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 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 pa rticular 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 addi tional 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 notic e 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 mea ns 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 t he 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 o ther 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 En glish. 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 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 § 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 an d 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 ot her 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 en forcement 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 § 104.1's list of programs that by definition are not "Federal public benefits," or § 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.