§ 1264. — 1264. (Amended by Stats. 2021, Ch. 296, Sec. 59.)

(a)
(1)
Unemployment compensation benefits, extended duration benefits, and federal-state extended benefits shall not be payable on the basis of services performed by a person who is not a citizen or national of the United States, unless that person 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 a person 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, a person 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 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 federal immigration 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 the individual’s federal immigration status shall be made except upon a preponderance of the evidence.
(d)
If a person who is not a citizen or national of the United States presents evidence that the Immigration and Naturalization Service has granted the person employment authorization as a result of an 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 person, because of the person’s immigration status at the time they performed the services compensated by their base period wages.
(2)
Determine that the person 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 person is an applicant for temporary resident status they were 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 their 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 person’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 a person is not lawfully admitted for permanent residence, lawfully present for the purpose of performing the services compensated by their base period wages, or permanently residing in the United States under color of law, at the time the person’s lawful temporary permanent status terminates, then compensation shall not be payable on the basis of services performed by the person 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 person who the department originally determined
to be ineligible because of the person’s federal immigration status at the time they performed the services compensated by their 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.

Legislative History

Amended by Stats. 2021, Ch. 296, Sec. 59. (AB 1096) Effective January 1, 2022.