prepared and is implementing a plan to comply with the requirements of this section; and

2. Any business license issued by a locality pursuant to Chapter 37 (§ 58.1-3700 et seq.) of Title 58.1 to an employer or public contractor shall be cancelled upon a finding by a circuit court of any city or county in which the employer or public contractor conducts operations that the employer or public contractor is not enrolled in and using the E-Verify program as required by this section. The court shall not require cancellation of such license if it finds good cause for why the employer or public contractor is not enrolled in or using the E-Verify program as required by this section. An employer or public contractor that has had its business license cancelled pursuant to this subsection shall be entitled to reinstatement of the license upon establishing to the satisfaction of the court that (i) if the license suspension was attributable to the employer or public contractor not being enrolled in the E-Verify program, the employer or public contractor has enrolled in the E-Verify program or (ii) if the license suspension was attributable to the employer or public contractor not using the E-Verify program, the employer or public contractor has prepared and is implementing a plan to comply with the requirements of this section.

F. The Attorney General shall request the U.S. Department of Homeland Security, once each calendar quarter, to provide a list of employers and public contractors within the Commonwealth that are enrolled and participate in the E-Verify program. In addition, by March 1, 2015, the Attorney General shall request the U.S. Department of Homeland Security to provide a list of localities that were enrolled and participated in the E-Verify program during calendar year 2014.