Definition of the Term Lawfully Present in the United States for Purposes of Applying for Title II Benefits Under Section 401(b)(2) of Public Law 104-193

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 103

[AG Order No. 2054-96; INS No. 1792-96]

RIN 1115-AE51

Definition of the Term Lawfully Present in the United States for

Purposes of Applying for Title II Benefits Under Section 401(b)(2) of

Public Law 104-193

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Interim rule with request for comments.

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SUMMARY: This interim rule amends the Immigration and Naturalization

Service (Service) regulations to define the term ``an alien who is

lawfully present in the United States'' so that the Social Security

Administration may determine which aliens in the United States are

eligible for benefits under title II of the Social Security Act. Aliens

who are considered ``lawfully present in the United States,'' however,

must otherwise satisfy the requirements for benefits under title II of

the Social Security Act in order to receive social security benefits.

DATES: This rule is effective September 6, 1996. Written comments must

be received on or before November 5, 1996.

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 number 1792-96

on your correspondence. Comments are available for public inspection at

this location by calling (202) 514-3048 to arrange an appointment.

FOR FURTHER INFORMATION CONTACT:

Derek C. Smith, Assistant General Counsel, Office of the General

Counsel; or Sophia Cox, Adjudications Officers, Adjudications Division;

Immigration and Naturalization Service, 425 I Street, NW., Room 3214,

Washington, DC 20536, telephone (202) 514-2895 or (202) 514-5014.

SUPPLEMENTARY INFORMATION: On August 22, 1996, the President signed the

Personal Responsibility and Work Opportunity Reconciliation Act of 1996

(Personal Responsibility Act), Pub. L. 104-193. Section 401(a) of the

Personal Responsibility Act provides that, subject to limited

exceptions, only ``qualified aliens,'' as defined under section 431,

may receive Federal public benefits,

[[Page 47040]]

including retirement, welfare, health, disability, public or assisted

housing, postsecondary education, food assistance, and unemployment

benefits, among others.

Section 431(b) of the Personal Responsibility Act defines the term

``qualified alien'' to mean the following six groups of aliens:

(1) Aliens who are lawfully admitted for permanent residence under

the Immigration and Nationality Act (Act);

(2) Aliens who are granted asylum under section 208 of the Act;

(3) Refugees admitted into the United States under section 207 of

the Act;

(4) Aliens who are paroled into the United States under section

212(d)(5) of the Act for a period of at least 1 year;

(5) Aliens whose deportation is being withheld under section 243(h)

of the Act; and

(6) Aliens who are granted conditional entry pursuant to section

203(a)(7) of the Act as in effect prior to April 1, 1980.

Section 401(b)(2) of the Personal Responsibility Act, however,

provides an exception, which allows aliens who are ``lawfully present

in the United States,'' as determined by the Attorney General, to

receive benefits under title II of the Social Security Act. (Title II

benefits include, for example, retirement benefits.) The purpose of

this regulation, therefore, is to define the term ``an alien who is

lawfully present in the United States,'' as required under section

401(b)(2) of the Personal Responsibility Act, thereby enabling the

Social Security Administration to determine whether aliens who are not

``qualified aliens'' are eligible to receive title II benefits, if they

are lawfully present in this country. This definition is made solely

for the purpose of determining an alien's eligibility for payment of

title II social security benefits, as required under section 401(b)(2)

of the Personal Responsibility Act, and is not intended to confer any

immigration status or benefit under the Immigration and Nationality

Act.

In determining which aliens are lawfully present for the purposes

of section 401(b)(2) of Public Law 104-193, the Service had to

distinguish among many classes of aliens in the United States. The

characteristic common to all the classes of aliens defined as

``lawfully present in the United States'' is that their presence in the

United States has been sanctioned by a policy determination that a

particular class of aliens should be allowed to remain in the United

States, and that policy determination has almost always been

implemented by an official act having the force of law. Each of the

five categories defined as lawfully present fits within this rationale.

First, the Service has concluded that Congress intended for qualified

aliens, as defined in section 431(b) of the Personal Responsibility

Act, to be included in the definition of lawfully present. Second,

aliens who have been inspected and admitted to the United States and

have not violated their status are lawfully present under the terms of

the Immigration and Nationality Act. Third, an alien who has been

paroled into the United States is lawfully present pursuant to section

212(d)(5) of the Act. However, persons who are paroled in order to

determine whether or not they must be excluded under the Act are not

lawfully present because no determination has been made as to the

lawfulness of their presence, and they are allowed into the United

States to avoid having to keep them in detention while they wait

proceedings. Fourth, aliens who belong to one of the seven classes of

aliens listed in section 103.12(a)(4) of this rule have been permitted

to remain in the United States either by an act of Congress or through

some other policy determination affecting that class of aliens. Aliens

in temporary resident status pursuant to section 210 or 245A of the

Act, aliens under Temporary Protected Status (TPS) pursuant to section

244A of the Act, and Family Unity beneficiaries pursuant to section 301

of Pub. L. 101-649 are all in lawful status under the Act. Cuban-

Haitian entrants, aliens in deferred action status, aliens under

Deferred Enforced Departure, and aliens who are the spouses and

children of a United States citizen with an approved visa petition all

remain in the United States under a Presidential or administrative

policy that permits them to do so. Finally, applicants for asylum and

withholding of deportation are permitted to remain in the United States

because section 208(a) of the Act requires the Attorney General to

create a procedure for adjudicating claims for asylum made by aliens

physically present in the United States. Section 208(a) of the Act was

passed to implement the obligations of the United States under the

Convention Relating to the Status of Refugees, of July 28, 1951, as

incorporated into the Protocol Relating to the Status of Refugees, of

January 31, 1967.

Good Cause Exception

This interim rule is effective upon publication in the Federal

Register although the Service invites post-promulgation comments and

will address any such comments in a final rule. For the following

reasons, the Service finds that good cause exists for adopting this

rule without the prior notice and comment period ordinarily required by

5 U.S.C. 553(b). Section 401(b)(2) of Pub. L. 104-193 requires the

Attorney General to define the term ``an alien lawfully present in the

United States'' so that the Social Security Administration can

determine which aliens are eligible for payment of title II social

security benefits under the terms of the Social Security Act. Absent a

definition of ``an alien lawfully present in the United States,''

section 401(a) of Pub. L. 104-193 requires the Social Security

Administration to suspend payments under title II for aliens who are

not ``qualified aliens'' (as defined under section 431(b)) and who file

applications on or after September 1, 1996. It is therefore

impracticable to adopt this rule with the prior notice and comment

period normally required under 5 U.S.C. 553(b).

Regulatory Flexibility Act

The Attorney General, in accordance with the Regulatory Flexibility

Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving

it, certifies that this rule will not have a significant economic

impact on a substantial number of small entities, because this

regulation affects individuals, not small entities.

Executive Order 12866

This interim rule is considered by the Department of Justice,

Immigration and Naturalization Service, to be a ``significant

regulatory action'' under E.O. 12866, section 3(f), Regulatory Planning

Review, and it has been submitted to the Office of Management and

Budget for review under E.O. 12866.

Executive Order 12988

This interim rule meets the applicable standards set forth in

sections 3(a) and 3(b)(2) of E.O. 12988.

Executive Order 12612

This regulation will not have a substantial direct effect on the

States, on the relationships between the National government and the

States, or on the distribution of power and responsibilities among the

various levels of government. Therefore, in accordance with E.O. 12612,

it is determined that this rule does not have sufficient Federalism

implications to warrant the preparation of a Federalism Assessment.

List of Subjects in 8 CFR Part 103

Administrative practice and procedure, Authority delegations

[[Page 47041]]

(Government agencies), Freedom of Information, Privacy, Reporting and

recordkeeping requirements, Surety bonds.

Accordingly, part 103 of chapter I of title 8 of the Code of

Federal Regulations is amended as follows:

PART 103--POWERS AND DUTIES OF SERVICE OFFICERS; AVAILABILITY OF

SERVICE RECORDS

1. The authority citation for part 103 continues to read as

follows:

Authority: 5 U.S.C. 552, 552(a); 8 U.S.C. 1101, 1103, 1201, 1252

note, 1252b, 1304, 1356; 31 U.S.C. 9701; L E.O. 12356; 47 FR 14874,

15557; 3 CFR 1982 Comp., p. 166; 8 CFR part 2.

2. A new Sec. 103.12 is added to read as follows:

Sec. 103.12 Definition of the term ``lawfully present'' aliens for

purposes of applying for Title II social security benefits under Public

Law 104-193.

(a) Definition of the term an ``alien who is lawfully present in

the United States.'' For the purposes of section 401(b)(2) of Pub. L.

104-193 only, an ``alien who is lawfully present in the United States''

means:

(1) A qualified alien as defined in section 431(b) of Pub. L. 104-

193;

(2) An alien who has been inspected and admitted to the United

States and who has not violated the terms of the status under which he

or she was admitted or to which he or she has changed after admission;

(3) An alien who has been paroled into the United States pursuant

to section 212(d)(5) of the Act for less than 1 year, except:

(i) Aliens paroled for deferred inspection or pending exclusion

proceedings under 236(a) of the Act; and

(ii) Aliens paroled into the United States for prosecution pursuant

to 8 CFR 212.5(a)(3);

(4) An alien who belongs to one of the following classes of aliens

permitted to remain in the United States because the Attorney General

has decided for humanitarian or other public policy reasons not to

initiate deportation or exclusion proceedings or enforce departure:

(i) Aliens currently in temporary resident status pursuant to

section 210 or 245A of the Act;

(ii) Aliens currently under Temporary Protected Status (TPS)

pursuant to section 244A of the Act;

(iii) Cuban-Haitian entrants, as defined in section 202(b) Pub. L.

99-603, as amended;

(iv) Family Unity beneficiaries pursuant to section 301 of Pub. L.

101-649, as amended;

(v) Aliens currently under Deferred Enforced Departure (DED)

pursuant to a decision made by the President;

(vi) Aliens currently in deferred action status pursuant to Service

Operations Instructions at OI 242.1(a)(22);

(vii) Aliens who are the spouse or child of a United States citizen

whose visa petition has been approved and who have a pending

application for adjustment of status;

(5) Applicants for asylum under section 208(a) of the Act and

applicants for withholding of deportation under section 243(h) of the

Act who have been granted employment authorization, and such applicants

under the age of 14 who have had an application pending for at least

180 days.

(b) Non-issuance of an Order to Show Cause and non-enforcement of

deportation and exclusion orders. An alien may not be deemed to be

lawfully present solely on the basis of the Service's decision not to,

or failure to, issue an Order to Show Cause or solely on the basis of

the Service's decision not to, or failure to, enforce an outstanding

order of deportation or exclusion.

Dated: September 4, 1996.

Janet Reno,

Attorney General.

[FR Doc. 96-22963 Filed 9-4-96; 3:10 pm]

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