(a) (1) Unemployment compensation benefits, extended duration benefits, and federal-state extended benefits shall not be payable on the basis of services performed by an alien unless the alien is an individual who was lawfully admitted for permanent residence at the time the services were performed, was lawfully present for purposes of performing the services, or was permanently residing in the United States under color of law at the time the services were performed, including an alien who was lawfully present in the United States as a result of the application of the provisions of Section 203(a)(7) or Section 212(d)(5) of the Immigration and Nationality Act.
(2) For purposes of paragraph (1), and only to the extent authorized by federal law, an alien who (A) is the subject of a notice of decision from the federal government granting deferred action under the federal Deferred Action for Childhood Arrivals program announced by the United States Secretary of Homeland Security on June 15, 2012, and (B) performed the services while he or she was in receipt of a valid employment authorization from the federal government, is a person who was lawfully present for purposes of performing those services.
(b) Any data or information required of individuals applying for benefits specified by subdivision (a) to determine whether these benefits are not payable to them because of their alien status shall be uniformly required from all applicants for these benefits.
(c) In the case of an individual whose application for benefits specified by subdivision (a) would otherwise be approved, no determination by the department, an administrative law judge, or the appeals board that these benefits to the individual are not payable because of his or her alien status shall be made except upon a preponderance of the evidence.
(d) If an alien presents evidence that the Immigration and Naturalization Service has granted the alien employment authorization as a result of the alien’s application for temporary residence status under the federal Immigration Reform and Control Act of 1986 (Public Law 99-603), pending a final determination on this application the department shall not do either of the following:
(1) Commence or continue to pursue any administrative or judicial action to collect benefits where there has been a final determination that these benefits have been overpaid or chargeable to the alien, because of the alien’s immigration status at the time he or she performed the services compensated by his or her base period wages.
(2) Determine that the alien was overpaid benefits in the current benefit year or in any prior benefit year, if the basis for the determination is the assumption that because the alien is an applicant for temporary resident status he or she was not, while performing the services compensated by base period wages, lawfully admitted for permanent residence, lawfully present for purposes of performing the services that were compensated by his or her base period wages, or permanently residing in the United States under color of law.
(e) If the Immigration and Naturalization Service grants the application and adjusts the alien’s status to that of lawful temporary resident, the department shall not take any action described in paragraph (1) of subdivision (d) or make any determination described in paragraph (2) of subdivision (d). If an alien is not in the status of being lawfully admitted for permanent residence, lawfully present for the purpose of performing the services compensated by his or her base period wages, or permanently residing in the United States under color of law, at the time the alien’s lawful temporary permanent status terminates, then compensation shall not be payable on the basis of services performed by the alien after the termination.
(f) Nothing in subdivision (d) shall be construed to require the department to do any of the following:
(1) Repay any amounts collected under any present or past action as described in paragraph (1) of subdivision (d).
(2) Redetermine the eligibility for unemployment compensation benefits of any alien who the department originally determined to be ineligible because of the alien’s status at the time he or she performed the services compensated by his or her base period wages and with respect to whom the determination has become final.
(3) Apply subdivision (d) or (e) retroactively.
(g) If the United States Secretary of Labor finds that subdivisions (d) and (e) are not in conformity with the federal Unemployment Tax Act, and effective as of the date that this finding becomes final, subdivisions (d), (e), and (f) shall be inoperative and of no legal force or effect.
(h) Unless subdivisions (d), (e), and (f) have earlier become inoperative and of no legal force or effect pursuant to a finding by the Secretary of Labor under subdivision (g), subdivisions (d), (e), (f), and (g) shall remain in effect only until September 30, 1990, and as of that date shall become inoperative, unless a later enacted statute which is chaptered before September 30, 1990, deletes or extends that date. Notwithstanding this subdivision, however, the department shall not take any action to collect benefits from an individual when the collection against that individual was suspended pursuant to subdivision (e) prior to September 30, 1990.
(Amended by Stats. 2013, Ch. 571, Sec. 2. (AB 35) Effective January 1, 2014.)
Last modified: October 25, 2018