More Detail on Proposed INS Verification Regs and HHS "Federal Public Benefits" Notice

IMMIGRANTS & PUBLIC BENEFITS

Verification and Reporting

More detail on proposed INS verification regs and HHS "federal public benefits" notice
Immigrants' Rights Update, Vol. 12, No. 7, October 26, 1998

As previously reported here, the U.S. Department of Health and Human Services (HHS) has issued a notice delineating which benefits governed by the agency are "federal public benefits," and the Immigration and Naturalization Service has issued a proposed rule that governs the procedures for verifying citizens’ and immigrants’ eligibility for federal public benefits. The 60-day period during which the public could comment on these two sets of regulations ended on Oct. 5, 1998. (Many organizations nationwide submitted comments; for a copy of the comments submitted by NILC, contact the Los Angeles office.)

The preamble to the proposed rule on verification states that it is intended to be used "in tandem" with the Justice Department’s "Interim Guidance on Verification," published in the Federal Register on Nov. 17, 1997, and that the latter should continue to guide agencies where it does not conflict with the new proposed rule. Only "federal public benefits" and "state public benefits" are affected by the proposed rule on verification, but the rule does not clarify the meaning of these terms as used in the 1996 welfare bill, other than to paraphrase the statutory definitions.

To date, the only federal department to clarify the definition of federal public benefit is the HHS. All services or benefits that are wholly or partially funded with HHS resources are subject to the HHS Notice. Agencies administering non-HHS programs should await clarification from those other federal agencies before implementing the new regulations, both to avoid unnecessary and burdensome verification procedures and to avoid illegal denials of persons who remain eligible for assistance.

HHS Notice on the Interpretation of "Federal Public Benefit"

Section 401 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) generally bars immigrants who are not "qualified immigrants" from eligibility for any "Federal public benefit." Clarification such as that provided by the HHS notice is needed because the term "federal public benefit"—as well as many of the terms used in the statutory definition—are not delineated by statutes or case law. The statute defines a federal public benefit as "any grant, contract, loan, professional license, or commercial license" provided to an individual, and also "any retirement, welfare, health, disability, public or assisted housing, postsecondary 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."

The HHS notice clarifies that determining whether a particular service or benefit falls within the definition of federal public benefit is a multi-step process. Under Part A of the definition, a federal public benefit includes any grant, loan, or professional or commercial license provided by any HHS program to an individual, including research grants, student loans, or patent licenses; however, it does not include "block grants" to states or localities. If a benefit does not fall within Part A of the definition, it may still be a federal public benefit if it meets the requirements of Part B. Part B includes two conditions:

1. Types of benefits. To satisfy the definition, a benefit either (a) must provide one of the following types of benefit: retirement, welfare, health, disability, public or assisted housing, food assistance, or unemployment; or (b) must be a benefit "similar" to these. Certain benefits are therefore excluded from the definition because they do not fall within any of the specifically listed categories and they are not "similar" to any of the listed categories.

2. Individual vs. community beneficiaries. In addition, to qualify as a federal public benefit, (a) the benefit must be provided to an individual, household, or family; and (b) the individual, household, or family must constitute an "eligibility unit." In the statute, the term "eligibility unit" refers to individuals, households, or families that must meet specified eligibility requirements to qualify for assistance, as distinguished from communities or sectors of the population to whom benefits are broadly targeted.

A few programs provide a mix of services, some to communities and others to individuals, families, or households. Where that is the case, programs that are "primarily" designed to provide services to communities are not included among "federal public benefit" programs. Finally, even if a benefit meets the statutory definition for a federal public benefit, it may be excluded from the new verification requirements, and from the HHS’s list of "federal public benefits" programs, as a result of one or more exemptions in the welfare bill.

In addition to clarifying the meaning of federal public benefit, the notice includes a list of all the programs within its jurisdiction that meet the definition and that therefore must verify alien eligibility according to the INS regulations. Programs that are not on the list are excluded from the verification requirements, either because they are not federal public benefits or because they are otherwise exempted from the restrictions on federal public benefits by the 1996 welfare law. The complete list of HHS "federal public benefits" programs is provided in "HHS Issues Public Benefits List and INS Proposes Rule on Verifying Public Benefits Eligibility," Immigrants’ Rights Update, Aug. 7, 1998, p. 14.

The HHS notice states that some assistance provided under the listed programs nevertheless may not be subject to INS verification requirements. Assistance falls within the term only when it is provided to an "individual, household, or family eligibility unit." Conversely, assistance is not a federal public benefit when it is "generally targeted to communities" or "targeted to certain populations based on their characteristics." For example, the notice explains that states may use Low Income Home Energy Assistance Program (LIHEAP) funds for weatherization of multiunit buildings. This assistance would not meet the definition of "federal public benefit" because it is not contingent on the eligibility of an individual, household, or family unit.

INS Proposed Rule on Verification of Eligibility for Public Benefits

Under the INS’s proposed rule on verification of eligibility for public benefits, agencies administering federal programs have up to two years from the date that the rule goes into effect to implement the new verification procedures. Nonprofit charitable organizations are excluded from the definition of "benefit granting agencies" subject to the proposed regulation and are therefore exempt from any requirements under the 1996 welfare law for verifying immigrants’ eligibility for federal, state, or local benefits before providing assistance.

In every case, the ultimate determination of eligibility is made by the benefit-granting agency. The INS’s role is to provide "relevant information" from its records to enable the eligibility decision. The proposed rule provides the manner by which an agency must notify the immigrant of a denial of assistance due to immigration status and the mechanism by which the immigrant or agency can contest an INS determination.

A benefit-granting agency may verify the immigration or citizenship status of an individual "only to the extent that determination is relevant to the applicant’s eligibility for the public benefit." The "applicant" is the individual who will receive the benefit.

All applicants for federal public benefits must submit a written declaration of immigration status. An agency may allow one adult in a household to execute the declaration and provide documents on behalf of all other applicants. Applicants who attest that they are U.S. citizens or nationals must also present the administering agency with evidence of their citizenship or nationality by providing a document that appears on the list of acceptable documents printed in the proposed regulation. All documents presented must be original and unexpired. An agency may rely on the attestation of citizenship or nationality while the applicant endeavors to obtain the requisite verifying documentation.

The immigration status of persons who do not claim citizenship must be verified via the Systematic Alien Verification for Entitlements (SAVE) program. Under SAVE, agencies collect documentation of applicants’ immigration status, then contact the INS for authentication via either computer, phone, or letter.

As with U.S. citizens or nationals, the administering agency must first obtain an attestation of eligible immigrant status from the applicant along with original, unexpired evidence of eligible status. If such documentation is not available, the agency may accept a receipt as temporary evidence of status. Once documentation has been provided, the agency submits the information to SAVE, and the INS must respond with a preliminary determination within three working days (known as "primary verification"). If the response to primary verification is inconclusive, "secondary verification" is used. At the present time, this consists of a hand search by the INS of the applicant’s immigration files. The INS insists that secondary verification generally takes only a few weeks, but advocates report that the wait can be much longer.

A number of legal provisions restrict the use of SAVE and the sharing of information gathered under SAVE. SAVE may not be used for employment verification, verification of citizenship, discrimination, or violation of privacy rights. The INS may not use the information it receives through SAVE against an individual in administrative deportation proceedings.

The procedures are slightly different for verifying the eligibility of persons who may qualify for public benefits as victims of domestic violence. The documentation procedures are significantly relaxed, and the proposed regulations provide modified rules for verifying immigration status. For further clarification, the regulations refer to the Interim Guidance and to the subsequent Guidance on Standards and Methods for Determining Whether a Substantial Connection Exists between Battery or Extreme Cruelty and Need for Specific Public Benefits, 62 Fed. Reg. 65,285 (Dec. 11, 1997).

[63 Fed. Reg. 41,658 (Aug. 4, 1998) (HHS notice); 63 Fed Reg. 41,662, (Aug. 4, 1998) (INS proposed rule).]