The Sunshine State Casts a Cloud Over Employers and Immigrants

Harris Beach PLLC

Florida Gov. Ron DeSantis recently signed Senate Bill 1718, which imposes strict changes on how businesses in Florida can hire and inflicts penalties on individuals who transport immigrants into the state without them being “inspected.” The law takes effect July 1, 2023.

The law will lead to new hiring protocols backed by penalties for non-compliance, including felony charges if someone is found to engage in “human smuggling” as very broadly defined by this law.

A key provision under the law is the mandatory E-Verify requirement, which requires private employers that employ 25 or more workers to use E-Verify when hiring new employees. E-Verify is an internet-based federal database that can quickly confirm an individual’s eligibility to work in the United States by comparing information entered from the employee’s I-9 Employment Eligibility Verification Form to the records accessible by the U.S. Department of Homeland Security and the Social Security Administration.

In most states, participation in this program is voluntary. Employers are required to verify the individual’s eligibility within three business days of the employee’s first day of paid work, and in the case E-Verify is unavailable during that timeframe, the employer must retain evidence of such inaccessibility and confirm eligibility through an I-9 form. Enforcement of the new hiring procedure has been delegated to Florida’s Department of Economic Opportunity (DEO), whose primary purpose is to formulate, implement and spur economic development. If the DEO finds E-Verify is not used three or more times within a two-year period, monetary penalties can be imposed, and the DEO can suspend business licenses until the employer provides evidence of compliance with E-Verify. Moreover, on the employee side, immigrant workers who are not authorized to work in the United States can be charged with a felony if they knowingly use false documents, such as false identification, to obtain employment.

Another key provision of the new law prohibits “human smuggling,” making it a felony for an individual to transport an immigrant into Florida if they know, or should have known, the immigrant has not been “inspected” by the proper authorities. This offense is punishable as a third-degree felony, subjecting the individual, including employers who transport undocumented workers, up to $5,000 in fines or up to five years in prison.

As currently written, a person commits a separate offense for each individual they knowingly transport into the state in violation of the law. The penalties can increase depending on the number of offenses committed and the number of people transported. For example, a person who transports five or more immigrants during one instance in violation of this law will be charged with a second-degree felony, which comes with increased fines or longer sentences.

This section of the law specifically has caused concern as there are ambiguities in the meaning of the terms used, including the term “inspected.” It has been reported there are more than 130,000 U.S. citizens in Florida married to undocumented individuals. Under the very broad language of this law, these individuals could also be in jeopardy of fines or imprisonment for driving their loved ones in a vehicle in the state of Florida.

The Florida law also requires hospitals that accept Medicaid to gather information on immigration status for all patients. Patient forms will include a section to indicate if the patient is a United States Citizen, lawfully present in the United States or not lawfully present. However, the form will contain a statement that their response to the question will not affect the care received nor result in a report of the individual’s status to the authorities.

Additionally, this law will invalidate – in Florida -- an undocumented individual’s driver’s license from another state if the individual cannot prove lawful presence in the United States.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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