Current through Register 2024 Notice Reg. No. 38, September 20, 2024
(a) This section shall apply to any
individual (e.g., sole proprietorship) who is applying for any of the
following:
(1) Broker-Dealer Certificate
(Corporations Code Section
25211).
(2) Investment Adviser Certificate
(Corporations Code Section
25231).
(3) Finance Lender or Broker License
(Financial Code Section
22101).
(4) Residential Mortgage Lender and/or
Servicer Licenses (Financial Code Sections
50122 and
50130).
(b) All eligibility requirements contained
herein shall be applied without regard to the race, creed, color, gender,
religion, or national origin of the individual applying for a license or
certificate described in subsection (a).
(c) Pursuant to Section
411 of the Personal Responsibility
and Work Opportunity Reconciliation Act of 1996 (Pub. L. No.
104-193("PRWORA"),
8 U.S.C. Section
1621, et seq.), and notwithstanding any other
provision of this division, aliens who are not qualified aliens, nonimmigrant
aliens under the Immigration and Nationality Act ("INA")
(8 U.S.C. Section
1101, et seq.), or aliens paroled into the
United States under Section
212(d)(5) of the
INA (8 U.S.C. Section
1182(d)(5)), for less than
one year, are not eligible to receive a license or certificate described in
subsection (a), except as provided in
8 U.S.C.
1621(c)(2).
(d) A qualified alien is an alien who, at the
time he or she applies for, receives, or attempts to receive a license or
certificate described in subsection (a), is, under Section
431(b) and (c) of
the PRWORA (8 U.S.C. Section
1641(b) and (c)), any of the
following:
(1) An alien who is lawfully
admitted for permanent residence under the INA (8 U.S.C. Section 1101,
et seq.).
(2) An alien who is
granted asylum under Section
208 of the INA (8 U.S.C. Section
1158).
(3) A refugee who is admitted to the United
States under Section
207 of the INA (8 U.S.C. Section
1157).
(4) An alien who is paroled into the United
States under Section
212(d)(5) of the
INA (8 U.S.C. Section
1182(d)(5)) for a period of
at least one year.
(5) An alien
whose deportation is being withheld under Section
243(h) of the INA
(8 U.S.C. Section
1253(h)) (as in effect
immediately before the effective date of Section
307 of Division C of
Public Law
104-208) or Section
241(b)(3) of such
Act (8 U.S.C. Section
1251(b)(3)) (as amended by
Section 305(a) of
Division C of Public Law
104-208).
(6) An alien who is granted conditional entry
pursuant to Section
203(a)(7) of the
INA as in effect prior to April 1, 1980. (8 U.S.C. Section
1153(a)(7)) (See editorial
note under 8 U.S.C. Section
1101, "Effective Date of 1980
Amendment.")
(7) An alien who is a
Cuban or Haitian entrant (as defined in Section
501(e) of the
Refugee Education Assistant Act of 1980 (U.S.C. Section
1522 note)).
(8) An alien who meets all of the conditions
of subparagraphs (A), (B), (C), and (D) below:
(A) The alien has been battered or subjected
to extreme cruelty in the United States by a spouse or a parent, or by a member
of the spouse's or parent's family residing in the same household as the alien,
and the spouse or parent of the alien consented to, or acquiesced in, such
battery or cruelty. For purposes of this subsection, the term "battered or
subjected to extreme cruelty" includes, but is not limited to being the victim
of any act or threatened act of violence including any forceful detention,
which results or threatens to result in physical or mental injury. Rape,
molestation, incest (if the victim is a minor), or forced prostitution shall be
considered as acts of violence.
(B)
There is a substantial connection between such battery or cruelty and the need
for the benefits to be provided in the opinion of the Department of Business
Oversight. For purposes of this subsection, the following circumstances
demonstrate a substantial connection between the battery or cruelty and the
need for the benefits to be provided:
1. The
benefits are needed to enable the alien to become self-sufficient following
separation from the abuser.
2. The
benefits are needed to enable the alien to escape the abuser and/or the
community in which the abuser lives, or to ensure the safety of the alien from
the abuser.
3. The benefits are
needed due to a loss of financial support resulting from the alien's separation
from the abuser.
4. The benefits
are needed because the battery or cruelty, separation from the abuser, or work
absences or lower job performance resulting from the battery or extreme cruelty
or from legal proceedings relating thereto (including resulting child support,
child custody, and divorce actions) cause the alien to lose his or her job or
to earn less or to require the alien to leave his or her job for safety
reasons.
5. The benefits are needed
because the alien requires medical attention or mental health counseling, or
has become disabled, as a result of the battery or extreme cruelty.
6. The benefits are needed because the loss
of a dwelling or source of income or fear of the abuser following separation
from the abuser jeopardizes the alien's ability to care for his or her children
(e.g., inability to house, feed or clothe children or to put children into a
day care for fear of being found by the abuser).
7. The benefits are needed to alleviate
nutritional risk or need resulting from the abuse or following separation from
the abuser.
8. The benefits are
needed to provide medical care during a pregnancy resulting from the abuser's
sexual assault or abuse of, or relationship with, the alien and/or to care for
any resulting children.
9. Where
medical coverage and/or health care services are needed to replace medical
coverage or health care services the alien had when living with the
abuser.
(C) The alien has
a petition that has been approved or has a petition pending which sets forth a
prima facie case for:
1. status as a spouse
or child of a United States citizen pursuant to clause (ii), (iii), or (iv) of
Section 204(a)(1)(A) of
the INA (8 U.S.C. Section
1154(a)(1)(A)(ii), (iii), or
(iv)),
2. classification pursuant to clause (ii) or
(iii) of Section
204(a)(1)(B) of
the INA (8 U.S.C. Section
1154(a)(1)(B)(ii) or
(iii)),
3. suspension of deportation and adjustment
of status pursuant to Section
244(a)(3) of the
INA (8 U.S.C. Section
1254) as in effect prior to April 1, 1997
[Pub.L.
104-208,
Section
501 (effective September 30, 1996, pursuant
to Section
591);
Pub.L.
104-208,
Section
304 (effective April 1, 1997, pursuant to
Section 309);
Pub.L.
105-33,
Section
5581 (effective pursuant to Section
5582)] (incorrectly codified as
"cancellation of removal under Section
240 A of such Act [8 U.S.C. Section
1229b] (as in effect prior to April 1,
1997),".)
4. status as a spouse or
child of a United States citizen pursuant to clause (i) of Section
204(a)(1)(A) of
the INA (8 U.S.C. Section
1154(a)(1)(A)(i)) or
classification pursuant to clause (i) of Section
204(a)(1)(B) of
the INA (8 U.S.C. Section
1154(a)(1)(B)(i)),
or
5. cancellation or removal
pursuant to Section
240 A(b)(2) of the INA
(8 U.S.C. Section
1229b(b)(2)).
(D) For the period for which benefits are
sought, the individual responsible for the battery or cruelty does not reside
in the same household or family eligibility unit as the individual subjected to
the battery or cruelty.
(9) An alien who meets all of the conditions
of subparagraphs (A), (B), (C), (D), and (E) below:
(A) The alien has a child who has been
battered or subjected to extreme cruelty in the United States by a spouse or a
parent of the alien (without the active participation of the alien in the
battery or cruelty), or by a member of the spouse's or parent's family residing
in the same household as the alien, and the spouse or parent consented or
acquiesced to such battery or cruelty. For purposes of this subsection, the
term "battered or subjected to extreme cruelty" includes, but is not limited to
being the victim of any act or threatened act of violence including any
forceful detention, which results or threatens to result in physical or mental
injury. Rape, molestation, incest (if the victim is a minor), or forced
prostitution shall be considered as acts of violence.
(B) The alien did not actively participate in
such battery or cruelty.
(C) There
is a substantial connection between such battery or cruelty and the need for
the benefits to be provided in the opinion of the Department of Business
Oversight. For purposes of this subsection, the following circumstances
demonstrate a substantial connection between the battery or cruelty and the
need for the benefits to be provided:
1. The
benefits are needed to enable the alien's child to become self-sufficient
following separation from the abuser.
2. The benefits are needed to enable the
alien's child to escape the abuser and/or the community in which the abuser
lives, or to ensure the safety of the alien's child from the abuser.
3. The benefits are needed due to a loss of
financial support resulting from the alien's child's separation from the
abuser.
4. The benefits are needed
because the battery or cruelty, separation from the abuser, or work absences or
lower job performance resulting from the battery or extreme cruelty or from
legal proceedings relating thereto (including resulting child support, child
custody, and divorce actions) cause the alien's child to lose his or her job or
to earn less or to require the alien's child to leave his or her job for safety
reasons.
5. The benefits are needed
because the alien's child requires medical attention or mental health
counseling, or has become disabled, as a result of the battery or extreme
cruelty.
6. The benefits are needed
because the loss of a dwelling or source of income or fear of the abuser
following separation from the abuser jeopardizes the alien's child's ability to
care for his or her children (e.g., inability to house, feed or clothe children
or to put children into a day care for fear of being found by the
abuser).
7. The benefits are needed
to alleviate nutritional risk or need resulting from the abuse or following
separation from the abuser.
8. The
benefits are needed to provide medical care during a pregnancy resulting from
the abuser's sexual assault or abuse of, or relationship with, the alien's
child and/or to care for any resulting children.
9. Where medical coverage and/or health care
services are needed to replace medical coverage or health care services the
alien's child had when living with the abuser.
(D) The alien meets the requirements of
subsection (c)(8)(C) above.
(E) For
the period for which benefits are sought, the individual responsible for the
battery or cruelty does not reside in the same household or family eligibility
unit as the individual subjected to the battery or cruelty.
(10) An alien child who meets all of the
conditions of subparagraphs (A), (B), and (C) below:
(A) The alien child resides in the same
household as a parent who has been battered or subjected to extreme cruelty in
the United States by that parent's spouse or by a member of the spouse's family
residing in the same household as the parent and the spouse consented or
acquiesced to such battery or cruelty. For the purposes of this subsection, the
term "battered or subjected to extreme cruelty" includes, but is not limited to
being the victim of any act or threatened act of violence including any
forceful detention, which results or threatens to result in physical or mental
injury. Rape, molestation, incest (if the victim is a minor), or forced
prostitution shall be considered acts of violence.
(B) There is a substantial connection between
such battery or cruelty and the need for the benefits to be provided in the
opinion of the Department of Business Oversight. For purposes of this
subsection, the following circumstances demonstrate a substantial connection
between the battery or cruelty and the need for the benefits to be provided:
1. The benefits are needed to enable the
alien child's parent to become self-sufficient following separation from the
abuser.
2. The benefits are needed
to enable the alien child's parent to escape the abuser and/or the community in
which the abuser lives, or to ensure the safety of the alien child's parent
from the abuser.
3. The benefits
are needed due to a loss of financial support resulting from the alien child's
parent's separation from the abuser.
4. The benefits are needed because the
battery or cruelty, separation from the abuser, or work absences or lower job
performance resulting from the battery or extreme cruelty or from legal
proceedings relating thereto (including resulting child support, child custody,
and divorce actions) cause the alien child's parent's to lose his or her job or
to earn less or to require the alien to leave his or her job for safety
reasons.
5. The benefits are needed
because the alien child's parent requires medical attention or mental health
counseling, or has become disabled, as a result of the battery or extreme
cruelty.
6. The benefits are needed
because the loss of a dwelling or source of income or fear of the abuser
following separation from the abuser jeopardizes the alien's ability to care
for his or her children (e.g., inability to house, feed or clothe children or
put children into a day care for fear of being found by the abuser).
7. The benefits are needed to alleviate
nutritional risk or need resulting from the abuse or following separation from
the abuser.
8. The benefits are
needed to provide medical care during a pregnancy resulting from the abuser's
sexual assault or abuse of, or relationship with, the alien child's parent
and/or to care for any resulting children.
9. Where medical coverage and/or health care
services are needed to replace medical coverage or health care services the
alien child's parent had when living with the abuser.
(C) The alien child meets the requirements of
subsection (c)(8)(C) above.
(e) For purposes of this section,
"nonimmigrant" is defined the same as in Section
101(a)(15) of the
INA (8 U.S.C. Section
1101(a)(15)).
(f) For purposes of establishing eligibility
for a license or certificate described in subsection (a), all of the following
must be met:
(1) The applicant must declare
himself or herself to be a citizen of the United States or a qualified alien
under subsection (d), a nonimmigrant alien under subsection (e), or an alien
paroled into the United States for less than one year under Section
212(d)(5) of the
INA (8 U.S.C. Section
1182(d)(5)). The applicant
shall declare that status through the use of the "Statement of Citizenship,
Alienage, and Immigration Status for Application of Department of Business
Oversight License or Certificate" Form.
(2) The applicant must present documents of a
type acceptable to the Immigration and Naturalization Service ("INS") which
serve as reasonable evidence of the applicant's declared status. A fee receipt
from the INS for replacement of a lost, stolen, or unreadable INS document is
reasonable evidence of the alien's declared status.
(3) The applicant must complete and sign the
"Statement of Citizenship, Alienage, and Immigration Status for Department of
Business Oversight License or Certificate" Form.
(4) Where the documents presented do not on
their face reasonably appear to be genuine or to relate to the individual
presenting them, the government entity that originally issued the documents
should be contacted for verification. With regard to naturalized citizens and
derivative citizens presenting certificates of citizenship and aliens, the INS
may be contacted for verification. The Department of Business Oversight may
request verification from the INS by filing INS Form G-845 with copies of the
pertinent documents provided by the applicant with the local INS office. If the
applicant has lost his or her original documents or presents expired documents
or is unable to present any documentation evidencing his or her immigration
status, the applicant should be referred to the local INS office to obtain
documentation.
(5) The type of
documentation referred to the INS for verification pursuant to INS Form G-845
shall include the following:
(A) The document
presented indicates immigration status but does not include an alien
registration or alien admission number.
(B) The document is suspected to be
counterfeit or to have been altered.
(C) The document includes an alien
registration number in the A60 000 000 (not yet issued) or A80 000 000 (illegal
border crossing) series.
(D) The
document is one of the following: an INS Form I-181b notification letter issued
in connection with an INS Form I-181 Memorandum of Creation of Record of
Permanent Residence, an Arrival-Departure Record (INS Form I-94) or a foreign
passport stamped "PROCESSED FOR I-551, TEMPORARY EVIDENCE OF LAWFUL PERMANENT
RESIDENCE" that INS issued more than one year before the date of application
for a license or certificate described in subsection (a).
(6) If the INS advises that the applicant has
citizenship status or immigration status which makes him or her a qualified
alien, a nonimmigrant, or an alien paroled for less than one year under Section
212(d)(5) of the
INA, the INS verification should be accepted. If the INS advises that it cannot
verify that the applicant has citizenship status or an immigration status that
makes him or her a qualified alien, a nonimmigrant, or an alien paroled for
less than one year under Section
212(d)(5) of the
INA, benefits should be denied and the applicant notified pursuant to the
Department of Business Oversight's regular procedures of his or her rights to
appeal the denial of benefits.
(g) Pursuant to Section
434 of the PRWORA (8 U.S.C. Section
1644), where the Department of Business
Oversight reasonably believes that an alien is unlawfully in the State based on
the failure of the alien to provide reasonable evidence of the alien's declared
status, after an opportunity to do so, said alien shall be reported to the
INS.
(h) Provided that the alien
has completed and signed "Statement of Citizenship, Alienage, and Immigration
Status for Department of Business Oversight License or Certificate" Form under
penalty of perjury, eligibility for the license or certificate shall not be
delayed, denied, reduced or terminated while the status of the alien is
verified.
(i) Pursuant to Section
432(d) of the
PRWORA (8 U.S.C. Section
1642(d)), a nonprofit
charitable organization that provides federal, state or local public benefits
shall not be required to determine, verify, or otherwise require proof of
eligibility of any applicant with respect to his or her immigration status or
alienage.
(j) Nothing in this
section shall be construed to withdraw eligibility for any state or local
benefits under Section
411(b) of the
PRWORA (8 U.S.C. Section
1621(b)).
(k) Any applicant who is determined to be
ineligible pursuant to subsection (b) and (e) or who was made eligible for a
license or certificate described in subsection (a) whose services are
terminated, suspended, or reduced pursuant to subsections (c) and (f) is
entitled to a hearing, pursuant to Chapter 5 (commencing with Section
11500) of Part 1 of Division 3 of
Title 2 of the Government Code, and in all cases, the Commissioner of
Corporations has all the powers granted therein.
1. New
article 5 (sections
250.60-250.61) and section filed
7-6-98; operative 8-5-98 (Register 98, No. 28).
2. Change without
regulatory effect repealing subsection (a)(5) and amending NOTE filed 9-25-2002
pursuant to section
100, title 1, California Code of
Regulations (Register 2002, No. 39).
3. Change without regulatory
effect amending subsections (d)(8)(B), (d)(9)(C), (d)(10)(B), (f)(1), (f)(3),
(f)(4), (f)(6), (g) and (h) filed 8-13-2014 pursuant to section
100, title 1, California Code of
Regulations (Register 2014, No. 33).
Note: Authority cited: Section
25610,
Corporations Code; and Sections
22150 and
50304,
Financial Code. Reference: Sections
25211
and
25231,
Corporations Code; Sections
22101,
50122 and
50130,
Financial Code; and 8 U.S.C.
Sections 1621,
1641 and
1642.
