Non
Citizens
Proposed rule: Verification
of Eligibility for Public Benefits DEPARTMENT OF JUSTICE Immigration and Naturalization Service
[Federal Register: August 4, 1998 (Volume 63, Number 149)] [Proposed Rules] [Page 41662-41686]
From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr04au98-36]
[[Page 41662]]
DEPARTMENT OF JUSTICE Immigration and Naturalization Service
8 CFR Part 104 [INS No. 1902-98; AG Order No. 2170-98] RIN 1115-AE99
Verification of Eligibility for Public Benefits
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Proposed rule.
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SUMMARY: This rule amends the Immigration and Naturalization Service
(``Service'') regulations by establishing a new part requiring certain
entities that provide Federal public benefits (with certain exceptions)
to verify, by examining alien applicants' evidence of alien
registration and by using a Service automated verification system that
the applicants are eligible for the benefits under welfare reform
legislation. The rule also sets forth procedures by which a State or
local government can verify whether an alien applying for a State or
local public benefit is a qualified alien, a nonimmigrant, or an alien
paroled into the United States for less than 1 year, for purposes of
determining whether the alien is eligible for the benefit. In addition,
the rule establishes procedures for verifying the U.S. nationality of
individuals applying for benefits in a fair and nondiscriminatory
manner.
DATES: Written comments must be submitted on or before October 5, 1998.
ADDRESSES: Please submit written comments, in triplicate, to the
Director, Policy Directives and Instructions Branch, Immigration and
Naturalization Service, 425 I Street NW., Room 5307, Washington, DC
20536. To ensure proper handling, please reference INS No. 1902-98 on
your correspondence. Comments are available for public inspection at
the above address by calling (202) 514-3048 to arrange for an
appointment.
FOR FURTHER INFORMATION CONTACT: John E. Nahan, Director, SAVE Branch,
Immigration and Naturalization Service, 425 I Street NW., ULLICO
Building, 4th Floor, Washington, DC 20536, telephone (202) 514-2317.
SUPPLEMENTARY INFORMATION:
Statutory Authority
Section 432 of the Personal Responsibility and Work Opportunity
Reconciliation Act of 1996 (``PRWORA''), Pub. L. 104-193, as amended by
section 504 of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (``IIRIRA''), Pub. L. 104-208, and by
section 5572 of the Balanced Budget Act of 1997, Pub. L. 105-33, 8
U.S.C. 1642, requires the Attorney General to promulgate regulations
requiring verification that a person applying for a Federal public
benefit (subject to certain exceptions) is a qualified alien and is
eligible to receive the benefit. The same statutory provision requires
the Attorney General to promulgate regulations that set forth the
procedures by which a State or local government can verify whether an
alien applying for a State or local public benefit is a qualified
alien, a nonimmigrant under the Immigration and Nationality Act, 8
U.S.C. 11001 et seq. (the ``Act''), or an alien paroled into the United
States for less than 1 year, for purposes of determining whether the
alien is eligible for the benefit. In addition, 8 U.S.C. 1642(a)(2)
requires the Attorney General to establish procedures for a person
applying for a Federal public benefit to provide proof of citizenship
in a fair and nondiscriminatory manner.
Background
Section 121 of the Immigration Reform and Control Act of 1986
(``IRCA''), Pub. L. 99-603, codified at 42 U.S.C. 1320b-7 and
elsewhere, required the Service to offer, and certain agencies
determining eligibility for a number of specified Federal public
benefits to use, an automated or other system to verify the immigration
status of alien applicants. Before the passage of IRCA, the Service had
developed and tested through pilot programs an automated verification
system entitled Systematic Alien Verification for Entitlements
(``SAVE''). In response to IRCA, the Service has further refined and
operated SAVE on a large scale for nearly 10 years.
The PRWORA requires further expansion of Service verification
programs to all agencies administering Federal public benefits that are
affected by PRWORA's new limitations on alien eligibility on a
mandatory basis, and to agencies administering affected State and local
public benefits on a voluntary basis. To the extent feasible, the
regulations implementing PRWORA's verification provision must adopt the
SAVE approach. The PRWORA, as amended in August 1997 by the Balanced
Budget Act of 1997, Pub. L. 105-33, also required the Attorney General
to issue interim guidance for the use of benefit granting agencies. On
November 17, 1997, the Attorney General complied with that directive by
issuing a Notice entitled Interim Guidance on Verification of
Citizenship, Qualified Alien Status and Eligibility Under Title IV of
the Personal Responsibility and Work Opportunity Reconciliation Act of
1996, 62 FR 61344 (the ``Interim Guidance'').
Congress directed in 8 U.S.C. 1642 that the Attorney General, by
February 22, 1998 and after consultation with the Secretary of Health
and Human Services, promulgate regulations requiring verification that
a person applying for a Federal public benefit is a qualified alien and
is eligible to receive the benefit. The same deadline applies to the
establishment of fair and nondiscriminatory procedures for a person to
provide proof of citizenship. The statutory deadline for regulations
setting forth the procedures by which a State or local government can
verify whether an alien applying for a State or local public benefit is
eligible under PRWORA was November 3, 1997. Meeting these deadlines was
not possible, particularly due to the need for extensive interagency
consultation. In order to bring itself into compliance with these
obligations, it is necessary for the Service to limit the public
comment period for this rule to 60 days.
Analysis of the Rule
The rule is designed to provide effective, flexible, efficient,
fair, nondiscriminatory, and user-friendly methods by which government
agencies and their contractors, agents, or designees (other than
nonprofit charitable organizations) that provide public benefits
(``benefit granting agencies'') may carry out their responsibilities to
ensure that those benefits are provided only to those persons eligible
to receive them under Federal law. As 8 U.S.C. 1642 requires, the
verification system is closely based upon the preexisting SAVE program
operated by the Service. The rule provides, to the extent possible,
procedures for verification of U.S. nationality that are similar to
those for verification of alien status, although with some major
differences, such as the unavailability of SAVE or any similar
automated system for verifying U.S. nationality.
There are four subparts to the rule. Subpart A provides general
information and requirements such as applicable definitions, the scope
of verification obligations, and the interrelationship of the rule with
other statutes and rules governing benefit programs. Subpart B provides
for the execution of a written declaration of status by a public
benefit applicant, followed by the examination of an alien registration
document, or documentary evidence of U.S. nationality, presented by an
alien applicant. Once the identity and
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registration of an alien applicant are confirmed by examining
documentation, a benefit granting agency will verify the applicant's
immigration status through the automated SAVE system, as set forth in
Subpart C. Benefit granting agencies will rely upon the documentary
evidence, or other evidence of U.S. nationality as provided in Subpart
B, to verify U.S. nationality, and will not use Subpart C procedures
for this purpose. Finally, subpart D provides verification information
and procedures for factors relevant to certain aliens' public benefit
eligibility under PRWORA, such as veteran status, that do not relate to
the aliens' immigration status under the Act and are consequently not
verifiable through Service records.
Benefit granting agencies providing Federal public benefits must be
in full compliance with the verification requirements within 2 years of
promulgation of the rule unless otherwise exempted. Benefit granting
agencies providing State or local benefits have the option whether to
avail themselves of these verification procedures entirely or in part.
The subdivision of the rule into four subparts is designed, in part, to
enhance their flexibility in determining which verification methods
suit their needs, and to provide appropriate dividing points to avoid
potentially unfair or inconsistent verification. This aspect of the
rule is discussed further in the following section-by-section
discussion of the entire rule. The section-by-section discussion does
not exhaustively address every aspect of the rule; rather, it
highlights particular issues and points that are likely to be of
special interest to benefit granting agencies and the public. Note that
as section numbers have been reserved for later use at the end of each
subpart, numbering is not consecutive between subparts.
The Service also emphasizes the continued importance and
applicability of the Interim Guidance. Although the essential purposes
of this rule and the Interim Guidance are the same--to comply with
statutory mandates assigned by PRWORA to the Department of Justice and
to assist benefit granting agencies in complying with PRWORA--the
specific functions of the two documents are quite different. This rule
is primarily limited to specific procedures for benefit granting
agencies to obtain access to Service or other information that they
need in order to carry out their responsibilities under PRWORA. In
contrast, the function of the Interim Guidance was to provide to
benefit granting agencies with a broader range of relevant information
on U.S. citizenship, Service documents, civil rights, appropriate
treatment of alien victims of domestic violence, application of PRWORA
provisions relating to Federal means-tested public benefits, and other
important topics, as well as specific, interim procedures for
verification (particularly for agencies that are not participants in
SAVE)
For this reason, the Service has not included within this rule some
of the information provided in the Interim Guidance--not because the
information is irrelevant or unimportant, but because it is not
essential to a regulation requiring verification through the SAVE
system. For example, the detailed information on Service documents
included in the Interim Guidance, designed for use by benefit granting
agencies without access to the SAVE system, is not necessary in a rule
that relies on the registration document requirement coupled with an
automated inquiry to the Service to provide relevant information on an
alien applicant's immigration status. However, the Interim Guidance may
still be consulted and used as a source of relevant information on the
documents with which benefit granting agencies may come into contact.
Similarly, the Interim Guidance provides extensive information and
guidance on processing applicants who may be victims of domestic
violence, while the rule is limited to requirements and means for
obtaining relevant Service information. The two documents should be
used in tandem--the rule as the applicable legal verification
requirement, and the Interim Guidance as a how-to guide on appropriate
handling of these applications.
In short, the only parts of the Interim Guidance that should be
viewed as superseded and replaced by this rule are those portions of
the Interim Guidance that discuss specific verification options or
procedures, and any conflict between the Interim Guidance and the rule
should be resolved in favor of this rule. For example, upon the
effective date of the regulatory verification requirement, a Federal
benefit granting agency must not rely solely upon its examination of an
alien applicant's documentation, except as may be specifically
authorized pursuant to the rule. To the extent the Interim Guidance
generally allows a benefit granting agency to rely solely upon its
examination of alien documentation, it will no longer be applicable.
However, the Interim Guidance remains an important source of valuable
information and guidance for benefit granting agencies as a supplement
to this rule, particularly during the 2-year period provided for
Federal benefit granting agencies to bring themselves into full
compliance with the rule, but during which they are not required to use
the SAVE system. The Interim Guidance also remains a useful tool for
benefit granting agencies administering State or local public benefits,
which have the option whether to use the procedures in this rule in
whole or in part.
The Service has made the rule as simple and flexible as possible in
order to give benefit granting agencies the maximum freedom of action
to administer their own programs in a way that is consistent with the
statutory mandate to the Department of Justice to promulgate
regulations on verification. To the extent possible, the Service has
also attempted to promulgate a rule that will not require frequent
amendment as benefit eligibility criteria, or technical details of
Service or other documentation or of the SAVE system, change over time.
Subpart A--General
Section 104.1 Definitions
In an effort to provide procedures that are as clearly, briefly,
and simply drafted as possible, the rule makes substantial use of
regulatory definitions. Some of these definitions are discussed further
below, where applicable.
Section 104.2 Requirement To Verify Eligibility for Federal Public
Benefit
This section implements the statutory directive in 8 U.S.C. 1642 to
require verification of eligibility for Federal public benefits.
Benefit granting agencies determining eligibility for Federal public
benefits must be in full compliance with all four subsections of the
rule within 2 years of promulgation unless otherwise exempted. The 2-
year time frame for compliance is statutory, but PRWORA specifically
refers only to states. In order to provide consistent application of
the rule, the rule uses the same 2-year deadline for all Federal public
benefit granting agencies, whether or not they are states. Federal
agencies that provide Federal public benefits directly are expected to
lead the way in implementing this rule by making all reasonable efforts
to bring their programs into compliance earlier than the two-year
deadline. Nothing prevents any other Federal benefit granting agency,
including any state, from coming into compliance sooner than 2 years
from promulgation.
This section does not affect any preexisting legal obligation under
IRCA or any other statute to verify alien eligibility for certain
Federal public
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benefits using SAVE. Benefit granting agencies that are required by
IRCA to use SAVE must continue to do so. To the extent the rule differs
from current SAVE procedures, however, the 2-year time frame for
implementation and compliance applies to the new procedures. Although
the rule is based on the current SAVE system to the extent possible,
there are a number of necessary new features, such as time limits
applicable to the submission of SAVE verification requests. The Service
will work with current SAVE users to help ensure their smooth and
timely implementation of these new aspects of the program.
The PRWORA, and consequently this rule, affect programs previously
covered by IRCA's provisions relating to SAVE, but PRWORA did not
expressly supersede or repeal IRCA. Those provisions of IRCA that are
not inconsistent with PRWORA--such as the requirement that certain
programs verify alien eligibility through SAVE--have continued effect.
The IRCA provisions that are inconsistent with section 432 or other
sections of PRWORA, such as section 121(c)(4)(B) of IRCA's grant of
authority to certain secretaries of Federal departments to exempt
covered programs from SAVE, are superseded by the later enactment.
Existing waivers under authority of section 121(c)(4)(B) must expire no
later than the date that is 24 months after promulgation of this rule.
Note that the exception of nonprofit charitable organizations from
verification requirements derives from the definition of ``benefit
granting agency'' in Sec. 104.1 that excludes such organizations.
Section 1642(d) of title 8, United States Code, states that a,
nonprofit charitable organization is not required under Title IV of
PRWORA to determine, verify, or otherwise require proof of eligibility
of any applicant for Federal or State or local public benefits based on
the applicant's status as a national of the United States or qualified
alien, subject to such verification regulations as the Attorney General
may subsequently promulgate. Absent further regulatory action by the
Attorney General, nonprofit charitable organizations are therefore not
required, under PRWORA and this rule, to verify an applicant's
immigration or citizenship status before providing Federal, State, or
local public benefits. Moreover, State and local governments may not
impose any verification requirements upon nonprofit charitable
organizations pursuant to Title IV of PRWORA for Federal, State, or
local public benefits.
In addition to their exclusion from the definition of ``benefit
granting agency,'' a nonprofit charitable organization (or a benefit
granting agency) may be exempt from any verification requirement in
many cases for the separate and independent reason that the benefit(s)
it provides are ``community programs necessary for protection of life
or safety,'' or are otherwise exempt from PRWORA's substantive
limitations on alien eligibility.
In addition to who must verify, this section (using Sec. 104.1's
definitions) also addresses what benefits are subject to the
verification requirement. According to the statutory structure of
PRWORA, there are three different levels of possible exemption of a
program from mandatory verification. The first is if the program does
not provide a Federal public benefit. The definition of ``Federal
public benefit'' in Sec. 104.1(i) identifies a number of programs that
are not Federal public benefits. This definition is the same as the
statutory one at 8 U.S.C. 1611(c), except for the addition of one
exception further described in the following paragraph. Second, even if
a benefit is a Federal public benefit, it may be one to which PRWORA's
limitations on alien eligibility--and therefore the need to verify--do
not apply under 8 U.S.C. 1611(b). The rule uses the term ``exempt
Federal public benefit'' to refer to such benefits, and defines it in
Sec. 104.1. Third, miscellaneous provisions of PRWORA exclude certain
programs entirely, such as foreign assistance or a basic public
education, without clearly stating whether these programs constitute
``public benefits.'' Section 104.9 identifies these programs.
The Service anticipates that applying the regulatory definition of
Federal public benefit at Sec. 104.1 (which parallels the statutory
definition) and its exceptions to determine whether or not a benefit
granting agency is subject to the verification requirements imposed by
this regulation will be a matter of particular interest and (in some
cases) difficulty for benefit granting agencies. The Service will give
all appropriate deference to benefit granting agencies' applications of
the definition to the programs they administer, or to applications
provided by another Federal agency that oversees or administers a
Federal benefit program even if the Federal agency does not itself
determine the eligibility of individual applicants. The statutory and
regulatory definition is: ``(1) any grant, contract, loan, professional
license, or commercial license provided by an agency of the United
States or by appropriated funds of the United States; or (2) any
retirement, welfare, health, disability, public or assisted housing,
post-secondary education, food assistance, unemployment benefit, or any
other similar benefit for which payments or assistance are provided to
an individual, household, or family eligibility unit by an agency of
the United States or by appropriated funds of the United States.'' The
definition further specifies a number of programs, or types of program,
that are not Federal public benefits. Note in particular the exception
for ``police, fire, ambulance, transportation (including paratransit),
sanitation, or other regular, widely available public services or
accommodations.'' This exception, is intended to identify and summarize
certain types of government programs that are not ``similar
benefit[s]'' under part (2) of the definition, and therefore are not
Federal public benefits. The fact that a program is not identified in
this exception should not be interpreted to mean that it necessarily is
a ``similar benefit'' to the benefits specifically enumerated in part
(2) of the definition.
In determining whether a program provides a Federal public benefit,
a benefit granting agency should first consider whether the program
provides one of the benefits expressly enumerated in either part (1) or
(2) of the definition. In all cases, this analysis should be made in
light of the specific programs also identified as not being Federal
public benefits; if a program is covered by one or more of these
exceptions, it is not a Federal public benefit even if it meets the
more general definition is enumerated in part (1) or (2). Under part
(1), if the program provides a grant, contract, loan, professional
license, or commercial license to an individual, either through a
Federal agency or with federally appropriated funds, then it provides a
Federal public benefit. If the program is not of the type enumerated in
part (1), a benefit granting agency should go on to consider whether it
provides a benefit covered by part (2).
To fall within part (2), the benefit must be one of the types of
benefits described (retirement, welfare, health, disability, public or
assisted housing, post-secondary education, food assistance,
unemployment benefit, or any other similar benefit), it must be
provided by a Federal agency or by federally appropriated funds, and it
must be provided to one of the enumerated categories of recipients (an
individual, household, or family eligibility unit). Thus, for example,
if an agency provides an unemployment benefit to an individual using
federally appropriated funds, the definition is
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satisfied. If the program provides payments or assistance to an
individual, household, or family eligibility unit through a Federal
agency or with federally appropriated funds, but the benefits are not
expressly enumerated above, the agency must consider whether the
benefits are ``similar'' to one of the benefits enumerated in part 2 of
the definition (b). Benefit granting agencies subject to Federal agency
oversight or administration should consult with the appropriate Federal
agency.
Benefit granting agencies should also consider who is actually
receiving the benefits. Although PRWORA prohibits certain aliens from
receiving non-exempted Federal public benefits, it does not prohibit
governmental or private entities from receiving Federal public benefits
that they might then use to provide assistance to aliens, as long as
the benefit ultimately provided to the non-qualified aliens does not
itself constitute a Federal public benefit. Thus, if a local agency
were to receive a Federal ``grant,'' which is expressly identified as a
Federal public benefit, but the agency uses it to provide police
services, fire protection, libraries, parks, or other benefits that are
not themselves Federal public benefits, the prohibition would not
apply. In contrast, if the agency uses the grant to provide a Federal
public benefit, such as a loan or welfare payments to an individual,
the prohibition would apply and non-qualified aliens would be
ineligible for the Federal public benefit.
Benefit granting agencies must keep in mind that, due to PRWORA's
statutory structure, there are three lists of programs exempt from
verification requirements. One is contained within the regulatory
definition of ``Federal public benefit''; programs specifically
excepted in the definition there are not Federal public benefits in the
first instance. The second list is of programs that--although they are
Federal public benefits--are exempt from PRWORA's verification
requirements. This list of programs is found in the regulatory
definition of ``exempt Federal public benefit.'' Both definitions must
be consulted in order to determine whether a benefit is a Federal
public benefit for which verification of PRWORA eligibility is
required. With respect to the definition of exempt Federal public
benefits, note in particular the inclusion of ``a community program
necessary for protection of life or safety'' as a program that is not a
Federal public benefit subject to verification requirements. A
community program necessary for protection of life or safety is itself
a term that is defined in the rule. This definition incorporates and
promulgates for purposes of the rule the designations made by
Specification of Community Programs Necessary for Protection of Life or
Safety under Welfare Reform Legislation, 61 FR 45985 (Aug. 30, 1996).
The third list of exempt programs is found in Sec. 104.9; these are
programs that PRWORA does not specifically identify as Federal public
benefits (or as not Federal public benefits) but that are excluded from
the PRWORA's limitations on alien eligibility.
Some public benefits have more than one funding source. Note that
the definition of ``State or local public benefit'' in Sec. 104.1
excludes Federal public benefits, consistent with 8 U.S.C. 1621(c)(3).
In other words, a benefit granting agency should first consider whether
a benefit is a Federal public benefit. If it is, then Sec. 104.2
applies. A Federal public benefit cannot also be a State or local
public benefit. If the benefit is not a Federal public benefit, then
the agency should consider whether it is a State or local public
benefit. If so, then Sec. 104.3 applies.
In general, this section requires careful application of the
defined terms ``benefit granting agency,'' ``Federal public benefit,''
``exempt Federal public benefit,'' ``applicant,'' and ``eligible
qualified alien'' in order to determine conclusively whether
verification is required.
Section 104.3 Option To Verify Eligibility for State or Local Public
Benefit
The major distinction between this section and Sec. 104.2 (apart
from the substitution of defined terms relating to State or local
rather than Federal public benefits) is the substitution of ``may'' for
``shall.'' Consistent with the differences between 8 U.S.C. 1642(a)(1)
and (a)(3), verification of immigration status for the purpose of State
or local public benefits is a service that is available to those
benefit granting agencies, rather than a requirement of Federal law.
State or local benefit granting agencies may choose, or not, to use the
document examination procedures provided by subpart B. If they choose
to use those procedures they may rely solely on them, or they may also
take advantage of the Service verification procedures provided through
the SAVE program as discussed in subpart C. However, because document
examination is an integral part of SAVE that both ensures that the
information provided to the benefit granting agency by the Service
relates to the applicant, and is the means of obtaining and confirming
the information necessary to make the automated SAVE inquiry, a State
or local benefit granting agency may not use SAVE with respect to a
State or local public benefit unless it complies with subpart B for all
applicants for the benefit. Similarly, as subpart D is for the most
part pointless without a determination of qualified alien status, use
of subpart D procedures also requires compliance with subpart B as a
precondition.
The PRWORA did not specifically address the establishment of
procedures for verifying the U.S. nationality of applicants for State
or local public benefits. However, especially in light of 8 U.S.C.
Sec. 1625's general authorization to states to require applicants to
provide proof of eligibility, there is no reason why the fair and
nondiscriminatory procedures established for providers of Federal
public benefits should not also be available to providers of State or
local public benefits that wish to use them.
The PRWORA's requirements relating to State or local public
benefits (such as 8 U.S.C. 1621(a), which limits the eligibility of
certain aliens for such benefits) are an exercise of the Federal
immigration power. However, PRWORA gives extensive discretion to the
states to adapt or modify these requirements to meet their own needs,
consistent with its overall focus on giving the states substantial
latitude and authority in the area of welfare reform. For example, a
state may reinstate the eligibility of aliens not lawfully present in
the United States for State and local public benefits for which they
are ineligible under PRWORA by enacting a State law to that effect
after August 22, 1996. This may result in substantial differences in
alien eligibility for State and local public benefits among the several
states, and therefore in different verification needs.
Therefore, this rule does not mandate SAVE participation, or any
other specific requirements for verification of State or local public
benefit eligibility, except that to the extent states choose to take
advantage of SAVE they must comply with its requirements. States may
establish their own independent verification procedures, which may
include imposing verification requirements on persons or entities
(other than requirements imposed under PRWORA on nonprofitable
charitable organizations) that which provide State or local public
benefits.
Section 104.4 Verification in Order T Determine Nature of Benefit
The rule recognizes the fact that certain programs are not Federal
or State or local public benefits, or are exempt public benefits, with
regard to certain alien applicants--and are therefore not
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subject to a verification obligation--for reasons that relate to the
applicants' immigration status. A benefit granting agency cannot
determine with confidence whether the exception applies if it does not
determine that status. Therefore, in order to determine that
verification is not necessary, it may be necessary to determine an
applicant's immigration status. For example, a ``Federal public
benefit'' does not include any contract or license ``for a nonimmigrant
whose visa for entry is related to such employment in the United
States.'' Obviously, a benefit granting agency cannot determine whether
this exception applies to an application for a contract or license
without knowing the applicant's immigration status. This section allows
the verification procedures to be used to the extent necessary to
determine whether a particular program is a benefit subject to a
verification requirement. If so, verification of the applicant's
eligibility should proceed. If not, further verification should not be
conducted regarding the applicant's eligibility under PRWORA once that
determination has been made.
Section 104.5 Determination Made by Benefit Granting Agency
The underlying philosophy of the Service's SAVE program has been
that the Service provides information relevant to the benefit
eligibility determination, but that the responsibility for determining
eligibility for the benefit should remain with the benefit granting
agency. That philosophy is maintained in this rule. Depending on what
type of public benefit they provide, benefit granting agencies are
either required to, or have the option to, or in some cases (such as
exempt public benefits) may not, verify applicants' eligibility for the
benefit under PRWORA. The procedures are designed to ensure that
benefit granting agencies obtain the information they need regarding
applicants' immigration status, or other factors relevant to
eligibility under PRWORA, and that the information is accurate.
However, benefit granting agencies are in the best position to apply
this information to public benefit eligibility determinations regarding
the public benefits they administer. Eligibility under PRWORA is simply
one additional set of eligibility criteria for benefit granting
agencies to apply, just as they need to determine income levels,
residency, age or disability, or any other criteria that may be
applicable to public benefits. Just as it is with those criteria,
benefit eligibility determination under PRWORA, whether interim or
final, is best left to the benefit granting agency.
Of course, benefit granting agencies must apply any other source of
legal authority that governs eligibility determinations for their
particular program. For example, IRCA's statutory provisions regarding
Medicaid, unemployment compensation, and other pre-PRWORA SAVE-mandated
Federal benefits generally prohibit benefit granting agencies that
determine eligibility for those benefits from delaying, denying,
reducing, or terminating benefits pending Service verification. E.g.,
42 U.S.C. 1320b-7(d)(4).
Section 104.6 Contesting an Adverse Determination
The general intention of this rule is to modify as little as
possible established procedures already in existence for benefit
granting agencies to consider claims of erroneous benefit denials.
However, the rule does include, in the interest of accuracy and
fairness to applicants, certain minimum requirements for public benefit
denials based upon information provided by the Service. If a public
benefit is denied on the basis of such information, the benefit
granting agency must provide adequate written notice to the applicant
explaining the basis of the denial, how to contact the Service to seek
correction if the applicant believes the information to be erroneous,
and (at the discretion of the benefit granting agency) other
appropriate information on appeal rights and procedures.
The Service will provide to benefit granting agencies appropriate
contact information (an address and/or telephone number) to which
applicants may direct inquiries regarding denials of benefits based on
Service information. The rule, in the interest of flexibility, does not
specify the precise method of contacting the Service when there is a
dispute over the accuracy of a Service record a benefit granting agency
has relied upon, but that information will be provided through SAVE
user manuals or by other means to benefit granting agencies. An
applicant choosing to contact the Service in this manner must provide
sufficient identifying information to allow the Service to access his
or her record, and to contact the benefit granting agency regarding the
case. The Service will review the information provided that was the
basis of the denial, taking into account any information provided by
the applicant regarding possible error by the Service, and will respond
to the applicant within 10 business days of receiving the request and
supporting information. If the Service determines that information
previously provided to the benefit granting agency regarding the
applicant was incorrect, the Service will provide corrected information
to the benefit granting agency.
This service is intended to assist in quickly and efficiently
resolving questions relating to possible error in the information
provided to the benefit granting agency about the applicant's present
immigration status with the Service (for example, possible delay in
updating a Service database with a change of status that has been
granted). It is not meant in any way to provide any avenue of
application, petition, relief, or appeal with respect to any change of
status, removal proceeding, or any other matter relating to any person
that has or may in future come before the Service or any other
component of the Department of Justice pursuant to the Act and title 8
of the Code of Federal Regulations. In other words, the relevant
question for the purpose of this section (and, indeed, for public
benefit verification generally) is what the applicant's status is, not
what the applicant's status should be.
If the applicant contests the denial in a timely manner through the
benefit granting agency's appeal procedures on the grounds that the
Service information is incorrect, the benefit granting agency must seek
assistance from the Service to resolve the situation. The reference to
a claim that Service information is incorrect is meant to exclude from
this requirement a situation in which the applicant does not contest
his or her status as indicated by Service records, but disputes whether
that status makes him or her ineligible for the benefit. In that case,
there is no requirement to contact the Service for further assistance.
The benefit granting agency must provide to the Service any new
information in its possession regarding the claim of error. The Service
will respond within 10 business days.
The benefit granting agency may not make a final determination of
the appeal until the Service has provided its full response to its
request for further information, and shall take into account any
correction of Service information to the extent that it is relevant to
the applicant's eligibility. Except as specifically provided, this
section does not supplant or modify benefit granting agencies' normal
procedures, including any requirements, rights, or procedures regarding
notice in a language other than English. It is not meant to provide a
right of appeal if the benefit granting agency does not grant that
right, but to require appeals using benefit granting agencies'
procedures that put at issue
[[Page 41667]]
the accuracy of Service information to include confirmation of that
information. Providing means for an applicant to contact the Service
directly does not extend or toll any deadline for filing an agency
appeal regarding a benefit denial. This section is not meant to imply
in any way that benefit granting agencies may not contact the Service
with questions or concerns regarding a verification unless the
applicant has filed a formal appeal of a benefit denial.
Section 104.7 Nonexclusivity of Procedures
The rule reiterates (in Sec. 104.20) the provision in section
121(c) of IRCA that verification should be conducted without regard to
the sex, color, race, religion, or nationality of the applicant (with
the addition of disability). Rights and remedies regarding
discrimination and privacy with respect to governmental programs
already exist and are enforced with regard to public benefits under a
multitude of other laws. Section 104.7 emphasizes that nothing in the
rule is meant to interfere with those rights and remedies. Similarly,
the rule does not displace any other provisions of law or policy
relating to the provision of public benefits, including any
requirements or procedures for verification of eligibility, except that
the rule preempts any directly inconsistent Federal regulation or
policy or provision of State law. As stated in 8 U.S.C. 1643, PRWORA
(and therefore this rule) does not create any entitlement to any public
benefit; nor does it affect the application of any eligibility
criterion under law other than alienage.
Section 104.8 Enforcement
There are no specific enforcement procedures for this rule. This
does not mean, however, that failure to comply will not have negative
consequences for a benefit granting agency. For example, pursuant to
the general authority of the Attorney General to enforce Federal law,
the United States could when necessary and propriate seek equitable
relief in a district court to enforce compliance with PRWORA and this
rule by a benefit granting agency. A benefit granting agency could
potentially also be subject to enforcement procedures or other
consequences of noncompliance as provided by a Federal agency
administering a Federal public benefit program.
Section 104.9 Inapplicability to Certain Programs
Various sections of PRWORA exclude certain programs from the
statutory limitations on alien eligibility without specifying whether
the programs are, or are not Federal, State, or local ``public
benefits.'' 8 U.S.C. 1615(a), 1643. Rather than attempt unnecessarily
to answer that question for the purpose of placing these programs into
either Sec. 104.1's list of programs that by definition are not
``Federal public benefits,'' or Sec. 104.1's list of ``exempt Federal
public benefits'' (or the equivalent definitions for State or local
public benefits), the Service has instead placed those programs in this
section. No PRWORA verification requirement applies to them, regardless
whether they are Federal, State, or local public benefits. The
exemption of ``a basic public education'' from the rule is intended to
implement, with regard to verification obligations, the statutory
directive in 8 U.S.C. 1643(a)(2) that nothing in PRWORA ``may be
construed as addressing alien eligibility for a basic public education
as determined by the Supreme Court of the United States under Plyler v.
Doe, (457 U.S. 202) (1982).'' Benefit granting agencies that need to
determine whether a Federal program related to education constitutes a
``Federal public benefit'' should obtain guidance from the U.S.
Department of Education for its programs, or from another Federal
agency administering an education program with respect to such program.
Section 104.10 Verification Requirement for Certain Nutrition Programs
Section 840 of PRWORA, 7 U.S.C. 2020(p), amended the Food Stamp Act
of 1977 to release state agencies from IRCA's preexisting requirement
that they use the SAVE system to verify alien eligibility for Food
Stamps. This section of the rule reconciles section 840 with the
statutory verification requirement by stating that benefit granting
agencies providing Food Stamps are not required to use Subpart C
procedures, although they may do so. They are, however, subject to
those other subparts of the rule that do not pertain to the SAVE
system.
The PRWORA also gave states the option whether to provide the
nutrition benefits identified in 8 U.S.C. 1615(b) to individuals other
than nationals of the United States or qualified aliens. For this
reason, the rule treats these Federal programs in the same manner as
State or local public benefits. Benefit granting agencies providing
these benefits may, but are not required to, use the verification
procedures to the extent that U.S. nationality or qualified alien
status is relevant to an eligibility determination in any state.
Treatment of these programs in the same manner as State or local public
benefits is not meant in any way to suggest that they are State or
local public benefits rather than Federal public benefits, but only
that because of their special situation under PRWORA the rules
pertaining to the former rather than the latter best suit them.
Subpart B--Declaration of Applicant and Examination of Documents
Section 104.20 Scope of Verification Obligation
A benefit granting agency's responsibility and authority to verify
eligibility under this rule is limited to verification that is relevant
to eligibility for the public benefit under PRWORA. Under PRWORA (with
certain limited exceptions), U.S. nationality or eligible qualified
alien status is relevant to Federal public benefit eligibility unless
and until some other ground of ineligibility exists. This section gives
benefit granting agencies maximum flexibility with regard to verifying
eligibility under PRWORA as compared to determining other eligibility
criteria, as long as that flexibility is exercised in a
nondiscriminatory manner. For example, a benefit granting agency may
choose to verify whether all applicants for a Federal disability
benefit are nationals of the United States or eligible qualified aliens
before undertaking the potentially more burdensome and intrusive
determinations as to disability, or it may choose to determine whether
the applicants meet specific program requirements before verifying U.S.
nationality or alien status, but the agency may not vary its procedures
depending on whether the applicant looks or sounds foreign, or on other
improper criteria. Benefit granting agencies must verify PRWORA
eligibility without regard to sex, color, race, religion, national
origin (except to the extent Cuban, Haitian, or Canadian nationality
may be relevant in certain cases as specifically provided by PRWORA and
this rule, see Secs. 104.1 (definitions of ``Cuban and Haitian
entrant'' and ``qualified alien''), 104.62), or disability.
Section 104.21 Written Declaration of Applicant
The first step in verification is requiring a written declaration
under penalty of law stating whether the applicant is a national of the
United States. The rule provides for declarations on behalf of minors
and legally incompetent adults. As any person who is not a national of
the United States is an alien, this section does not require a
declaration as to alien
[[Page 41668]]
status. If the applicant does not declare that he or she is a national
of the United States, his or her eligibility as an alien must be
verified. This section does not preclude additional requests for
declarations or information relating to alien status, such as a
declaration of eligible qualified alien status, to the extent they may
be relevant to determining eligibility (see Sec. 104.276)--indeed, they
may be necessary in many cases--but they are not a general requirement
applicable to all applicants for all public benefits subject to PRWORA
verification.
The possible legal consequences of a false declaration as to U.S.
nationality may vary depending on the benefit, but are uniformly
serious. Section 1015(e) of title 18 of the United States Code punishes
as a felony any knowing false statement that one is a citizen or a
national of the United States with the intent to obtain any Federal or
State benefit or service. In addition, with respect to Federal public
benefits, 18 U.S.C. 1001 provides that it is a felony to knowingly and
willfully make any materially false, fictitious, or fraudulent
statement or representation in any matter within the jurisdiction of
any branch of the Federal Government. State laws may provide penalties
for false declarations with respect to State or local public benefits.
There also may be civil consequences to a false declaration. Sections
212(a)(6)(C) and 237(a)(3)(D) of the Act render any alien who has made
any false claim to U.S. citizenship for any purpose or benefit under
Federal or State law removable from the United States. Civil penalties
may also apply to false statements relating to particular benefits.
See, e.g., 42 U.S.C. 1320a-8 (Social Security benefits).
Because of the different specific provisions that may apply to
false statements relating to different public benefits, and to give
maximum flexibility to benefit granting agencies, the rule does not
prescribe specific wording for the declaration. The declaration form
should reasonably convey to the applicant the fact that serious legal
consequences--whether criminal, civil, or both--may result from a false
declaration. The rule does not require that a declaration be made under
penalty of perjury, although benefit granting agencies may include that
feature in the declaration if desired.
The rule uses the term ``national of the United States'' rather
than ``U.S. citizen'' because ``national of the United States'' is a
term specifically defined in the Act as ``(A) a citizen of the United
States, or (B) a person who, though not a citizen of the United States,
owes permanent allegiance to the United States.'' 8 U.S.C. 1101(a)(22).
Category (B), noncitizen U.S. nationals, is at the present time
essentially limited to American Samoans. All terms defined in 8 U.S.C.
1101 have that meaning in this rule, by operation of 8 CFR 1.1(a). The
Service does not construe 8 U.S.C. Sec. 1642(a)(2)'s reference to
``proof of citizenship'' as reflecting any legislative intention to
distinguish between U.S. citizens and noncitizen U.S. nationals in
terms of either substantive benefit eligibility or verification
requirements. However, the documents or other evidence of nationality
available to U.S. citizens are not necessarily the same as those
available to noncitizen U.S. nationals, and these differences are
reflected in the substance of the rule when appropriate.
The statutory definition is the simplest and most inclusive to use
in the rule. To do otherwise (for example, to state ``citizen or
noncitizen U.S. national'' each time a reference is needed) would be
more cumbersome, and would not be consistent with the statutory
definition already provided for use in Service regulations. The Service
is aware that this statutory definition, however, may in some cases
contribute to confusion. The distinction between U.S. citizens and
noncitizen U.S. nationals is not well known among the public. Among
those to whom it is known, the term ``national'' tends to be used to
refer to noncitizen nationals, rather than in the statutorily correct
sense of including both citizens and noncitizen nationals. For this
reason, the Service is explaining its terminology at some length. As
noted above, the Service has not specified in this rule the exact
format of the written declaration. Benefit granting agencies should use
the format that in the exercise of their best discretion suits their
forms and conveys to their particular clientele the matter at issue: a
declaration as to U.S. nationality. The declaration may do this in a
manner that uses acceptable common parlance and understanding rather
than the strict definitional structure of the Act used in the rule. For
example, the Service's Form I-9, Employment Eligibility Verification,
uses the phrase ``I attest under penalty of perjury, that I am a
citizen or national of the United States.''
Section 104.22 Evidence of Alien Registration
A necessary step in a verification system is the presentation of
documentary evidence that the applicant is who he or she claims to be.
Section 262 of the Act requires every alien 14 years of age or older
who remains in the United States for 30 days or longer to apply for
registration with the Service. Most aliens (with certain exceptions,
notably Canadian visitors for short-term business or pleasure) are in
fact registered upon their entry into the United States and issued a
registration document (such as a Service Form I-94 Arrival-Departure
Record) at that time. Section 264(e) of the Act requires any alien over
18 who has been issued an alien registration document to carry it in
his or her personal possession at all times. Service regulations at 8
CFR 264.1(b) identify registration documents.
This rule uses these preexisting requirements as the basic
foundation of subpart B. As all aliens likely to be applying for public
benefits (other than minors under the age of 14) are subject to the
registration requirement or will have been registered upon entry into
the United States, they will have registration documents for
presentation and examination. If they do not, they must contact the
Service to register and obtain them. The rule makes allowances for
temporary acceptance of receipts for applications for evidence of
registration pending issuance of Service documentation in such cases
(format of receipts may vary among Service offices). Benefit granting
agencies may waive the document requirement for applicants under the
age of 14 who are not already registered with the Service.
In most cases, the most recent evidence of alien registration will
indicate an alien's immigration status under the Act, which in turn
often will relate on its face directly to whether or not the alien is a
qualified alien under PRWORA (for example, a valid Form I-551 Alien
Registration Receipt Card or Permanent Resident Card, commonly referred
to as a ``green card,'' demonstrates status as an alien lawfully
admitted for permanent residence). This is not true in all cases,
however. Relevant PRWORA criteria for purposes of determining qualified
alien status are not necessarily directly linked to an alien's present
status under the Act. This is particularly true of aliens who have been
battered or subjected to extreme cruelty in the United States, and of
Cuban and or Haitian entrants. As discussed in the Interim Guidance,
sometimes Service codes found on Service documents will provide the
necessary further information, and sometimes they will not. The
availability of routine Service verification of immigration status
through SAVE will substantially reduce the need for benefit granting
agencies to become experts in construing the complexities of Service
documentation,
[[Page 41669]]
although benefit granting agencies are of course encouraged to learn as
much as they can about this subject and to continue to consult the
Interim Guidance for this purpose.
For these reasons, the rule does not require an alien applicant to
produce documentation that on its face shows the alien is an eligible
qualified alien, because the applicant will not always have it. Rather,
alien applicants need only present the evidence of alien registration
that they already are legally required to have on their persons. This
procedure will provide the basic initial information that the alien
applicant is known to the Service, will provide the information
necessary to make a further verification inquiry to the Service, and
(in conjunction with Sec. section 104.24) will link the applicant to
the status information the Service will provide through SAVE. The
further verification procedures will establish whether or not the
applicant is an eligible qualified alien.
Section 104.23 Evidence of U.S. Nationality
This section implements the statutory requirement that the Attorney
General establish fair and nondiscriminatory procedures for applicants
to provide proof of citizenship. This requirement presents particular
challenges that do not apply to alien status verification. Unlike
aliens, there is no central registry of information on nationals of the
United States. There is no requirement that nationals of the United
States register with the Service or carry any document. Many nationals
of the United States have not traveled outside North America, and
therefore have never needed to obtain the standard internationally
accepted evidence of U.S. nationality, a U.S. passport. The records of
the Service contain relevant information only on those nationals of the
United States who have had some reason to come within its jurisdiction,
such as naturalizing or seeking a determination as to derivative
citizenship. The SAVE system is not suitable for verifying U.S.
nationality. Although the Service in cooperation with the Social
Security Administration (``SSA'') is testing on a pilot program basis
an automated method of verifying the work eligibility of both nationals
of the United States and aliens through SSA and/or Service records, no
system is available at this time (or is likely to be available anytime
soon) for broad-based automated verification of claims to U.S.
nationality by applicants for public benefits.
Therefore, the rule's procedures for verifying U.S. nationality
rely on the examination of documents. And, since the Act's provisions
regarding nationality are complex and the variety of documents that
applicants may possess or be able to obtain is large, the Service has
attempted to provide as comprehensive a list as possible. The list is
closely based on the one provided in the Interim Guidance. It is not
meant to exclude any reasonable evidence of U.S. nationality. Section
104.23(b)(6) is a ``catch-all'' category intended to cover such
reasonable documentary evidence if it is not specified elsewhere in the
section. A benefit granting agency should first ask for a document
identified as primary evidence of U.S. nationality. If the applicant
does not have primary evidence, the benefit granting agency should
examine secondary evidence.
Paragraphs (c), (d), and (e) of section 104.23 provide other
options for a benefit granting agency to use at its discretion. It may
consult its own records containing information on nationality, or those
of a Federal agency administering a public benefit program. A benefit
granting agency may, accept a declaration under penalty of law from a
third party indicating a reasonable basis for personal knowledge that
an applicant who cannot present evidence of U.S. nationality is a
national of the United States. A benefit granting agency may accept a
receipt for an application for evidence of U.S. nationality (but may
not accept receipts for a Service N-400, Application for
Naturalization, or a Service N-600, Application for Certificate of
Citizenship) on a temporary basis pending presentation of the actual
documentary evidence.
The procedures provided by this section meet the statutory
requirement that they be fair and nondiscriminatory because (1) they
must be applied equitably and consistently to all applicants for a
Federal public benefit who claim U.S. nationality; (2) they provide the
broadest possible latitude in terms of the scope of possible
documentary evidence that may be presented; and (3) they give the
broadest discretion possible to benefit granting agencies to administer
their programs in a manner that is consistent with establishing a
generally applicable procedure for verifying U.S. nationality. To the
extent the rule permits waivers or variations in procedures to
accommodate agencies' particular needs, they must be applied equitably
to all applicants for the benefit (see, for example, Secs. sections
104.23(d), (e),and 104.28). In addition, of course, the general
requirements of Sec. section 104.20, or of other applicable law,
relating to nondiscrimination apply to verification of U.S. nationality
as much as to verification of alien status.
Section 104.24 Proof of Identity
As some alien registration documents or evidence of U.S.
nationality do not contain a photograph or sufficient identifying
information ensuring that the document relates to the applicant, this
section requires the benefit granting agency to examine an additional
identification document in those cases. The rule adopts the broad
definition of identification document found at 18 U.S.C.
Sec. 1028(d)(1).
Section 104.25 Standard for Accepting Documents
The rule adopts the standard for document acceptance of section
274A of the Act (employer sanctions). This section also provides
direction to benefit granting agencies on what to do when applicants
present documents that do not meet that standard. This direction may
initially appear more complicated than it really is. It is driven by
two fundamental principles. First, automated verification procedures
such as SAVE cannot effectively verify identity--that is, that the
applicant is who he or she claims to be. Only the benefit granting
agency can do that. If an applicant assumes the identity of another
alien, a ``verification'' of the applicant's eligibility through SAVE
may merely reinforce the false claim. Furthermore, the
``verification,'' by leading to the provision of public benefits to a
false claimant, could potentially negatively affect the alien whose
identity has been misappropriated. Therefore, the rule prohibits any
further verification through SAVE until the benefit granting agency has
received documentation that reasonably appears to relate to the
applicant.
The second principle is that automated Service verification
procedures such as SAVE are designed to reduce the need for benefit
granting agencies to make judgment calls about the authenticity of
Service-issued evidence of alien registration. False Service documents
should be detected through the additional verification process. For
this reason, this section distinguishes between the two prongs of the
document acceptance standard. As opposed to documentation that does not
reasonably relate to the applicant, documentation that does relate to
the applicant but does not reasonably appear to be genuine should not
be rejected, but instead subjected to further verification. The Service
may provide special verification procedures in such
[[Page 41670]]
cases, however, as authorized by Sec. 104.47.
A complication is presented by the fact that some benefit granting
agencies providing State or local public benefits might use the subpart
B document examination procedures, but not the subpart C SAVE
procedures. Those agencies will need to verify the authenticity of a
document that does not reasonably appear to be genuine by seeking
available assistance from the Service or other issuer of the document
(or from another qualified source, such as a forensic document
laboratory). The same principle applies to documentary evidence of U.S.
nationality that does not reasonably appear to be genuine.
This section refers to ``documentation'' provided in compliance
with sections Secs. 104.22-24, rather than ``any document,'' to
accommodate the fact that evidence of alien registration that does not
adequately identify the applicant already requires presentation of an
additional document under Sec. 104.24. Therefore, the ``documentation''
referred to in this section means the entire package submitted, whether
it is one document evidencing both alien registration and identity, or
an alien registration document with an additional identification
document.
Whether a document reasonably appears to be genuine and to relate
to the person presenting it is a case-by-case determination that
depends on all the relevant facts. Benefit granting agencies should
keep in mind, however, that documentation should not be rejected solely
on the basis of a minor discrepancy from other information provided, as
long as there is a reasonable explanation for the discrepancy. These
situations may include, for example, photographs taken several years
earlier that may no longer be a precise likeness, documents showing a
maiden name or a minor misspelling, or documentation reflecting
culturally diverse naming practices (for instance, there may be
differences with Hispanic and some Asian names in terms of which names
are considered the ``last,'' ``middle,'' and ``first'').
Section 104.26 Retention of Information
Benefit granting agencies must retain photocopies of documents
submitted by the applicant for as long as they may be relevant and
necessary for purposes of public benefit eligibility determination, or
retain the relevant information in an accessible electronic alternative
to a paper file.
Certificates of naturalization and citizenship state on their face:
``It is punishable by U.S. law to copy, print or photograph this
certificate.'' This statement derives from 18 U.S.C. 1426(h), which
provides a criminal penalty for anyone who ``without lawful authority,
prints, photographs, makes or executes any print or impression in the
likeness of a certificate of arrival, declaration of intention to
become a citizen, or certificate of naturalization or citizenship, or
any part thereof.'' This proposed rule provides lawful authority for a
benefit granting agency to photocopy, as provided by Sec. 104.26, any
document presented by an applicant pursuant to the rule, including
certificates of citizenship or naturalization. The making and retention
of photocopies by a benefit granting agency or original documentation
presented for verification by an applicant serves the goals of PRWORA,
and is not the evil to which section 1426(h) is directed. The lawful
authority is expressly limited to that situation and to that means of
copying the document, and the photocopy may be used only for
verification purposes as provided by this rule.
Section 104.27 Other Relevant Information
A wide array of information regarding an alien applicant may be
relevant to determining eligibility for a public benefit under PRWORA.
This information will not in all cases be found by examining evidence
of alien registration, which does not necessarily relate directly to
qualified alien status. It is impossible to specify in a rule of
general application what information will be relevant to each case. It
is the responsibility of the benefit granting agency to determine what
additional information it requires from the applicant in order to
verify eligibility, and to obtain it. The Interim Guidance provides
substantial guidance that benefit granting agencies may consult in
making these determinations, and the Service will assist agencies to
the extent possible.
Section 104.28 Reliance Upon Attestation as Temporary Evidence of U.S.
Nationality
The rule allows a benefit granting agency to rely on an applicant's
attestation of U.S. nationality as an interim basis upon which to grant
a public benefit temporarily until an applicant is able to present
evidence satisfying Secs. 104.23 and 104.24. A benefit granting agency
that chooses to use this procedure must apply it equitably to all
applicants for the public benefit.
Section 104.29 Reliance Upon Alternative Procedures for Determining
U.S. Nationality
The Service recognizes that many Federal public benefit granting
agencies already have regulations in place governing their verification
of U.S. nationality. This rule is intended to provide flexibility to
benefit granting agencies and avoid disruption. Benefit granting
agencies may continue to use existing Federal regulations that are fair
and nondiscriminatory instead of this part upon request to, and
approval by, the Attorney General. Such requests should be made in
writing to the Service by the Federal agency that promulgated the
regulations. In the interest of uniformity and to avoid piecemeal
review, the request must be made by the promulgating Federal agency
rather than by state agencies or other Federal benefit granting
agencies that are subject to Federal regulations but are not themselves
the promulgating Federal agency. Consideration of requests to use
alternative regulatory procedures will include review by the Civil
Rights Division of the Department of Justice as to whether the
procedures are fair and nondiscriminatory. If a Federal agency requests
to continue to use its existing regulatory procedures for verifying
U.S. nationality, nothing in this section shall be construed to affect
their continued validity, unless the Attorney General declines the
request in writing and provides reasons for the denial.
Section 104.30 Eligibility of Household
Some benefit granting agencies receive applications or determine
eligibility on the basis of a household. This section gives such
agencies the option to permit an adult member of a household to execute
the written declaration on behalf of other members of the household, as
long as the option is equitably applied to all applicants in a
nondiscriminatory manner. (Note that Sec. 104.21 generally requires a
qualified adult to execute the declaration on behalf of an
unemancipated minor or an incompetent adult with respect to any public
benefit; Sec. 104.30 allows an agency to accept a declaration by one
adult member of a household on behalf of any other adult or minor in
the household.) In order to eliminate the necessity of all members of
the household having to visit the benefit agency's office to show
documentation, this section allows an adult member of a household to
present the documentation pertaining to other members of the household.
As Sec. 104.24's requirement of additional
[[Page 41671]]
identity documentation under certain circumstances is pointless if the
applicant is not present in person, this section may be waived.
However, no person may present alien registration documentation on
behalf of an alien 18 years of age or over. This is because section
264(e) of the Act does not permit an adult alien to separate himself or
herself from his or her alien registration documentation.
Subpart C--Systematic Alien Verification for Entitlements (SAVE)
Section 104.40 SAVE System
In this section the Service undertakes to provide SAVE (as defined
in Section 104.1) for the use of public benefit granting agencies.
Agencies providing Federal public benefits must begin using SAVE within
2 years of promulgation of the rule, as required by Section 104.2.
Agencies providing State or local public benefits may enroll in SAVE at
any time, as provided by Section 104.3.
Section 104.41 When To Use SAVE
Benefit granting agencies may not use SAVE to verify an applicant's
status until they have completed the document examination procedures
provided in subpart B. Agencies that use SAVE must complete the SAVE
process before making a final determination as to benefit eligibility
under PRWORA, but they may make an interim or temporary determination
pending completion.
Section 104.42 Enrollment
This section informs benefit granting agencies how to enroll in
SAVE.
Section 104.43 Costs
SAVE users must pay for the verification services they receive.
Section 104.44 Limitation of Access to SAVE
The requirement to use SAVE or the option to enroll in it, does not
create an entitlement to it. This section contains necessary
protections and authority to protect the integrity of Service records
and ensure that the Service is not required to offer SAVE to those who
abuse it. The Service will exercise its authority to limit SAVE access
only for good cause, but that decision will be made in the exercise of
the Service's discretion and is unreviewable. Limitation of SAVE
services at the discretion of the Service for good cause does not
excuse a benefit granting agency from any obligation to verify the
eligibility of applicants.
Section 104.45 Primary Verification
The initial SAVE inquiry is an automated query to the Service's
Alien Status Verification Index (``ASVI'') data base. The benefit
granting agency must make this inquiry within 3 days after completing
the subpart B document examination procedures, unless an alternative
verification or application time is provided by law. The general
principle of SAVE is that all alien applicants will be verified through
the automated system. However, a benefit granting agency does not need
to make a verification inquiry if the evidence of alien registration
presented by the applicant indicates on its face a status that renders
the alien ineligible for the public benefit (for example, a Form I-94,
Arrival-Departure Record, indicating entry as a B-1 or B-2 visitor
presented to a benefit granting agency determining eligibility for a
Federal public benefit), and the applicant does not contest that
designation of status or claim to be eligible on some other basis under
PRWORA (for example, ``battered alien'' or Native American tribal
member). In case of any doubt as to status, of course, verification
should proceed, but a benefit granting agency is not required to query
the automated system with respect to an application that is
incontestably frivolous.
The Service has 3 days in which to respond to a primary inquiry via
the automated system with information on the immigration status of the
applicant or an instruction to perform secondary verification, but
normally the response takes only a few seconds. An instruction to
perform secondary verification is not an indication that the applicant
is not an eligible qualified alien or is someone other than who he or
she claims to be. There are many legitimate reasons why a query
regarding an eligible qualified alien may result in a referral to
secondary verification.
Section 104.46 Secondary Verification
If the primary verification inquiry does not result in a
verification, the benefit granting agency must make a secondary
verification inquiry within 5 days of completing primary verification,
unless an alternative verification or processing time is provided by
law. Secondary verification may, depending on the circumstances, be
either a second automated inquiry or the submission of a written
request for information. Unlike primary verification, however, which is
a direct query to an automated data base, secondary verification
inquiries go to a Service status verifier who performs the necessary
investigation of Service records. The Service will respond with
additional information, normally within 10 business days, although in
some cases more time may be required.
Section 104.47 Direct Resort to Secondary Verification
The rule permits flexibility in using primary and secondary
verification, with the express prior approval of the Service, for
either individual cases or for particular classes of applicants for
public benefits. Installation and use of the primary verification
system may not be cost-effective for very small-scale users. In
individual cases of suspected document fraud, direct resort to
secondary verification may be more appropriate. In certain cases,
primary verification may not provide useful information. A specific
example is victims of domestic violence, whose eligibility under PRWORA
cannot be determined through primary verification at the present time.
As discussed in the next section, direct resort to secondary
verification is necessary in all ``battered alien'' cases.
Section 104.48 Victims of Domestic Violence
Eligibility as a ``battered alien'' under section 431(c) of PRWORA,
8 U.S.C. 1641(c), unlike other categories of qualified alien, does not
directly relate to the applicant's status under the Act. As can be seen
from Exhibit B to Attachment 5 of the Interim Guidance, 62 FR at 61366,
verification of eligibility as a victim of domestic violence is a
particularly complex task. At present, ASVI does not contain this
information. Therefore, the rule provides specific and distinct
verification procedures whenever a benefit granting agency needs to
verify whether an applicant is a qualified alien by virtue of 8 U.S.C.
1641(c).
First, the rule modifies section 104.22's document requirements by
allowing benefit granting agencies to examine, in lieu of or in
addition to evidence of alien registration, other documentary evidence
relating to whether the applicant has an approved or prima facie
petition. In other words, the benefit granting agency should request
both the evidence of alien registration and the additional evidence
relating to the petition, but the verification may proceed if only the
latter is produced. Section 104.24 regarding additional evidence of
identity in certain cases applies to these applicants, but is modified
to allow reasonable secondary evidence of identity, such as an
additional document other than an identification document or a third-
party attestation, to be presented by ``battered alien'' applicants.
Rather than conduct a primary verification inquiry through the SAVE
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system, a benefit granting agency shall proceed, after completing the
modified Subpart B procedures, directly to secondary verification
procedures that require contacting either an appropriate immigration
court or the Service's Vermont Service Center by facsimile. The Interim
Guidance provides more detailed information, including the addresses of
immigration courts and sample verification request forms, than it is
possible to provide in a regulation.
Verification of status as provided by this rule relates to only one
of the four elements required to establish that an applicant is a
qualified alien under 8 U.S.C. 1641(c). In addition to verifying that
the applicant has an approved or prima facie petition under one of
several sections of the Act, the benefit granting agency must determine
whether the applicant has satisfied three requirements: battery or
extreme cruelty; substantial connection between the abuse and the need
for benefits; and non-residence with the abuser. Subsection (e)
recognizes that the benefit granting agency must also make these
determinations, but does not mandate specific legal requirements for
methods of doing so. Rather, it directs agencies to consider the
guidance promulgated by the Attorney General pursuant to 8 U.S.C.
1641(c)'s statutory directive to do so. Exhibit B to Attachment 5 of
the Interim Guidance provides, among other things, guidance concerning
the meaning of the terms ``battery'' and ``extreme cruelty.'' The
Notice entitled Guidance on Standards and Methods for Determining
Whether a Substantial Connection Exists Between Battery or Extreme
Cruelty and Need for Specific Public Benefits, 62 FR 65285 (Dec. 11,
1997), also provides statutorily mandated guidance from the Attorney
General relating to victims of domestic violence.
Section 104.49 Unauthorized Uses of SAVE
Use of SAVE for the purpose of verifying the information recorded
on the Form I-9, Employment Eligibility Verification, by an employer
and a newly hired employee in compliance with section 274A of the Act
is prohibited. The SAVE system is not designed to verify an alien's
work authorization under the Act, and different legal requirements
pertain to employment eligibility verification than to public benefit
eligibility verification. Employers interested in joining an employment
verification pilot program may contact the Service's SAVE Branch. More
information on available employment verification pilot programs,
including an election form, is found in the Service's Notice entitled
Pilot Programs for Employment Eligibility Confirmation, 62 FR 48309
(Sept. 15, 1997).
Note that the prohibition on using SAVE for employment eligibility
verification does not apply to public benefit eligibility verification
that may relate to an alien's employment, but that is not employment
eligibility verification by or on behalf of an employer for section
274A purposes. An example is a professional license provided by a
benefit granting agency that qualifies as a Federal or as a State or
local public benefit; although the license may be a necessary
prerequisite to obtaining certain employment, verifying an applicant's
eligibility for the license under PRWORA is not employment eligibility
verification, and the benefit granting agency may use SAVE for that
purpose.
Section 104.50 Training
It is the responsibility of the Service to provide, and of the
benefit granting agency to take full advantage of, sufficient training
materials regarding the proper use of SAVE. Proper training is an
essential element of an accurate and nondiscriminatory verification
system. Appropriate training materials may, depending on the
circumstances and the availability of resources, include manuals or
other written materials, videotapes, or in-person training sessions.
Content may vary depending on the particular needs of the benefit
granting agency, but typically would include why verification is
necessary, step-by-step guidance in SAVE procedures, the scope of and
limitations on SAVE verification, antidiscrimination protections, and
standards for accepting documentation.
Section 104.51 Use of Information by the Service
Section 121(c)(1) of IRCA stated that the system to be established
by the Service for the verification of immigration status (SAVE)
``shall not be used by the Immigration and Naturalization Service for
administrative (non-criminal) immigration enforcement purposes.''
Absent any amendment or repeal of this provision, and in order to
comply with 8 U.S.C. 1642(a)'s directive to model the verification
regulations on the preexisting SAVE system, the rule maintains this
limitation. In other words, the Service will not use SAVE for the
purpose of identifying, locating, and removing removable aliens.
However, the system may be used for any other law enforcement or other
appropriate purpose, including criminal law enforcement.
The limitation on use of the system for administrative enforcement
applies to the information received by the Service from benefit
granting agencies regarding aliens, not to the Service systems of
records such as ASVI from which SAVE draws its verification information
with which to respond to benefit granting agencies. Authorized use of
Service record systems for proper purposes, such as the removal of
unauthorized aliens, is unaffected by this limitation. In addition,
this regulatory limitation on use of information does not waive any
civil or criminal consequence of a false representation that may apply
to any person. Nor does it affect any duty placed by Federal law on any
Federal, State, or local entity to report to the Service aliens who are
known to be present in the United States in violation of the Act, but
those reports shall be made by means other than SAVE.
Section 104.52 Evaluation of SAVE
Benefit granting agencies that participate in SAVE must cooperate
with evaluations of the program to ensure its continued accuracy and
fairness by providing assistance and information necessary for that
purpose.
Subpart D--Verification Requiring Non-Service Information
A benefit granting agency's determination whether an applicant is
an eligible qualified alien may require information that is not
contained in the records of the Service. This subpart provides
verification procedures for those cases.
Section 104.60 Veteran and Active Duty Exception
Under 8 U.S.C. 1611, aliens who are not qualified aliens are not
eligible for Federal public benefits. Under 8 U.S.C. Sec. 1612(a)(1)
and other sections of PRWORA, qualified aliens are not eligible for
certain Federal public benefits, except as specifically provided. A
similar (but not identical) statutory structure applies to State and
local public benefits. The PRWORA specifically provides for the public
benefit eligibility of certain qualified aliens, not otherwise eligible
for the benefit, by virtue of past or present U.S. military service.
This section provides procedures, in addition to the procedures
normally applicable under this rule for verifying qualified alien
status, for verifying whether the veteran and active duty exception
applies to an applicant. The information in this section was provided
by the Department
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of Defense and was previously published in Exhibit B of Attachment 6 to
the Interim Guidance.
Section 104.61 Credited Quarters of Qualifying Work
Certain aliens lawfully admitted for permanent residence, who are
not otherwise eligible for certain public benefits, may be eligible
qualified aliens by virtue of their work history in the United States.
As discussed in Exhibit A to Attachment 6 to the Interim Guidance, the
Social Security Administration (``SSA'') is the primary source of work
history information and SSA has developed an automated system to assist
in meeting the difficult challenge of verifying this criterion. This
section does not attempt to provide specific procedures, but requires
or authorizes (depending on whether the benefit is Federal) benefit
granting agencies to use such means of verification as are available
through SSA.
Section 104.62 Section 289 Exception
Section 289 of the Act allows certain American Indians born in
Canada to enter the United States freely. Section 5303 of the Balanced
Budget Act of 1997, Pub. L. 105-33, and section 505 of the Agricultural
Research, Extension, and Education Reform Act of 1998 (``AREERA''),
Pub. L. 105-185, signed into law by President Clinton on June 23, 1998,
exempts those Indians from PRWORA's limitations on alien eligibility
for certain Federal public benefits (Supplemental Security Income
(``SSI''), Food Stamps, and Medicaid). 8 U.S.C. 1612(a)(2)(G)(i),
(b)(2)(E). Section 104.62 of the rule provides verification methods for
determining whether this exception applies to an alien applicant. Since
section 289 aliens do not have to be qualified aliens for this
exception to apply, and since they may or may not carry evidence of
alien registration, the document examination requirements are somewhat
different. If Service documentation is presented, it should be verified
using SAVE, to the same extent the benefit granting agency uses SAVE
for other applicants. Note that this section applies only to alien
applicants for Federal public benefits to which section 289 status is
relevant. If the application is for any other public benefit, whether
an alien applicant is a section 289 Indian is irrelevant. The
eligibility for any public benefit under PRWORA of an applicant
attesting to U.S. nationality should be verified as provided in Subpart
B.
Section 104.63 Members of Indian Tribes
A similar exception to the section 289 exception applies to members
of federally recognized Indian tribes. Since qualified alien status is
irrelevant to this exception, there is no need to examine or verify
alien registration documentation. Instead, proof of tribal membership
is the qualifying factor, and documentary evidence of that membership
should be examined. . A list of Indian tribes, and a list of tribal
government contacts, may be obtained upon request to the Office of
Tribal Justice within the Department of Justice.
Note that as with the section 289 exception, the special procedures
relating to Indians apply only to alien applicants for the Federal
public benefits (SSI, Food Stamps, and Medicaid) to which Indian status
is relevant to determining eligibility under PRWORA. If the application
is for a different benefit, eligibility under PRWORA should be verified
using normal procedures applicable to other alien applicants. The
eligibility for any public benefit under PRWORA of an applicant
attesting to U.S. nationality should be verified as provided in Subpart
B.
Section 104.64 Lawful Residence
Eligibility for certain Federal public benefits requires lawful
residence in the United States, either at the time of application or at
some earlier date. For example, PRWORA's limitation of qualified alien
eligibility for Food Stamp or SSI benefits, 8 U.S.C. 1612(a)(1), does
not apply to blind or disabled qualified aliens who were lawfully
residing in the United States on August 22, 1996, and who (for Food
Stamp eligibility) are receiving benefits or assistance for disability
as defined by the Food Stamp Act of 1977, 7 U.S.C. 2012(r). As amended
effective November 1, 1998, by AREERA, PRWORA does not render
ineligible for Food Stamps qualified aliens who were lawfully residing
in the United States on August 22, 1996, and were 65 years of age or
older, or qualified aliens who are children under 18 years of age and
were lawfully residing in the United States on August 22, 1996. In
addition, Hmong or Highland Laotians are eligible for Food Stamps; they
must be lawfully residing in the United States, but do not need to be
qualified aliens.
Although qualified aliens who are residing in the United States
(with the exception of some aliens who are qualified aliens by virtue
of being victims of domestic violence) are by virtue of their qualified
alien status lawfully residing, the universe of qualified aliens does
not include all aliens who may be lawful residents. Furthermore, the
different dates that apply to PRWORA eligibility reduce the potential
applicability of a qualified alien determination to lawful residence;
for example, an alien could be lawfully residing but not a qualified
alien on August 22, 1996, and could have adjusted status since then to
a qualified alien status. Nor are all aliens who are lawfully present
in the United States necessarily residing here (B-1/B-2 visitors, for
example).
For this reason, Sec. 104.1 defines an alien ``lawfully residing in
the United States'' for verification purposes as an alien who on the
date in question is lawfully present (also defined in Sec. 104.1 by
incorporating Sec. 103.12) and who maintains his or her residence in
the United States. Section 101(a)(33) of the Act, as incorporated in
this rule by 8 CFR 1.1(a), provides the applicable definition of
``residence': ``the place of general abode; the place of general abode
of a person means his principal, actual dwelling place in fact.''
Section 104.64 explains how to verify lawful residence when it is
necessary to do so. The normal procedures for qualified alien status
through attestation, document review, and SAVE inquiry will apply.
Although qualified alien status and lawful residence are not the same,
of course, they are close enough that for the purposes of efficient
verification the rule does not require additional proof of lawful
residence if the benefit granting agency verifies that the applicant is
a qualified alien on the date when he or she also must be lawfully
residing. The exception is victims of domestic violence; because that
situation is not directly related to immigration status, an applicant
who is a qualified alien as verified through the Sec. 104.48
procedures, and not by reason of immigration status, must separately
show lawful residence if lawful residence is a criterion of eligibility
under PRWORA.
In some cases, eligibility may depend upon a determination of
lawful residence that differs from the qualified alien determination
(that is, if the alien applicant is a qualified alien by virtue of
``battered alien'' status, the applicant is a qualified alien as of the
date of application but must have been lawfully residing on August 22,
1996 or some other relevant date, or the applicant is not a qualified
alien but may still be eligible if he or she lawfully resides in the
United States (for example, a Hmong or Highland Laotian applicant for
Food Stamps who is not a qualified alien)). In such cases, the benefit
granting agency
[[Page 41674]]
must verify lawful residence by (1) verifying lawful presence as of the
relevant date through the normal alien verification process including,
if necessary, additional inquiry to the Service; and (2) verifying
residence as of the relevant date. The proposed rule cross-references
and incorporates the list of acceptable evidence establishing proof of
residence developed for the purpose of determining Temporary Protected
Status and set forth at 8 CFR 244.9(a)(2). Note that, unlike Temporary
Protected Status, the evidence of residence should show residence on
the relevant date; the applicant does not need to demonstrate
``continuous residence.''
Section 104.65 Hmong or Highland Laotians
Section 508 of AREERA reestablishes (effective November 1, 1998)
the eligibility of Hmong or Highland Laotians, and individuals with a
qualifying familial relationship with a Hmong or Highland Laotian, for
Food Stamps to the extent PRWORA had rendered any such individuals
ineligible. This rule defines Hmong or Highland Laotian consistent with
section 508 in Sec. 104.1 and provides a verification procedure in
Sec. 104.65 for Food Stamp applicants claiming eligibility on this
basis (U.S. citizens of Hmong or Highland Laotian ethnic origin should
be verified in the same manner as any other U.S. citizen applicant).
Note, however, that the definition of Hmong or Highland Laotian
includes U.S. citizen Hmong or Highland Laotians, which could be
relevant in the case of an alien applicant claiming eligibility by
virtue of a familial relationship with a Hmong or Highland Laotian who
is not himself or herself the applicant.
As alien Hmong or Highland Laotians do not have immigration
statuses unique to them, providing a workable and efficient
verification method is difficult. Section 104.65 is something of a
``place-holder'' that gives benefit granting agencies the flexibility
and discretion to use what means they determine are reasonably
calculated to verify that the applicant is a Hmong or Highland Laotian.
If possible, the Service will provide additional guidance to benefit
providers based on its further review of this category. Similarly, the
rule leaves verification of qualifying familial relationships to the
best discretion of the benefit granting agency.
This section reflects two statutory interpretations of AREERA that
the Service has made for verification purposes after consultation with
the U.S. Department of Agriculture. The first is that the benefit
granting agency does not have to verify that a Hmong or Highland
Laotian, or a qualifying family member, is a qualified alien. In light
of section 509 of AREERA's amendment of 8 U.S.C. 1613(d) to provide
that 8 U.S.C. 1611(a) does not apply to Hmong and Highland Laotian Food
Stamp applicants, this rule does not require verification that the
Hmong or Highland Laotian is a qualified alien (although a Hmong or
Highland Laotian applicant must lawfully reside in the United States).
Second, section 508 of AREERA's extension of eligibility to the
unremarried surviving spouse of ``such an individual who is deceased''
(i.e., a Hmong or Highland Laotian individual) presents a complication
because of the statutory criterion that the individual be ``lawfully
residing in the United States.'' Obviously, deceased individuals cannot
be said to be residing in the United States, whether lawfully or not.
The question is whether the individual had to have been lawfully
residing in the United States at any time before his or her death. In
light of the remedial intention of AREERA, the Service has interpreted
the statute for verification purposes not to require any such
determination, and this interpretation is reflected in the second
sentence of section 104.1's definition of Hmong or Highland Laotian.
Section 104.65 requires the benefit granting agency to determine the
existence of a qualifying familial relationship with a living or
deceased Hmong or Highland Laotian, but it does not require a family
member applicant claiming derivative eligibility for Food Stamps
through a Hmong or Highland Laotian to show that the family member
applicant is lawfully residing in the United States or is a qualified
alien (of course, all non-PWORA Food Stamp eligibility criteria
applicable to residence, income, or other factors continue to apply).
Regulatory Flexibility Act
The Attorney General has reviewed this rule in accordance with the
Regulatory Flexibility Act, 5 U.S.C. 605(b), and, by approving it,
certifies that this rule will not have a significant economic impact on
a substantial number of small entities. State or local public benefit
granting agencies, including any that may be small entities, have the
option not to use these verification procedures if they consider them
to be economically burdensome. Economically significant Federal public
benefits are normally administered by Federal or State government
agencies, which are not small entities. Nonprofit charitable
institutions are exempted from verification requirements under this
rule. By providing effective means of detecting and deterring false
claims to public benefits, the rule is designed to provide economic
benefits to benefit granting agencies. No significant economic impact
on a substantial number of small entities caused by any verification
requirement relating to Federal public benefits has been identified.
Unfunded Mandates Reform Act
This rule will not result in the expenditure by State, local, or
tribal governments in the aggregate, or by the private sector, of $100
million or more in any one 1 year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995. In its analysis of intergovernmental mandates resulting from
PRWORA, the Congressional Budget Office (``CBO'') questioned whether
PRWORA's verification requirements are mandates at all, given the broad
flexibility afforded states to offset any additional costs of
verification. In any case, CBO stated that the estimated direct total
cost of PRWORA's mandates is less than $50 million. H.R. Rep. No. 104-
651, reprinted in 1996 U.S.C.C.A.N. 2183, 2598-99.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined in section 251 of the
Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C.
804(2). It is not possible at this time to quantify the annual economic
effect of the rule with specificity. However, the Attorney General has
no reasonable basis at this time to find that it is likely to result in
an annual effect on the economy of $100 million or more. The rule will
not result in major increases in costs or prices, or cause significant
adverse economic effects as defined by 804(2).
Executive Order 12866 Regulatory Planning and Review
This regulation has been drafted and reviewed in accordance with
Executive Order 12866, Sec. 1(b), The Principles of Regulation. The
Department of Justice has determined that this rule is a
``[s]ignificant regulatory action'' under Executive Order 12866,
Sec. 3(f). Accordingly, this rule has been reviewed by the Office of
Management and Budget (``OMB'').
[[Page 41675]]
Executive Order 12612 Federalism
This rule does not have sufficient federalism implications to
warrant the preparation of a Federalism Assessment. The rule will
benefit the states by providing them with means of protecting their
treasuries from the burden of providing public benefits to aliens who
are not eligible to receive them. The burdens on the states under this
rule are the requirements (a) to use the verification procedures
provided to determine eligibility for Federal public benefits,
including enrollment in the SAVE program, beginning no later than the
date that is 24 months after the date of promulgation, and (b) if they
choose to verify eligibility under Federal law for State and local
public benefits, to do so using the verification procedures provided,
either entirely or in part. These requirements simply incorporate and
apply PRWORA's substantive statutory limitations on alien public
benefit eligibility, which are an exercise of the authority to regulate
immigration reserved exclusively to the Federal Government. In
addition, states that determine eligibility for a number of major
Federal public benefits, such as Food Stamps and Aid to Families with
Dependent Children (now TANF), are already participants in, and
familiar with the SAVE program under the verification obligations
applicable to those programs under IRCA since 1986. The rule has been
drafted so as to give the states the maximum flexibility of action
consistent with the requirements of Federal law.
Executive Order 12988 Civil Justice Reform
This rule meets the applicable standards set forth in section 3(a)
and 3(b)(2) of Executive Order 12988.
Paperwork Reduction Act of 1995
The provisions contained in this rulemaking will have an
information collection burden on the public. Specifically, Secs. 104.2,
104.3, 104.4, 104.6, 104.10, 104.20, 104.21, 104.22, 104.23, 104.24,
104.26, 104.27, 104.30, 104.41, 104.45, 104.46, 104.47, 104.48, 104.52,
104.60, 104.61, 104.62, 104.63, 104.64, and 104.65 potentially impose a
paperwork burden on benefit granting agencies. The Department of
Justice is assuming a 1-hour reporting burden associated with this rule
because the implementation of the information collections, as
appropriate, under this rulemaking will be the responsibility of the
benefit granting agency. Affected entities are provided the opportunity
to submit to the Service comments that relate to any information
collections that may result from the requirements and guidance
contained in this rulemaking. Any information collections resulting
from this rulemaking are subject to review by OMB under the Paperwork
Reduction Act of 1995.
Accordingly, the agency solicits public comments on any information
collection requirements in order to:
(1) Evaluate whether the proposed collection of information is
necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of
the proposed collection of information, including the validity of the
methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of the collection of information on those
who are to respond, including through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology, e.g., permitting electronic
submission of responses.
Organizations and individuals desiring to submit comments on the
information collection requirements should direct them to the Office of
Information and Regulatory Affairs, OMB, Room 10235, New Executive
Office Building, Washington, DC 20503; Attention: Desk Officer for the
Immigration and Naturalization Service.
As required by section 3507(d) of the Paperwork Reduction Act of
1995, Pub. L. 104-13, the Service has submitted a copy of this proposed
rule to OMB for its review of the information collection requirements.
OMB is required to make a decision concerning the collection of
information contained in this proposed regulation between 30 and 60
days after publication of this document in the Federal Register.
Therefore, a comment to OMB is best assured of having its full effect
if OMB receives it within 30 days of publication. This does not affect
the deadline for the public to comment to the Service on the proposed
regulation.
List of Subjects in 8 CFR Part 104
Administrative practice and procedure, Aliens, Disability benefits,
Food assistance programs, Education, Grant programs, Housing,
Immigration, Indians, Intergovernmental relations, Loan programs,
Public assistance programs, Social security, Veterans.
Accordingly, part 104 of chapter I of title 8 of the Code of
Federal Regulations is proposed to be added as follows:
PART 104--VERIFICATION OF ELIGIBILITY FOR PUBLIC BENEFITS
Subpart A--General
Sec.
104.1 Definitions.
104.2 Requirement to verify eligibility for Federal public benefit.
104.3 Option to verify eligibility for State or local public
benefit.
104.4 Verification in order to determine nature of benefit.
104.5 Determination made by benefit granting agency.
104.6 Contesting an adverse determination.
104.7 Nonexclusivity of procedures.
104.8 Enforcement.
104.9 Inapplicability to certain programs.
104.10 Verification requirement for certain nutrition programs.
104.11-104.19 [Reserved].
Subpart B--Declaration of applicant and examination of documents
104.20 Scope of verification obligation.
104.21 Written declaration of applicant.
104.22 Evidence of alien registration.
104.23 Evidence of U.S. nationality.
104.24 Proof of identity.
104.25 Standard for accepting documents.
104.26 Retention of information.
104.27 Other relevant information.
104.28 Reliance upon attestation as temporary evidence of U.S.
nationality.
104.29 Reliance upon alternative procedures for determining U.S.
nationality.
104.30 Eligibility of household.
104.31-104.39 [Reserved].
Subpart C--Systematic Alien Verification for Entitlements (SAVE)
104.40 SAVE system.
104.41 When to use SAVE.
104.42 Enrollment.
104.43 Costs.
104.44 Limitation of access to SAVE.
104.45 Primary verification.
104.46 Secondary verification.
104.47 Direct resort to secondary verification.
104.48 Victims of domestic violence.
104.49 Unauthorized uses of SAVE.
104.50 Training.
104.51 Use of information by the Service.
104.52 Evaluation of SAVE.
104.53-104.59 [Reserved]
Subpart D--Verification requiring non-Service information
104.60 Veteran and active duty exception.
104.61 Credited quarters of qualifying work.
104.62 Section 289 exception.
104.63 Members of Indian tribes.
104.64 Lawful residence.
104.65 Hmong or Highland Laotians.
104.66-104.69 [Reserved].
Authority: 8 U.S.C. 1103; 8 U.S.C. 1642.
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Subpart A--General
Sec. 104.1 Definitions.
As used in th |