1 Colo. Code Regs. § 204-30-5

Current through Register Vol. 47, No. 20, October 25, 2024

Rule 1 CCR 204-30-5 - EVIDENCE OF LAWFUL PRESENCE

BASIS: This rule is promulgated under the authority of section 24-76.5-103, C.R.S.

PURPOSE: The following rule is promulgated to provide a list of documents recognized by the federal government to prove lawful presence, and to establish a waiver process to ensure that those persons seeking federal public benefits or state and local public benefits, who prove lawful presence in the United States, receive authorized public benefits.

1.Definitions

1.1 Applicant- A natural person eighteen years of age or older seeking non-exempt Public Benefits. Reference to Applicant includes actions through the Designated Representative, defined below.

1.2 Benefit Agency- An agency or political subdivision of the State of Colorado that administers, determines eligibility for, or assists persons in applying for Public Benefits.

1.3 Department- Means the Department of Revenue.

1.4 Designated Representative- A natural person submitting a Request for Waiver on behalf of an Applicant.

1.5 Public Benefit- For purposes of this Rule, "Public Benefit" means "federal public benefit" and "state and local benefit" as those terms are defined in 8 U.S.C. secs. 1611 and 1621, respectively.

1.6 Request for Waiver- Means form DR 4678 "Request for Waiver- Restrictions on Public Benefits" completed by an Applicant seeking a determination of lawful presence by the Department after a Benefit Agency has been unable to verify the Applicant's lawful presence.

1.7 Systematic Alien Verification for Entitlements ("SAVE")- A web-based service administered by the U.S Citizenship and Immigration Service to assist federal, state, and local benefit-issuing agencies, institutions, and licensing bureaus in determining the immigration status of benefit applicants.

1.8 Valid Colorado driver license or a valid Colorado identification card- For purposes of section 24-76.5-103(4)(a)(I), C.R.S., means a current Colorado driver license, minor driver license, commercial driver license, restricted driver license, instruction permit, or identification card, but does not include a document issued pursuant to part 5 of article 2 of title 42 that states on the front of the document that it is "NOT VALID FOR FEDERAL IDENTIFICATION, VOTING, OR PUBLIC BENEFIT PURPOSES".

1.9 Waiver- Means a Department decision that an Applicant has proven lawful presence by means other than the document requirements under subsection 2.1 of this Rule.

2.Verification Requirements

2.1 A first time Applicant or an Applicant seeking to reapply for Public Benefits on or after August 1, 2006, must execute the affidavit required in section 24-76.5-103(4)(b) C.R.S., and demonstrate lawful presence by providing:

2.1.1 A document listed in section 24-76.5-103(4)(a) C.R.S. (2014);

2.1.2 In the case of a resident of another state, the driver license or a state-issued identification card from the Applicant's state of residence, if that state requires that the Applicant prove lawful presence prior to issuance of the license or identification card;

2.1.3 A document listed in the Code of Federal Regulations (CFR) as providing proof of lawful presence;

2.1.4 A document listed in Appendices A and B, which appendices are incorporated herein and part of this Rule;

2.1.5 Any document authorized as proof of lawful presence pursuant to the statutes, regulations, or agency guidance governing the Benefit Agency; or

2.1.6 Any document recognized by the Federal government as proof of lawful presence that is not listed or referenced within this Rule.

3.Waiver Process

3.1 An Applicant who has been denied a Public Benefit by a Benefit Agency because the Applicant could not provide a document listed or referenced in this Rule may request that the Department grant the Applicant a Waiver by submitting a Request for Waiver and a copy of the document from the Benefit Agency denying benefits unless unavailable.

3.1.1 The Request for Waiver may be completed and/or submitted by an Applicant or by the Applicant's Designated Representative.

3.1.2 The Request for Waiver must be accompanied by all documents the Applicant wants the Department to consider to prove lawful presence.

3.1.3 The Applicant must submit the Request for Waiver to the Colorado Department of Revenue, Division of Motor Vehicles or any Colorado Department of Revenue, Division of Motor Vehicles Driver License office and send a copy to the Benefit Agency.

3.2 Pursuant to section 24-76.5-103(5)(a), C.R.S., the Department may grant an Applicant's Request for Waiver of the requirement that the Applicant prove lawful presence through the documents referenced in subsection 2.1 of this Rule if the Department determines that the Applicant has proven lawful presence by other means.

3.3 Subsequent to receipt of a Request for Waiver, the Department will make a determination of the lawful presence of the Applicant and will issue a Waiver or a Notice of Denial of Waiver. The Waiver or a Notice of Denial of Waiver will be mailed to the address of the Applicant as shown on the Request for Waiver or as subsequently furnished in writing by the Applicant to the Department.

4.Denial of Request for Waiver

4.1 Reasons for denial of a Request for Waiver include, but are not limited to:

4.1.1 The SAVE verification fails to clear the Applicant; or

4.1.2 The documents presented by the Applicant appear to have been tampered with, altered, or otherwise not genuine; or

4.1.3 The statements and/or documents provided are inconsistent and the Applicant is unable to reasonably explain the inconsistencies; or

4.1.4 The Applicant fails to respond to a request by the Department within 60 days following the date of mailing of such request.

5.Hearing and Final Agency Action

5.1 An Applicant, or his or her Designated Representative, may, within 60 days of the date of notice of a denial for a Request for Waiver, or any Benefit Agency may, within 60 days of the date that the Benefit Agency receives notice of a Waiver, request a hearing on the Department's decision by filing a written request for hearing with the Hearings Division of the Department at 1881 Pierce St. #106, Lakewood, CO 80214.

5.2 All proceedings will conform to the provisions of the State Administrative Procedure Act [section 24-4-101, et seq, C.R.S.] and the provisions of title 42 of Colorado Revised Statutes.

5.3 The only issues at hearing will be whether and when the Applicant has established lawful presence in the United States by a preponderance of the evidence.

5.3.1 The Hearing Officer may consider any credible evidence, whether documents, witnesses, or other evidence offered by any party. For purposes of this rule, "party" means the Applicant, the Department, or any Benefit Agency.

5.3.2 If the Hearing Officer cannot determine the actual date that the Applicant became lawfully present in the United States, the Applicant shall be deemed lawfully present as of the date provided by the statutes, regulations, or agency guidance governing the Benefit Agency, or if none, as of the filing date of the original application denied by the Benefit Agency.

5.4 The Hearing Officer shall issue an Initial Decision within 15 business days of the completion of the hearing. If the Hearing Officer finds that the Applicant has not established lawful presence, then if a Denial of Waiver was previously issued, the Denial of Waiver will be sustained, or if a Waiver was previously granted, the Waiver will be rescinded. If the Hearing Officer finds that the Applicant is lawfully present, then, if a Denial of Waiver was previously issued, the Denial of Waiver will be rescinded and the Department will be directed to issue a Waiver, or if a Waiver was previously issued, the Waiver will be sustained.

5.5 An appeal under this Rule does not toll or otherwise affect any Benefit Agency appeal or other procedure or process unless expressly authorized by the Benefit Agency.

6.General Provisions

6.1 Each Benefit Agency is responsible for verifying that the Applicant is the same individual indicated as the person who received a Waiver.

6.2 Waivers may be cancelled by the Department, if the Department subsequently determines that the Applicant was not or is not lawfully present. Upon cancelling a Waiver, the Department will notify the Applicant and appropriate Benefit Agencies.

6.3 A person whose Waiver has been cancelled by the Department may appeal the Department's decision by requesting a hearing as provided in subsection 5.1 of this Rule within 60 days following the mailing date of the notice cancelling the Waiver.

6.4 Waivers issued by the Department since August 1, 2006, but prior to approval of this Rule, will continue in effect unless expired, or cancelled by the Department

7.Incorporation by Reference

7.1 The materials in this Rule incorporated by reference do not include later amendments to or editions of the materials. The materials incorporated in this Rule are on file and available for inspection by contacting the Driver License Section of the Department of Revenue in person at, 1881 Pierce Street, Room 128, Lakewood, Colorado, 80214, or by telephone at 303-205-5600, and copies of the materials may be examined at any state publication depository library.

1 CCR 204-30-5

37 CR 20, October 25,2014, effective 11/14/2014

38 CR 11, June 10, 2015, effective 6/30/2015

38 CR 12, June 25, 2015, effective 7/15/2015

38 CR 17, September 10, 2015, effective 9/30/2015

39 CR 01, January 10, 2016, effective 1/30/2016

39 CR 14, July 25, 2016, effective 8/14/2016

39 CR 15, August 10, 2016, effective 8/30/2016

39 CR 16, August 25, 2016, effective 9/14/2016

39 CR 19, October 10, 2016, effective 10/30/2016

39 CR 24, December 25, 2016, effective 1/30/2017

40 CR 20, October 25, 2017, effective 11/14/2017

40 CR 24, December 25, 2017, effective 1/14/2018

41 CR 08, April 25, 2018, effective 5/15/2018

41 CR 11, June 10, 2018, effective 6/30/2018

41 CR 17, September 10, 2018, effective 9/30/2018

41 CR 23, December 10, 2018, effective 12/30/2018

42 CR 06, March 25, 2019, effective 4/14/2019

42 CR 24, December 25, 2019, effective 1/14/2020

43 CR 12, June 25, 2020, effective 5/22/2020

43 CR 12, June 25, 2020, effective 7/16/2020

43 CR 19, October 10, 2020, effective 9/17/2020

43 CR 18, September 25, 2020, effective 10/15/2020

43 CR 23, December 10, 2020, effective 11/4/2020

43 CR 20, October 25, 2020, effective 11/15/2020

43 CR 22, November 25, 2020, effective 12/16/2020

43 CR 23, December 10, 2020, effective 12/30/2020

44 CR 01, January 10, 2021, effective 1/30/2021

44 CR 03, February 10, 2021, effective 3/2/2021

44 CR 15, August 10, 2021, effective 8/31/2021

44 CR 22, November 25, 2021, effective 12/15/2021

45 CR 05, March 10, 2022, effective 3/30/2022

45 CR 24, December 25, 2022, effective 1/14/2023

46 CR 01, January 10, 2023, effective 1/30/2023

45 CR 22, November 25, 2022, effective 1/31/2023

46 CR 05, March 10, 2023, effective 4/3/2023