H. B. 3162
(By Delegates Schoen, Armstead, Sobonya,
Sumner, Overington, J. Miller,
DeLong, Palumbo, and Cowles)
[Introduced February 21, 2007; 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 1. 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 postsecondary education, whereby the Secretary of the
West Virginia Department of Education shall set forth or cause to
be set forth regulations regarding postsecondary 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 State 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.