Verification of Eligibility for Public Benefits [63 FR 41662] [FR 67-98]

DOCUMENT NUMBER: FR 67-98

FEDERAL REGISTER CITE: 63 FR 41662

DATE OF PUBLICATION: August 4, 1998

BILLING CODE 4410-10

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.

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 qualifi ed 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 fo r 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 procedu res 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 upo n 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 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 fo r 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 (par ticularly 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 docum ent 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 fo r 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, exc ept 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.