New Rule Explains Limits of INS Reporting Requirements under the 1996 Welfare Law

IMMIGRANTS & PUBLIC BENEFITS

Verification and Reporting

New rule explains limits of INS reporting requirements under the 1996 welfare law
Immigrants' Rights Update, Vol. 14, No. 6, October 19, 2000

The Social Security Administration (SSA) and the U.S. Depts. of Health and Human Services (HHS), Labor (DOL), and Housing and Urban Development (HUD) have jointly issued a notice in the Federal Register interpreting section 404 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PWRORA), which established reporting requirements that apply to a handful of federal programs. Section 404 of the PRWORA requires certain entities administering these programs to report an individual to the Immigration and Naturalization Service if the agency "knows [the individual] is not lawfully present in the United States." The notice clarifies that section 404 requires reporting only where an individual has been found in a formal proceeding to be unlawfully present.

Section 404 only affects entities that administer (1) the Temporary Assistance for Needy Families (TANF) program or Welfare-to-Work programs under Title IV(A) of the Social Security Act; (2) Supplemental Security Income (SSI); or (3) the Public and Assisted Housing Program provided under the United States Housing Act of 1937, or Section 6 or Section 8 Housing assistance programs. No other entities are affected by the section 404 reporting requirements.

Only individuals who attempt to claim benefits under one of the above-listed programs are subject to the reporting requirement. Therefore, persons who come to the attention of an agency because they are applying for a program not listed above are not subject to the section 404 reporting requirement. Similarly, persons who apply for benefits on behalf of others, such as an ineligible mother applying for her eligible child, are not subject to section 404's reporting requirements.

The entities administering programs listed above are not required to report anyone to the INS unless an immigrant's unlawful presence is "a finding of fact or conclusion of law that is made by the entity as part of a formal determination that is subject to administrative review on an alien's claim for any of the statutorily specified programs set out above." In addition, the formal determination or conclusion of law that the individual is unlawfully present must be supported by a determination by the INS or the Executive Office for Immigration Review (EOIR).

In other words, section 404's reporting requirement does not apply unless the individual's immigration status has been formally determined by the agency and unless that formal determination is based on determinative evidence provided by the INS or EOIR "such as a Final Order of Deportation." The following are some examples of information that is not sufficient to trigger section 404's reporting requirement:

An oral or written admission by the immigrant
Suspicion, or even a firm conviction, by an eligibility worker about the individual's immigration status (an agency employee's opinion about the immigration status of an applicant is irrelevant to the section 404 reporting requirement unless it is part of a formal determination subject to administrative review based on a determination by the INS or EOIR)
A response by the INS to a Systematic Alien Verification for Entitlement (SAVE) computer inquiry confirming an immigrant's status
A formal finding that an individual is ineligible for a benefit based on any evidence other than a determination by the INS or EOIR that the individual is unlawfully present

Immigrants' rights advocates regard the notice as helpful because it will allay privacy concerns raised by immigrants who are in need of and eligible for programs administered by the affected agencies. The interpretation provided in the notice is consistent with the longstanding interpretation of a similar requirement that has been part of the Food Stamp Program for almost two decades. 7 U.S.C. § 2020(e)(16).

However, the notice only addresses the mandatory reporting requirements of section 404. It does not discuss the limitations on voluntary violations of confidentiality and reporting to the INS. Advocates advise that until such clarification is forthcoming, government, nonprofit agencies, and religious groups that serve immigrants should continue to be cautious and not collect any information about immigration status that is not specifically required or necessary to provide services.

65 Fed. Reg. 58,301 (Sept. 28, 2000).