2:30 pm EST Monday Deadline to Sign-On to Attached Summary Reg Comments

IMMIGRANTS & PUBLIC BENEFITS

E-Mail Benefits Update

2:30 PM EST MONDAY DEADLINE TO SIGN-ON TO ATTACHED SUMMARY REG COMMENTS
No. 98-17, October 1, 1998

The following is a summary of NILC's comments responding to the INS proposed regulation governing eligibility for public benefits. Comments are due to the INS by close of business Monday, October 5th.

If you would like to sign on to the summary, please contact Concepcion Romero of the National Council of La Raza by 2:30 p.m. Monday, Eastern time.

Concepcion can be reached at: (202) 776-1782.
Her fax number is: (202) 776-1792
E-mail: cromero@nclr.org

She needs your name, title, organization, phone, fax, address, and a statement that your organization would like to sign on to the NILC INS verification regulation comments.

If you would like a copy of NILC's complete comments, you can receive one starting on Friday, October 2, 1998 by contacting the NILC-DC office.

Summary of NILC'S Comments on Proposed INS Regulations Governing Verification of Eligibility for Public Benefits

October 5, 1998

Director
Policy Directives and Instructions Branch
Immigration and Naturalization Service
425 I Street NW, Room 5307
Washington, DC 20536

Re: INS No. 1902-98

Dear Sir or Madam:

The following is a summary of our comments provided in response to the proposed rule concerning Verification of Eligibility for Public Benefits, published in the Federal Register on August 4, 1998. The summary is submitted on behalf of the organizations listed at the end of this letter.

Basic Principles

Our response to the proposed rules is guided by three major principles that should direct any effort to develop rules for verifying immigrant eligibility for public benefits.

1. Promote accurate results by employing simple procedures and providing adequate guidance

The rules should recognize, at every stage, that determining immigrants' eligibility for benefits under the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) and subsequent legislation is a complex process, requiring human interpretation of a multiplicity of documents and frequently changing rules. It is therefore inevitable that the INS and benefit providing agencies will make errors, a problem that is compounded by difficulties applicants often encounter in obtaining original documents, and by the exigent circumstances faced by many applicants. If the verification process is rendered unnecessarily complicated and burdensome, or if agencies are granted unguided discretion, the potential for harmful error will increase.

2. Protect the rights of eligible applicants

The verification procedures should respect the rights and dignity of those who are eligible for and who often desperately need assistance. Applicants should not be subjected to unnecessary delays, discrimination, avoidable invasions of privacy, threats to safety, burdensome or unfair documentation requirements, or violations of due process. Past experience demonstrates that nearly all immigrants who apply for benefits do, in fact, meet the immigrant eligibility requirements for the benefit they are seeking.

3. Conserve limited agency resources

The procedures should recognize that immigration enforcement is not the mission of the benefit providing agencies. Agencies that provide services should not be forced to engage in burdensome, unnecessarily complicated, or costly processes. The regulations should permit flexibility to the maximum extent possible under the law and the Constitution, so long as the rights of applicants are protected. Finally, the INS should strive to avoid procedures that impose excessive delays in obtaining information needed to complete the eligibility determination.

A Definition of "Federal Public Benefit" and "State Public Benefit" Is Needed

The proposed rule does not adequately define "federal public benefit" or "state public benefit." Rather, it merely reiterates the statutory definition of these terms, and relies on the federal agencies administering federal public benefits, or on the state or local governments, to determine whether a particular benefit falls within the statutory definition. Unfortunately, the statutory definition is ambiguous, and includes several terms that are not themselves defined elsewhere in the statute, and that are not used in the same fashion elsewhere in the U.S. Code or by the courts.

This is likely to lead to widespread confusion, particularly by agencies administering state and local benefits, who will not be able to rely on federal agencies to determine which of their benefits fall within the definition.

Instead of leaving the interpretation of these terms to each agency, the rule should clearly delineate their meaning for purposes of PRWORA. Specifically, the Service should adopt the principles in the interpretation promulgated by the Department of Health and Human Services and printed in the Federal Register on August 4, 1994.

One particular point the rule should address is which agency should determine the status of a benefit funded from both federal and state sources. Where a benefit is provided by such mixed funds, the federal agencies providing the funds should determine whether the benefit is subject to verification.

Federal Public Benefits: Mandatory Use of SAVE to Verify Eligibility

The proposed rule requires all agencies providing federal public benefits to use the Systematic Alien Verification of Entitlements (SAVE) system to determine noncitizen eligibility for assistance. This requirement is likely to prove extraordinarily costly and burdensome to implement for many agencies, such as those that have very few immigrant applicants, that currently use simplified application procedures, or that tend to provide one-time or intermittent assistance to each applicant.

The SAVE system currently has a waiver procedure in place, by which administering agencies can use an approved alternative procedure where use of SAVE is not cost-effective. The preamble to the proposed rule explains that any waivers that have already been granted under SAVE are no longer valid, and that the benefit granting agencies have up to two years to begin implementing SAVE. We believe that this is a serious misreading of PRWORA, which was not intended to disrupt the current SAVE system, but rather to apply SAVE (including SAVE waivers) to more programs, as feasible.

Moreover it is bad policy to force all agencies administering federal public benefits to use the SAVE procedures, regardless of cost or suitability. Agencies should not have to spend disproportionate sums of money or completely redesign their current eligibility determination process just to verify immigrant eligibility.

Rather, the INS should retain the waiver system, and in addition should develop one or more alternative procedures, less burdensome than SAVE, that agencies may adopt without a waiver if use of SAVE would not be cost-effective or consistent with current application procedures. One such alternative system should be the one described in the November 17th, 1997, Justice Department 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 ("Interim Guidance"). Other systems could include those already in place and approved in the states that have existing waivers.

State and Local Public Benefits: Absence of Parameters for States or Local Governments That Choose Not to Use SAVE

The proposed rule permits benefit providing agencies to choose whether or not they will use the SAVE system to verify eligibility for state or local public benefits. If an agency opts out of SAVE, the proposed regulation provides no rules, guidance or parameters for designing an alternative system. This vests too much discretion over immigration in the hands of state and local governments. It is an invitation to error by benefit providing agencies that often are not well-equipped to interpret the complex constitutional and statutory requirements of an immigrant verification system.

It is also disregards the statutory requirement in section 5572(a) of the Balanced Budget Act of 1997 (BBA), which commands the Attorney General to "set forth the procedures by which a State or local government can verify" immigrant eligibility for benefits. (Emphasis added). Contrary to an assertion in the preamble of the proposed rule, this provision does not permit states or local governments to adopt immigration verification procedures other than those set forth by the Attorney General. The BBA grants states discretion about whether to verify the immigration status of applicants to their programs, using the procedures set forth by the Attorney General. It does not delegate the authority to determine how to do so.

To implement BBA section 5572(a), the regulations should set forth flexible procedures for states to adapt and adopt. The Interim Guidance provides a good starting point for such procedures. Any alternative procedures must include provisions, such as those in SAVE, to ensure that the rights of applicants are protected. This is necessary to avoid discrimination, and to protect the privacy and safety of applicants.

No Protection Against Delay, Denial, Reduction, or Termination of Benefits Pending INS Verification

Unlike the Interim Guidance, and unlike the SAVE statute, the proposed rule omits language requiring benefits granting agencies to refrain from delaying, denying, reducing, or terminating an immigrant's benefits during the verification process. This is a serious and unwarranted omission, given that a significant delay in obtaining benefits can cause real hardship, or even death. Applicants for government benefits do not have any control over the pace of the INS's investigation of their status.

PRWORA section 432 requires the verification procedures promulgated by the Attorney General "to the extent feasible" to mirror those of section 1137 of the Social Security Act. Section 1137 provides that States "may not delay, deny, reduce, or terminate" benefits until the applicant has been given a reasonable opportunity to submit documents and while INS verification is pending. It is hard to see why such a requirement of basic fairness would not be feasible with respect to any federal public benefit.

The proposed rule compounds the omission of such a requirement by failing to impose any enforceable time limits on its responses to inquiries or appeals. Also, unlike the Interim Guidance, the proposed rule permits agencies to verify immigration status before determining whether the applicant is eligible for assistance. Thus, immigrants face the prospect of long delays even before they are permitted to initiate the application process for a needed benefit.

Due Process Protections Are Insufficient

The appeal rights provided in the proposed rule in the event of an erroneous INS determination consist of a phone number, the right to provide additional oral and written evidence, and a promise to respond within 10 days either with the results of the review or with an estimate of the amount of time that the review will take. In other words, a wronged applicant can call the Service to complain and the Service will review the complaint.

This procedure provides no accountability and is wholly insufficient. At a minimum, due process requires that an applicant be presented with the evidence against him or her, be given a fair opportunity to refute that evidence before a neutral fact finder, and receive a definitive response from that fact finder within a reasonable amount of time.

The proposed rule provides none of that. It fails to indicate who will staff the phones, who will conduct the review, and who will make the ultimate decision about the immigrant's status. It does not give the applicant a right to have an explanation if the Service determines that the applicant's information is not correct. And it even fails to promise that the applicant will ever get any response, unless the Service determines that its adverse determination was erroneous.

Eligible Immigrants Will Not Be Able to Establish Status Because the Documentation Requirements Are Too Limited

The proposed rule severely limits the list of documents that can be used to establish eligible alien status. The list of acceptable documents is far more limited than those considered permissible under the Interim Guidance. For example, in the case of an asylum applicant, presentation of an employment authorization document would be acceptable, but an original order granting asylum by an immigration judge would not. In the interest of accuracy, the list of acceptable documents should include all documents that conclusively demonstrate eligible status.

The proposed rule also provides that only original, unexpired documents are acceptable as proof of immigration status. This requirement is unnecessarily burdensome, and, appropriately, was not included in the Interim Guidance. Where an original document has been lost or is otherwise unavailable, copies should be accepted, at least on an interim basis, until original documentation can be obtained. Similarly, many expired documents provide adequate information to make a determination of immigration status. For example, when a U.S. passport expires, the passport holder does not lose his or her U.S. citizenship.

The proposed rule exacerbates the documentation difficulties it creates by failing to make any accommodations for the particular documentation barriers faced by some benefits recipients. For example, domestic violence victims and others who have been forced to leave their homes precipitously are likely to face special difficulties. People with mental or developmental disabilities, such as memory loss, will often be unable to meaningfully cooperate in the documentation process. The regulations should permit agencies enough flexibility to deal with these and similar circumstances.

Finally, all of the above considerations are magnified for persons attempting to prove their immigration status on a particular date in the past (such as August 22, 1996). Yet, the proposed rule makes no concessions to the difficulty of documenting a past immigration status. This is will become increasingly unreasonable as August 22, 1996 recedes further into the past. The regulation should provide relaxed evidentiary requirements for proving past immigration status.

The Interim Guidance Should Be Formalized

The proposed rule should formally adopt some version of the Interim Guidance because it is more detailed, and more helpful to benefit providing agencies and to applicants, than is the proposed rule. For example, its provisions ensure the safety and confidentiality of domestic violence victims more fully than does the proposed rule.

The preamble to the proposed rule explains that the proposed rule does not supersede the Interim Guidance. Rather, the two documents are intended to be read in tandem wherever they do not conflict. This situation is needlessly cumbersome and complex. It leaves each benefit providing agency with the task of parsing through the language of the two rules to determine which provisions of the Interim Guidance are mandatory, which are merely explanatory, and which are superseded. When, if ever, do the provisions of the Interim Guidance have the force of law?

This situation is made worse by provisions, such as 104.48 (e) of the proposed rule, that explicitly refer benefit providers to the Interim Guidance. It is not clear whether such a reference to a particular provision of the Interim Guidance is intended in some way to elevate that provision to a more authoritative status than if it had not been referenced.

The solution is to modify the Interim Guidance as needed to avoid inconsistencies with the proposed regulation, and then to formally adopt the Interim guidance as an appendix to the rule. This will ensure that the crucial information contained in the Interim Guidance is properly considered by agencies struggling to understand the complex new procedures mandated by PRWORA and subsequent laws.