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Adams and Reese Partner and Construction Team Co-Leader Trent Cotney had his article, “New Florida Immigration Law May Have Crippling Effects,” published in Law360.
Below is the complete article, republished with permission from Law360.
An immigration bill that Gov. Ron DeSantis signed into law on May 10 went into effect on July 1. It is one of the strictest in the nation. Its severe penalties not only affect Florida businesses and citizens, but may set a standard for other states to emulate.
History of the Bill
On Feb. 23, DeSantis proposed the legislation to combat the state's immigration issues. The initial proposal focused on many strategies, such as strengthening employment verification, prohibiting transportation and shelter of immigrants who lack legal status, voiding driver's licenses from other states issued to immigrants who lack legal status, and canceling in-state college tuition for children of immigrants if they lack legal status.
Explaining the justification for the legislation, DeSantis stated on the Florida governor's website, "Florida is a law and order state, and we won't turn a blind eye to the dangers of Biden's Border Crisis. We will continue to take steps to protect Floridians from reckless federal open border policies."
On April 28, the Florida Senate passed Senate Bill 1718: Immigration, and on May 2, the Florida House of Representatives also passed the bill. The governor signed it into law eight days later, and it went into effect on July 1.
Stipulations of the New Law
The final version of the bill retained the majority of DeSantis's proposed mandates. However, a few items were removed or revised. What follows are key provisions of the new law.
All private businesses with 25 or more employees and all public agencies are required to use E-Verify to document that employees are legally allowed to work in the U.S.
Previously, private companies were not obligated to use E-Verify, but public employers and contractors were. More than 20 states currently mandate that some or all employers use E-Verify.
E-Verify is operated by the U.S. Department of Homeland Security and is an electronic database that confirms employment eligibility. It compares employees' I-9 forms to existing records from the DHS and the Social Security Administration.
Employers must verify the eligibility of new employees within three days of hire, and they must terminate the employment of any worker who cannot be verified by that system.
Public agencies must ensure that the contractors and subcontractors with whom they are under contract also utilize E-Verify. If they fail to do so, those contracts must be terminated.
Employers that knowingly employ workers who are without legal status can be fined, charged with misdemeanors, and have their licenses suspended or revoked. They may also be required to repay any economic incentives they received from the state.
Any immigrant using false documentation to gain employment will be charged with a third-degree felony, which can include as much as five years in prison and a $5,000 fine.
The new law prohibits individuals from transporting immigrants who lack legal status into Florida. Anyone found guilty of this crime will be charged with a felony, and the charges increase with subsequent violations.
The initial bill called for similar charges for transporting such immigrants within the state or providing shelter, but the language was revised. Florida Statutes Section 787.07 now puts the onus on citizens, reading:
a person who knowingly and willingly transports into this state 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 commits a felony of the third degree.
Driver's Licenses and Identification Cards
Florida continues to prohibit immigrants who lack legal status from obtaining Florida driver's licenses. The new law prohibits these immigrants from using driver's licenses issued in other states. In addition, individuals and organizations are prohibited from creating other types of identification cards for immigrants.
Hospital Data Collection
All Florida hospitals that accept Medicaid are required to ask patients if they are U.S. citizens or otherwise lawfully in this country. They must also keep records of the medical care provided to immigrants lacking legal status and the funds used for that care. They then must submit quarterly reports that summarize this information.
Immigrants lacking legal status are prohibited from practicing law in the state of Florida. Previously, immigrants who (1) came to the U.S. as minors, (2) lived here for more than 10 years, and (3) obtained employment authorization could fulfill the requirements for practicing law and hold positions as attorneys.
This new law repeals Florida Statutes Section 454.021(3) but will not affect any license issued before Nov. 1, 2028.
Broad Immigration Enforcement
The law significantly expands the enforcement of immigration laws. It allows for creating task forces to combat immigration and conducting random audits.
In addition to the aforementioned restrictions, the law also earmarks as much as $12 million for the Unauthorized Alien Transport Program, which is part of the state's Division of Emergency Management.
This program, created following the governor's actions involving the transportation of immigrants from Texas to Martha's Vineyard in 2022, will facilitate the relocation of immigrants who lack legal status to sanctuary states.
The initial proposal included the repeal of in-state college tuition for children of immigrants lacking legal status, known as Dreamers. However, Florida lawmakers did not support such a repeal, perceiving higher education as beneficial to the state's economy, so that restriction is not included in the new law.
Effects of the Law
This new immigration law has far-reaching ramifications. Supporters believe the regulations are necessary to protect the state from an immigrant invasion. Meanwhile, opponents have called those requirements heartless and excessive.
In addition, on July 17, some legal organizations filed a lawsuit in the U.S. District Court for the Southern District of Florida, challenging the new law and calling it unconstitutional. The plaintiffs in The Farmworker Association of Florida Inc. v. Ronald D. DeSantis include the ACLU of Florida, Southern Poverty Law Center, American Immigration Council, American Civil Liberties Union and Americans for Immigrant Justice.
Section 10 of the new law makes it a criminal offense to transport immigrants into Florida if they have unlawfully entered the country and have not undergone federal inspection. The complaint argues that it is unconstitutional for Florida to regulate federal immigration and criminally penalize individuals without fair notice. It also objects to the term "inspection," stating it is too vague.
According to the lawsuit, the law will "put thousands of Floridians and residents of other States — both citizens and noncitizens alike — at risk of being arrested, charged, and prosecuted with a felony for transporting a vaguely-defined category of immigrants into Florida. Families may be unable to visit each other across state lines. Parents who live near the state border may be unable to drive their children to medical appointments or soccer matches."
Challenging the constitutionality of a state regulating federal immigration is an interesting angle, and it could have traction. It will be interesting to see how the lawsuit proceeds and if it is successful.
Until that complaint is resolved, citizens must use extra caution in transporting immigrants who may lack legal status, and hospital workers will be required to keep detailed records as they provide medical care to people who fear being deported.
However, employers will bear the most significant burden. Private companies employing 25 or more workers must begin using E-Verify if they do not already do so. They must assess their staff and thoroughly examine their employee records. To ensure compliance, employers should do an internal audit of their I-9 forms and check that all documentation is valid.
Employers must also implement plans to ensure compliance with the new regulations going forward. These plans might include training managers and human resources staff, so they fully understand the hiring requirements, onboarding procedures, I-9 documentation and E-Verify system.
Compliance will be especially challenging for employers in the construction, agriculture and hospitality industries, where retaining adequate staff is already an issue. However, companies of all sizes will feel the impact. Noncompliance could lead to crippling fines and loss of licenses, which could force some companies to close altogether.
Some employers may navigate the new law by creating multiple smaller companies with fewer than 25 employees. In addition, they might choose to use more independent contractors. However, employers should carefully consider the pros and cons of such strategies.
It is critical that attorneys for businesses in all industries comprehend the new provisions and be prepared to advise their clients on being compliant. In addition, it will be interesting to see if other states follow Florida's lead.
Trent Cotney is a partner and co-leader of the firm's construction team at Adams and Reese LLP.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.