Verification of Eligibility for Public Benefits

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

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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

[[Page 41672]]

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.

[[Page 41676]]

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

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