Cal. Code Regs. Tit. 10, § 2718 - Legal Presence Requirements

Current through Register 2021 Notice Reg. No. 52, December 24, 2021

(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 a benefit.

(b) Pursuant to Section 411 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1995, ( Pub. L. No. 104-193 (PRWORA)), ( 8 U.S.C. § 1621 ), and notwithstanding any other provision of law, 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 benefits as defined in this Section and as set forth in Sections 10000 and following of the Code.

(c) For purposes of this Section, a benefit is an original real estate broker license, real estate broker officer license, real estate salesperson license, prepaid rental listing service license, mineral, oil, and gas broker license and a renewal of such licenses which has not been previously qualified pursuant to this Section. A qualified alien without permanent status shall provide proof of qualification for each renewal of a license. A benefit does not include a payment from the Real Estate Recovery Account.

(d) A qualified alien is an alien who, at the time he or she applies for, receives, or attempts to receive a benefit, is, under Section 431(b) of the PRWRORA ( 8 U.S.C. § 1641(b) ), any of the following:

(1) An alien 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 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 Bureau. 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 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. § 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 (as in effect prior to April 1, 1997) [ Pub.L. 104-208, sec. 501 (effective Sept. 30, 1996, pursuant to sec. 304), Pub.L. 105-33, sec. 81 (effective pursuant to sec. 5582)] (codified as cancellation of removal under section 240A of such Act" [ 8 U.S.C. § 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. § 1154(a)(1)(A)(i) ) or classification pursuant to clause (i) of Section 204(a)(I)(B) of the INA ( 8 U.S.C. § 1154(a)(1)(B)(i) ), or

5.cancellation or removal pursuant to Section 240A(b)(2) of the INA ( 8 U.S.C. § 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 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 Bureau. 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 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 (d)(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.

(e) For purposes of this section, "nonimmigrant" is defined the same as in Section 101(a)(15) of the INA ( 8 U.S.C. § 1101(a)(15) ).

(f) A person applying for a benefit for which the applicant is otherwise qualified, must do all of the following:

(1) 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. § 1182(d)(5) ). The applicant shall declare that status by completing and signing the "State Public Benefits Statement" (CalBRE Form RE 205).

(2) Present documents of a type acceptable to the U.S. Citizenship and Immigration Services (USCIS) and as set forth in List A or List B of CalBRE Form RE 205 and which serve as reasonable evidence of the applicant's declared status.

(3) Where the documents presented do not on their face 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 USCIS is the appropriate government entity to contact for verification. The Bureau shall request verification from the USCIS by filing USCIS Form G-845 with copies of the pertinent documents provided by the applicant with the local USCIS 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 USCIS office to obtain documentation.

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

(1) 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 USCIS. Subject to subparagraph (2), this procedure must be used to verify the status of all aliens who claim to be qualified aliens and who present a USCIS-issued document that contains an alien registration or alien admission number.

(2) In any of the following cases, the secondary SAVE system verification procedure must be used to forward to USCIS copies of USCIS 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. § 1182(d)(5) ), for less than one year:

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

(B) A primary check of the Alien Status Verification Index instructs the Bureau to "institute secondary verification."

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

(D) 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.

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

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

(G) The document is a fee receipt from USCIS for replacement of a lost, stolen, or unreadable USCIS document and the applicant has failed to submit his or her registration or alien admission number.

(H) The document is one of the following: an USCIS Form I-181b notification letter issued in connection with an USCIS Form I-181 Memorandum of Creation of Record of Permanent Residence, an Arrival-Departure Record (USCIS Form I-94) or a foreign passport stamped "PROCESSED FOR I-551, TEMPORARY EVIDENCE OF LAWFUL PERMANENT RESIDENCE" that USCIS issued more than one year before the date of application for a benefit.

(I) If the secondary SAVE system is available and is used to verify status, provided that the alien has completed and signed Form 205 under penalty of perjury, and has presented documents of a type acceptable to the USCIS and as set forth in List B of CalBRE Form RE 205 and which serve as reasonable evidence of the applicant's declared status, eligibility for the benefit shall not be delayed, denied, reduced or terminated while the status of the alien is verified. If the Bureau determines that any documents have been falsified or that the applicant is not entitled to the benefit, the Bureau shall suspend such benefit.

(h) The applicant may present documents described in subparagraphs (f)(1), (2) and (3) above which serve as reasonable evidence of the applicant's declared status prior to applying for a benefit or prior to applying for the renewal of a benefit.

(i) If the primary and secondary SAVE systems are unavailable for verification for purposes of establishing an alien's eligibility for a benefit for which the applicant is otherwise qualified, all of the following must be met:

(1) The applicant who is not a citizen of the United States must declare himself or herself to be 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. § 1182(d)(5) ). The alien shall declare that status through use of the CalBRE Form RE 205.

(2) The alien must present documents or temporary documents issued by the USCIS which serve as reasonable evidence of the applicant's declared status. A fee receipt from the USCIS for replacement of a lost, stolen, or unreadable USCIS document and an alien registration or alien admission number from USCIS are temporary documents considered reasonable evidence of the alien's declared status.

(3) Upon receipt of the documents described in subparagraphs (1) and (2) above, and provided that the alien has completed and signed Form 205 under penalty of perjury, eligibility for the benefit shall not be delayed, denied, reduced or terminated while the status of the alien is verified. If the Bureau determines that any such documents have been falsified or that the applicant is not entitled to the benefit, the Bureau shall suspend such benefit.

(j) Where the documents presented to verify status do not on their face 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 USCIS is the appropriate government entity to contact for verification. The Bureau shall request verification from the USCIS by filing USCIS Form G-845 with copies of the pertinent documents provided by the applicant with the local USCIS 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 USCIS office to obtain documentation.

(k) If the USCIS advises that the applicant has citizenship status or immigration status which makes him or her a qualified alien under the PRWORA, the USCIS verification shall be accepted. If the USCIS 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 pursuant to Section 10100 of the Code of his or her rights to appeal the denial of benefits.

(l) Provided that the alien has completed and signed Form 205 under penalty of perjury and presented documents issued by the USCIS which serve as reasonable evidence of the applicant's declared status, eligibility for the benefit shall not be delayed, denied, reduced or terminated while the status of the alien is verified.

(m) Pursuant to Section 434 of the PRWORA ( 8 U.S.C. § 1644 ), where the Bureau 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 USCIS.

(n)

(1) If an applicant for the timely renewal of a benefit has submitted, in good faith, evidence of eligibility pursuant to this section which he had reason to believe would qualify him for renewal of a benefit, but the Bureau finds that the evidence submitted may not qualify, the Bureau may, nonetheless, extend the benefit for 90 days in order to allow the applicant to submit additional evidence of eligibility, which satisfies the requirements of this section.

(2) Upon written request, which establishes good cause, from an applicant who has received an extension pursuant to subparagraph (l)(1), and upon proof that the applicant has complied with the continuing education requirements of Article 2.5 of Chapter 3 of the Code, the Bureau may, grant an additional extension not to exceed 60 days in order to allow the applicant to submit additional evidence of eligibility, which satisfies the requirements of this section.

(3) When the benefit is issued during or at the end of the extension provided for in this section it shall expire four years from the date otherwise applicable as if no extension had been granted.

(o) Any denial of a benefit pursuant to this Section shall be subject to Section 10100 of the Code.

(p) This Section does not apply to the issuance of a professional license to, or the renewal of a professional license by, a foreign national not physically present in the United States.

Notes

Cal. Code Regs. Tit. 10, § 2718

Note: Authority cited: Section 10080, Business and Professions Code. Reference: 8 U.S.C. Sections 1621,1641 and 1642.

1. New section filed 3-12-98; operative 8-1-98 (Register 98, No. 11).
2. Amendment of section heading and new subsection (p) filed 10-26-99; operative 11-25-99 (Register 99, No. 44).
3. Amendment of subsections (c), (g)(2)(I), (i)(3) and (l) filed 11-9-2000; operative 12-9-2000 (Register 2000, No. 45).
4. Change without regulatory effect amending subsections (d)(8)(B), (d)(9)(C), (f)(1)-(g)(2), (g)(2)(B), (g)(2)(G)-(I) and (i)(1)-(n)(2) filed 6-30-2014 pursuant to section 100, title 1, California Code of Regulations (Register 2014, No. 27).