SB0014

SENATE BILL 14

50th legislature - STATE OF NEW MEXICO - second session, 2012

INTRODUCED BY

Stephen H. Fischmann

AN ACT

RELATING TO EMPLOYMENT; ENACTING THE GUEST WORKER ACT; CREATING A GUEST WORKER PROGRAM FOR CERTAIN NEW MEXICO RESIDENT FOREIGN NATIONALS; DIRECTING THE WORKFORCE SOLUTIONS DEPARTMENT TO WORK WITH THE UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT OF THE UNITED STATES DEPARTMENT OF HOMELAND SECURITY REGARDING IMMIGRATION REFORM; PROVIDING FOR DRIVING PRIVILEGE CARDS FOR CERTAIN NEW MEXICO RESIDENT FOREIGN NATIONALS; CREATING PENALTIES; CREATING A FUND; IMPOSING FEES; MAKING AN APPROPRIATION.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

SECTION 1. [NEW MATERIAL] SHORT TITLE.--Sections 1 through 23 of this act may be cited as the "Guest Worker Act".

SECTION 2. [NEW MATERIAL] PURPOSE OF ACT.--The purpose of the Guest Worker Act is to enable employers to hire necessary workers without breaking the law, to protect jobs and wages for New Mexico residents, to enable necessary foreign national workers to obtain jobs without living in fear of deportation or potential employer abuse, to ensure that all foreign national workers contribute their fair share to funding public services, to improve security through better documentation and tracking of foreign nationals and to end the inappropriate use of New Mexico driver's licenses as federal identification. The intent of the Guest Worker Act is to have the state of New Mexico work in partnership with the federal government to achieve effective immigration reform that improves New Mexico's security and prosperity and fosters a consistent, reliable and understandable immigration policy for all New Mexicans.

SECTION 3. [NEW MATERIAL] DEFINITIONS.--As used in the Guest Worker Act:

A. "department" means the workforce solutions department;

B. "employee" means an individual employed by an employer under a contract for hire;

C. "employer" means a person who has one or more employees employed in the same business, or in or about the same establishment, under any contract of hire, express or implied, oral or written;

D. "e-verify program" means the electronic verification of the work authorization program of the federal Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 8 U.S.C. Sec. 1324a;

E. "federal SAVE program" means the systematic alien verification for entitlements program operated by the United States department of homeland security or an equivalent program designated by the department of homeland security;

F. "guest worker" means an undocumented individual who holds a guest worker permit;

G. "guest worker permit" means a permit issued in accordance with the provisions of Section 12 of the Guest Worker Act to an undocumented individual who meets the eligibility criteria provided in Section 13 of the Guest Worker Act;

H. "immediate family" means:

(1) an undocumented individual's spouse;

(2) a dependent parent of an undocumented individual; or

(3) a child of an undocumented individual if the child is:

(a) under twenty-one years of age; and

(b) unmarried;

I. "immediate family permit" means a permit issued in accordance with the provisions of Section 12 of the Guest Worker Act to an undocumented individual who meets the eligibility criteria provided in Section 14 of Guest Worker Act;

J. "nm-verify program" means the verification procedure developed by the department in accordance with Section 16 of the Guest Worker Act;

K. "permit holder" means an undocumented individual who holds a guest worker permit or an immediate family permit;

L. "program start date" means the day on which the department is required to implement the guest worker program pursuant to Section 8 of the Guest Worker Act;

M. "relevant contact information" means:

(1) an undocumented individual's name, residential address, residential telephone number and personal email address;

(2) the name of the undocumented individual's employer, if the individual is employed, and the name, address and telephone number of a contact person for that employer;

(3) the names of an undocumented individual's immediate family members and the names of the family members who reside with the undocumented individual; and

(4) any other information required by the department by rule;

N. "status verification system" means an electronic system operated by the federal government, through which an authorized official of a state agency or a political subdivision of a state may inquire, by exercise of authority delegated pursuant to 8 U.S.C. Sec. 1373, to verify the citizenship or immigration status of an individual within the jurisdiction of the state agency or political subdivision for a purpose authorized under this section. "Status verification system" includes:

(1) the e-verify program;

(2) a federal program designated by the United States department of homeland security or other federal agency authorized to verify the work eligibility status of a newly hired employee pursuant to the federal Immigration Reform and Control Act of 1986; or

(3) the social security number verification service or similar online verification service implemented by the United States social security administration;

O. "unauthorized alien" means "unauthorized alien" as defined in 8 U.S.C. Sec. 1324a(h)(3); and

P. "undocumented individual" means an individual who:

(1) lives or works in the state; and

(2) is not in compliance with the federal Immigration and Nationality Act, 8 U.S.C. Sec. 1101 et seq., with regard to presence in the United States.

SECTION 4. [NEW MATERIAL] DETERMINING IMMIGRATION STATUS--TRANSFER OR MAINTENANCE OF INFORMATION.--Except as limited by federal law and the Guest Worker Act, the state and local governments are not restricted or prohibited in any way from sending, receiving or maintaining information related to the lawful or unlawful immigration status of an individual by communicating with any federal, state or local governmental entity for any lawful purpose, including:

A. determining an individual's eligibility for any public benefit, service or license provided by a federal agency, the state or a political subdivision of the state;

B. confirming an individual's claim of residence or domicile if determination is required by state law or a judicial order issued pursuant to a civil or criminal proceeding in this state;

C. if the individual is a foreign national, determining if the individual is in compliance with the federal registration laws under 8 U.S.C. Sec. 1301 through 1306; or

D. requesting verification of the citizenship or immigration status of any person pursuant to 8 U.S.C. Sec. 1373.

SECTION 5. [NEW MATERIAL] DEPARTMENT TO CREATE GUEST WORKER PROGRAM.--

A. The department shall create and administer the "guest worker program" under which the department shall:

(1) issue a guest worker permit or immediate family permit;

(2) establish fees for filings or services required by the Guest Worker Act;

(3) establish penalties required by the Guest Worker Act;

(4) track and maintain information regarding the number of guest worker permits, types of employment in which guest worker permit holders are employed and employer violations of the Guest Worker Act; and

(5) report annually to the governor and the legislature.

B. The department may make rules to the extent expressly provided for in the Guest Worker Act.

C. In implementing the Guest Worker Act, the department shall cooperate with other state agencies to minimize any duplication in databases or services.

SECTION 6. [NEW MATERIAL] GUEST WORKER PROGRAM TASK FORCE CREATED--MEMBERSHIP--DUTIES.--

A. The "guest worker program task force" is created. The task force shall function from the effective date of the Guest Worker Act.

B. The task force is composed of the following members:

(1) one majority party member and one minority party member of the house of representatives, appointed by the New Mexico legislative council;

(2) one majority party member and one minority party member of the senate, appointed by the New Mexico legislative council;

(3) the secretary of economic development;

(4) the secretary of workforce solutions; and

(5) the director of the New Mexico department of agriculture.

C. Vacancies on the task force shall be filled by appointment by the original appointing authority.

D. Members of the task force are entitled to per diem and mileage as provided in the Per Diem and Mileage Act and shall receive no other compensation, perquisite or allowance.

E. The task force shall:

(1) examine the number of guest worker permits, types of employment in which guest worker permit holders are employed and employer violations of the Guest Worker Act; and

(2) make recommendations to the governor annually on December 15 regarding any upward or downward adjustment in the number of guest worker permits to issue to achieve the ideal percentage of the state labor force made up by guest worker permit holders.

SECTION 7. [NEW MATERIAL] IMPLEMENTATION TO BE CONSISTENT WITH FEDERAL LAW AND CIVIL RIGHTS.--The department shall implement the Guest Worker Act in a manner that:

A. is consistent with federal laws that regulate immigration;

B. protects the civil rights of all persons; and

C. respects the privileges and immunities of United States citizens.

SECTION 8. [NEW MATERIAL] FEDERAL WAIVERS, EXEMPTIONS OR AUTHORIZATIONS--NO IMPLEMENTATION WITHOUT WAIVER, EXEMPTION OR AUTHORIZATION.--

A. The department shall seek one or more federal waivers, exemptions or authorizations to implement the guest worker program. The federal waivers, exemptions or authorizations shall state that the federal government will not remove a permit holder from the United States and will provide at least one year of notice to all permit holders before making any change to that policy.

B. The governor shall participate actively in efforts to obtain one or more federal waivers, exemptions or authorizations under this section.

C. The department shall implement the guest worker program on the effective date of the Guest Worker Act; provided that federal waivers, exemption or authorizations are in effect.

SECTION 9. [NEW MATERIAL] COORDINATION WITH OTHER FEDERAL OR STATE LAWS OR PROGRAMS.--To the extent feasible, the department shall coordinate the implementation of the guest worker program with other existing state and federal laws that relate to immigration and labor, including laws pertaining to obtaining the privilege to drive and to report citizenship status.

SECTION 10. [NEW MATERIAL] GUEST WORKER FUND--CREATED--PURPOSE.--The "guest worker fund" is created in the state treasury. The fund consists of fees paid pursuant to the Guest Worker Act, appropriations, gifts, grants and donations. Money in the fund at the end of a fiscal year shall revert to the general fund. The department shall administer the fund, and money in the fund is appropriated to the department to administer the Guest Worker Act. Disbursements from the fund shall be made by warrant of the secretary of finance and administration pursuant to vouchers signed by the secretary of workforce solutions or the secretary of workforce solutions' representative.

SECTION 11. [NEW MATERIAL] STATE INCOME TAXES--GUEST WORKER PERMIT FEES--WITHHOLDING OF FEES AND TAXES.--

A. A guest worker permit holder is subject to the provisions of the Income Tax Act and the Withholding Tax Act. An employer who hires a guest worker permit holder is subject to the provisions of the Withholding Tax Act.

B. A "guest worker permit fee" is imposed on a guest worker permit holder. The guest worker permit fee shall be in an amount equal to the combined rates of the federal old age survivors and disability insurance, also known as social security, and the federal medicare program that would be imposed on the guest worker permit holder by federal law if the guest worker permit holder were hired as an employee with a social security number.

C. A "guest worker employer fee" is imposed on an employer that hires a guest worker permit holder as an employee. The guest worker employer fee shall be in an amount equal to the combined rates of the federal old age survivors and disability insurance, also known as social security, and the federal medicare program that would be imposed on the employer by federal law if the guest worker permit holder were hired as an employee with a social security number.

D. The taxation and revenue department shall collect the guest worker permit fee and guest worker employer fee in the same manner that it collects state income taxes withheld in accordance with the Withholding Tax Act. The taxation and revenue department shall credit the guest worker permit fee and the guest worker employer fee to the guest worker fund to carry out the purposes of the Guest Worker Act.

SECTION 12. [NEW MATERIAL] OBTAINING A PERMIT--USES OF PERMIT.--

A. An undocumented individual shall obtain a guest worker permit:

(1) before providing services to an employer in this state under a contract for hire; or

(2) in accordance with Subsection B of this section no later than thirty days from the day on which the undocumented individual enters into a contract for hire.

B. By rule, the department shall provide a procedure under which an employer may hire an undocumented individual who does not hold a guest worker permit, pending the undocumented individual obtaining a permit within thirty days of the day on which the undocumented individual is hired to provide services.

C. An undocumented individual shall not provide services under a contract for hire to a person for more than thirty days during a one-year calendar period without obtaining a guest worker permit as provided in this section.

D. A guest worker permit or immediate family permit is considered an identification document and may be used as identification or proof of the permit holder's age for any state- or local government-required purpose.

E. An undocumented individual shall not use a guest worker permit or immediate family permit:

(1) to establish entitlement to a federal, state or local benefit as provided in Section 23 of the Guest Worker Act; or

(2) to obtain work or provide services in a state other than New Mexico.

SECTION 13. [NEW MATERIAL] ELIGIBILITY CRITERIA TO OBTAIN OR RENEW A GUEST WORKER PERMIT.--

A. To be eligible to obtain or renew a guest worker permit, an undocumented individual shall:

(1) comply with the Child Labor Act;

(2) live in New Mexico;

(3) have worked or lived in New Mexico before January 1, 2012;

(4) provide and regularly update relevant contact information to the department;

(5) provide documentation of a contract for hire under which the undocumented individual begins or continues to provide services within at least thirty days of the day on which the undocumented individual obtains the permit;

(6) agree to a criminal background check;

(7) not have been convicted of, pled guilty to, pled no contest to, pled guilty in a similar manner to or resolved by diversion or its equivalent to a felony; and

(8) provide evidence satisfactory to the department that the undocumented individual would not be inadmissible on public health grounds pursuant to 8 U.S.C. Sec. 1182.

B. The department may, by rule, provide for the documentation required to establish eligibility pursuant to Subsection A of this section.

C. The department shall require an undocumented individual applying for a guest worker permit or renewing a guest worker permit to submit to a criminal background check as a condition of receiving or renewing the guest worker permit.

D. An undocumented individual applying for a guest worker permit and required to submit to a criminal background check shall:

(1) submit a fingerprint card in a form acceptable to the department; and

(2) consent to a fingerprint background check by:

(a) the department of public safety; and

(b) the federal bureau of investigation.

E. For an undocumented individual applying for a guest worker permit who submits a fingerprint card and consents to a fingerprint background check, the department may request:

(1) criminal background information maintained by the department of public safety; and

(2) complete federal bureau of investigation criminal background checks through the national criminal information center and secure communities program.

F. Information obtained by the department from the review of criminal history records received under this section shall be used by the department to determine eligibility to obtain a guest worker permit.

G. The department shall:

(1) pay to the federal bureau of investigation the costs incurred by the federal bureau of investigation in providing the department criminal background information pursuant to this section; and

(2) charge the undocumented individual applying for the guest worker permit a fee equal to the costs incurred by the department regarding the undocumented individual pursuant to this section.

SECTION 14. [NEW MATERIAL] ELIGIBILITY TO OBTAIN OR RENEW AN IMMEDIATE FAMILY PERMIT.--

A. To be eligible to obtain or maintain an immediate family permit, an undocumented individual shall:

(1) live in New Mexico;

(2) be a member of a guest worker's immediate family;

(3) provide and regularly update relevant contact information;

(4) agree to a criminal background check;

(5) not have been convicted of, pled guilty to, pled no contest to, pled guilty in a similar manner to or resolved by diversion or its equivalent to a felony; and

(6) provide evidence satisfactory to the department that the undocumented individual would not be inadmissible on public health grounds pursuant to 8 U.S.C. Sec. 1182.

B. The department may, by rule, provide for the documentation required to establish eligibility pursuant to Subsection A of this section.

C. The department shall require an undocumented individual applying for an immediate family permit or renewing an immediate family permit to submit to a criminal background check as a condition of receiving or renewing the immediate family permit.

D. An undocumented individual applying for an immediate family permit and required to submit to a criminal background check shall:

(1) submit a fingerprint card in a form acceptable to the department; and

(2) consent to a fingerprint background check by:

(a) the department of public safety; and

(b) the federal bureau of investigation.

E. For an undocumented individual applying for an immediate family permit who submits a fingerprint card and consents to a fingerprint background check, the department may request:

(1) criminal background information maintained by the department of public safety; and

(2) complete federal bureau of investigation criminal background checks through the national criminal information center and secure communities program.

F. Information obtained by the department from the review of criminal history records received under this section shall be used by the department to determine eligibility to

obtain an immediate family permit.

G. The department shall:

(1) pay to the federal bureau of investigation the costs incurred by the federal bureau of investigation in providing the department criminal background information

pursuant to this section; and

(2) charge the undocumented individual applying for the immediate family permit a fee equal to the costs incurred by the department regarding the undocumented individual pursuant to this section.

SECTION 15. [NEW MATERIAL] APPLICATION AND RENEWAL PROCESS.--

A. The department shall:

(1) create a guest worker permit and an immediate family permit that:

(a) are made of impervious material that is resistant to wear or damage; and

(b) minimize the risk that the permit may be forged, falsified or counterfeited; and

(2) ensure that the guest worker permit and immediate family permit:

(a) include a photograph of the undocumented individual to whom the permit is issued;

(b) prominently state the date on which the permit expires; and

B. A guest worker permit and an immediate family permit shall expire two years from the day on which the department issues the permit.

C. To apply for a permit under the Guest Worker Act, an undocumented individual shall submit to the department, in a form acceptable to the department:

(1) an application;

(2) documentation that the individual meets the criteria provided in Section 13 or 14 of the Guest Worker Act;

(3) a valid passport issued by a country of citizenship, a matricula consular card issued by the Mexican consulate in Albuquerque or El Paso, or a birth certificate, either an original or a certified copy, including a foreign birth certificate with a notarized English translation, if necessary;

(4) a signed statement verifying that the information in the application and the documentation is correct; and

(5) a fee established by the department, not to exceed two hundred dollars ($200) per permit.

D. Subject to the provisions of Subsection E of this section, if an undocumented individual submits a complete application pursuant to Subsection C of this section, and the department determines that the undocumented individual meets the criteria provided in Section 13 of the Guest Worker Act, the department shall issue or renew a guest worker permit until the number of permits is at least equal to three percent of the total labor force in the state.

E. The number of active guest worker permits shall not exceed six percent of the total labor force in the state. The percentage downward adjustment of active guest worker permits shall not exceed one percent in any given calendar year.

F. If an undocumented individual submits a complete application pursuant to Subsection C of this section, and the department determines that the undocumented individual meets the criteria provided in Section 14 of the Guest Worker Act, the department shall issue or renew an immediate family permit.

G. An undocumented individual may appeal a denial of a guest worker permit or an immediate family permit under this section to the secretary of workforce solutions.

SECTION 16. [NEW MATERIAL] CONDITIONS DURING PERMIT TERM.--

A. A guest worker permit holder or an immediate family permit holder shall continue to meet the eligibility criteria for the type of permit held by the permit holder.

B. A guest worker permit or immediate family permit is automatically revoked if, after issuance of the permit:

(1) the permit holder to whom it is issued is convicted of, pleads guilty to, pleads no contest to, pleads guilty in a similar manner to or has resolved by diversion or its equivalent a felony;

(2) for a guest worker permit, the permit holder to whom it is issued does not provide services under a contract for hire for more than one year; or

(3) for an immediate family permit, the guest worker permit under which the immediate family member's permit is issued is revoked or expired.

SECTION 17. [NEW MATERIAL] VERIFICATION OF VALID PERMIT--PROTECTED STATUS OF INFORMATION.--

A. The department shall develop a verification procedure, by rule, for an employer who hires a guest worker permit holder to verify with the department that the holder's permit is valid as required by Section 19 of the Guest Worker Act.

B. The verification procedure adopted pursuant to this section shall be substantially similar to the employer requirements to verify federal employment status under the e-verify program and may be cited as the "nm-verify program".

SECTION 18. [NEW MATERIAL] PROHIBITED CONDUCT-- ADMINISTRATIVE PENALTIES--CRIMINAL PENALTIES.--

A. A guest worker permit holder or an immediate family permit holder shall not file for or receive unemployment benefits.

B. No person shall:

(1) furnish false or forged information or documentation in support of an application for a guest worker permit or an immediate family permit;

(2) alter the information on a guest worker permit or immediate family permit;

(3) allow an individual to use a guest worker permit or an immediate family permit if the individual is not entitled to use the permit;

(4) represent that a guest worker permit or an immediate family permit is issued to an individual if the permit is not issued to that individual;

(5) use, or attempt to use, an invalid guest worker permit or an immediate family permit as a valid permit; or

(6) knowingly or with reckless disregard acquire, use, display or transfer an item that purports to be a valid guest worker permit or an immediate family permit but that is not a valid permit.

SECTION 19. [NEW MATERIAL] EMPLOYING AN UNAUTHORIZED ALIEN--VERIFICATION OF EMPLOYMENT ELIGIBILITY.--

A. On and after the guest worker program start date, an employer shall not knowingly employ an unauthorized alien who does not hold a guest worker permit.

B. On and after the program start date, an employer employing one or more employees within the state shall, after hiring an employee, verify the employment eligibility of the new employee or employees:

(1) through the e-verify program, if the individual does not hold a guest worker permit; and

(2) through the nm-verify program, if the individual holds a guest worker permit.

C. An employer shall keep a record of the verification required by Subsection B of this section for the longer of:

(1) the duration of the employee's employment; or

(2) three years from the date of verification.

D. On and after the guest worker program start date, an employer shall terminate the employment of an undocumented individual if the employer determines that the undocumented individual does not hold a valid guest worker permit.

SECTION 20. [NEW MATERIAL] LIABILITY PROTECTIONS.--

A. On or after the guest worker program start date, an employer shall not be held civilly liable under state law in a cause of action for the employer's unlawful hiring of an unauthorized alien if:

(1) the employer complies with the provisions of Section 19 of the Guest Worker Act; and

(2) the information obtained after verification pursuant to Section 19 of the Guest Worker Act indicates that:

(a) the employee's federal legal status allowed the employer to hire the employee; or

(b) on and after the guest worker program start date, the employee held a valid guest worker permit.

B. On or after the guest worker program start date, an employer shall not be held civilly liable under state law in a cause of action for the employer's refusal to hire an individual if:

(1) the employer complies with the provisions of Section 19 of the Guest Worker Act; and

(2) the information obtained after verification pursuant to Section 19 of the Guest Worker Act indicates that the employee:

(a) was an unauthorized alien; or

(b) on and after the guest worker program start date, does not hold a valid guest worker permit.

C. The Guest Worker Act does not create a cause of action, on the basis of discrimination or otherwise, for not hiring an individual who holds a guest worker permit.

SECTION 21. [NEW MATERIAL] ADMINISTRATIVE ACTIONS-- DEFENSES.--

A. On and after the guest worker program start date, the department may bring agency action against an employer who violates the provisions of Section 19 of the Guest Worker Act.

B. To determine whether an employee is an unauthorized alien for purposes of Subsection A of this section, the department shall consider only the federal government's determination pursuant to 8 U.S.C. Sec. 1373c.

C. The federal government's determination of unauthorized alien status creates a rebuttable presumption of the employee's lawful status. The department may request the federal government to provide automated or testimonial verification pursuant to 8 U.S.C. Sec. 1373c.

D. For the purposes of this section, proof of verifying the authorization for employment in accordance with the provisions of Section 19 of the Guest Worker Act creates a rebuttable presumption that an employer did not knowingly employ an unauthorized alien who did not hold a valid guest worker permit.

E. An employer is considered to have complied with the requirements of 8 U.S.C. Sec. 1324a(b), notwithstanding an isolated, sporadic or accidental technical or procedural failure to meet the requirements, if there is a good-faith attempt to comply with those requirements.

SECTION 22. [NEW MATERIAL] PENALTIES.--

A. As used in this section:

(1) "first violation" means the first time that the department imposes a penalty pursuant to this section, regardless of the number of individuals that the employer hires in violation of the provisions of Section 19 of the Guest Worker Act;

(2) "second violation" means the second time that the department imposes a penalty pursuant to this section, regardless of the number of individuals that the employer hires in violation of the provisions of Section 19 of the Guest Worker Act; and

(3) "third or subsequent violation" means the third or subsequent time that the department imposes a penalty pursuant to this section, regardless of the number of individuals that the employer hires in violation of the provisions of Section 19 of the Guest Worker Act.

B. For a first violation of the provisions of Section 19 of the Guest Worker Act, the department shall impose a civil penalty on an employer not to exceed five hundred dollars ($500) for each individual who is employed by the employer during the time period specified in the notice of agency action and who is an unauthorized alien who does not hold a valid guest worker permit.

C. For a second violation of the provisions of Section 19 of the Guest Worker Act, the department shall impose a civil penalty on an employer not to exceed one thousand dollars ($1,000) for each individual who is employed by the employer during the time period specified in the notice of agency action and who is an unauthorized alien who does not hold a valid guest worker permit.

D. For a third or subsequent violation of the provisions of Section 19 of the Guest Worker Act, the department shall:

(1) notify the issuing agency of the applicable licenses of the third or subsequent violation of the Guest Worker Act and recommend revocation of the applicable licenses for a period not to exceed one year; or

(2) impose a civil penalty on an employer not to exceed the greater of ten thousand dollars ($10,000) or one thousand five hundred dollars ($1,500) for each individual who is employed by the employer during the time period specified in the agency action and who is an unauthorized alien who does not hold a valid guest worker permit.

E. The department shall base its determination of the length of revocation pursuant to Subsection D of this section on evidence or information submitted to the department during the action under which a third or subsequent violation is found and shall consider the following factors, if relevant:

(1) the number of unauthorized aliens who do not hold a guest worker permit who are employed by the employer;

(2) prior misconduct by the employer;

(3) the degree of harm resulting from the violation;

(4) whether the employer made good-faith efforts to comply with any applicable requirements;

(5) the duration of the violation; and

(6) any other factor that the department considers appropriate.

F. For a violation described in Subsections A and B of Section 18 of the Guest Worker Act, the department may suspend, limit, or revoke and repossess a permit or impose a civil penalty not to exceed seven hundred fifty dollars ($750) for each violation, or both, and may notify the United States immigration and customs enforcement of the violation.

G. A person is guilty of a misdemeanor, and shall be sentenced in accordance with the provisions of Section 31-19-1 NMSA 1978, if the person:

(1) furnishes false or forged information or documentation in support of an application for a guest worker permit or an immediate family permit; or

(2) alters the information on a guest worker permit or an immediate family permit.

SECTION 23. [NEW MATERIAL] RECEIPT OF STATE, LOCAL OR FEDERAL PUBLIC BENEFITS--VERIFICATION--EXCEPTIONS--FRAUDULENTLY OBTAINING BENEFITS--ANNUAL REPORT.--

A. Except as provided in Subsection C of this section, or when exempted by federal law, a state agency or political subdivision of the state shall verify the lawful presence in the United States of an individual who is at least eighteen years of age and who applies for:

(1) a state or local public benefit as defined in 8 U.S.C. Sec. 1621; or

(2) a federal public benefit as defined in 8 U.S.C. Sec. 1611 that is administered by an agency or political subdivision of this state.

B. This section shall be enforced without regard to race, religion, gender, ethnicity, sexual orientation or national origin.

C. Verification of lawful presence in the United States under this section is not required for:

(1) any purpose for which lawful presence in the United States is not restricted by law, ordinance or regulation;

(2) health care items and services that are:

(a) necessary for the treatment of an emergency medical condition, as defined in 42 U.S.C. Sec. 1396b(v)(3), of the individual involved; and

(b) not related to an organ transplant procedure;

(3) short-term, noncash, in-kind emergency disaster relief;

(4) public health assistance for immunizations with respect to immunizable diseases and for testing and treatment of symptoms of communicable diseases, whether or not the symptoms are caused by the communicable disease;

(5) programs, services or assistance such as soup kitchens, crisis counseling and intervention and short-term shelter, specified by the United States attorney general, in the sole and unreviewable discretion of the United States attorney general, after consultation with appropriate federal agencies and departments, that:

(a) deliver in-kind services at the community level, including through public or private nonprofit agencies;

(b) do not condition the provision of assistance, the amount of assistance provided or the cost of assistance provided on the income or resources of the individual recipient; and

(6) a home loan that will be insured, guaranteed or purchased by:

(a) the federal housing administration of the United States department of housing and urban development, the United States department of veterans affairs or any other federal agency; or

(b) an enterprise, as defined in 12 U.S.C. Sec. 4502; or

(7) a subordinate loan or a grant that will be made to an applicant in connection with a home loan that does not require verification under Paragraph (6) of this subsection.

D. A state agency or political subdivision of the state that is required to verify the lawful presence in the United States of an applicant under this section shall require the applicant to certify under penalty of perjury that:

(1) the applicant is a United States citizen; or

(2) the applicant is:

(a) a qualified alien, as defined in 8 U.S.C. Sec. 1641; and

(b) lawfully present in the United States.

E. The certificate required under Subsection D of this section shall include a statement advising the signer that providing false information subjects the signer to penalties for perjury.

F. A state agency or political subdivision of the state shall verify a certification required under Subsection E of this section through the federal SAVE program.

G. If the certification constitutes a false claim of United States citizenship under 18 U.S.C. Sec. 911, a state agency or political subdivision of the state shall file a complaint with the United States attorney general for the applicable district based upon the venue in which the application was made.

H. If a state agency or political subdivision of the state receives verification that a person making an application for a benefit, service or license is not a qualified alien, the agency or political subdivision shall provide the information to the office of the attorney general of New Mexico unless prohibited by federal mandate.

I. A state agency or political subdivision of the state may adopt variations to the requirements of this section that:

(1) clearly improve the efficiency of or reduce delay in the verification process; or

(2) provide for adjudication of unique individual circumstances where the verification procedures in this section would impose an unusual hardship on a legal resident of New Mexico.

J. It is unlawful for a state agency or a political subdivision of the state to provide a state, local or federal benefit, as defined in 8 U.S.C. Sec. 1611 and 1621, in violation of this section.

K. A state agency or department that administers a program of state or local public benefits shall:

(1) provide an annual report to the governor and the legislature regarding its compliance with this section;

(2) monitor the federal SAVE program for application verification errors and significant delays;

(3) provide an annual report on the errors and delays to ensure that the application of the federal SAVE program is not erroneously denying a state or local benefit to a legal resident of the state; and

(4) report delays and errors in the federal SAVE program to the United States department of homeland security.

SECTION 24. A new section of the Tax Administration Act is enacted to read:

"[NEW MATERIAL] DISTRIBUTION--GUEST WORKER FUND.--A distribution pursuant to Section 7-1-6.1 NMSA 1978 shall be made to the guest worker fund in an amount equal to the net receipts attributable to the guest worker permit fee and guest worker employer fee imposed pursuant to the Guest Worker Act."

SECTION 25. Section 66-1-4.10 NMSA 1978 (being Laws 1990, Chapter 120, Section 11) is amended to read:

"66-1-4.10. DEFINITIONS.--As used in the Motor Vehicle Code:

A. "laned roadway" means a roadway that is divided into two or more clearly marked lanes for vehicular traffic;

B. "law enforcement agency designated by the division" means the law enforcement agency indicated on the dismantler's notification form as the appropriate agency for the receipt of the appropriate copy of that form;

C. "license", without modification, means any license, temporary instruction permit [or], temporary license or driving privilege card issued or recognized under the laws of New Mexico pertaining to the licensing of persons to operate motor vehicles;

D. "lien" or "encumbrance" means every chattel mortgage, conditional sales contract, lease, purchase lease, sales lease, contract, security interest under the Uniform Commercial Code or other instrument in writing having the effect of a mortgage or lien or encumbrance upon, or intended to hold, the title to any vehicle in the former owner, possessor or grantor; and

E. "local authorities" means every county, municipality and any local board or body having authority to enact laws relating to traffic under the constitution and laws of this state."

SECTION 26. Section 66-5-9 NMSA 1978 (being Laws 1978, Chapter 35, Section 231, as amended) is amended to read:

"66-5-9. APPLICATION FOR LICENSE, TEMPORARY LICENSE, PROVISIONAL LICENSE, DRIVING PRIVILEGE CARD OR INSTRUCTION PERMIT.--

A. An application for an instruction permit, driving privilege card, provisional license or driver's license shall be made upon a form furnished by the department. An application shall be accompanied by the proper fee. For permits, driving privilege cards, provisional licenses or driver's licenses other than those issued pursuant to the New Mexico Commercial Driver's License Act, submission of a complete application with payment of the fee entitles the applicant to not more than three attempts to pass the examination within a period of six months from the date of application.

B. An application shall contain the full legal name, social security number, [or individual tax identification number] except for applicants who are ineligible for a social security number, date of birth, sex and New Mexico residence address of the applicant and briefly describe the applicant and indicate whether the applicant has previously been licensed as a driver and, if so, when and by what state or country and whether any such license has ever been suspended or revoked or whether an application has ever been refused and, if so, the date of and reason for the suspension, revocation or refusal. [For foreign nationals applying for driver's licenses, the secretary shall accept the individual taxpayer identification number as a substitute for a social security number regardless of immigration status.] The secretary is authorized to establish, by regulation, other documents that may be accepted as [a substitute for a social security number or an individual tax identification number] documentary evidence of the identity and residence of the applicant.

C. In addition to the requirements of Subsection B of this section, an application by a foreign national for a driver's license that is acceptable by federal agencies for official federal purposes shall contain the unique identifying number of the foreign national's valid passport, valid visa or other arrival-departure record or document issued by the federal department of homeland security and the expiration date of the foreign national's authorized period of admission or extension of stay as demonstrated on the foreign national's valid passport, valid visa or other arrival-departure record or document issued by the federal department of homeland security. The department may issue to an eligible foreign national applicant a driver's license valid only for the duration of the foreign national's authorized period of admission or extension of stay.

D. The department shall issue a driving privilege card that is not acceptable by federal agencies for official federal purposes to an otherwise eligible applicant regardless of immigration status; provided that the applicant holds a valid guest worker permit or an immediate family permit pursuant to the Guest Worker Act. For an application for a driving privilege card that is not acceptable by federal agencies for official federal purposes, the secretary shall accept as substitutes for otherwise required documents evidence that the department deems sufficient as documentary evidence of the identity and residency of the applicant. The department may issue to an eligible applicant a driving privilege card valid only for the duration of the applicant's guest worker permit or immediate family permit.

[C.] E. An applicant shall indicate whether the applicant has been convicted of driving while under the influence of intoxicating liquor or drugs in this state or in any other jurisdiction. Failure to disclose any such conviction prevents the issuance of a driver's license, provisional license, temporary license, driving privilege card or instruction permit for a period of one year if the failure to disclose is discovered by the department prior to issuance. If the nondisclosure is discovered by the department subsequent to issuance, the department shall revoke the driver's license, provisional license, temporary license, driving privilege card or instruction permit for a period of one year. Intentional and willful failure to disclose, as required in this subsection, is a misdemeanor.

[D.] F. An applicant under eighteen years of age who is making an application for a first New Mexico driver's license shall submit evidence that the applicant has:

(1) successfully completed a driver education course approved by the bureau that included a DWI prevention and education component. The bureau may accept verification of driver education course completion from another state if the driver education course substantially meets the requirements of the bureau for a course offered in New Mexico;

(2) had a provisional license for at least the twelve-month period immediately preceding the date of the application for the driver's license; provided that thirty days shall be added to the twelve-month period for each adjudication or conviction of a traffic violation committed during the time the person was driving with a provisional license;

(3) complied with restrictions on that license;

(4) not been cited for a traffic violation that is pending at the time of application; and

(5) not been adjudicated for an offense involving the use of alcohol or drugs during the twelve-month period immediately preceding the date of the application for the driver's license and that there are no pending adjudications alleging an offense involving the use of alcohol or drugs at the time of application.

[E.] G. An applicant eighteen years of age or over, but under twenty-five years of age, who is making an application to be granted a first New Mexico driver's license or driving privilege card shall submit evidence with the application that the applicant has successfully completed a bureau-approved DWI prevention and education program.

[F.] H. An applicant twenty-five years of age or over who has been convicted of driving under the influence of intoxicating liquor or drugs and who is making an application to be granted a first New Mexico driver's license or driving privilege card shall submit evidence with the application that the applicant has successfully completed a bureau-approved DWI prevention and education program.

[G.] I. Whenever an application is received from a person previously licensed in another jurisdiction, the department may request a copy of the driver's record from the other jurisdiction. When received, the driver's record may become a part of the driver's record in this state with the same effect as though entered on the driver's record in this state in the original instance.

[H.] J. Whenever the department receives a request for a driver's record from another licensing jurisdiction, the record shall be forwarded without charge.

[I.] K. This section does not apply to driver's licenses issued pursuant to the New Mexico Commercial Driver's License Act."

SECTION 27. Section 66-5-15 NMSA 1978 (being Laws 1978, Chapter 35, Section 237, as amended) is amended to read:

"66-5-15. LICENSES ISSUED TO APPLICANTS.--

A. The department shall, upon payment of the required fee, issue to every qualified applicant a driver's license or driving privilege card as applied for. [The license] All licenses and driving privilege cards shall bear the full legal name, date of birth, sex, current New Mexico physical or mailing address, a full face or front-view photograph of the license holder and a brief description of the licensee and the signature of the licensee. A license or driving privilege card shall not be valid unless it bears the signature of the licensee.

B. On or after six months after the effective date of this 2012 act, a driver's license issued to a licensee that meets federal requirements to be acceptable by federal agencies for official federal purposes shall contain a unique design that distinguishes the driver's license as being acceptable by federal agencies for official federal purposes from a driving privilege card that is not acceptable by federal agencies for official federal purposes.

C. On or after twelve months after the effective date of this 2012 act, a driving privilege card that fails to meet federal requirements to be acceptable by federal agencies for official federal purposes shall state that the driving privilege card is not acceptable by federal agencies for official federal purposes. The information shall be stated in the same manner as restrictions are set forth upon the usual driving privilege card form and in the machine readable zone. The department shall establish by rule the restriction code of "J" to designate the restriction "driving privilege cards are not acceptable by federal agencies for official federal purposes" in order to implement the provisions of this subsection."

SECTION 28. Section 66-5-44 NMSA 1978 (being Laws 1978, Chapter 35, Section 266, as amended) is amended to read:

"66-5-44. LICENSES AND PERMITS--DURATION AND FEE--APPROPRIATION.--

A. There shall be paid to the department a fee of ten dollars ($10.00) for each driver's license [or], duplicate driver's license, driving privilege card or duplicate driving privilege card, except that for a driver's license issued for an eight-year period, a fee of twenty dollars ($20.00) shall be paid to the department. Each license shall be for a term provided for in Section 66-5-21 NMSA 1978.

B. For each permit and instruction permit, there shall be paid to the department a fee of two dollars ($2.00). The term for each permit shall be as provided in Sections 66-5-8 and 66-5-9 NMSA 1978.

C. Except for fees charged pursuant to Subsection E of this section, the director with the approval of the governor may increase the amount of the fees provided for in this section by an amount not to exceed three dollars ($3.00) for the purpose of implementing an enhanced driver's license system; provided that for a driver's license issued for an eight-year period, the amount of the fees shall be twice the amount charged for other driver's licenses. The additional amounts collected pursuant to this subsection are appropriated to the department to defray the expense of the new system of licensing and for use as set forth in Subsection F of Section 66-6-13 NMSA 1978. Unexpended or unencumbered balances remaining from fees collected pursuant to the provisions of this subsection at the end of any fiscal year shall not revert to the general fund but shall be expended by the department in fiscal year 2010 and subsequent fiscal years.

D. There shall be paid to the department a driver safety fee of three dollars ($3.00) for each driver's license or duplicate driver's license, except that for a driver's license issued for an eight-year period, a fee of six dollars ($6.00) shall be paid to the department. The fee shall be distributed to each school district for the purpose of providing defensive driving instruction through the state equalization guarantee distribution made annually pursuant to the general appropriation act.

E. The department may charge a fee of no more than fifteen dollars ($15.00) to a person who holds a driver's license from another state and is applying for a New Mexico driver's license for the first time. The fee is appropriated to the department to defray the expense of determining whether the driver has been convicted of driving a motor vehicle while under the influence of intoxicating liquor or drugs, or equivalent crime, and determining if the person qualifies for a driver's license in this state. The fee provided for in this subsection is not subject to the increase provided for in Subsection C of this section."

SECTION 29. CONTINGENT EFFECTIVE DATE.--The effective date of the provisions of this act shall be the date that the governor certifies to the taxation and revenue department and the workforce solutions department that the governor has received in writing one or more federal waivers, exemptions or authorizations to implement a guest worker program for foreign nationals who do not provide a social security number or proof of authorized presence in the United States. Upon that date, the taxation and revenue department and the workforce solutions department shall implement the provisions of this act and notify the New Mexico compilation commission.

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