Bill Text: CA AB1546 | 2011-2012 | Regular Session | Introduced
Bill Title: California High-Skilled Worker Retention and Family Act
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2012-04-10 - In committee: Set, first hearing. Hearing canceled at the request of author. [AB1546 Detail]
Download: California-2011-AB1546-Introduced.html
BILL NUMBER: AB 1546 INTRODUCED
BILL TEXT
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.
State-mandated 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.
