Current through Register 2024 Notice Reg. No. 38, September 20, 2024
(a) 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 the public benefit. This section shall apply to any natural person
applying to the Department of Food and Agriculture for issuance or renewal of a
license listed in subsection (b) of this regulation.
(b) Pursuant to Section
411 of the Personal Responsibility
and Work Opportunity Reconciliation Act of 1996, (PRAWORA) (Pub. L. No.
104-193), (8 U.S.C.S. §
1621), 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.S.
§
1101
et seq.), or
aliens paroled into the United States under Section
212(d)(5) of the
INA (8 U.S.C.S. §
1182 (d)(5)), for
less than one year, are not eligible to receive or hold licenses or
registrations issued by the California Department of Food and Agriculture (the
"Department"), Division of Measurement Standards for "county sealer," "deputy
county sealer," "inspector," "device repairman," "device repair service" or
"weighmaster" as set forth in Business and Professions Code Sections
12203,
12532
or
12703,
except as provided in 8 U.S.C.S. Section
1621(c)(2). For
the purposes of this regulation, the term "license" includes any license,
registration or other indicia of authority issued by the Division of
Measurement Standards pursuant to the statutes listed in this
subsection.
(c) A qualified alien
is an alien who, at the time he or she applies for, receives, or attempts to
receive a license, is, under Section
431(b) & (c)
of the PRAWORA (8 U.S.C.S. §1641(b)), any of
the following:
(1) An alien lawfully admitted
for permanent residence under the INA (8 U.S.C.S. §
1101
et
seq.).
(2) An alien who is
granted asylum under Section
208 of the INA (8 U.S.C.S. §1158).
(3) A refugee who is admitted to the United
States under Section
207 of the INA (8 U.S.C.S. §1157).
(4) An alien who is paroled into the United
States under Section
212(d)(5) of the
INA (8 U.S.C.S. §
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.S. §
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.S. §
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.S. §1153(a)(7)) (See
editorial note under 8 U.S.C.S. §
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 Assistance Act of 1980 (8 U.S.C.S. §
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 license to be issued or retained, in the opinion of the Department. For
purposes of this subsection, the following circumstances demonstrate a
substantial connection between the battery or cruelty and the need for the
license:
1. The license is needed to enable
the alien to become self-sufficient following separation from the
abuser.
2. The license is 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 license is needed due to a loss of
financial support resulting from the alien's separation from the
abuser.
4. The license is 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 license is 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 license is 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 day
care for fear of being found by the abuser).
7. The license is needed to alleviate
nutritional risk or need resulting from the abuse or following separation from
the abuser.
8. The license is
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.S. §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.S. §154(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.S. sec.
1254) as in effect prior to April
1, 1997 [Pub.L.
104-208,
§
501 (effective Sept. 30, 1996, pursuant to
§591);
Pub.L.
104-208,
§
304 (effective April 1, 1997, pursuant to
§
309);
Pub.L.
105-33,
§
5581 (effective pursuant to §5582)] (incorrectly codified as
"cancellation of removal under Section
240 A of such Act [8 U.S.C.S.
§1229 b] (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.S. §1154(a)(1)(A)(i))
or classification pursuant to clause (i) of Section
204(a)(1)(B) of
the INA (8 U.S.C.S. §1154(a)(1)(B)(i)),
or
5. cancellation of removal
pursuant to Section
204 A(b)(2) of the INA (8 U.S.C.S.
§1229 b(b)(2)).
(D) For the term of the license, 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 license to be issued or retained, in the opinion of the Department. For
purposes of this subsection, the following circumstances demonstrate a
substantial connection between the battery or cruelty and the need for the
license:
1. The license is needed to enable
the alien's child to become self-sufficient following separation from the
abuser.
2. The license is 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 license is needed
due to a loss of financial support resulting from the alien's child's
separation from the abuser.
4. The
license is 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
license is 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 license is
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 day care for fear of being found by the
abuser).
7. The license is needed
to alleviate nutritional risk or need resulting from the abuse or following
separation from the abuser.
8. The
license is 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 term of the license, 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 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 license to be issued or retained,
in the opinion of the Department. For purposes of this subsection, the
following circumstances demonstrate a substantial connection between the
battery or cruelty and the need for the license:
1. The license is needed to enable the alien
child's parent to become self-sufficient following the separation from the
abuser.
2. The license is 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 license is
needed due to a loss of financial support resulting from the alien child's
parent's separation from the abuser.
4. The license is 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 to lose his or her job or
to earn less or to require the alien child's parent to leave his or her job for
safety reasons.
5. The license is
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 license is
needed because the loss of a dwelling or source of income or fear of the abuser
following separation from the abuser jeopardizes the alien child's parent's
ability to care for his or her children (e.g., inability to house, feed, or
clothe children or to put children into day care for fear of being found by the
abuser).
7. The license is needed
to alleviate nutritional risk or need resulting from the abuse or following
separation from the abuser.
8. The
license is 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.
(d) For purposes of this section,
"nonimmigrant" is defined the same as in Section
101(a)(15) of the
INA (8 U.S.C.S. §
1101(a)(15)).
(e) For purposes of establishing eligibility
for a license identified in (b) issued by the Department, all of the following
must be met:
(1) An applicant for a new
license or renewal of an existing license must declare himself or herself to be
a citizen of the United States or a qualified alien under subsection (c), a
nonimmigrant alien under subsection (d), 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.S. §
1182(d)(5)). The
alien shall declare that status through use of the "Statement of Citizenship,
Alienage, and Immigration Status for State Public Benefits" form, located in
Appendix A to this section.
(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 State Public Benefits" form, located in Appendix A.
(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
shall be contacted for verification. With regard to naturalized citizens and
derivative citizens presenting certificates of citizenship and aliens, the INS
is the appropriate government entity to contact for verification. The
Department shall 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 shall 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 the license issued by the Department.
(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 alien paroled for less than one year under section
212(d)(5) of the
INA, the INS verification shall 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, the license shall be denied and the applicant notified pursuant to the
regular procedures used by the Department to notify an applicant or licensee of
their rights to appeal denial or revocation of a license.
(f) Pursuant to Section
434 of the PRAWORA (8 U.S.C.S.
§1644), where the Department
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
Immigration and Naturalization Service.
(g) Provided that the alien has completed and
signed the "Statement of Citizenship, Alienage, and Immigration Status for
State Public Benefits" form, located in Appendix A, under penalty of perjury,
eligibility for the license shall not be delayed, denied, reduced or terminated
while the status of the alien is verified.
(h) Pursuant to Section
432(d) of the
PRAWORA (8 U.S.C.S. §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 or beneficiary with respect to his or her
immigration status or alienage.
(i)
Nothing in this section shall be construed to withdraw eligibility for
licensure under PRAWORA at 8 U.S.C.S. §
1621(b)(2) or
(4).
(j) Any applicant who is determined to be
ineligible pursuant to subsection (b) and (e) or who was made eligible for
licensure whose services are terminated, suspended, or reduced pursuant to
subsections (b) and (e), is entitled to a hearing, conducted pursuant to the
regular hearing procedures applicable in proceedings for denial or revocation
in the particular licensing category.
(k) The Department may accept a photocopy of
any document required to be submitted to the Department by this regulation,
provided that, in the judgment of the Department, the copied documents
reasonably appear to be genuine and relate to the applicant, and are
accompanied by a declaration, signed by the applicant under penalty of perjury
declaring the copy to be a true and correct copy of the original
document.
(l) Where the eligibility
of an applicant has previously been verified as part of an eligibility process
for any program subject to PRAWORA, if the Department confirms that the prior
verification has not expired and remains valid, the prior verification may be
deemed adequate for purposes of this regulation.
1. New
article 3 (section
4900), section and appendix A filed
5-29-98 as an emergency; operative 5-29-98 (Register 98, No. 22). A Certificate
of Compliance must be transmitted to OAL by 9-28-98 or emergency language will
be repealed by operation of law on the following day.
2. New article
3 (section 4900), section and appendix A
refiled 9-24-98 as an emergency; operative 9-24-98 (Register 98, No. 39). A
Certificate of Compliance must be transmitted to OAL by 1-22-99 or emergency
language will be repealed by operation of law on the following
day.
3. Repealed by operation of Government Code section
11346.1(g)
(Register 99, No. 5).
4. New article 3 (section
4900), section and appendix A filed
1-25-99 as an emergency; operative 1-25-99 (Register 99, No. 5). A Certificate
of Compliance must be transmitted to OAL by 5-25-99 or emergency language will
be repealed by operation of law on the following day.
5. Certificate
of Compliance as to 1-25-99 order transmitted to OAL 5-25-99 and filed 7-8-99
(Register 99, No. 28).
Note: Authority cited: Section
12027,
Business and Professions Code. Reference: Sections
12203,
12532
and
12703,
Business and Professions Code; and 8 U.S.C.S. §§
1621,
1641 and
1642.
