A Deeper Dive Into Immigration-Related Bill Imposing New Requirements on Employers and Other Institutions

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By: Cristina Perez, Esq.

Following the article published earlier this week, “New Bill Requires Florida Employers to Take Extra Steps When Verifying Employee’s Employment Eligibility,” Leech Tishman’s Immigration Group has further dissected the sanctions imposed by Senate Bill 1718 (“SB 1718”) and who it will affect.

SB 1718 is a comprehensive effort to restrict the ability of undocumented individuals to live and work in Florida by enhancing the ability of state law enforcement to enforce immigration laws, requiring hospitals to maintain data on the immigration status of patients, mandating the use of E-Verify by Florida employers with over 25 employees, restricting access to Florida drivers licenses (as well as State Bar licenses), and adding state civil and criminal penalties for violations of its provisions.

The general summary of the major provisions of SB 1718, which will take effect on July 1, 2023, are as follows:

  1. SB 1718 criminalizes the act of transporting an undocumented individual into Florida.

    1. Considers the act “human smuggling” and a felony for a person to knowingly and willfully transport into Florida an individual, including a minor, whom the person knows, or  reasonably should know, has entered the United States in violation of the law and who has not been inspected by federal immigration authorities since entry. For example, pursuant to this provision, a lawful permanent resident parent who transports into Florida her child who has not been inspected would be chargeable with a second-degree felony – up to 15 years in prison.
    2. Expands the scope of Florida’s RICO statute to include “human smuggling” as “a racketeering activity” which could make it the basis for a racketeering charge – a first-degree felony punishable by up to 30 years in prison and a $10,000 fine.
  2. SB 1718 requires hospitals to collect immigration status information from patients.

    1. Requires hospitals accepting Medicaid to ask, on patient admission/registration forms, whether the patient is a U.S. citizen or lawfully present in the United States or is not lawfully present in the United States
    2. Requires hospitals to submit quarterly reports to the Florida Agency for Health Care Administration containing response data for the previous quarter..
  3. SB 1718 requires Florida employers to document employment verification procedures for state law purposes, mandates E-Verify participation for most Florida employers, and creates separate penalties for violations (in addition to requirements of federal law).

    1. Makes it a violation of state law for any person to knowingly employ, hire, recruit, or refer, either for themselves or on behalf of another, for private or public employment a foreign national who is not authorized to work in the United States.
    2. Creates escalating penalty provisions for violations that, depending on the number of undocumented workers and frequency of violations, could result in complete revocation of an employer’s state business license.
    3. Provides criminal penalties ($5,000 fine plus up to five years in prison) for a person who knowingly uses a false identification document or who fraudulently uses another person’s identification document for the purpose of obtaining employment, if the person using the document is not authorized to work.
    4. Prohibits an employer from continuing to employ an undocumented worker after obtaining knowledge that a person is or has become an undocumented worker.
    5. Requires employers to verify each new employee’s employment eligibility within three business days after the first day the new employee begins working for pay.
    6. Requires private employers with 25 or more employees to use E-Verify for all new employees and retain a copy of the documentation provided for E-Verify as well as the official verification generated by E-Verify for at least three years.
    7. Requires employers to certify use of E-Verify on unemployment compensation or reemployment assistance system returns; public agencies are also required to use E-Verify to verify a new employee’s employment eligibility.
    8. Authorizes state law enforcement agencies to request copies of documentation relied upon by the employer for employment verification purposes.
      1. Authorizes law enforcement agencies to perform random audits of businesses and, if it is determined an employer is not complying with employment verification obligations, provide the employer with 30 days to cure noncompliance.
      2. Imposes $1,000 per day fine on employers found to have failed to use E-Verify three times in a 24-month period, until the employer provides proof that the noncompliance is cured. Noncompliance also constitutes grounds for the suspension of all state business licenses until the noncompliance is cured.
    9. Public agencies may not contract with a private entity unless each party, including subcontractors, registers with E-Verify. A public agency may terminate a contract if it has a good faith belief that the contracting entity knowingly violated the unauthorized employment provisions of the statute, without the termination constituting a breach of contract.
  4. SB 1718 restricts access to Florida driver’s and professional licenses.

    1. Prohibits counties and municipalities issuing identification documents to an individual who does not provide proof of lawful presence in the United States.
    2. Driver’s licenses issued by other states to “undocumented immigrants unable to prove lawful presence” when the license is issued are invalid in Florida.
    3. Law enforcement officers and authorized representatives of Florida Highway Safety and Motor Vehicles (“FL HSMV”) must issue a citation to any person driving with such a license. FL DHSMV is required to maintain a list on its website of out-of-state classes of driver licenses that are invalid in Florida.
    4. Repeals statutory provision allowing DACA recipients and certain other undocumented individuals to be admitted to the Florida Bar but does not affect the validity of any license to practice law issued pursuant to that subsection before November 1, 2028.
  5. SB 1718 empowers the state to participate in the enforcement of federal immigration laws.

    1. Grants Florida’s Chief of Domestic Security (a role created to oversee anti-terrorism efforts post 9/11) authority to coordinate “immigration enforcement actions” in assisting the federal government, effectively including immigration enforcement activities under its statutory counter-terrorism mandate.
    2. Requires the Florida Department of Law Enforcement to coordinate and direct the law enforcement, initial emergency, and other initial responses in connection with federal immigration law enforcement and related immigration enforcement activities in or affecting Florida.
    3. Requires state law enforcement agencies who have “custody of a person because of the ‘issuance of an immigration detainer by a federal immigration agency’” to take DNA samples from the person.
    4. Requires cooperation and assistance with enforcement of federal immigration laws within or affecting Florida.
    5. Prohibits a state entity, local governmental entity, or law enforcement agency from restricting a law enforcement agency from sending employment eligibility information to a federal immigration agency.

While the full impact of SB 1718 on Florida residents is difficult to quantify, it is predicted to have a significant impact on the state’s economy. A 2019 report by the Migration Policy Institute estimates that there are over 700,000 undocumented individuals in the Florida workforce and that almost one in four workers in the construction industry are undocumented. Similarly, a 2021 report by the New American Economy Research Fund indicated that approximately 42% of Florida’s farm workers are undocumented.

Note, some of the information in this Alert was derived from the American Immigration Lawyers Association (AILA) (Related Resources: AILA Takes Action — Florida and Beyond and American Immigration Council Fact Sheet: Immigrants in Florida).

Leech Tishman’s Immigration Group is well-versed on the implications SB 1718 will have on Florida employers. Together with the firm’s Employment & Labor Group, the firm is available to advise Florida businesses on this matter. For questions or clarification on SB 1718 and what effects the bill may have on your business, contact Cristina Perez at 818.550.8300 or cperez@leechtishman.com.

Cristina is a Partner with Leech Tishman and a member of the firm’s Employment & Labor Practice Group where she leads the Immigration Group. Cristina is based in the Los Angeles, California office.

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Leech Tishman Fuscaldo & Lampl, Inc. is a national, full-service law firm dedicated to assisting individuals, businesses, and institutions. Leech Tishman offers legal services in business restructuring & insolvency, construction, corporate matters, employment & labor, estates & trusts, intellectual property, litigation & alternative dispute resolution, and real estate. In addition, the firm offers a wide range of legal services to clients in the aviation & aerospace, cannabis, emerging cyber technologies, energy & natural resources, entertainment & sports, healthcare, hospitality, and life sciences industries. With offices in Los Angeles, Leech Tishman also has offices in Chicago, Philadelphia, Pittsburgh, Sarasota, Washington, D.C., and Wilmington, DE.