dissenting:
The majority scrutinizes the phrase “permanently residing in the United States under color of law” as used in section 8-73-107(7)(a), 3 C.R.S. (1984 Supp.), and determines that this language, in the words of the Second Circuit, emits “penumbra” and “shadows” that call for a broad judicial interpretation. Because I do not agree with this interpretation, I respectfully dissent.
I.
The issue decided today has ramifications that extend beyond the facts of this particular case. The language in question arises from a provision of Colorado law, modeled after related federal legislation, that is intended to exclude all aliens from unemployment compensation except certain specified categories. See 26 U.S.C. § 3304(a)(14) (1982). The category at issue in this case covers aliens “permanently residing in the United States under color of law.” The language used to describe this category is not unique to the state and federal unemployment compensation laws, but instead mirrors virtually identical language in similar statutes and regulations governing numerous government entitlement programs. See 42 U.S.C.A. § 602(a)(33) (1987) (Aid to *483Families with Dependent Children); 42 U.S.C. § 1382c(a)(l)(B) (1982) (Supplemental Security Income for the Aged, Blind, and Disabled); Rule 3.140.11, 9 C.C.R. 2503-1 (1980) (Public Assistance); Rule 3.380.15, 9 C.C.R. 2503-1 (1980) (Old Age Pensions); Rule 3.400.16, 9 C.C.R. 2503-1 (1979) (Aid to Needy, Disabled or Blind Persons); Rule 3.600.21, 9 C.C.R. 2503-1 (Aid to Families with Dependent Children); Rule 8.100.53, 10 C.C.R. 2505-10 (1986) (Medical Assistance). This case represents our first opportunity to construe the pertinent language. As a result, our decision will likely influence decisions in future cases involving the eligibility of aliens for a variety of government benefits.
The precedent set by today’s decision is especially troubling because the questions surrounding alien eligibility for government benefits are bound to intensify.1 Amicus informs us that immigration to the United States is now at or near the highest level in the history of the country and increasing rapidly. Estimates of illegal aliens now living in this country range well into the millions. According to amicus, in the state of Colorado alone, in 1984 the Immigration and Naturalization Service estimated that 5,328 illegal aliens could be screened off the unemployment compensation rolls for a first-year savings to the state and federal governments of $2.9 million. The majority’s opinion in this case, because it has the potential to greatly expand the eligibility of aliens for government benefits and because that result may encourage further illegal immigration, can only exacerbate a growing problem faced by officials charged with administering and financing state entitlement programs.
II.
The key problem that I see in the majority’s analysis is the sheer breadth with which the majority defines the phrase “permanently residing in the United States under color of law.” Initially, the majority concludes that the term “permanent” in this context essentially refers to aliens who intend to abandon their foreign residence. Maj.Op. at 478. Then, relying on exceedingly broad language from Holley v. Lavine, 553 F.2d 845 (2d Cir.1977), cert. denied, 435 U.S. 947, 98 S.Ct. 1532, 55 L.Ed.2d 545 (1978), the majority concludes that an alien permanently resides “under color of law” if the federal Immigration and Naturalization Service knows the alien has no right to reside here but does not seek sanctions against the alien. Maj.Op. at 478-79.
In my view, this broad construction has the potential for creating serious difficulties. In Esparza v. Valdez, 612 F.Supp. 241, 244 (D.Colo.1985), a case involving two of the respondents now before this court, Judge Matsch clearly pointed out those difficulties:
Adoption of [such a] position would seriously erode the government’s ability to deal with the problem of illegal aliens. It would permit any alien, without regard to the legality of his entry, to obtain a job, make his presence known to the INS by the filing of some application, and, in the absence of deportation, claim that his residence was “under color of law.” Congress has not indicated an intention to place such persons on the unemployment compensation benefits program.
Esparza, 612 F.Supp. at 244. See also Zurmati v. McMahon, 180 Cal.App.3d 164, 176-77, 225 Cal.Rptr. 374, 381 (1986).
To avoid this problem, Judge Matsch carefully crafted a narrower interpretation of the pertinent statutory language. In my view, he properly concluded that the phrase “permanently residing in the United States under color of law” makes eligible “those aliens who, after review of their particular factual circumstances pursuant to a specific statutory or regulatory procedure, have been granted an immigration status which allows them to remain in the United States for an indefinite period of time.” Esparza, 612 F.Supp. at 244. Further, I believe this test, if properly applied, would exclude the *484respondents from unemployment compensation coverage during the relevant periods at issue in this ease.
In its decision, the majority purports to adopt and apply the test formulated in Es-parza. However, in applying the test, the majority overlooks certain key language with the result that Judge Matsch’s purpose in adopting the test is virtually cast aside. As I read it, the Esparza test clearly requires an alien to have official permission to remain indefinitely, granted under a specific statutory or regulatory procedure.
As other courts have put it, the “fundamental and essential requirement” is “an affirmative ‘admission’ or ‘grant’, by a competent official authority, of a specific status, which carries with it the right of the alien to reside in the United States for an indefinite period of time, so long as that status exists.” Zurmati v. McMahon, 180 Cal.App.3d at 176, 225 Cal.Rptr. at 380-81. In other words, there must be an “official sanctioning” of the alien’s presence and an “official determination” that the alien can remain indefinitely. Sudomir v. McMahon, 767 F.2d 1456, 1460 (9th Cir.1985). See also Holley v. Lavine, 553 F.2d 845 (2d Cir.1977), cert. denied, 435 U.S. 947, 98 S.Ct. 1532, 55 L.Ed.2d 545 (1978) (alien had received “official assurance” that INS did not contemplate enforcing her departure from the United States while her children remained dependent on her).
This interpretation finds support in the Colorado legislature’s recent attempt to explicitly define the statutory phrase at issue in this case. See section 8-73-107(7)(a), 3B C.R.S. (1986). That definition is technically inapplicable to this case since it was adopted after this case arose. However, I believe it affords some insight into the legislature’s original intent in adopting the ambiguous phrase “permanently residing in the United States under color of law.” Importantly, in its definition, the legislature set forth — in accord with Esparza —specific categories involving “official sanctioning” of an alien’s presence. However, none of the categories listed would, in my view, apply to the respondents.
In light of the “official sanctioning” test adopted by Esparza and related cases, the majority’s attempts to categorize the respondents as “permanently residing in the United States under color of law” at the relevant intervals in this case are unpersuasive. While the respondents’ applications for permanent residency status were pending, they had not been granted the permission to remain in the United States indefinitely under any specific regulatory procedure. Their applications for permanent residency status amounted to an attempt to obtain that permission; but until that permission was granted, petitioners remained only temporary residents.
In Sudomir v. McMahon, 767 F.2d at 1461-62, for instance, the Ninth Circuit addressed the comparable status of aliens who had applied for asylum and concluded that, “The status of asylum applicants and its duration can hardly be described as fixed, or permanent. To repeat, they are best described as inchoate.” While the court found that “permanent” in the pertinent statutory language did not mean “forever,” it also did not embrace “transitory, inchoate, or temporary relationships.” It held that an alien’s residence is temporary when the continued presence of the alien is solely dependent upon the possibility of having his application acted upon favorably. In this case, since the respondents’ continued presence was solely dependent on favorable action on their application for permanent residency, their status must also be construed as “temporary.”
Nor can the respondents claim that their marriages to American citizens elevated their status to aliens “permanently residing in the United States under color of law.” Such marriages do not entitle an alien to an adjustment of his status to permanent resident. Menezes v. INS, 601 F.2d 1028, 1032 (9th Cir.1979). Indeed, in cases where an alien engages in a “sham” marriage to evade the immigration laws, the alien is subject to deportation. Garcia-Jaramillo v. INS, 604 F.2d 1236 (9th Cir.1979), cert. denied, 449 U.S. 828, 101 S.Ct. 94, 66 L.Ed.2d 32 (1980).
*485Similarly, the respondents did not receive official permission to remain indefinitely because they received authorization to work. Such work authorization is granted at the discretion of the INS, commonly for humanitarian purposes; it neither indicates nor confers legal status. See 8 C.F.R. § 109 (1987); Zurmati v. McMahon, 180 Cal.App. at 178, 225 Cal.Rptr. at 381-82. In fact, an alien may be granted authorization to work at a time when the government is attempting to deport him. See, e.g., 8 C.F.R. § 109.1(b)(5) (1987).
III.
In its opinion, the majority places great emphasis on a recent interpretation by the federal Department of Labor that aliens who are granted work authorization are eligible for unemployment compensation under a separate statutory category permitting coverage of aliens “lawfully present for purposes of performing ... services.” Maj.Op. at 479-80. The majority, however, does not point out that the Department of Justice views that ruling as “legally incorrect.”2 Even if it were correct, however, the Department of Labor’s view of that statutory category would be irrelevant since construction of the scope of that category is not an issue in this case. Maj.Op. at 477 n. 7.
What is highly relevant, however, is the department’s interpretation of the language “permanently residing in the United States under color of law,” and the very same ruling cited by the majority also interprets that language — but in a way contrary to the majority’s interpretation:
The issue of whether an alien is permanently residing in the United States under color of law has been the subject of recent State appeals board and court decisions. Usually these cases concern aliens who entered the United States illegally, or who were lawfully admitted to the United States but not authorized to work during their stay. Later the alien may apply to the INS for permanent residence, political asylum, suspension of deportation or some other change in status. While a status determination is pending or deportation proceedings are being considered, the alien may file a claim for unemployment compensation. In some (but not all) of these cases, appeals boards or courts have ruled that if the INS knows of an alien’s illegal presence in the United States and has taken no action on the case, the alien is “permanently residing in the United States under color of law.”
Rulings of this type do not conform with the intent of Section 3304(a)(14)(A), FUTA, or its legislative history. INS inaction is not sufficient to show that an alien is present under color of law and States may not interpret it as such.
Unemployment Insurance Program Letter No. 1-86 (issued October 28, 1985), 51 F.R. 29713, 29716 (August 20, 1986).
The majority’s reliance on Holley v. Lavine, 553 F.2d 845 (2d Cir.1977), cert. denied, 435 U.S. 947, 98 S.Ct. 1532, 55 L.Ed.2d 545 (1978), is similarly misplaced. *486Although the Second Circuit in Holley used the broad language now quoted by the majority, the court in that case obviously viewed the case as unique and of little precedential import, and the court implicitly adopted an “official sanctioning” test. In that regard, the court said:
Far from being in a class with millions of aliens unlawfully residing in the United States, plaintiff is in what is almost certainly a minuscule sub-class of aliens who, although unlawfully residing in the United States, are each individually covered by a letter from the Department of Justice stating that the Immigration and Naturalization Service “does not contemplate enforcing ... [the alien’s] ... departure from the United States at this time.”
Holley, 553 F.2d at 849.
The respondents in this case and in the related case decided by this court today, Division of Employment and Training v. Turynski, 735 P.2d 469 (Colo.1987) (involving applicants for asylum), obviously are not part of any similar “minuscule subclass.” Indeed, both classes are probably quite large.3
Further, the facts of Holley are not inconsistent with the “official sanctioning” theory of Esparza and related cases. In Holley, the petitioner had received “official assurance” that she would not be deported at least until her six children — all American citizens — were no longer dependent on her. Holley, 553 F.2d at 849.
At various points in its opinion, the majority attempts to point out narrow factual differences that might limit its wholesale adoption of the broad language of Holley in future cases. However, I am unpersuaded that the majority views any of these potential limitations as critical. For example, at one point, the majority notes that “[t]he overwhelming majority of aliens who are legitimately married to United States citizens will be granted permanent residence status once their visa interview occurs.” Maj.Op. at 480. In the majority’s eyes, this apparently strengthens the respondents’ claim to status as “permanently residing in the United States under color of law.” However, in Turynski, the majority fails to note that most applicants for asylum will be denied that status — and yet the majority finds that these aliens, too, are “permanently residing in the United States under color of law.” See, e.g., Sudomir v. McMahon, 767 F.2d at 1468.
Similarly, the majority hints at another point that it might adopt a more restrictive view if the benefits involved were welfare benefits rather than unemployment compensation. Maj.Op. at 481. However, the language adopted by the majority admits of no distinction between the types of benefits involved. Further, the case that the majority relies on as central to its analysis, Holley, was a case involving welfare benefits.
As a last attempt to justify its decision in this case, the majority analogizes to labor-relations statutes that permit stiff penalties to deter employers who engage in unfair labor practices. Maj.Op. at 481. In my experience, the notion that our unemployment compensation statutes are designed to penalize employers is a novel one,4 and the majority is certainly stretching far afield to come up with reasons for its conclusion. Admittedly, in the past, we have construed the unemployment compensation statutes liberally in favor of disadvantaged workers of this state beset by the “crushing force” of unemployment. See Industrial Commission v. Sirokman, 134 Colo. 481, 485, 306 P.2d 669, 671 (1957); section 8-70-102, 3B C.R.S. (1986). However, if this case is explained solely as a humanitarian response on behalf of the majority to a vulnerable group, I would suggest the majority’s decision is misguided. Although the court may be able to afford relief to these respondents by its decision today, the result may simply be to encourage the government in the future to deny *487aliens work authorization and other official concessions in order to avoid unintentionally incurring costly liabilities to aliens under the entitlement laws.
Accordingly, I respectfully dissent.
I am authorized to state that VOLLACK, J., joins in this dissent.
. The increasing frequency with which the issue we address today is arising is demonstrated by the majority’s listing of 14 cases all involving similar statutory language and all dated 1979 or later. Maj.Op. at 479.
. In a letter to the deputy solicitor of the Department of Labor dated February 5, 1986, a Justice Department assistant attorney general strongly urged that the Labor ruling be rescinded and pointed out that:
The legislative history surrounding the inclusion of this phrase indicates that Congress intended it to refer to certain classes of Mexican and Canadian citizens present in this country to fill a specific category of jobs. Aliens permitted to work in order to support themselves while their applications for a status change are pending are not present in the United States for the purpose of performing services; they are permitted, for humanitarian reasons, to maintain themselves while their entitlement to remain in this country is in the process of adjudication. DOL’s interpretation of this provision within FUTA is thus refuted by the legislative history and the plain meaning of the phrase itself.
With regard to the phrase "permanently residing in the United States under color of law,” the letter stated:
The position of the United States on this issue is that no alien can be granted the status of a permanent resident under color of law, or be deemed eligible for benefits under federal social programs for any other reason, unless INS has made an affirmative, case-specific determination that the alien is entitled to remain in the United States for a period of time which is limited by something other than an official determination that the alien is not legally entitled to be in this country.
. For example, the majority cites figures that show the INS granted legal permanent residency status to 119,644 aliens in 1983. Maj.Op. at 481.
. In contrast, at footnote 13, the majority cites with approval cases characterizing unemployment compensation as a "simple insurance system.”