Thursday, September 30, 2010

Current Virginia Laws Applicable to Aliens

Virginia State Laws Applicable to Aliens and Immigrants
Updated: includes laws in effect on July 1, 2011

Drivers’ Licenses
2003 – Mandates proof of legal presence to obtain a Virginia drivers’ license or a state id card, § 46.2-328.1 of the Code of Virginia, [This law was updated in 2009 to more fully comply with the federal REAL ID law, see SB 1046,]

2010 (HB 513) – Permits police to choose whether to charge a person previously convicted of driving without a license either under a local ordinance or a state statute. If the officer charges under the state statute, he must impound the car of the person cited for second offense driving without a license. Under the local ordinance no impoundment is authorized. The impoundment is for 3 days or until the person can obtain a valid license. Teens and persons whose licenses have been expired for a year or less are exempt from impoundment.

Employment and Business
1977 -- Crime for employers to knowingly hire illegal aliens (although there is some question now if it is constitutional because of a federal law passed in 1986) §40.1-111 of the Code of Virginia,

1977 – Proof of legal presence required for unemployment compensation benefits, § 60.2-617 of the Code of Virginia,

Pre-1980 – Agricultural employment of workers present on agricultural visas excluded from definition of employment for purposes of unemployment compensation but employers required to count these employees in determining whether the employer is responsible for unemployment taxes for his other farm workers. §60.2-241 of the Code of Virginia.

2000 – Workers’ compensation law amended to treat unlawfully employed alien workers the same as unlawfully employed minors except no payments for partial incapacity or vocational rehabilitation authorized. Law overturned Virginia Supreme Court decision holding that unlawfully employed aliens were not “employees” under the workers’ compensation law and were, therefore, free to sue in tort for injuries incurred on the job. §§65.2-101, 65.2-502, 65.2-603.

1950 (as amended in 2006 and 2007) -- Crime to extort money from aliens by withholding immigration documents or threatening to report them to ICE, §18.2-59 of the Code of Virginia,;

2006 – Person who threatens to report someone as unlawfully present in order to extort money or pecuniary benefit is guilty of a class 5 felony, §18.2-59iii of the Code of Virginia,

2007 – Person who destroys another’s passport or other immigration document in order to extort money or pecuniary benefit is guilty of a class 5 felony, §18.2-59iv of the Code of Virginia,

2008 – Allows the State Corporation Commission to terminate the corporate existence of a business upon conviction of the corporation of a pattern and practice violation of federal immigration laws. §13.1-753iv of the Code of Virginia,

2008 – Requires all public bodies in Virginia (state and local) to include in written contracts for goods and services a requirement that the contractor agree that it does not and will not during the contract term knowingly employ an “unauthorized alien,” §2.2-4311.1 of the Code of Virginia,

2009 (HB 2016) – Defines abduction to include circumstances in which someone is intimidated into forced labor or services by having his or her immigration documents withheld or by threats to report their immigration status; authorizes prosecution of two or more such acts as racketeering.

2010 (HB 737) – Requires state agencies to begin using E-Verify program for new employees effective December 1, 2012. Governor issued an executive order requiring all state agencies to begin using E-Verify effective July 1, 2011.

2011 (HB 1859, SB 1049) Provides that any employer with more than an average of 50 employees for the previous 12 months entering into a contract in excess of $50,000 with any agency of the Commonwealth to perform work or provide services pursuant to such contract shall register and participate in the federal E-Verify program to verify information and work authorization of its newly hired employees performing work pursuant to such public contract. Any such employer who fails to comply shall be debarred from contracting with any agency of the Commonwealth for a period up to one year. Such debarment shall cease upon the employer's registration and participation in the E-Verify program.  Effective on December 1, 2013.

1975 – Consistent with the Family Educational Rights and Privacy Act of 1974, Virginia law amended to permit disclosure of school records of alien students to federal officers and employees seeking this information in the course of their government duties. §22.1-187 of the Code of Virginia.

Pre-1994 -- Strict domicile requirements for in-state tuition prohibit illegal aliens from qualifying for in-state tuition at our colleges and universities, §23-7.4 of the Code of Virginia,

2002 – All Virginia colleges required to “inform the Attorney General of the Commonwealth whenever a student who has been accepted for admission to such an educational institution pursuant to a student visa fails to enroll or who has been attending such an educational institution pursuant to a student visa and withdraws at such institution or violates the terms of his visa.” Attorney General required to report names to ICE. §23.2-2 of the Code of Virginia.

Health and Social Services
1950 -- Mental health department required to determine the nationality of any person admitted to a state facility and to report to immigration anyone determined to be an alien, §37.2-827 of the Code of Virginia,

2005 -- Proof of legal presence required to obtain state benefits including welfare and Medicaid, §63.2-503.1 and §32.1-325.03 of the Code of Virginia, and

2011--Department of Social Services required to develop a plan to address delivery of services to victims of human trafficking.  No due date specified.

2007 -- Penalties for residential overcrowding violations increased, §15.2-2286 of the Code of Virginia,

2007 – Local zoning administrators in NOVA given unprecedented authority to subpoena birth certificates and other personal documents in order to enforce local housing ordinances, §15.2-2286 4 of the Code of Virginia,

2008 – Expands the power to subpoena documents to all zoning administrators statewide, 15.2-2286 4 of the Code of Virginia,

2008 – Gives zoning administrators the power to seek an inspection warrant allowing them to search private dwellings for zoning violations, §15.2-2286 15 of the Code of Virginia,

Law Enforcement and Corrections
1950 (last amended in 1994) -- Sheriffs and the department of corrections required to identify criminal aliens in Virginia jails and prisons and report them to the Central Criminal Records Exchange, §53.1-218 of the Code of Virginia,

1950 (last amended 1982) Clerks of court required to furnish court records to ICE regarding any alien committed to a correctional facility after conviction, 53.1-219 of the Code of Virginia,

1985 – Provides for transfer of criminal aliens to federal custody or to be held pending deportation, §53.1-220.1 of the Code of Virginia,

1985 (last amended in 1994) – Probation and parole officers required to ask about citizenship status and report to the State Police anyone who fails to produce evidence of citizenship; State Police required to review arrest reports from law enforcement and reports from probation and parole and report to ICE the identity of all convicted offenders suspected of being illegal aliens, § 19.2-294.2 of the Code of Virginia,

1993 – Aliens (except lawful permanent residents) prohibited from owning, possessing or transporting assault firearms, §18.2-308.2:1 of the Code of Virginia, and dealers prohibited from selling assault firearms to aliens (except lawful permanent residents), §18.2-308.2:2,

1995- Aliens (except those lawfully admitted to permanent residency) prohibited from obtaining concealed weapons permits, §18.2-308 of the Code of Virginia,

2000 – Gun dealers prohibited from hiring illegal aliens to sell firearms, §18.2-308.2:3 of the Code of Virginia,

2004 – Persons not lawfully present in the United States prohibited from owning, possessing or transporting any firearm, §18.2-308.2:1 of the Code of Virginia,

2004 - Police officers given authority to arrest without a warrant anyone committing a crime who is an illegal alien previously deported after a felony conviction. § 19.2-81.6 of the Code of Virginia,

2004 – Compensation Board required to maintain records re: citizenship of inmates and to encourage local jails to participate in the USDOJ State Criminal Alien Assistance Program, Appropriations Act of 2004.

2006 – Juvenile justice intake officers required to report to ICE any juvenile charged with a violent juvenile felony being detained in a secure facility who the intake officer has probable cause to believe is not lawfully present, §16.1-309.1 of the Code of Virginia,

2006 -- Director of the Department of Juvenile Justice required to coordinate with the Dept of Corrections requests for compensation from the State Criminal Alien Assistance Program for the costs of incarcerating undocumented aliens, § 66.3.2 of the Code of Virginia,

2006 – Person who falsely identifies himself to a law enforcement officer guilty of a class 1 misdemeanor, §19.2-82.1 of the Code of Virginia,

2007 – Allows the courts to assess as part of the costs taxed to the defendant the costs of any interpreter appointed for the defendant when the defendant fails to appear for trial and is convicted of a failure to appear and the interpreter appears in the case and no other case on the date the defendant is convicted, §19.2-164 of the Code of Virginia,

2008 – Judicial officer may presume, subject to rebuttal, that a person charged with certain criminal offenses should not be entitled to bail if the person is found to be in the United States without authority, §19.2-120.1 of the Code of Virginia.

2008 – Requires the sheriff or other officer in charge of a jail to inquire into the citizenship and immigration status of every person taken into custody at a jail, §19.2-83.2 of the Code of Virginia.

2011-- Requires the Department of Criminal Justice Services, in conjunction with the Office of the Attorney General, to advise law-enforcement agencies and attorneys for the Commonwealth regarding the identification, investigation, and prosecution of human trafficking offenses using the common law and existing criminal statutes in the Code of Virginia.

Voting Rights
2006 – DMV required to send info it gets on noncitizens to State Board of Elections and State Board directed to remove names from election roles, §24.2-404 and §24.2-410.1 of the Code of Virginia, and

2008 – Requires general registrar of a county, city or town to cancel the voter registrations of any person who does not respond within 14 days to a notice from the registrar that they have been reported by the DMV not to be United States citizens, §24.2-427 B.1 of the Code of Virginia.

1996 - English is the official language of the Commonwealth, § 1-511 of the Code of Virginia

2007 – Established the Commission on the Prevention of Human Trafficking, §30-287 et seq of the Code of Virginia,

2007 Established the Virginia Commission on Immigration, §2.2-2530 et seq of the Code of Virginia, (Commission sunsetted in 2009).

2011--Establishes January 11 as Global Human Trafficking Awareness Day in Virginia.