§ 15740. Limitations on Uninsured Employers Fund and Subsequent Injuries Fund Benefits for Aliens.

(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.

(b) 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. 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 benefits, including death benefits as the dependent of a deceased employee, from the UEF or SIF as set forth in Labor Code Sections 3716, 3716.2 and 4750-4755.

(c) A qualified alien is an alien who, at the time he or she applies for, receives, or attempts to receive benefits from the UEF or SIF, including death benefits as the dependent of a deceased employee, is, under Section 431(b) of the PRWORA (8 U.S.C. s 1641(b) and (c)), 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)(2) 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, under Section 431(c)(1) of the PRWORA (8 U.S.C. s 1641(c)(1), 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 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 UEF or SIF. 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:

(i) The benefits are needed to enable the alien to become self-sufficient following separation from the abuser.

(ii) 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.

(iii) The benefits are needed due to a loss of financial support resulting from the alien's separation from the abuser.

(iv) 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.

(v) 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.

(vi) 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).

(vii) The benefits are needed to alleviate nutritional risk or need resulting from the abuse or following separation from the abuser.

(viii) 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.

(ix) 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 been approved or has a petition pending which sets forth a prima facie case for:

(i) 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)),

(ii) classification pursuant to clause (ii) or (iii) of Section 204(a)(1)(B) of the INA (8 U.S.C. s 1254(a)(1)(B)(ii) or (iii)),

(iii) cancellation of removal under 8 U.S.C. s 1229b as in effect prior to April 1, 1997,

(iv) 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)) 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)).

(v) cancellation of removal pursuant to Section 204A(b)(2) of the INA (8 U.S.C. s 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 UEF or SIF. 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:

(i) The benefits are needed to enable the alien's child to become self-sufficient following separation from the abuser.

(ii) 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.

(iii) The benefits are needed due to a loss of financial support resulting from the alien's child's separation from the abuser.

(iv) 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.

(v) 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.

(vi) 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).

(vii) The benefits are needed to alleviate nutritional risk or need resulting from the abuse or following separation from the abuser.

(viii) 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.

(ix) 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 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 UEF or SIF. 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:

(i) The benefits are needed to enable the alien child's parent to become self-sufficient following separation from the abuser.

(ii) 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.

(iii) The benefits are needed due to a loss of financial support resulting from the alien child's parent's separation from the abuser.

(iv) 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 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.

(v) 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.

(vi) 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 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 a day care for fear of being found by the abuser).

(vii) The benefits are needed to alleviate nutritional risk or need resulting from the abuse or following separation from the abuser.

(viii) 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.

(ix) 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 Uninsured Employers Fund (UEF) and Subsequent Injuries Fund (SIF) benefits, 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 (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 applicant shall declare that status through use of the “Statement of Citizenship, Alienage, and Immigration Status for State Public Benefits,” Form UEF-1.

(2) The applicant must present documents of a type acceptable to the Immigration and Naturalization Services (INS) which serve as reasonable evidence of the applicant's declared status.

(3) The applicant must complete and sign Form UEF-1.

(4) Where authorized by the INS, the documentation presented by an alien as reasonable evidence of the alien's declared immigration status must be submitted to the INS for verification through the Systematic Alien Verification for Entitlements (SAVE) system procedures as follows:

(A) Unless the primary SAVE system is unavailable for use, the primary SAVE system verification must be used to access the biographical/immigration status computer record contained in the Alien Status Verification Index maintained by the INS. Subject to subparagraph (B), this procedure must be used to verify the status of all aliens who claim to be qualified aliens and who present an INS-issued document that contains an alien registration or alien admission number.

(B) In any of the following cases, the secondary SAVE system verification procedure must be used to forward copies of original INS documents evidencing an alien's status as a qualified alien, as a nonimmigrant alien under the INA, or as an alien 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:

(i) The primary SAVE system is unavailable for verification.

(ii) A primary check of the Alien Status Verification Index instructs the Uninsured Employers Fund or Subsequent Injuries Fund to “institute secondary verification.”

(iii) The document presented indicates immigration status but does not include an alien registration or alien admission number.

(iv) The Alien Status Verification Index record includes the alien registration or admission number on the document presented by the alien but does not match other information contained in the document.

(v) The document is suspected to be counterfeit or to have been altered.

(vi) The document includes an alien registration number in the A60 000 000 (not yet issued) or A80 000 000 (illegal border crossing) series.

(vii) The document is a fee receipt from INS for replacement of a lost, stolen, or unreadable INS document.

(viii) 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 benefits from the UEF or SIF.

(5) Where verification through the SAVE system is not available, if 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 document should 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 UEF or SIF should request verification by 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 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.

(6) If the INS advises that the applicant has citizenship status or immigration status which makes him or her a qualified alien under the PRWORA, 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, benefits shall be denied and the applicant notified of his or her rights to appeal the denial of benefits.

(7) Provided that the alien has completed and signed Form UEF-1 under penalty of perjury, eligibility for UEF or SIF benefits shall not be delayed, denied, reduced or terminated while the status of the alien is verified.

(f) Pursuant to Section 432(d) of the PRWORA (8 U.S.C. s 1642(d)), the UEF or SIF shall assure that 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.

(g) Pursuant to Section 434 of the PRWORA (8 U.S.C. s 1644), where the UEF or SIF 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.

(h) Nothing in this section shall be construed to withdraw eligibility for medical treatment required for an emergency medical condition under Section 411(b) of the PRWORA (8 U.S.C. s 1621(b(1)).

(i) Any applicant who is denied benefits, or whose benefits are terminated, pursuant to subsections (b) and (e), may file a Request for Administrative Review of benefit determination with the UEF Manager within 20 days of service of the notice of denial or termination of benefits from the UEF or SIF. The Request for Administrative Review shall be verified under penalty of perjury with proof of service on all parties, and shall provide a statement of reasons, as well as any relevant evidence, explaining why the determination of the UEF or SIF was in error.

(j) Upon receipt of the Request for Administrative Review, the UEF Manager shall informally reconsider the determination and shall issue a decision granting or denying the request within 45 days. A Request for Administrative Review as provided in subsection (i) shall be a prerequisite to the filing of a petition before the Workers' Compensation Appeals Board pursuant to subsection (k).

(k) Any applicant aggrieved by a decision of the UEF Manager on a Request for Administrative Review of benefit determination may file, within 20 days of service of the decision, a petition for relief before the Workers' Compensation Appeals Board. The petition shall be filed at the appeals board office that is designated for applications for adjudication of claim pursuant to Labor Code Section 5501.5., and shall be assigned to a workers' compensation judge for hearing and determination of the issues raised. A party aggrieved by the determination of the workers' compensation judge may seek relief from the determination in the same manner as specified for petitions for reconsideration pursuant to Labor Code Section 5900.

HISTORY

1. New subchapter 2.1.1, article 1 (sections 15740-15741) and section filed 10-28-98; operative 11-27-98 (Register 98, No. 44).

Note

Note: Authority cited: Sections 54, 55, 59, 3702.10, 3716, 3716.1, 3716.2 and 4751, Labor Code. Reference: Sections 1621, 1641 and 1642, Title 8, United States Code; and Sections 3716, 3716.1, 3716.2, 4750-4755 and 5501.5, Labor Code.