[Federal Register Volume 63, Number 149 (Tuesday, August 4, 1998)]
[Proposed Rules]
[Pages 41662-41686]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-20457]
Federal Register / Vol. 63, No. 149 / Tuesday, August 4, 1998 /
Proposed Rules
[[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
[[Page 41663]]
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
[[Page 41666]]
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
[[Page 41673]]
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 this part, the term:
Amerasian immigrant means an alien who has been lawfully admitted
for permanent residence pursuant to section 584 of the Foreign
Operations, Export Financing, and Related Programs Appropriations Act
of 1988, as contained in Pub. L. 100-202, as amended.
(1) This provision authorizes the lawful admission for permanent
residence of a resident of Vietnam as of December 22, 1987 who
establishes to the satisfaction of the Service that he or she is
admissible under the Act as provided by section 584(a)(2), and that he
or she:
(i) Was born in Vietnam after January 1, 1962, and before January
1, 1976, and was fathered by a citizen of the United States (this alien
is referred to as the ``principal alien'');
(ii) Is the spouse or child of a principal alien who accompanies,
or follows to join, the principal alien; or
(iii) Is the natural mother of a principal alien (or the spouse or
child of such mother), or has acted in effect as the principal alien's
mother, father, or next-of-kin (or is the spouse or child of such an
alien), and is accompanying, or following to join, the principal alien,
has a bona fide relationship with the principal alien similar to that
which exists between close family members, and whose admission is
necessary for humanitarian purposes or to assure family unity.
(2) As an alien lawfully admitted for permanent residence under the
Act, an Amerasian immigrant from Vietnam is a qualified alien.
Applicant means any individual applying to receive or to continue
to receive a public benefit, or and any individual subject to a
reverification of eligibility for a public benefit that is required by
applicable law or policy pertaining to the public benefit. The
applicant to be verified is the individual who will receive the public
benefit should the application be granted. A person applying for a
public benefit on behalf of another, representing an individual seeking
a public benefit, or seeking to facilitate an individual's application
is not an applicant unless that person is seeking a public benefit for
himself or herself.
ASVI means the Service system of records named the Alien Status
Verification Index (Justice/INS-009).
Benefit granting agency means any Federal, State, or local
government agency, or its contractor, agent, grantee, or designee
(other than a nonprofit charitable organization), that provides the
eligibility of applicants for any public benefit.
Community program necessary for protection of life or safety. (1)
This term means a public benefit comprising a program, service, or
assistance that:
(i) Delivers in-kind services at the community level, including
through public or private nonprofit agencies;
(ii) Does not condition the provision of assistance, the amount of
assistance provided, or the cost of assistance provided on the
individual recipient's income or resources; and
(iii) Is necessary for the protection of life or safety.
(2) The term includes all public benefits, including but not
limited to the following as long as they meet requirements in
paragraphs (1)(i), (ii), and (iii) of this definition: crisis
counseling and intervention programs, services, and assistance relating
to child protection, adult protective services, violence and abuse
prevention, victims of domestic violence or other criminal activity, or
treatment of mental illness or substance abuse; short-term shelter or
housing assistance for the homeless, for victims of domestic violence,
or for runaway, abused, or abandoned children; programs, services, or
assistance to help individuals during periods of heat, cold, or other
adverse weather conditions; soup kitchens, community food banks, senior
nutrition programs such as meals on wheels, and other such community
nutritional services for persons requiring special assistance; medical
and public health services (including treatment and prevention of
diseases and injuries) and mental health, disability, or substance
abuse assistance; and activities designed to protect the life and
safety of workers, children and youths, or community residents.
Cuban and Haitian entrant means:
(1) Any alien who has ever been granted parole status as a Cuban/
Haitian entrant (Status Pending) or who has ever been granted any other
special status subsequently established under the immigration laws for
nationals of Cuba or Haiti, regardless of the status of the alien at
the time the alien is an applicant; or
(2) Any alien who is a national of Cuba or Haiti and
(i) Was paroled into the United States and has not acquired any
other status under the Act;
(ii) Is the subject of removal proceedings under the Act or has an
application for asylum pending with the Service; and
(iii) With respect to whom a final order of removal has not been
entered.
Eligible qualified alien means a qualified alien who is not
ineligible under 8 U.S.C. section 1601 et seq., for the public benefit
sought.
Exempt Federal public benefit means the following Federal public
benefits:
(1) Assistance for health care items and services that are
necessary for the treatment of an emergency medical condition and are
not related to an organ transplant procedure;
(2) Short-term, non-cash, in-kind emergency disaster relief;
(3) Public health assistance (not including any assistance under
title XIX of the Social Security Act, 42 U.S.C. section 1396 et seq.),
for immunizations with respect to immunizable diseases and for testing
and treatment of symptoms of communicable diseases (whether or not such
symptoms are caused by a communicable disease);
(4) A community program necessary for protection of life or safety;
(5) Medical assistance under title XIX of the Social Security Act,
42 U.S.C. section 1396b(v)(3), or any successor program to such title,
for care and services that are necessary for the treatment of an
emergency medical condition (as defined in 42 U.S.C. section
1396b(v)(3)) of the alien involved and that are not related to an organ
transplant procedure, if the alien involved otherwise meets the
eligibility requirements for medical assistance under the State plan
approved under such title (other than the requirement of the receipt of
aid or assistance under title IV of the Social Security Act, 42 U.S.C.
section 601 et seq., supplemental security income benefits under title
XVI of the Social Security Act, 42 U.S.C. section 1381 et seq., or a
State supplementary payment);
(6) Programs for housing or community development assistance or
financial assistance administered by the Secretary of Housing and Urban
Development, any program under title V of the Housing Act of 1949, 42
U.S.C. section 1471 et seq., or any assistance under section 306C of
the Consolidated Farm and Rural Development Act, 7 U.S.C. section
1926C, to the extent the alien was receiving such a benefit on August
22, 1996;
(7) Any benefit payable under Title II of the Social Security Act,
42 U.S.C. section 401 et seq., to which entitlement is based on an
application filed on or before November 30, 1996, or that is payable to
an alien who is lawfully present in the United States;
(8) Any benefit the nonpayment of which would contravene an
international agreement described in section 233 of the Social Security
Act, 42 U.S.C. section 433 (an agreement
[[Page 41677]]
establishing totalization arrangements between the social security
system of the United States and that of any foreign country that
establishes entitlement to and the amount of old-age, survivors,
disability, or derivative benefits based on an individual's coverage
under both systems);
(9) Any benefit the nonpayment of which would be contrary to
section 202 of the Social Security Act, 42 U.S.C. section 402(t);
(10) Any benefit payable under title XVIII of the Social Security
Act (relating to the Medicare program) to an alien who is lawfully
present in the United States, provided that with respect to any benefit
payable under part A of such title, that the alien was authorized to be
employed with respect to any wages attributable to employment that
which are counted for purposes of eligibility for such benefits; or
(11) Any benefit payable under the Railroad Retirement Act of 1974
or the Railroad Unemployment Insurance Act to an alien who is lawfully
present or to an alien residing outside the United States.
Exempt State or local public benefit means any State or local
public benefit constituting:
(1) Assistance for health care items and services that are
necessary for the treatment of an emergency medical condition and are
not related to an organ transplant procedure;
(2) Short-term, non-cash, in-kind emergency disaster relief;
(3) Public health assistance for immunizations with respect to
immunizable diseases and for testing and treatment of symptoms of
communicable diseases (whether or not such symptoms are caused by a
communicable disease);
(4) A community program necessary for protection of life or safety;
or
(5) Any benefit for which an alien who is not lawfully present in
the United States is eligible through the enactment of a State law
after August 22, 1996, affirmatively providing for such eligibility.
Federal public benefit. (1) This term means:
(i) 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
(ii) 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.
(2) The term does not include:
(i) Any contract, professional license, or commercial license for a
nonimmigrant whose visa for entry is related to such employment in the
United States, or for a citizen of a freely associated state (the
Republic of Palau, the Federated States of Micronesia, and or the
Republic of the Marshall Islands) if section 141 of the applicable
compact of free association approved in Public Laws 99-239 or 99-99-658
(or a successor provision) is in effect;
(ii) Any benefit for an alien who as a work authorized nonimmigrant
or as an alien lawfully admitted for permanent residence under the Act
qualified for such benefit and to whom the United States under a
reciprocal treaty agreement is required to pay the benefit; or
(iii) Police, fire, ambulance, transportation (including
paratransit), sanitation, or other regular, widely available public
services or accommodations.
Hmong or Highland Laotian means any individual who is lawfully
residing in the United States, and who was a member of a Hmong or
Highland Laotian tribe at the time that the tribe rendered assistance
to U.S. personnel by taking part in a military or rescue operation
during the Vietnam era (as defined by 38 U.S.C. 101). A deceased Hmong
or Highland Laotian is any deceased individual who was a member of a
Hmong or Highland Laotian tribe at the time that the tribe rendered
assistance to U.S. personnel by taking part in a military or rescue
operation during the Vietnam era (as defined by 38 U.S.C. 101).
Identification document means a document made or issued by or under
the authority of the United States Government, a state, political
subdivision of a state, a foreign government, political subdivision of
a foreign government, an international governmental or an international
quasi-governmental organization that which, when completed with
information concerning a particular individual, is of a type intended
or commonly accepted for the purpose of identification of individuals.
Indian tribe means a federally recognized Indian tribe, band,
nation, or other organized group or community, as defined by 25 U.S.C.
450b(e).
Lawfully present in the United States has the meaning provided by
Sec. 103.12 of this chapter.
Lawfully residing in the United States means lawfully present in
the United States with residence in the United States.
Nonprofit charitable organization means an organization that is
organized and operated:
(1) For purposes other than making gains or profits for the
organization, its members or shareholders, and is precluded from
distributing any gains or profits to its members, or shareholders; and
(2) For charitable purposes, including relief of the poor and
distressed or of the underprivileged, advancement of religion, or
advancement of education.
Primary verification means automated access by a benefit granting
agency to ASVI for the purpose of verifying an alien applicant's
immigration status to determine eligibility for a public benefit.
Public benefit means either a Federal public benefit or a State or
local public benefit.
Qualified alien means an alien who, at the time the alien applies
for, receives, or attempts to receive a public benefit, is:
(1) An alien lawfully admitted for permanent residence under the
Act;
(2) An alien granted asylum under section 208 of the Act;
(3) A refugee admitted to the United States under section 207 of
the Act;
(4) An alien paroled into the United States under section 212(d)(5)
of the Act for a period of at least 1 year;
(5) An alien whose deportation is being withheld under section
243(h) of the Act as in effect prior to April 1, 1997, or whose removal
is being withheld under section 241(b)(3) of the Act;
(6) An alien granted conditional entry under section 203(a)(7) of
the Act as in effect prior to April 1, 1980;
(7) An alien who is a Cuban and Haitian entrant; or
(8) An alien who (or whose child or parent) has been battered or
subjected to extreme cruelty in the United States and otherwise
satisfies the requirements of 8 U.S.C. 1641(c).
SAVE means the Service's Systematic Alien Verification for
Entitlements program. SAVE is an intergovernmental information-sharing
initiative designed to aid a benefit granting agency in determining an
alien applicant's immigration status. SAVE includes primary
verification and secondary verification. SAVE may be offered by the
Service to users, other than those required or authorized to use SAVE
by this part, to the extent the Service is authorized or required to do
so by other applicable law.
Secondary verification means verification services offered by the
Service as part of SAVE, other than
[[Page 41678]]
primary verification. Secondary verification is performed after primary
verification, if the information received by the benefit granting
agency through primary verification is insufficient for it to determine
that an alien applicant is eligible for a public benefit. As authorized
by the Service pursuant to Sec. 104.47 of this part, in some cases
secondary verification may be performed without prior completion of
primary verification. Secondary verification may include either
automated queries to the Service that do not involve direct access by
the benefit granting agency to ASVI, or the submission to the Service
of written requests for information that may be accompanied by copies
of relevant documents presented by the applicant.
State or local public benefit.
(1) This term means:
(i) Any grant, contract, loan, professional license, or commercial
license provided by an agency of a State or local government or by
appropriated funds of a State or local government; or
(ii) 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 a State or local government or by
appropriated funds of a State or local government.
(2) The term does not include:
(i) Any contract, professional license, or commercial license for a
nonimmigrant whose visa for entry is related to such employment in the
United States, or for a citizen of a freely associated state (the
Republic of Palau, the Federated States of Micronesia, or the Republic
of the Marshall Islands) if section 141 of the applicable compact of
free association approved in Public Laws 99-239 or 99-658 (or a
successor provision) is in effect;
(ii) Any benefit for an alien who as a work authorized nonimmigrant
or as an alien lawfully admitted for permanent residence under the Act
qualified for such benefit and to whom the State or local government is
required to pay the benefit under a reciprocal treaty agreement of the
United States;
(iii) Any Federal public benefit; or
(iv) Police, fire, ambulance, transportation (including
paratransit), sanitation, or other regular, widely available public
services or accommodations.
Sec. 104.2 Requirement to verify eligibility for Federal public
benefit.
Except as otherwise specifically provided by this part 104.10, a
benefit granting agency providing a Federal public benefit (other than
an exempt Federal public benefit) shall verify that an applicant in the
United States is a national of the United State or eligible qualified
alien, using the procedures provided in subparts B, C, and D beginning
no later than the date that is 24 months after the date of promulgation
of this part. A Federal agency providing a Federal public benefit shall
make all reasonable efforts to comply with this part beginning on the
earliest possible date prior to the 24-month deadline.
Sec. 104.3 Option to verify eligibility for State or local public
benefit.
A benefit granting agency determining eligibility for a State or
local public benefit, other than an exempt State or local public
benefit, may verify using the procedures provided in subpart B that an
applicant in the United States is a national of the United States, an
eligible qualified alien, or is a nonimmigrant or an alien paroled into
the United States under section 212(d)(5) of the Act for less than 1
year who is eligible to receive the State or local public benefit. A
benefit granting agency that uses the procedures provided in subpart B
for all alien applicants for a State or local public benefit may use
the verification procedures provided in subpart C for all alien
applicants for that benefit, and may use the procedures provided in
subpart D to the extent they are necessary to determine the eligibility
of any alien applicant.
Sec. 104.4 Verification in order to determine nature of benefit.
A benefit granting agency may use the procedures provided in
subpart B to determine whether, as regards an applicant, a benefit is a
public benefit, or whether a public benefit is an exempt Federal public
benefit or an exempt State or local public benefit, to the extent those
determinations depend upon the status of the applicant. A benefit
granting agency that uses the procedures provided in subpart B to make
such a determination regarding an applicant may use the verification
procedures provided in subpart C for that applicant.
Sec. 104.5 Determination made by benefit granting agency.
All determinations as to eligibility of an applicant for a public
benefit, whether interim or final, shall be made by the benefit
granting agency. The role of the Service in determining the eligibility
of the applicant for the public benefit shall be limited to providing
relevant information from the records of the Service to the benefit
granting agency for its use in determining eligibility.
Sec. 104.6 Contesting an adverse determination.
(a) Written notice of denial. If a benefit granting agency denies a
public benefit to an applicant on the basis of information provided by
the Service under this part, the benefit granting agency shall provide
written notice to the applicant. The notice shall inform the applicant
that the denial was based upon the applicant's immigration status and
shall provide information to the applicant on how to contact the
Service to provide additional oral or written information if the
applicant believes the information provided by the Service to be
erroneous. The notice shall also include sufficient information
regarding the benefit granting agency and the benefit at issue,
including a contact address and telephone number, to enable the
applicant to fulfill the requirement of paragraph (b) of this section
regarding notification to the Service of the identity of the benefit
granting agency and of the public benefit denied. The notice shall also
provide information on rights and procedures regarding appeal of the
denial through the benefit granting agency to the extent the benefit
granting agency deems appropriate pursuant to applicable law governing
the public benefit at issue.
(b) Response to applicant queries. The Service shall provide a
telephone number or other appropriate means by which an applicant may
contact the Service with questions regarding a denial of benefits based
upon Service information. If the applicant contacts the Service, the
applicant must inform the Service of the identity of the benefit
granting agency and of the public benefit denied, provide sufficient
identifying information (including name, date of birth, and alien
registration number (if applicable)) to enable the Service to contact
the benefit granting agency regarding the applicant's case, and may
provide other oral or written information that the applicant believes
relevant to verification of the applicant's present immigration status
according to Service records. Upon request of an applicant who has been
denied a public benefit based upon information provided by the Service,
the Service will review the accuracy of the information provided to the
benefit granting agency and will respond to the applicant within 10
business days after receiving the request and any supporting
information supplied by the applicant with either
[[Page 41679]]
the result of the review or, if more time is needed to research the
case, a message to that effect including, if possible, an estimate of
the time needed to complete the review. If the Service determines that
information previously provided to the benefit granting agency
regarding the applicant was erroneous, the Service shall provide
corrected information.
(c) Service role in agency review. If the applicant contests in a
timely manner a denial of a public benefit on the ground that Service
information relied on by the benefit granting agency is erroneous,
using appeal procedures provided by the benefit granting agency, the
benefit granting agency shall contact the Service and provide to the
Service any information provided by the applicant or otherwise known to
the benefit granting agency that is relevant to the claim of Service
error. The Service will review the information provided to the benefit
granting agency regarding an applicant and will respond to the benefit
granting agency within 10 business days after receiving the contact and
any relevant additional information with either the result of the
review or, if more time is needed to research the case, a message to
that effect including, if possible, an estimate of the time needed to
complete the review. The benefit granting agency shall not make a final
determination as to the applicant's appeal until it has received the
response of the Service. Upon receipt of information from the Service
indicating that Service information previously relied upon was
erroneous, the benefit granting agency shall take into account the
correction to the extent it is relevant to the applicant's eligibility
for the benefit.
(d) Nonexclusivity of procedures. Nothing in this section shall be
construed to deny, abridge, limit, or adversely affect any right to
notice and hearing regarding a denial of a public benefit that may be
provided under applicable law by a benefit granting agency, or, except
as specifically provided herein, otherwise to amend or modify any
rights, remedies, procedures, or time limits applicable to review,
reconsideration, or appeal of a benefit granting agency's denial of a
public benefit, including but not limited to any procedures regarding
notice in a language other than English. Nothing in this section shall
be construed to deny, abridge, limit, or otherwise adversely affect the
right of any benefit granting agency or any person at any time to
contact the Service to seek information or assistance regarding Service
documents or any other matter within the jurisdiction of the Service,
or the ability of the Service to respond to such requests as may be
authorized or required under applicable law by providing available
information or assistance.
Sec. 104.7 Nonexclusivity of procedures.
Nothing in this part shall be construed to deny, abridge, limit, or
adversely affect any right or privilege of any person under the
Constitution or laws of the United States or of any State, including
but not limited to any right under the Privacy Act, 5 U.S.C. Sec. 552a,
or the Freedom of Information Act, 5 U.S.C. Sec. 552, or any right not
to be discriminated against on the basis of race, color, national
origin, sex, religion, age, or disability. This part is intended to
provide minimum requirements for verifying eligibility for public
benefits under 8 U.S.C. 1601 et seq. It is not intended to supplant any
provision of law or policy regarding eligibility for or the
administration of any public benefit, including any provision for
additional or supplemental procedures for the verification of
eligibility, except that to the extent any Federal regulation or
policy, or any provision of State law is directly inconsistent with
this part, this part shall control. This part implements verification
requirements relating to limitations on alien eligibility for public
benefits, and exceptions to those limitations. Nothing in this part
shall be construed as an entitlement or a determination of an
applicant's eligibility or fulfillment of the requisite requirements
for any public benefit (for example, age, residence, disability,
income).
Sec. 104.8 Enforcement.
This part provides no specific penalties for any failure by a
benefit granting agency to comply with its provisions. Nothing in this
part, however, shall be construed to deny or limit any right of:
(a) The Attorney General to enforce 8 U.S.C. 1601 et seq. and this
part by means of a civil action;
(b) Any person to take any action otherwise authorized by law
against any benefit granting agency;
(c) The Service to report to an appropriate Federal or State
governmental body any failure of a benefit granting agency to comply
with this part; or
(d) The Service to limit or deny verification services to a benefit
granting agency pursuant to Sec. 104.44.
Sec. 104.9 Inapplicability to certain programs.
The requirements of this part do not apply to the following
programs:
(a) Any program of foreign assistance;
(b) A basic public education;
(c) Benefits provided under the school lunch program under the
National School Lunch Act, 42 U.S.C. 1751 et seq., or the school
breakfast program under section 4 of the Child Nutrition Act of 1966,
42 U.S.C. 1773, to any individual who is eligible to receive free
public education benefits under stateState or local law;
(d) Wages, pensions, annuities, and other earned payments to which
an alien is entitled resulting from employment by, or on behalf of, a
Federal, State, or local government agency that was not prohibited
under the Act during the period of such employment or service, provided
that the alien is not residing or present in the United States; or
(e) Benefits provided to an alien under laws administered by the
Secretary of Veterans Affairs, provided that the alien is not residing
or present in the United States.
Sec. 104.10 Verification requirement for certain nutrition programs.
A benefit granting agency providing Food Stamps shall comply with
Sec. 104.2 of this subpart, except that the benefit granting agency
shall not be required to use the procedures provided in subpart C. A
benefit granting agency providing any public benefit identified in 8
U.S.C. Sec. 1615(b)(2) shall comply with Sec. 104.3 rather than
Sec. 104.2.
Secs. 104.11-104.19 [Reserved].
Subpart B--Declaration of applicant and examination of documents.
Sec. 104.20 Scope of verification obligation.
A benefit granting agency may verify whether an applicant for a
public benefit is a national of the United States, an eligible
qualified alien, a nonimmigrant, or an alien paroled into the United
States under section 212(d)(5) of the Act for less than one 1 year only
to the extent that determination is relevant to the applicant's
eligibility for the public benefit. Determining whether an applicant
for a Federal public benefit, other than an exempted Federal public
benefit, is a national of the United States or an eligible qualified
alien is relevant to the applicant's eligibility for the Federal public
benefit (except as specifically provided by this part) unless and until
the benefit granting agency determines that the applicant is ineligible
for the Federal public benefit for some other reason. In determining
eligibility for a public benefit, the benefit granting agency may use
its own discretion as to the sequence or timing of verification under
this part, as
[[Page 41680]]
compared to other steps in determining eligibility, so as to minimize
the burden on the agency and the applicant, as long as the discretion
is exercised in a nondiscriminatory manner. A benefit granting agency
shall verify an applicant's eligibility for a public benefit under this
part without regard to the sex, color, race, religion, national origin
(except to the extent specifically authorized by Sections 104.1 or
104.62), or disability of the applicant.
Sec. 104.21 Written declaration of applicant.
A benefit granting agency shall require from an applicant for a
public benefit (other than an exempted Federal public benefit or an
exempted State or local public benefit) a declaration in writing, under
penalty of law, stating whether the applicant is a national of the
United States. If the applicant is an unemancipated minor under 18
years of age or an adult who is not competent to execute the
declaration, the written declaration as to the applicant's nationality
shall be executed by a parent, legal guardian, or other person legally
qualified to act on behalf of the applicant.
Sec. 104.22 Evidence of alien registration.
Except as specifically provided by this part, an applicant who has
not attested to being a U.S. national of the United States must present
to the benefit granting agency the applicant's most recent evidence of
alien registration issued by the Service, as listed in Section 264.1(b)
of this chapter. An applicant over the age of 14 who has not registered
with the Service, or any applicant whose evidence of registration has
been lost, mutilated, or destroyed, must contact the Service for the
purpose of immediately applying for new evidence of registration
pursuant to Section 264.1(c) of this chapter. In that case, the benefit
granting agency may accept as temporary evidence of alien registration
a Service receipt indicating an application for evidence of
registration, as long as the benefit granting agency requires the alien
to present the actual evidence of registration when it is received from
the Service. In the case of an applicant under the age of 14 who has
not registered with the Service, the benefit granting agency may waive
the requirement to present evidence of alien registration.
Sec. 104.23 Evidence of U.S. nationality.
Except as specifically provided by this part, a benefit granting
agency may not make a final determination that an applicant who has
attested to being a national of the United States is a national of the
United States until the applicant has presented to the benefit granting
agency acceptable evidence of U.S. nationality. This section must be
applied equitably and in a nondiscriminatory manner to all applicants.
Evidence of U.S. nationality that satisfies the requirement of this
section includes the following:
(a) Primary evidence:
(1) A birth certificate showing birth in one of the 50 states, the
District of Columbia, Puerto Rico (on or after January 13, 1941), Guam,
the U.S. Virgin Islands (on or after January 17, 1917), American Samoa,
or the Northern Mariana Islands (on or after November 4, 1986, Northern
Mariana Islands local time) (unless the applicant was born to foreign
diplomats residing in such a jurisdiction);
(2) United States passport;
(3) Report of birth abroad of a U.S. citizen (FS-240) (issued by
the Department of State to U.S. citizens);
(4) Certificate of Birth (FS-545) (issued by a foreign service
post) or Certification of Report of Birth (DS-1350), copies of which
are available from the Department of State;
(5) Form N-550 or N-570, Certificate of Naturalization (issued by
the Service through a Federal or State court, or through administrative
naturalization after December 1990 to individuals who are individually
naturalized; the N-570 is a replacement certificate issued when the N-
550 has been lost or mutilated or the individual's name has changed);
(6) Form N-560 or N-561, Certificate of Citizenship (issued by the
Service to individuals who derive U.S. citizenship through a parent;
the N-561 is a replacement certificate issued when the N-560 has been
lost or mutilated or the individual's name has changed);
(7) Form I-197, United States Citizen Identification Card (issued
by the Service until April 7, 1983 to U.S. citizens living near the
Canadian or Mexican border who needed it for frequent border crossings)
(formerly Form I-179, last issued in February 1974);
(8) Form I-873 (or prior versions), Northern Marianas Card (issued
by the Service to a collectively naturalized U.S. citizen who was born
in the Northern Mariana Islands before November 3, 1986);
(9) Statement provided by a U.S. consular official certifying that
the individual is a U.S. citizen (given to an individual born outside
the United States who derives citizenship through a parent but does not
have an FS-240, FS-545, or DS-1350); or
(10) Form I-872 (or prior versions), American Indian Card with a
classification code ``KIC'' and a statement on the back identifying the
bearer as a U.S. citizen (issued by the Service to U.S. citizen members
of the Texas Band of Kickapoos living near the U.S./Mexican border).
(b) Secondary Evidence (if applicant cannot present primary
evidence):
(1) Religious record recorded in one of the 50 states, the District
of Columbia, Puerto Rico (on or after January 13, 1941), Guam, the U.S.
Virgin Islands (on or after January 17, 1917), American Samoa, or the
Northern Mariana Islands (on or after November 4, 1986, Northern
Mariana Islands local time) (unless the applicant was born to foreign
diplomats residing in such a jurisdiction) within three 3 months after
birth showing that the birth occurred in such jurisdiction and the date
of birth or the individual's age at the time the record was made;
(2) Evidence of civil service employment by the U.S. government
before June 1, 1976;
(3) Early school records (preferably from the first school) showing
the date of admission to the school, the applicant's date and U.S.
place of birth, and the name(s) and place(s) of birth of the
applicant's parents(s);
(4) Census record showing name, U.S. nationality or a U.S. place of
birth, and applicant's date of birth or age;
(5) Adoption finalization papers showing the applicant's name and
place of birth in one of the 50 states, the District of Columbia,
Puerto Rico (on or after January 13, 1941), Guam, the U.S. Virgin
Islands (on or after January 17, 1917), American Samoa, or the Northern
Mariana Islands (on or after November 4, 1986, Northern Mariana Islands
local time) (unless the applicant was born to foreign diplomats
residing in such a jurisdiction), or, when the adoption is not
finalized and the state or other U.S. jurisdiction listed above will
not release a birth certificate prior to final adoption, a statement
from a State- or jurisdiction-approved adoption agency showing the
applicant's name and place of birth in one of such jurisdictions, and
stating that the source of the information is an original birth
certificate;
(6) Any other document that establishes a U.S. place of birth or
otherwise indicates U.S. nationality (e.g., a contemporaneous hospital
record of birth in that hospital in one of the 50 states, the District
of Columbia, Puerto Rico (on or after January 13, 1941), Guam, the U.S.
Virgin Islands (on or after January 17, 1917), American Samoa, or the
Northern Mariana Islands (on or after November 4, 1986, Northern
Mariana Islands local time) (unless the applicant was born to foreign
diplomats residing in such a jurisdiction);
[[Page 41681]]
(7) Evidence of birth in Puerto Rico on or after April 1, 1899 and
the applicant's statement that he or she was residing in the United
States, a U.S. possession, or Puerto Rico on January 13, 1941;
(8) Evidence that the applicant was a Puerto Rican citizen and the
applicant's statement that he or she was residing in Puerto Rico on
March 1, 1917 and that the applicant did not take an oath of allegiance
to Spain;
(9) Evidence of birth in the U.S. Virgin Islands, and the
applicant's statement of residence in the United States, a U.S.
possession, or the U.S. Virgin Islands on February 25, 1927;
(10) The applicant's statement indicating residence in the U.S.
Virgin Islands as a Danish citizen on January 17, 1917 and residence in
the United States, a U.S. possession, or the U.S. Virgin Islands on
February 27, 1927, and indicating that the applicant did not make a
declaration to maintain Danish citizenship;
(11) Evidence of birth in the U.S. Virgin Islands and the
applicant's statement indicating residence in the United States, a U.S.
possession or territory, or the Canal Zone on June 28, 1932;
(12) Evidence of birth in the Northern Mariana Islands, Trust
Territory of the Pacific Islands (``TTPI'') citizenship, and residence
in the Northern Mariana Islands, the United States, or a U.S. territory
or possession on November 3, 1986 (Northern Mariana Islands local
time), and the applicant's statement that he or she did not owe
allegiance to a foreign state on November 4, 1986 (Northern Mariana
Islands local time);
(13) Evidence of TTPI citizenship, continuous residence in the
Northern Mariana Islands since before November 3, 1981 (Northern
Mariana Islands local time), voter registration prior to January 1,
1975, and the applicant's statement that he or she did not owe
allegiance to a foreign state on November 4, 1986 (Northern Mariana
Islands local time);
(14) Evidence of continuous domicile in the Northern Mariana
Islands since before January 1, 1974, and the applicant's statement
that he or she did not enter the Northern Mariana Islands as a
nonimmigrant and that he or she did not owe allegiance to a foreign
state on November 4, 1986 (Northern Mariana Islands local time);
(15) Evidence of the U.S. citizenship of both the applicant's
parents, of the relationship of the applicant to the parents, and
evidence that at least one parent resided in the United States or an
outlying possession prior to the applicant's birth abroad;
(16) Evidence that one parent is a U.S. citizen and the other is a
U.S. non-citizen national, evidence of the relationship of the
applicant to the U.S. citizen parent, and evidence that the U.S.
citizen parent resided in the United States, a U.S. possession, or
American Samoa for a period of at least one 1 year prior to the
applicant's birth;
(17) Evidence of the U.S. citizenship of the mother of an applicant
born abroad out of wedlock, evidence of the relationship to the
applicant, and
(i) For births on or before December 24, 1952, evidence that the
mother resided in the United States prior to the applicant's birth; or
(ii) For births after December 24, 1952, evidence that the mother
had resided prior to the applicant's birth in the United States or a
U.S. possession for a period of at least one 1 year;
(18) A birth certificate showing birth in the Republic of Panama on
or after February 26, 1904 and before October 1, 1979, and evidence
that at least one parent was a U.S. citizen and employed by the U.S.
Government or the Panama Railroad Company or its successor in title; or
(19) Evidence of a female applicant's marriage to a U.S. citizen
before September 22, 1922.
(c) Option to consult agency records. A benefit granting agency
may, in lieu of requiring an applicant to present evidence of U.S.
nationality under this section, rely upon records of verified
nationality maintained by it, or by a Federal agency responsible for
administering a Federal public benefit program, that reasonably
establish the applicant's U.S. nationality. This authority includes,
but is not limited to, verification of U.S. nationality conducted under
an approved computer matching agreement in compliance with the Computer
Matching and Privacy Protection Act of 1988, Pub. L. No. 100-503, 102
Stat. 2507.
(d) Option to accept third party declaration. A benefit granting
agency may accept a written declaration made under penalty of law from
one or more third parties indicating a reasonable basis for personal
knowledge that an applicant who cannot produce evidence of U.S.
nationality under this section is a U.S. national of the United States.
The benefit granting agency may require the applicant to demonstrate
why documentary evidence satisfying paragraphs (a) or (b) of this
section does not exist or cannot readily be obtained.
(e) Option to accept receipt. A benefit granting agency may accept
a receipt for an application for evidence of U.S. nationality (but not
a Service receipt for filing a Form N-600 (Application for Certificate
of Citizenship) or a Form N-400 (Application for Naturalization)) as
temporary evidence of U.S. nationality, as long as the benefit granting
agency requires the applicant to present the actual evidence of U.S.
nationality before making a final determination that the applicant is a
national of the United States.
Sec. 104.24 Proof of identity.
An applicant who presents evidence of U.S. nationality or alien
registration that does not contain a photograph or other information
describing the applicant (i.e., height, weight, age) that is sufficient
to identify that the applicant is the individual to whom the evidence
of U.S. nationality or alien registration relates must also present an
identification document.
Sec. 104.25 Standard for accepting documents.
(a) Documents must be original and unexpired. Certified copies of
documents evidencing U.S. nationality are acceptable. The benefit
granting agency shall accept documentation presented in compliance with
Secs. 104.22, and 104.23, and 104.24 and this paragraph (a) that
reasonably appears on its face to be genuine and to relate to the
applicant.
(b) If the documentation does not reasonably appear on its face to
be genuine and to relate to the applicant, the verification shall not
proceed further unless and until documentation meeting that standard is
produced. If the documentation reasonably appears on its face to be
genuine but does not reasonably relate to the applicant, the
verification shall not proceed further unless and until documentation
meeting that standard is produced.
(c) If documentation that reasonably relates to an applicant who
has attested to being a national of the United States but does not
reasonably appear to be genuine is produced to a benefit granting
agency, the benefit granting agency shall verify the authenticity of
the documentation, using available verification assistance from the
document issuer (or other qualified source), before accepting it.
(d) If documentation that reasonably relates to an alien applicant
but does not reasonably appear on its face to be genuine is produced to
a benefit granting agency determining eligibility for a Federal public
benefit, or to a benefit granting agency determining eligibility for a
State or local public benefit that uses the procedures provided in
subpart C, the benefit granting agency shall proceed with the
verification using the procedures provided in subpart C (including, as
may be directed by the Service under
[[Page 41682]]
Sec. 104.47, any special procedures for suspected fraudulent
documentation).
(e) If documentation that reasonably relates to an alien applicant
but does not reasonably appear on its face to be genuine is produced to
a benefit granting agency determining eligibility for a State or local
public benefit that does not use the procedures provided in subpart C,
the benefit granting agency shall verify the authenticity of the
documentation, using available verification assistance from the
document issuer (or other qualified source), before accepting it.
(f) Nothing in this section shall be construed to deny or limit any
right of a benefit granting agency to contact the issuer of any
document to resolve bona fide questions about its authenticity.
Sec. 104.26 Retention of information.
The benefit granting agency must retain a photocopy of the written
declaration of the applicant and of all evidence of U.S. nationality or
alien registration, and identity presented by the applicant, both front
and back, until all verification procedures conducted under this part
have been completed and a final decision made as to the applicant's
eligibility (including any period of time allowed to appeal or contest
the final decision), or for as long as the benefit granting agency
retains other documents submitted by the applicant relating to the
application for benefits, whichever is longer. A benefit granting
agency is not required to retain photocopies if it instead maintains in
an accessible electronic format the information relevant to its
determination of eligibility for the length of time required by this
section.
Sec. 104.27 Other relevant information.
The benefit granting agency shall be responsible for determining
what information it needs from an alien applicant (in addition to
evidence of alien registration and identity) in order to verify the
applicant's eligibility for a public benefit under this part, and for
requesting that information from the applicant. Depending upon the
public benefit, and upon which basis the alien applicant claims to be
eligible, that information may include: Full name; date of birth; alien
registration number or admission number; social security account number
(to the extent authorized by law); immigration status; date of
admission or parole into the United States; reason for admission into
the United States, if different from present immigration status (i.e.,
refugee, Amerasian immigrant); date of obtaining present immigration
status; immigration status and place of residence on August 22, 1996 or
other relevant date; veteran or armed forces duty status; veteran or
armed forces duty status of a family member; Native American status;
work history in the United States; history of battery or extreme
cruelty by or against a family member; whether any person has executed
an affidavit of support relating to the applicant, and, if so, the
income and resources of that person and of his or her spouse; blindness
or disability; and history of receiving public benefits (for example,
whether the applicant is receiving Supplemental Security Income on the
basis of an application filed before January 1, 1979). Upon request,
the Service will assist a benefit granting agency in determining which
information will be necessary in order to determine alien applicants'
eligibility for the public benefit(s) it administers.
Sec. 104.28 Reliance upon attestation as temporary evidence of U.S.
nationality.
A benefit granting agency providing a Federal public benefit may
rely upon an applicant's attestation in compliance with Sec. 104.21
that the applicant is a national of the United States as an interim
basis upon which to grant a pubic benefit temporarily until the
applicant is able to satisfy the requirements of Secs. 104.23 and
104.24. A benefit granting agency that relies upon attestations of U.S.
nationality to make interim decisions with respect to a public benefit
must apply that policy equitably with respect to all applicants for
that public benefits making such attestations. A benefit granting
agency may, before relying on an attestation as provided in this
section, require the applicant to demonstrate why he or she is unable
to present evidence satisfying Secs. 104.23 and 104.24 at that time.
Sec. 104.29 Reliance upon alternative procedures for determining U.S.
nationality.
A Federal agency that has promulgated regulations that provide fair
and nondiscriminatory procedures for verifying the U.S. nationality of
applicants for a Federal public benefit provided by that agency, or by
another benefit granting agency subject to those regulations, may
continue to use them instead of this part with respect to verification
of U.S. nationality upon written request by the Federal agency to the
Service, and approval of the request by the Attorney General. Nothing
in this section shall be construed to deny, abridge, limit, or
adversely affect the validity of any Federal regulation relating to
verifying U.S. nationality of applicants for public benefits that a
Federal agency has requested to continue to use, other than the
Attorney General's written denial of the request, with reasons provided
therefor.
Sec. 104.30 Eligibility of household.
A benefit granting agency that receives applications or determines
the eligibility of an applicant for a public benefit on the basis of
the applicant's household may modify the requirements of Subpart B with
respect to that public benefit as follows, as long as the modification
is equitably applied to all applicants in a nondiscriminatory manner:
(a) An applicant who is an adult member of a household may execute
the written declaration required by Sec. 104.21 on behalf of other
members of the household;
(b) An applicant who is an adult member of a household may present
the documentation identified in Secs. 104.22 or 104.23 on behalf of
other members of the household, except that a member of the household
who is an alien 18 years of age or over must present his or her alien
registration documentation in person; and
(c) the benefit granting agency may waive the requirements of
Sec. 104.24 (regarding additional proof of identity) with respect to
members of a household whose documentation is presented by another
adult member of the household.
Secs. 104.31-104.39 [Reserved].
Subpart C--Systematic Alien Verification for Entitlements (SAVE)
Sec. 104.40 SAVE system.
The Service shall provide and maintain SAVE for the use of benefit
granting agencies that are required or authorized to verify that
applicants are eligible qualified aliens, nonimmigrants, or aliens
paroled into the United States for less than 1 year. The Service may
delegate to a contractor technical or other responsibilities for SAVE
operation. Benefit granting agencies may use SAVE to the extent
required or authorized by Secs. 104.2, 104.3, and 104.4
Sec. 104.41 When to use SAVE.
A benefit granting agency may not use SAVE to verify an alien
applicant's status until it has completed the procedures provided by
subpart B with respect to that applicant. The benefit granting agency
shall complete the procedures required by subpart C before making a
final determination as to benefit eligibility based upon whether the
applicant is an eligible qualified alien, or is a nonimmigrant or an
alien paroled into the United States for less than 1 year who is
eligible for a State or local public benefit. A benefit granting agency
may make an interim or
[[Page 41683]]
temporary decision as to benefit eligibility pending the completion of
SAVE procedures. A Federal agency verifying the eligibility of alien
applicants through SAVE under an approved computer matching agreement
with the Service in compliance with the Computer Matching and Privacy
Protection Act of 1988, Pub. L. No. 100-503, 102 Stat. 2507, shall
comply with the verification procedures provided by that agreement and
by its applicable regulations in lieu of subpart B's provisions
regarding alien applicants.
Sec. 104.42 Enrollment.
A benefit granting agency that is required to use SAVE, or that has
the option to use SAVE to verify eligibility for State and local public
benefits and wishes to do so, must submit a written request to be
granted SAVE access to SAVE Branch, Immigration and Naturalization
Service, 425 I Street NW., Washington, DC 20536, unless the benefit
granting agency is already a SAVE user with respect to all public
benefits for which such use is required or permitted. The Service will
supply to the benefit granting agency the necessary codes, passwords,
and other materials necessary for SAVE access upon its approval of the
request. At its discretion the Service may condition access to SAVE
upon the execution by the benefit granting agency of an appropriate
memorandum of understanding stating the scope of the access and other
appropriate terms and conditions.
Sec. 104.43 Costs.
A benefit granting agency that uses SAVE must pay the Service for
the verification services provided. Cost information is available from
the Service upon request.
Sec. 104.44 Limitation of access to SAVE.
The SAVE access is a privilege extended to benefit granting
agencies that need it to perform their responsibilities under
applicable law and that will use it properly. The Service will make the
final decision as to whether SAVE access will be granted to or
continued for a benefit granting agency. The Service may, in the
exercise of its discretion, deny, terminate, suspend, or limit a
benefit granting agency's SAVE access for good cause, including but not
limited to: misuse of the system, including use for employment
verification; use to attempt verification of U.S. nationality,
commission of fraud, or other criminal or civil violations of law,
illegal discrimination, failure to comply with a requirement of this
part; violations of privacy rights; inadequate training or supervision
of employees responsible for verification; nonpayment for services
rendered; or budgetary or other constraints preventing the Service from
providing SAVE to a benefit granting agency. Denial, termination,
suspension, or limitation of SAVE access does not waive any legal
obligation of a benefit granting agency to verify the eligibility of
any applicant.
Sec. 104.45 Primary verification.
A benefit granting agency using SAVE procedures shall perform
primary verification within 3 business days after it complies with
subpart B with respect to an alien applicant, unless the documentation
presented by the applicant indicates on its face an immigration status
that renders the applicant ineligible for the public benefit, and the
applicant does not claim a different status that would make the
applicant eligible for the public benefit. The benefit granting agency
shall provide through the automated system available information
necessary to verify the applicant's status, including the applicant's
alien registration number (if any). The Service will respond within 3
business days with relevant information on the status of the applicant,
or with an instruction to perform secondary verification. As
instruction to perform secondary verification is not a determination
that an applicant is not an eligible qualified alien, and shall not be
construed as such. A benefit granting agency that is subject to a
statute or regulation that provides a different time period for
verifying eligibility or processing applications for a public benefit
may use that time period instead of the 3-day period provided by this
rule for initiating primary verification, as long as the different time
period is applied consistently to all alien applicants.
Sec. 104.46. Secondary verification
A benefit granting agency that has completed primary verification,
but is unable to determine based upon the result of the primary
verification that an applicant is an eligible qualified alien, or is a
nonimmigrant or an alien paroled into the United States for less than 1
year who is eligible for a State or local public benefit, shall make a
secondary verification inquiry within 5 business days after completing
primary verification. A benefit granting agency that is subject to a
statute or regulation that provides a different time period for
verifying eligibility or processing applications for a public benefit
may use that time period instead of the 5-day period provided by this
rule for initiating secondary verification, as long as the different
time period is applied consistently to all alien applicants.
Sec. 104.47. Direct resort to secondary verification
With the express prior approval of the Service (whether for
individual cases or for classes of applicants or public benefits), a
benefit granting agency may use secondary verification procedures
directly, without first conducting primary verification. These
situations will be determined by the Service and may include, for
example, situations where a very small number of applicants for a
public benefit makes installation of the primary verification system
not cost-effective; where a benefit granting agency has bona fide
reasons to believe that documents submitted by an applicant are
fraudulent; or where for some other reason primary verification is not
useful or cost-effective compared to direct secondary verification.
Sec. 104.48. Victims of domestic violence
A benefit granting agency that needs to determine whether an
applicant is a qualified alien by reason of being an alien who (or
whose child or parent) has been battered or subjected to extreme
cruelty in the United States and otherwise satisfies the requirements
of 8 U.S.C. 1641(c) shall use the following procedures:
(a) The benefit granting agency shall examine documentation
satisfying section 102.22, if the applicant possesses such
documentation;
(b) Whether or not the applicant has produced documentation
satisfying Section 104.22, the benefit granting agency shall require
the applicant to produce (in lieu of or in addition to evidence of
alien registration) any other documentation in the applicant's
possession or control that relates to whether the applicant has been
approved or has a petition pending which sets forth a prima facie case
for a status, classification, or cancellation of removal provided for
in 8 U.S.C. 1641(c)(1)(B).
(c) If the documentation presented under paragraphs (a) and (b) of
this section does not satisfy the requirements of Section 104.24, the
applicant shall present an identification document or, if the applicant
does not have an identification document, other reasonable secondary
evidence sufficient to satisfy the benefit granting agency that the
applicant is the individual to whom the documentation presented under
paragraphs (a) and (b) of this section relates, which may
[[Page 41684]]
include another document relating to the applicant or a written
declaration under penalty of law from one or more third parties with
personal knowledge of the applicant.
(d) In lieu of conducting primary verification, the benefit
granting agency shall resort directly to the following secondary
verification procedure: For applicants who present documentation or
otherwise indicate that they sought relief from the Executive Office
for Immigration Review (``EOIR'') through suspension of deportation
under section 244(a)(3) of the Act (as in effect prior to April 1,
1997) or cancellation of removal under section 240A(b)(2) of the Act,
the benefit granting agency shall fax a written request, and copies of
any documentation provided, to the Court Administrator of the
appropriate immigration court, and obtain the court's response. For all
other applicants, the benefit granting agency shall fax a written
request, and copies of documentation provided, to the Battered Alien
Review Unit of the Service's Vermont Service Center at (802) 527-3252,
or to such other number as the Service may direct, and obtain the
Service's response. Any information a benefit granting agency receives
from the Service or EOIR pursuant to this section regarding an
applicant shall be used solely in making its determination whether the
applicant is an eligible qualified alien;
(e) Contemporaneously with its verification whether the applicant
meets the requirements of 8 U.S.C. 1641(c)(1)(B) as provided in
paragraphs (a) through (d) of this section, the benefit granting agency
shall determine by such means as it reasonably determines to be
appropriate whether the applicant otherwise meets the requirements of 8
U.S.C. 1641(c), after considering the guidance promulgated by the
Attorney General pursuant to 8 U.S.C. 1641(c) concerning the meaning of
the terms ``battery'' and ``extreme cruelty'' (see Notice, 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, 61366 (Exhibit B
to Attachment 5) (Nov. 17, 1997)), and the standards and methods to be
used for determining whether a substantial connection exists between
battery or cruelty suffered and an individual's need for benefits under
a specific Federal, State, or local program (see Notice, 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)).
Sec. 104.49 Unauthorized uses of SAVE.
SAVE is not designed for the purpose of verifying an alien's work
authorization under section 274A of the Act, or for the purpose of
verifying U.S. nationality. Use for either of these purposes is not
authorized, and may result in termination of SAVE access.
Sec. 104.50 Training.
The Service shall provide training materials sufficient to instruct
the benefit granting agency in the proper use of SAVE. The benefit
granting agency shall devote sufficient personnel, resources, and
training to its verification responsibilities to enable it to use SAVE
properly and comply with this part.
Sec. 104.51 Use of information by the Service.
The Service will not use information provided to it through SAVE by
a benefit granting agency for the purpose of administrative
(noncriminal) enforcement of the Act. The Service may use such
information for the purpose of enforcing any provision of criminal law.
Nothing in this part shall be construed to waive or limit any civil or
criminal penalty or consequence, including removal from the United
States, that may be applicable under the Act or any other law to a
false statement or any other act relating to an application for, or the
receipt of any public benefit. Nor shall anything in this part be
construed to waive, limit, or deny any right or duty of a benefit
granting agency to report to the Service the presence, whereabouts, or
activities of any alien not lawfully present in the United States, or
any lawful use the Service may make of such a report, but any such
report shall be made by means other than SAVE.
Sec. 104.52 Evaluation of SAVE.
The Department of Justice may conduct evaluations of SAVE. Benefit
granting agencies that are participants in SAVE shall cooperate with
such evaluations by providing such information and assistance as is
necessary to evaluate the program, consistent with other applicable
law.
Secs. 104.53-104.59 [Reserved].
Subpart D--Verification Requiring Non-Service Information.
Sec. 104.60 Veteran and active duty exception.
(a) With respect to certain public benefits, an applicant is an
eligible qualified alien by virtue of being a qualified alien lawfully
residing in any state who is:
(1) A veteran, with a discharge characterized as an honorable
discharge and not on account of alienage, who fulfills minimum active
duty service requirements;
(2) On active duty (other than active duty for training) in the
armed forces of the United States; or
(3) The spouse, unremarried surviving spouse, or unmarried
dependent child of an individual described in paragraphs (a)(1) or
(a)(2) of this section.
(b) If an applicant claims to be an eligible qualified alien
because of the veteran and active duty exception, the benefit granting
agency shall comply with paragraphs (c) and (d) of this section.
(c) Vertification of qualified alien status and lawful residence.
The benefit granting agency shall verify whether the applicant is a
qualified alien using the procedures in subpart B, and the procedures
in subpart C to the extent the benefit granting agency is required to
use them to verify eligibility for a Federal pubic benefit, or has
chosen to use them to verify eligibility for a State or local public
benefit. The benefit granting agency shall verify that the alien is
lawfully residing in the United States as provided in section 104.64.
(d) Verification of veteran or active duty status. (1) If the
applicant claims to be an honorably discharged veteran who meets
minimum active duty service requirements, the benefit granting agency
shall require the applicant to present a discharge certificate, Form DD
214 or equivalent, that shows active duty in the Army, Navy, Air Force,
Marine Corps, or Coast Guard and character of discharge. ``Honorable''
is accepteable to quaify for the veteran exception without further
inquiry, unless the certificate appears to have been altered or is
otherwise irregular. A discharge ``Under Honorable Conditions'' is not
acceptable. A discharge certificate that shows ``Honorable'' and any
other branch of service or any other type of duty (e.g., ``Active Duty
for Training'' or ``Inactive Duty for Training'') should be referred to
the local Veterans Affairs (``VA'') regional office. If veteran status
is claimed but the applicant has no papers showing service or
discharge, the inquiry should be referred to the local VA regional
office to determine veteran status. If a discharge certificate, DD Form
214, or equivalent shows an original enlistment in the Army, Navy, Air
Force, Marine Corps, or Coast Guard before September 7, 1980, there is
no minimum active duty service requirement. If the discharge
certificate
[[Page 41685]]
shows two or more years of continous active duty in the Army, Navy, Air
Force, Marine Corps, or Coast Guard, the applicant meets the minimum
active duty service requirement. If such a discharge certificate is not
available, or if it shows active duty service of less than 2 years with
an original enlistment after September 7, 1980, the inquiry should be
referred to the local VA regional office to determine satisfaction of
the minimum active duty service requirement;
(2) If the applicant claims to be on active duty (other than active
duty for training) in the U.S. Armed Forces, the benefit granting
agency shall require the applicant to present a current Military
Identification Card (DD) Form 2 (Active)). If the Military
Identification Card will expire within 1 year from the date it is
presented, the applicant must also present to the benefit granting
agency a copy of the applicant's military orders. If the applicant is
unable to present a copy of his or her military orders, the benefit
granting agency must verify active duty status through the nearest
RAPIDS (Real Time Automated Personnel Identification System), located
at many military installations, or by contacting the following office
in writing (which may be transmitted by facsimile): DEERS Support
Office, Attn: Research and Analysis, 400 Gigling Road, Seaside, CA,
93955-6771, facsimile number (408) 655-8317. Active duty for training
is temporary fulltime duty in the Armed Forces performed by members of
the Reserves, Army National Guard, or Air National Guard (the ``Reserve
Components'') for training purposes. The active duty exception does not
apply to an applicant who is on active duty for training. A member of a
Reserve Component who claims to be on active duty, other than active
duty for training, must present a curret DD Form 2 (Reserve) and
military active duty orders showing the applicant to be on active duty,
but not on active duty for training;
(3) If the applicant claims to be the spouse, unremarried surviving
spouse, or unmarried dependent child of an individual described in
paragraphs (a)(1) or (a)(2) of this section, the benefit granting
agency must verify both the qualifying familial relationship between
the applicant and the veteran or active duty individual, and the
veteran on active duty status of the individual. To verify the latter,
the benefit granting agency must require the applicant to present
evidence of the individual's veteran or active duty status sufficient
to satisfy paragraphs (d)(1) or (d)(2) of this section. This subpart
does not provide specific requirements for verifying the qualifying
familial relationship. The benefit granting agency shall use such
verification procedures (which may include execution of a written
attestation or presentation of appropriate documentation) as in the
exercise of the benefit granting agency's discretion are reasonably
calculated to verify the existence of the relationship. With respect to
an unremarried surviving spouse, the verification procedures shall take
into account the fact that the qualifying relationship must satisfy one
of the following conditions:
(i) The unremarried surviving spouse must have been married to the
veteran or individual on active duty within 15 years after the
termination of the period of service in which the injury or disease
causing the death of the veteran or individual on active duty was
incurred or aggravated;
(ii) The unremarried surviving spouse must have been married to the
veteran or individual on active duty for 1 year or more; or
(iii) A child must have been born to the couple.
Sec. 104.61 Credited quarters of qualifying work.
With respect to certain public benefits, an applicant is an
eligible qualified alien by virtue of being an alien who is lawfully
admitted for permanent residence under the Act; and who has worked or
can be credited with 40 qualifying quarters under the Social Security
Act. If an alien claims to be an eligible qualified alien on this
basis, the benefit granting agency shall verify whether the applicant
is an alien lawfully admitted for permanent residence using the
procedures in subpart B, and the procedures in subpart C to the extent
the benefit granting agency is required to use them to verify
eligibility for a Federal public benefit, or has chosen to use them to
verify eligibility for a State or local public benefit. The benefit
granting agency shall verify qualifying quarters with the Social
Security Administration (``SSA'') using such guidance as may be
available upon request to SSA.
Sec. 104.62 Section 289 exception.
(a) With respect to certain public benefits, an alien applicant may
be eligible by virtue of being an American Indian born in Canada to
whom the provisions of section 289 of the Act apply, regardless whether
the applicant is a qualified alien. If an applicant claims to be
eligible on this basis, the benefit granting agency shall use the
procedures in subpart B, except as specifically provided by this
section. An alien to whom section 289 of the Act applies may, or may
not, possess evidence of alien registration issued by the Service. In
lieu of the requirement in section 104.22 to present evidence of alien
registration, the benefit granting agency shall require the applicant
to present the following documentary evidence of section 289 status:
(1) An unexpired Form I-551 (Alien Registration Receipt Card or
Permanent Resident Card) with the code S13;
(2) An unexpired temporary I-551 stamp in a Canadian passport or on
Form I-94, Arrival-Departure Record, with the code S13; or
(3) A letter or other tribal document certifying at least 50 per
centum Indian blood as required by section 289 of the Act, combined
with a birth certificate or other satisfactory evidence of birth in
Canada.
(b) If the applicant presents the documentary evidence referenced
in paragraphs (a)(1) or (a)(2) of this section, the benefit granting
agency shall use the procedures in subpart C to the extent the benefit
granting agency is required to use them to verify eligibility for a
Federal public benefit, or has chosen to use them to verify eligibility
for a State or local public benefit.
Sec. 104.63 Members of Indian tribes.
(a) With respect to certain public benefits, an alien applicant may
be eligible by virtue of being a member of an Indian tribe, regardless
whether the applicant is a qualified alien. If an applicant claims to
be eligible on this basis, the benefit granting agency shall use the
procedures in subpart B, except as specifically provided by this
section. In lieu of the requirement of section 104.22 to present
evidence of alien registration, the benefit granting agency shall
require the applicant to present a membership card or other tribal
document demonstrating membership in an Indian tribe. If the applicant
has no document evidencing tribal membership, the benefit granting
agency should contact the Indian tribe for verification of membership.
A benefit granting agency that verifies that an applicant is eligible
by virtue of being a member of an Indian tribe shall not use subpart C
verification procedures.
Sec. 104.64 Lawful residence.
(a) With respect to certain public benefits, an alien applicant may
be an eligible qualified alien only if he or she is lawfully residing
in the United States at the time of application, or that he or she was
lawfully residing in the United States as of a specific prior date
(such as August 22, 1996). The benefit granting agency shall use
subpart B and
[[Page 41686]]
subpart C verification procedures with respect to such applicants. If
those procedures verify that the applicant is or was a qualified alien
(other than an alien who is a qualified alien because he or she is a
victim of domestic violence) on the requisite date, the benefit
granting agency need not perform further verification procedures with
respect to lawful residence.
(b) If the subpart B and subpart C verification procedures do not
confirm that the applicant is or was a qualified alien (other than an
alien who is a qualified alien because he or she is a victim of
domestic violence), on the requisite date and the applicant (if not a
qualified alien because he or she is a victim of domestic violence) is
not rendered ineligible because he or she is not a qualified alien, the
benefit granting agency shall:
(1) Verify, through review of the information obtained through the
subpart B and subpart C procedures and, if necessary, further inquiry
to the Service, that the applicant is or was lawfully present on the
requisite date; and
(2) Verify that the applicant's residence is or was in the United
States on the requisite date by reviewing proof of residence described
in section 244.9(a)(2) of this chapter.
Sec. 104.65 Hmong or Highland Laotians.
(a) With respect to certain public benefits effective November 1,
1998, an alien applicant may be eligible by virtue of being a Hmong or
Highland Laotian, regardless whether the applicant is a qualified
alien. If an applicant claims to be eligible on this basis, the benefit
granting agency shall verify the applicant's lawful residence in the
United States as set forth in section 104.64, and shall use such
verification procedures (which may include attestation or presentation
of appropriate documentation) as in the exercise of the benefit
granting agency's discretion are reasonably calculated to verify that
the applicant is a Hmong or Highland Laotian.
(b) An alien applicant may also be eligible by virtue of being the
spouse or unmarried dependent child of a Hmong or Highland Laotian, or
the unremarried surviving spouse of a deceased Hmong or Highland
Laotian, regardless whether the applicant is a qualified alien or is
lawfully residing in the United States. If an applicant claims to be
eligible by virtue of a qualifying familial relationship with a living
or deceased Hmong or Highland Laotian, the benefit granting agency
shall not verify the applicant's immigration status as provided in
subparts B and C. Instead, the benefit granting agency shall use such
verification procedures (which may include attestation or presentation
of appropriate documentation) as in the exercise of the benefit
granting agency's discretion are reasonably calculated to verify the
applicant's qualifying familial relationship with a Hmong or Highland
Laotian.
Secs. 104.66-104.69 [Reserved].
Dated: July 27, 1998.
Janet Reno,
Attorney General.
[FR Doc. 98-20457 Filed 8-3-98; 8:45 am]
BILLING CODE 4410-10-P
