Chapter 3.2. California Occupational Safety and Health Regulations (CAL/OSHA)
Subchapter 2. Regulations of the Division of Occupational Safety and Health
Article 14. Limitations on Division Eligibility for Certifications, Licenses, and Registrations for Aliens.

§344.85. Limitations on Division eligibility for certifications, licenses, and registrations 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 applicant.

(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. section 1621), and notwithstanding any other provision of this division, an alien who is not a qualified alien, a nonimmigrant alien under the Immigration and Nationality Act (INA) (8 U.S.C. section 1101 et seq.), or 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, is not eligible for any of the following benefits, except as provided in 8 U.S.C. 1621(c)(2):

(1) A certification as an asbestos consultant or site surveillance technician pursuant to 8 CCR sections 341.15 and Business and Professions Code Section 7180,

(2) A blaster's license pursuant to 8 CCR sections 344.20 through 344.22 and Labor Code Section 7990,

(3) A license to certify cranes or derricks pursuant to 8 CCR section 344.60 through 344.67 and Labor Code Section 7375,

(4) A registration for asbestos-related work pursuant to 8 CCR sections 341.6 through 341.14 and Labor code Section 6501.5,

(5) A certification as a gas tester pursuant to 8 CCR sections 7104, 8406 and 8424 and Labor Code Section 7999.

(6) A certification as a safety representative pursuant to 8 CCR section 8406 and Labor Code Section 7999.

(c) A qualified alien is an alien who, at the time he or she applies for, receives, or attempts to receive a public benefit, is, under Section 431(b) and (c) of the PRWORA [8 U.S.C. section 1641(b) and (c)], any of the following:

(1) An alien lawfully admitted for permanent residence under the INA (8 U.S.C. section 1101 et seq.).

(2) An alien who is granted asylum under Section 208 of the INA (8 U.S.C. section 1158).

(3) A refugee who is admitted to the United States under Section 207 of the INA (8 U.S.C. section 1157).

(4) An alien who is paroled into the United States under Section 212(d)(5) of the INA [8 U.S.C. section 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. section 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. Section 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. Section 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 to be 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 Division. 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. section 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. section 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. section 1254(a)(3)], 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 240A of such act (8 U.S.C. Section 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. section 1154(a)(1)(A)] or classification pursuant to clause (i) of Section 204(a)(1)(B) of the INA [8 U.S.C. section 1154(a)(1)(B)(i)].

5. Cancellation of removal pursuant to Section 240A(b)(2) of the INA (8 U.S.C. Section 1229(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 benefits to be provided in the opinion of the Division. 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 (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 Division. 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 child's parent to become self-sufficient following separation from the abuser.

2. 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.

3. The benefits are needed due to a loss of financial support resulting from the alien child's parent'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 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 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.

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 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).

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 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).

(d) For purposes of this section, “nonimmigrant” is defined the same as in Section 101(a)(15) of the INA [8 U.S.C. section 1101(a)(15)].

(e) For purposes of establishing eligibility for benefits, as described in subsection (b)(1)-(b)(6), all of the following must be met:

(1) The applicant shall 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. section 1182(d)(5)]. The applicant shall declare that status through use of the “Statement of Citizenship, Alienage, and Immigration Status for State Public Benefits,” Cal/OSHA-W-1 issued on April 30, 1998, incorporated herein by reference.

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

(3) The applicant shall complete and sign a Cal/OSHA-W-1 issued on April 30, 1998, incorporated herein by reference.

(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 shall be used to access the biographical/immigration status computer record contained in the Alien Status Verification Index maintained by the INS. Except as provided in the next paragraph [(subparagraph (B)], this procedure shall 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 shall 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 INS [8 U.S.C. section 1182(d)(5)], for less than one year:

1. The primary SAVE system is unavailable for verification.

2. A primary check of the Alien Status Verification Index instructs the Division to institute secondary verification.

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

4. 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.

5. The document is suspected to be counterfeit or to have been altered.

6. The document includes an alien registration number in the “not yet issued” or “illegal border crossing” series, as defined by the INS.

Note: The numbers used by the INS for each series are A60 000 000 and A80 000 000 respectively, as of the date of adoption of this regulation.

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

8. 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 a benefit described in subsection (b)(1)-(b)(6).

(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 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 Division shall 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 or 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, 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, or a nonimmigrant or an alien paroled for less than one year under section 212(d)(5) of the INA, benefits shall be denied and the applicant notified pursuant to subsection (h) or (i) of his or her rights to appeal the denial of benefits.

(7) Provided that the alien has completed and signed form Cal/OSHA-W-1 issued on April 30, 1998, incorporated herein by reference, under penalty of perjury, eligibility for benefits for certification, license or registration, as found in subsection (b)(1)-(b)(6), 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. section 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.

(g) Pursuant to Section 434 of the PRWORA (8 U.S.C. section 1644), where the Division 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) Denial of Application.

(1) The Division shall deny issuance of the benefit applied for if the applicant does not meet the requirements of this section. Upon denial of the benefit the Division shall promptly notify the applicant specifying the reason for the denial.

(2) Any applicant denied certification, license or registration by the Division may appeal such denial to the Director. The Director shall hold a hearing at such place designated by the Director or his authorized designee for the convenience of the applicant within two working days of the applicant's appeal. The hearing shall be presided by the Director or his authorized designee.

(3) Following the hearing, the Director shall issue a decision. The Director's decision shall be final except for any rehearing or judicial review provided for by law. All requests for rehearing shall be filed with the Director within 10 days from the date of the Director's decision.

(i) Revocation or Suspension of Certification, License or Registration.

(1) The Division may at any time, upon a showing of good cause and after notice and an opportunity to be heard, revoke or suspend any benefit issued pursuant to this section.

(2) Notice shall be in writing and served upon the recipient of the benefit at least 24 hours in advance of the hearing. Service shall be by personal service or certified mail to the recipient of the benefit to the address as shown on the application form. The notice shall specify the reasons for the action taken by the Division in order that the recipient may prepare for the hearing. The Division shall also include within the notice of revocation or suspension specific conditions which must be met before the recipient of the benefit will be entitled to reapply for the benefit of this section.

(3) The hearing shall be held as soon as possible at the Division's headquarters offices or at such other location as may be designated by the Director and shall be presided by the Chief of the Division or his authorized representative.

(4) At the hearing the Division shall establish good cause for the action taken by it. Good cause is deemed to exist if the Division establishes that the recipient of the benefit has failed to comply with the requirements of this section.

The recipient of the benefit may appeal such revocation or suspension to the Director in the same manner specified in subsection (h). The filing of an appeal shall not stay the revocation or suspension, and such action shall remain in effect until the benefit recipient provides proof that the requirements of this section have been met.

Note: Authority cited: Sections 54, 55, 59 and 60.5, Labor Code. Reference: Sections 6501.5, 7375, 7990 and 7999, Labor Code; Section 7180, Business and Professions Code; and Sections 1621, 1641 and 1642, Title 8, United States Code.

HISTORY

1. New article 14 (section 344.85) and section filed 4-30-98 as an emergency; operative 4-30-98 (Register 98, No. 18). A Certificate of Compliance must be transmitted to OAL by 8-28-98 or emergency language will be repealed by operation of law on the following day.

2. Certificate of Compliance as to 4-30-98 order transmitted to OAL 8-18-98 and filed 9-29-98 (Register 98, No. 40).