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Introduced Version House Bill 4581 History

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Key: Green = existing Code. Red = new code to be enacted
hb4581 intr
H. B. 4581


(By Delegates Schoen, Armstead, Sobonya, Sumner,

Overington, J. Miller, Cowles and Schadler)

[Introduced February 15, 2008; referred to the

Committee on the Judiciary then Finance.]




A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §1-6-1, relating to the verification of lawful presence within the United States of any person applying for state, local, or federal public benefits.

Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §1-6-1, to read as follows:
ARTICLE 6. VERIFICATION OF LAWFUL PRESENCE WITHIN THE UNITED STATES.

§1-6-1. Verification requirements, procedures, and conditions; exceptions; regulations; criminal and other penalties for violations.

(a) Except as provided in subsections (c) and (d) of this section or where exempted by federal law, beginning on the first day of July, two thousand eight, every agency or a political subdivision of this state shall verify the lawful presence in the United States of any natural person eighteen years of age or older who has applied for state or local public benefits, as defined in 8 U.S.C. § 1621(c), or for federal public benefits, as defined in 8 U.S.C. § 1611(c), that are administered by an agency or a political subdivision of this state.
(b) This section shall be enforced without regard to race, religion, gender, ethnicity, or national origin.
(c) Nothing in this section shall be construed as to require the verification of lawful presence within the United States of any person applying for local, state, or federal benefits unless federal law requires the same.
(d) Verification of lawful presence under this section shall not be required:
(1) For assistance for health care items and services that are necessary for the treatment of an emergency medical condition, as defined in 42 U.S.C. § 1396b(v)(3), of the alien involved and are not related to an organ transplant procedure;
(2) For short-term, noncash, in-kind emergency disaster relief;
(3) For public health assistance for immunizations with respect to immunizable diseases and for testing and treatment of symptoms of communicable diseases whether or not such symptoms are caused by a communicable disease;
(4) For programs, services, or assistance such as soup kitchens, crisis counseling and intervention, and short-term shelter specified by the United States Attorney General, in the United States Attorney General's sole and unreviewable discretion after consultation with appropriate federal agencies and departments, which:
(A) Deliver in-kind services at the community level, including through public or private nonprofit agencies;
(B) Do not condition the provision of assistance, the amount of assistance provided, or the cost of assistance provided on the individual recipient's income or resources; and
(C) Are necessary for the protection of life or safety;
(5) For post-secondary education, whereby the Secretary of the West Virginia Department of Education shall set forth or cause to be set forth regulations regarding post-secondary benefits that comply with all federal laws, including, but not limited to, public benefits as described in 8 U.S.C. §§ 1611, 1621 and 1623.
(e) Verification of lawful presence in the United States by the agency or political subdivision required to make such verification shall occur as follows:
(1) The applicant must execute an affidavit that he or she is a United States citizen or legal permanent resident, eighteen years of age or older; or
(2) The applicant must execute an affidavit that he or she is a qualified alien or nonimmigrant under the federal Immigration and Nationality Act, eighteen years of age or older, and lawfully present in the United States.
(f) Any affidavit executed pursuant to subsection (e) of this section shall be verified through the Systematic Alien Verification of Entitlement (SAVE) program operated by the United States Department of Homeland Security or a successor program designated by the United States Department of Homeland Security. Until verification through SAVE is made, the executed affidavit may be presumed to be proof of lawful presence for the purposes of this section.
(g) Any person who knowingly and willfully makes a false, fictitious, or fraudulent statement of representation in an affidavit executed pursuant to subsection (e) of this section shall be guilty of false swearing as defined by section one, article five, chapter sixty-one of this code and upon conviction thereof shall
be punished in accordance with section three, article five, chapter sixty-one of this code.
(h) Agencies or political subdivisions of this state may adopt variations to the requirements of this section to improve efficiency or reduce delay in the verification process or to provide for adjudication of unique individual circumstances where the verification procedures in this section would impose unusual hardship on a legal resident of West Virginia: Provided, That for purposes of this section the term "undue hardship" shall be construed narrowly.
(i) It shall be unlawful for any agency or a political subdivision of this state to provide any state, local, or federal benefit, as defined in 8 U.S.C. § 1621 or 8 U.S.C. § 1611, in violation of this section. Each state agency or department which administers any program of state or local public benefits shall provide an annual report with respect to its compliance with this section.
(j) Any and all errors and significant delays by SAVE shall be reported to the United States Department of Homeland Security and to the Secretary of State which will monitor SAVE and its verification application errors and significant delays and report yearly on such errors and significant delays to ensure that the application of SAVE is not wrongfully denying benefits to legal residents of West Virginia.
(k) Notwithstanding subsection (g) of this section any applicant for federal benefits as defined in 8 U.S.C. § 1611 or state or local benefits as defined in 8 U.S.C. § 1621 shall not be guilty of any crime for executing an affidavit attesting to lawful presence in the United States that contains a false statement if said affidavit is not required by this section.
(l) All references made to the United States Code in this section shall refer to the United States Code as it existed on the date of adoption of this section.



NOTE: The purpose of this bill is to require state agencies and political subdivisions thereof to verify the lawful presence within the United States of any applicant for certain public benefits.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.
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