Current through Register 2024 Notice Reg. No. 38, September 20, 2024
(a) The requirements
of this regulation shall apply to all sole proprietors applying for public benefits.
For purposes of this regulation, the term "public benefits" means a license to
operate a driving under the influence program, as set forth in Chapter 9 (commencing
with Section 11836), Part 2, Division 10.5 of the
Health and Safety Code; a license to operate a narcotic treatment program, as set
forth in Article 3 (commencing with Section
11875, Chapter 1, Part 3, Division 10.5
of the Health and Safety Code; a license to operate a residential, alcoholism or
drug abuse recovery or treatment facility, as set forth in Article 1 (commencing
with Section 11834.01), Chapter 7.5, Part 2, Division
10.5 of the Health and Safety Code; or a certificate to provide alcohol program
services, as set forth in Chapter 7 (commencing with Section
11830), Part 2, Division 10.5 of the
Health and Safety Code or drug program services, as set forth in Section
11994 of
the Health and Safety Code.
(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 licensure or certification.
(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. §
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. §
1101 et
seq.), or aliens paroled into the United States under Section
212(d)(5) of the INA
(8 U.S.C. §
1182(d)(5)) for less than one
year, are not eligible to receive public benefits, as defined in subsection (a) of
this regulation.
(d) A qualified alien
is an alien who, at the time he or she applies for, receives, or attempts to receive
public benefits, is, under Section
431(b) and (c) of the
PRWORA (8 U.S.C. §
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. §
1101 et
seq.).
(2) An alien who is granted
asylum under Section
208 of the INA (8 U.S.C. §
1158).
(3) A refugee who is admitted to the United States
under Section 207 of the INA (8 U.S.C. §
1157).
(4) An alien who is paroled into the United States
under Section 212(d)(5) of the INA
(8 U.S.C. §
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. §
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. §
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. §
1153(a)(7)) (See editorial note
under 8 U.S.C. §
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. §
1522 note)).
(8) An alien who meets all of the conditions of
(A), (B), (C), and (D) immediately 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.
(B) The Department determines that there is a
substantial connection between such battery or cruelty and the need for public
benefits. For purposes of this subsection, the following circumstances demonstrate a
substantial connection between the battery or cruelty and the need for public
benefits.
1. Public benefits are needed to enable
the alien to become self-sufficient following separation from the abuser.
2. Public 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. Public benefits are needed due to a loss of
financial support resulting from the alien's separation from the abuser.
4. Public 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. Public 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. Public 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 day care for
fear of being found by the abuser).
7.
Public benefits are needed to alleviate nutritional risk or need resulting from the
abuse or following separation from the abuser.
8. Public 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. §
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. §
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. Sec.
1254) as in effect prior to April 1, 1997
(Pub.L.
104-208,
Sec.
501(effective Sept. 30, 1996, pursuant to Sec.
591);
Pub.L.
104-208,
Sec.
304(effective April 1, 1997, pursuant to Sec.
309);
Pub. L.
105-33,
Sec.
5581(effective pursuant to Sec.
5582)) (incorrectly codified as
"cancellation of removal under Section
240 A of Such Act [8 USCS Sec.
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. §
1154(a)(1)(A)(i)) or
classification pursuant to clause (i) of Section
204(a)(1)(B) of the INA
(8 U.S.C. § (1154) (a)(1)(B)(i)), or
5. Cancellation of removal pursuant to Section
240 A(b)(2) of the INA (8 U.S.C. §
1229b(b)(2)).
(D) For the period for which public 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 (A), (B), (C), (D) and (E) immediately 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.
(B) The alien did
not actively participate in such battery or cruelty.
(C) The Department has determined that there is a
substantial connection between such battery or cruelty and the need for public
benefits. For purposes of this subsection, the following circumstances demonstrate a
substantial connection between the battery or cruelty and the need for public
benefits:
1. Public benefits are needed to enable
the alien's child to become self-sufficient following separation from the
abuser.
2. Public 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. Public benefits are needed
due to a loss of financial support resulting from the alien's child's separation
from the abuser.
4. Public 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. Public 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. Public 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 day
care for fear of being found by the abuser).
7. Public benefits are needed to alleviate
nutritional risk or need resulting from the abuse or following separation from the
abuser.
8. Public 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's child had when living with the abuser.
(D) The alien meets the requirements of subsection
(d)(8)(C) of this regulation.
(E) For
the period for which public 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.
(e) For purposes of this regulation,
"nonimmigrant" is defined the same as in Section
101(a)(15) of the INA
(8 U.S.C. §
1101(a)(15)).
(f) For purposes of establishing eligibility for
public benefits, all of the following must be met:
(1) The applicant must declare himself or herself
to be a citizen of the United States, a qualified alien under subsection (d) of this
regulation, a nonimmigrant alien under subsection (e) of this regulation, 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. §
1182(d)(5)). The applicant shall
declare that status through use of the "Statement of Citizenship, Alienage, and
Immigration Status for State Public Benefits," [Form ADP 10045 (new 1/98)], which is
hereby incorporated by reference.
(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 Form ADP 10045 (new 1/98).
(4)
Where the documents presented do not on their face appear to be genuine or to relate
to the individual presenting them, the Department shall contact the government
entity that originally issued the documents 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 U.S.
Department of Justice INS Form G-845, Document Verification Request (Rev. 06/06/89)
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 Department shall refer the applicant 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 public
benefits.
(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,
public benefits shall be denied and the applicant notified of his or her right to
appeal the denial of public benefits.
(g) Pursuant to Section
434
of the PRWORA (8 U.S.C. §
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, the Department shall report said alien to the Immigration and Naturalization
Service.
(h) Any applicant who is
determined to be ineligible pursuant to subsection (b) and (e) or who whose
application for public benefits is denied, shall be entitled to a hearing, pursuant
to the Administrative Procedures Act [Chapter 5 (commencing with Section
11500), Part 1, Division 3, Title 2 of
the Government Code].
1. New chapter 10
(section 14001) and section filed 3-9-98 as an
emergency; operative 3-9-98 (Register 98, No. 11). A Certificate of Compliance must
be transmitted to OAL by 7-7-98 or emergency language will be repealed by operation
of law on the following day.
2. Certificate of Compliance as to 3-9-98
order, including amendment of section, transmitted to OAL 6-4-98 and filed 7-10-98
(Register 98, No. 28).
Note: Authority cited: Sections
11755,
11835,
11836.15
and
11864,
Health and Safety Code. Reference: Sections
11836,
11834.01
and
11876,
Health and Safety Code; and Sections
1621,
1641 and
1642, Title 8, United States
Code.
