Current through Register Vol. 47, No. 5,
March 10, 2024
BASIS: This rule is promulgated under the
authority of section
24-76.5-103, C.R.S.
PURPOSE: The following rule is promulgated to
provide a list of documents recognized by the federal government to prove
lawful presence, and to establish a waiver process to ensure that those persons
seeking federal public benefits or state and local public benefits, who prove
lawful presence in the United States, receive authorized public
benefits.
1.
Definitions
1.1 Applicant- A natural person eighteen
years of age or older seeking non-exempt Public Benefits. Reference to
Applicant includes actions through the Designated Representative, defined
below.
1.2 Benefit Agency- An
agency or political subdivision of the State of Colorado that administers,
determines eligibility for, or assists persons in applying for Public
Benefits.
1.3 Department- Means the
Department of Revenue.
1.4
Designated Representative- A natural person submitting a Request for Waiver on
behalf of an Applicant.
1.5 Public
Benefit- For purposes of this Rule, "Public Benefit" means "federal public
benefit" and "state and local benefit" as those terms are defined in
8 U.S.C. secs.
1611 and
1621, respectively.
1.6 Request for Waiver- Means form DR 4678
"Request for Waiver- Restrictions on Public Benefits" completed by an Applicant
seeking a determination of lawful presence by the Department after a Benefit
Agency has been unable to verify the Applicant's lawful presence.
1.7 Systematic Alien Verification for
Entitlements ("SAVE")- A web-based service administered by the U.S Citizenship
and Immigration Service to assist federal, state, and local benefit-issuing
agencies, institutions, and licensing bureaus in determining the immigration
status of benefit applicants.
1.8
Valid Colorado driver license or a valid Colorado identification card- For
purposes of section
24-76.5-103(4)(a)(I),
C.R.S., means a current Colorado driver license, minor driver license,
commercial driver license, restricted driver license, instruction permit, or
identification card, but does not include a document issued pursuant to part 5
of article
2 of title
42 that states on the front of the
document that it is "NOT VALID FOR FEDERAL IDENTIFICATION, VOTING, OR PUBLIC
BENEFIT PURPOSES".
1.9 Waiver-
Means a Department decision that an Applicant has proven lawful presence by
means other than the document requirements under subsection 2.1 of this
Rule.
2.
Verification Requirements
2.1 A
first time Applicant or an Applicant seeking to reapply for Public Benefits on
or after August 1, 2006, must execute the affidavit required in section
24-76.5-103(4)(b)
C.R.S., and demonstrate lawful presence by
providing:
2.1.1 A document listed in section
24-76.5-103(4)(a)
C.R.S. (2014);
2.1.2 In the case of a resident of another
state, the driver license or a state-issued identification card from the
Applicant's state of residence, if that state requires that the Applicant prove
lawful presence prior to issuance of the license or identification
card;
2.1.3 A document listed in
the Code of Federal Regulations (CFR) as providing proof of lawful
presence;
2.1.4 A document listed
in Appendices A and B, which appendices are incorporated herein and part of
this Rule;
2.1.5 Any document
authorized as proof of lawful presence pursuant to the statutes, regulations,
or agency guidance governing the Benefit Agency; or
2.1.6 Any document recognized by the Federal
government as proof of lawful presence that is not listed or referenced within
this Rule.
3.
Waiver Process
3.1 An Applicant
who has been denied a Public Benefit by a Benefit Agency because the Applicant
could not provide a document listed or referenced in this Rule may request that
the Department grant the Applicant a Waiver by submitting a Request for Waiver
and a copy of the document from the Benefit Agency denying benefits unless
unavailable.
3.1.1 The Request for Waiver may
be completed and/or submitted by an Applicant or by the Applicant's Designated
Representative.
3.1.2 The Request
for Waiver must be accompanied by all documents the Applicant wants the
Department to consider to prove lawful presence.
3.1.3 The Applicant must submit the Request
for Waiver to the Colorado Department of Revenue, Division of Motor Vehicles or
any Colorado Department of Revenue, Division of Motor Vehicles Driver License
office and send a copy to the Benefit Agency.
3.2 Pursuant to section
24-76.5-103(5)(a),
C.R.S., the Department may grant an Applicant's Request for Waiver of the
requirement that the Applicant prove lawful presence through the documents
referenced in subsection 2.1 of this Rule if the Department determines that the
Applicant has proven lawful presence by other means.
3.3 Subsequent to receipt of a Request for
Waiver, the Department will make a determination of the lawful presence of the
Applicant and will issue a Waiver or a Notice of Denial of Waiver. The Waiver
or a Notice of Denial of Waiver will be mailed to the address of the Applicant
as shown on the Request for Waiver or as subsequently furnished in writing by
the Applicant to the Department.
4.
Denial of Request for Waiver
4.1 Reasons for denial of a Request for
Waiver include, but are not limited to:
4.1.1
The SAVE verification fails to clear the Applicant; or
4.1.2 The documents presented by the
Applicant appear to have been tampered with, altered, or otherwise not genuine;
or
4.1.3 The statements and/or
documents provided are inconsistent and the Applicant is unable to reasonably
explain the inconsistencies; or
4.1.4 The Applicant fails to respond to a
request by the Department within 60 days following the date of mailing of such
request.
5.
Hearing and Final Agency Action
5.1 An Applicant, or his or her Designated
Representative, may, within 60 days of the date of notice of a denial for a
Request for Waiver, or any Benefit Agency may, within 60 days of the date that
the Benefit Agency receives notice of a Waiver, request a hearing on the
Department's decision by filing a written request for hearing with the Hearings
Division of the Department at 1881 Pierce St. #106, Lakewood, CO
80214.
5.2 All proceedings will
conform to the provisions of the State Administrative Procedure Act [section
24-4-101, et seq, C.R.S.] and the
provisions of title 42 of Colorado Revised Statutes.
5.3 The only issues at hearing will be
whether and when the Applicant has established lawful presence in the United
States by a preponderance of the evidence.
5.3.1 The Hearing Officer may consider any
credible evidence, whether documents, witnesses, or other evidence offered by
any party. For purposes of this rule, "party" means the Applicant, the
Department, or any Benefit Agency.
5.3.2 If the Hearing Officer cannot determine
the actual date that the Applicant became lawfully present in the United
States, the Applicant shall be deemed lawfully present as of the date provided
by the statutes, regulations, or agency guidance governing the Benefit Agency,
or if none, as of the filing date of the original application denied by the
Benefit Agency.
5.4 The
Hearing Officer shall issue an Initial Decision within 15 business days of the
completion of the hearing. If the Hearing Officer finds that the Applicant has
not established lawful presence, then if a Denial of Waiver was previously
issued, the Denial of Waiver will be sustained, or if a Waiver was previously
granted, the Waiver will be rescinded. If the Hearing Officer finds that the
Applicant is lawfully present, then, if a Denial of Waiver was previously
issued, the Denial of Waiver will be rescinded and the Department will be
directed to issue a Waiver, or if a Waiver was previously issued, the Waiver
will be sustained.
5.5 An appeal
under this Rule does not toll or otherwise affect any Benefit Agency appeal or
other procedure or process unless expressly authorized by the Benefit
Agency.
6.
General
Provisions
6.1 Each Benefit Agency is
responsible for verifying that the Applicant is the same individual indicated
as the person who received a Waiver.
6.2 Waivers may be cancelled by the
Department, if the Department subsequently determines that the Applicant was
not or is not lawfully present. Upon cancelling a Waiver, the Department will
notify the Applicant and appropriate Benefit Agencies.
6.3 A person whose Waiver has been cancelled
by the Department may appeal the Department's decision by requesting a hearing
as provided in subsection 5.1 of this Rule within 60 days following the mailing
date of the notice cancelling the Waiver.
6.4 Waivers issued by the Department since
August 1, 2006, but prior to approval of this Rule, will continue in effect
unless expired, or cancelled by the Department
7.
Incorporation by Reference
7.1 The materials in this Rule incorporated
by reference do not include later amendments to or editions of the materials.
The materials incorporated in this Rule are on file and available for
inspection by contacting the Driver License Section of the Department of
Revenue in person at, 1881 Pierce Street, Room 128, Lakewood, Colorado, 80214,
or by telephone at
303-205-5600, and copies of the
materials may be examined at any state publication depository
library.