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AB-1546 California High-Skilled Worker Retention and Family Act of 2012.(2011-2012)

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CALIFORNIA LEGISLATURE— 2011–2012 REGULAR SESSION

Assembly Bill
No. 1546


Introduced  by  Assembly Member V. Manuel Pérez

January 25, 2012


An act to add Article 7 (commencing with Section 9950) to Chapter 2 of Part 1 of Division 3 of the Unemployment Insurance Code, relating to immigration.


LEGISLATIVE COUNSEL'S DIGEST


AB 1546, as introduced, V. Manuel Pérez. California High-Skilled Worker Retention and Family Act of 2012.
Existing federal law provides that a nonresident seeking admission to the United States as an immediate relative of a citizen of the United States or as a family sponsored immigrant is inadmissible as a public charge, unless, among other methods, a person petitioning for that person’s admission has executed an affidavit of support with respect to that person. The affidavit of support requires that the sponsor pledge to take certain actions to maintain and support the nonresident while he or she resides in the United States.
This bill would establish the California High-Skilled Worker Retention and Family Act of 2012. This bill would require the Employment Development Department to create a program that would authorize a foreign national who meets certain requirements to apply to the department for resident immigrant status. This bill would require that in order to be eligible for the program the foreign national must be sponsored by a person or small business. This bill would require that the sponsor of the foreign national execute an affidavit of sponsorship that would impose a contractual obligation on the sponsor to support the foreign national, and to reimburse certain entities for any means-tested public benefit provided to the foreign national. This bill would provide that an affidavit of sponsorship may be terminated only under certain circumstances.
This bill would authorize the department to approve the application for resident immigrant status based on certain criteria, and to issue to the foreign national a permit that grants to the foreign national resident immigrant status. This bill would authorize a resident immigrant to work, study, and live in this state. This bill would require a resident immigrant, or a resident immigrant’s employer, to pay all income taxes and employment taxes, fees, or charges. This bill would authorize the Franchise Tax Board to adopt regulations that would authorize a person that employs a resident immigrant to withhold from compensation paid to the resident immigrant an amount that is as close as possible to the amount that would be withheld under state law if the resident immigrant had a social security number.
This bill would provide that none of the provisions of this bill shall be carried out unless the Director of Employment Development receives the necessary authority, consistent with federal law, from the federal government to administer the program.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Article 7 (commencing with Section 9950) is added to Chapter 2 of Part 1 of Division 3 of the Unemployment Insurance Code, to read:
Article  7. California High-Skilled Worker Retention and Family Act of 2012

9950.
 This article shall be known, and may be cited, as the California High-Skilled Worker Retention and Family Act of 2012.

9951.
 The Legislature finds and declares all of the following:
(a) Federal immigration policy provides that approximately 140,000 employment visas may be issued annually to enable individuals with extraordinary abilities, professionals with advanced degrees, and other skilled workers to be sponsored by United States companies to live and work in the United States.
(b) As part of that federal program, the spouse and unmarried children of the worker being sponsored are also provided visas, thereby reducing the number of visas actually available to United States companies to use for sponsoring and employing workers in their businesses.
(c) The federal government has placed a cap on the number of employment visas that can be issued to each country. A cap has also been placed on the number of visas that can be used for family reunification.
(d) Due to the process established by the federal government, United States-born workers are not adversely impacted by this visa program.
(e) Some United States businesses contend the caps in the federal program limit economic and job growth. They have advocated for a shift from a family-based immigration policy to a work-based immigration policy similar to what other governments such as those of Canada, Australia, and Hong Kong, have adopted.
(f) Many experts and lawyers in the field of United States immigration policy contend that the limits and program requirements embedded in the visa program create a pull factor for illegal migration into the United States.
(g) Seeking to address the negative consequences of these limitations, in November 2011, the House of Representatives passed the Fairness for High Skilled Immigrants Act (H.R. 3012) that will phase out the use of caps. This action will reduce the waiting period for highly skilled workers needed in United States companies and for families seeking reunification.
(h) Due to the economic contributions of highly skilled foreign workers that are enjoyed by all of California, it is in the best interest of the state to develop a complementary sponsorship program authorized to use and apply employment and family visas in a manner that would stabilize, stimulate, and expand California’s economy.

9952.
 As used in this article, the following terms have the following meanings:
(a) “Department” means the Employment Development Department.
(b) “Federal poverty line” has the same meaning as provided in Section 1183a(h) of Title 8 of the United States Code.
(c) “Foreign national” has the same meaning as “alien” as provided in Section 1101(a)(3) of Title 8 of the United States Code, except that it does not include a person who is not lawfully present in the United States.
(d) “Local agency” or “local government entity” means a city, county, or city and county.
(e) “Means-tested public benefit” has the same meaning as provided in Section 213a.1 of Title 8 of the Code of Federal Regulations.
(f) “Permit” means an identification permit issued pursuant to subdivision (c) of Section 9951.
(g) “Program” means the program carried out under this article.
(h) “Resident immigrant” means a foreign national who has been accepted into the program by the department in accordance with the provisions of this article.
(i) “Small business” has the same meaning as provided in Section 11342.610 of the Government Code.
(j) “Sponsor” means a person or a small business that agrees to assume financial responsibility for a foreign national by executing an affidavit of sponsorship.

9953.
 (a) The department shall create a program to grant resident immigrant status to individuals who meet the requirements of this article.
(b) In order to be eligible for approval for resident immigrant status, a foreign national shall do all of the following:
(1) (A) File an application for resident immigrant status with the department.
(B) Attach to that application an affidavit of sponsorship executed by a sponsor pursuant to Section 9954.
(2) Complete and pass a health and background screening.
(3) Provide evidence that he or she has not been convicted of a serious felony within the meaning of subdivision (c) of Section 1192.7 of the Penal Code, or a violent felony within the meaning of subdivision (c) of Section 667.5 of the Penal Code.
(4) Pay a fee that does not exceed the reasonable costs to the department of issuing the permit.
(5) Provide evidence that he or she is living outside of the United States at the time that the application for the program is filed.
(c) A foreign national shall not be eligible for the program if the foreign national is living in the United States at the time the application for the program is filed.
(d) (1) The department shall review the application, and may grant a foreign national resident immigrant status in accordance with the procedures established by this article, and the quota described in subdivision (b) of Section 9955.
(2) The department shall issue to an approved resident immigrant a permit created pursuant to Section 9955.
(3) A foreign national may appeal the department’s decision to the Director of Employment Development.
(4) The department shall cooperate with the federal Department of Homeland Security to ensure that no resident immigrant poses a risk to national security.
(e) (1) A resident immigrant may reside, work, and study in the state.
(2) Unless expressly authorized by federal law, a resident immigrant permit is effective only in this state.

9954.
 (a) A person may sponsor a foreign national as a resident immigrant by filing an affidavit of sponsorship with the department in accordance with the provisions of this section. An affidavit of sponsorship shall be executed by the sponsor and the foreign national as a contract that shall contain the following provisions:
(1) A requirement that the sponsor agree to provide support to maintain the sponsored foreign national at an annual income that is not less than 125 percent of the federal poverty line during the period in which the affidavit is enforceable.
(2) A requirement that the affidavit is legally enforceable against the sponsor by the resident immigrant, the federal government, the state, a local agency, or any other entity that provides a public benefit to the resident immigrant.
(3) A requirement that the sponsor agrees to submit to the jurisdiction of any federal or state court for the purpose of actions brought under subdivision (c).
(b) (1) A person is eligible to be a sponsor if he or she meets all of the following requirements:
(A) Is a citizen of the United States or an alien who is lawfully admitted to the United States for permanent residence.
(B) Is a resident of the state.
(C) Is at least 18 years of age.
(D) Is domiciled in the state.
(E) Demonstrates the means to maintain an annual income greater than or equal to 125 percent of the federal poverty line.
(F) Demonstrates a compelling humanitarian reason to sponsor the foreign national.
(2) A small business is eligible to be a sponsor if it meets all of the following requirements:
(A) Is domiciled in the state.
(B) Demonstrates the means to maintain an annual income greater than or equal to 125 percent of the federal poverty line.
(3) A person or small business may demonstrate the means to maintain an annual income under this section by following any of the methods described in Section 1183a(g)(6) of Title 8 of the United States Code.
(4) The department shall adopt regulations in accordance with Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code to determine eligibility requirements for a sponsor that are consistent with paragraphs (1) to (3), inclusive.
(c) (1) If a resident immigrant receives any means-tested public benefit, then the private, federal, state, or local government entity that provided that benefit may request reimbursement by the sponsor in an amount that is equal to the unreimbursed costs of that benefit.
(2) If within 45 days after a request for reimbursement under paragraph (1) the appropriate entity has not received a response from the sponsor indicating a willingness to commence payment, then an action may be brought against the sponsor pursuant to the affidavit of sponsorship.
(3) If the sponsor fails to abide by the repayment terms established by the appropriate entity, then the entity may bring an action against the sponsor pursuant to the affidavit of sponsorship.
(4) No cause of action may be brought under this subdivision more than 10 years after the date that the sponsored alien last received any public benefit to which the affidavit of sponsorship applies.
(d) The sponsor shall notify the department within 30 days of any change of address of the sponsor during the period that an affidavit of sponsorship is enforceable.
(e) An affidavit of sponsorship shall be enforceable with respect to benefits provided to the resident immigrant until one of the following events occurs:
(1) The resident immigrant is naturalized as a citizen of the United States.
(2) The term of the permit has expired.
(3) The sponsor has terminated the affidavit of sponsorship by proving to the satisfaction of the department that the resident immigrant no longer resides in the United States.
(4) The department has determined that the resident immigrant no longer resides in the United States, or is otherwise disqualified from the program pursuant to Section 9957.

9955.
 (a) The department shall create a resident immigrant permit to be issued to a foreign national that is approved for resident immigrant status pursuant to Section 9953. The permit shall meet all of the following requirements:
(1) Be of impervious material that is resistant to wear or damage.
(2) Be designed to minimize the risk that the permit may be counterfeited, falsified, or forged.
(3) Include a photograph of the resident immigrant to whom the permit is issued.
(4) Prominently state the date that the permit expires.
(5) Prominently state the type of permit.
(6) Include a unique identifier.
(b) The department shall not issue more permits per year than the amount authorized by the federal government. The department shall issue no more than three-fourths of the available permits per year to small business sponsors, and one-quarter of the available permits per year to individual sponsors.

9956.
 (a) A person in the state may employ a resident immigrant.
(b) A resident immigrant, or a resident immigrant’s employer, shall pay all income taxes and employment taxes, fees, or charges in accordance with the program.
(c) (1) The Franchise Tax Board shall, by adopting regulations in accordance with Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code, provide a means that is effective as of the day that the department begins implementation of the program for a person who receives services from a resident immigrant to withhold from compensation paid to the resident immigrant an amount to be determined by Franchise Tax Board rule that, as closely as possible, equals the income taxes that would be withheld under state law if the resident immigrant were an employee with a social security number.
(2) As part of the program, the department shall provide a method to collect and remit to the federal government the money collected that is equivalent to the income and employment taxes that would be withheld under federal law if a resident immigrant were an employee with a social security number.

9957.
 A resident immigrant is disqualified from the program if, after becoming a resident immigrant, he or she does either of the following:
(a) Is convicted of a serious felony, within the meaning of subdivision (c) of Section 1192.7 of the Penal Code, or a violent felony, within the meaning of subdivision (c) of Section 667.5 of the Penal Code.
(b) Violates the terms and restrictions of the program.

9958.
 (a) The department shall adopt regulations in accordance with Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code on the following topics:
(1) The qualifications necessary to pass a health screening to be eligible for acceptance into the program. At a minimum, an individual is eligible to participate in the program if he or she does not have a medical condition that would make the individual inadmissible for health-related grounds under Section 1182(a)(1) of Title 8 of the United States Code.
(2) The qualifications necessary to pass a background screening to be eligible for acceptance into the program.
(3) The term that a foreign national shall be considered a resident immigrant.
(4) The process that a foreign national must undergo to obtain a resident immigrant permit.
(5) What qualifies as a means-tested public benefit under Section 9954.
(b) When making a rule under this article, the department shall use federal standards as a guideline to avoid unnecessary duplication and additional costs.

9959.
 (a) The Director of Employment Development shall, no later then May 1, 2013, submit a formal request to the federal government to receive the necessary and appropriate authority to administer this article. In that request, the director shall also ask the federal government the total number of permits that may be issued per year.
(b) This article, except for this section, shall not be implemented unless the Director of Employment Development receives the necessary authority, consistent with federal law, to administer this article.
(c) The Director of Employment Development shall, upon receiving the necessary authority pursuant to subdivision (b), post a notice on the Employment Development Department’s Internet Web site that the program will be implemented.