41662 Federal Register / Vol. 63, No. 149 /Tuesday, August 4, 1998 / Proposed Rules

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 104

[INS No. 1902–98; AG Order No. 2170–98]

RIN 1115–AE99

Verification of Eligibility for Public

Benefits

AGENCY: Immigration and Naturalization

Service, Justice.

ACTION: Proposed rule.

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
Federal Register / Vol. 63, No. 149 /Tuesday, August 4, 1998 / Proposed Rules 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
41664 Federal Register / Vol. 63, No. 149 /Tuesday, August 4, 1998 / Proposed Rules

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 § 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 § 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 § 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 § 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 § 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
Federal Register / Vol. 63, No. 149 /Tuesday, August 4, 1998 / Proposed Rules 41665

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 nonexempted 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 nonqualified 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 § 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 § 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 § 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 § 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 § 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. § 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
41666 Federal Register / Vol. 63, No. 149 /Tuesday, August 4, 1998 / Proposed Rules

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
Federal Register / Vol. 63, No. 149 /Tuesday, August 4, 1998 / Proposed Rules 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 § 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 § 104.1’s list

of programs that by definition are not

‘‘Federal public benefits,’’ or § 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 §§ 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
41668 Federal Register / Vol. 63, No. 149 /Tuesday, August 4, 1998 / Proposed Rules

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 § 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.

§ 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,
Federal Register / Vol. 63, No. 149 /Tuesday, August 4, 1998 / Proposed Rules 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 § 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 broadbased 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, §§ sections 104.23(d), (e),and

104.28). In addition, of course, the

general requirements of § 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. § 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
41670 Federal Register / Vol. 63, No. 149 /Tuesday, August 4, 1998 / Proposed Rules

cases, however, as authorized by

§ 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 §§ 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 § 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 § 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 §§ 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

§ 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; § 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

§ 104.24’s requirement of additional
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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
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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 NonService 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.

§ 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
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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, § 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 § 104.1

by incorporating § 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

§ 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
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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 § 104.1 and provides a

verification procedure in § 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 nonPWORA 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, § 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, § 3(f).

Accordingly, this rule has been

reviewed by the Office of Management

and Budget (‘‘OMB’’).
Federal Register / Vol. 63, No. 149 /Tuesday, August 4, 1998 / Proposed Rules 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, §§ 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 nonService 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.
41676 Federal Register / Vol. 63, No. 149 /Tuesday, August 4, 1998 / Proposed Rules

Subpart A—General

§ 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
Federal Register / Vol. 63, No. 149 /Tuesday, August 4, 1998 / Proposed Rules 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 quasigovernmental 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 § 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
41678 Federal Register / Vol. 63, No. 149 /Tuesday, August 4, 1998 / Proposed Rules

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

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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
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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.

§ 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. § 552a,

or the Freedom of Information Act, 5

U.S.C. § 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).

§ 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 § 104.44.

§ 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.

§ 104.10 Verification requirement for

certain nutrition programs.

A benefit granting agency providing

Food Stamps shall comply with § 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.

§ 1615(b)(2) shall comply with § 104.3

rather than § 104.2.

§§ 104.11–104.19 [Reserved].

Subpart B—Declaration of applicant

and examination of documents.

§ 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
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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.

§ 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.

§ 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.

§ 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 jurisdictionapproved 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);
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(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. noncitizen 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.

§ 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.

§ 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 §§ 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
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§ 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.

§ 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.

§ 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.

§ 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 § 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 §§ 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

§§ 104.23 and 104.24 at that time.

§ 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.

§ 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 § 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 §§ 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 § 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.

§§ 104.31–104.39 [Reserved].

Subpart C—Systematic Alien

Verification for Entitlements (SAVE)

§ 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 §§ 104.2, 104.3, and 104.4

§ 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
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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.

§ 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.

§ 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.

§ 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.

§ 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 public benefit may

use that time period instead of the 3-day

period provided by this rule for

initiating primary verification, as long

as the different time period is applied

consistently to all alien applicants.

§ 104.46. Secondary verification

A benefit granting agency that has

completed primary verification, but is

unable to determine based upon the

result of the primary verification that an

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, shall make a secondary

verification inquiry within 5 business

days after completing primary

verification. 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 public benefit may

use that time period instead of the 5-day

period provided by this rule for

initiating secondary verification, as long

as the different time period is applied

consistently to all alien applicants.

§ 104.47. Direct resort to secondary

verification

With the express prior approval of the

Service (whether for individual cases or

for classes of applicants or public

benefits), a benefit granting agency may

use secondary verification procedures

directly, without first conducting

primary verification. These situations

will be determined by the Service and

may include, for example, situations

where a very small number of

applicants for a public benefit makes

installation of the primary verification

system not cost-effective; where a

benefit granting agency has bona fide

reasons to believe that documents

submitted by an applicant are

fraudulent; or where for some other

reason primary verification is not useful

or cost-effective compared to direct

secondary verification.

§ 104.48. Victims of domestic violence

A benefit granting agency that needs

to determine whether an applicant is a

qualified alien by reason of being 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) shall use the following

procedures:

(a) The benefit granting agency shall

examine documentation satisfying

section 102.22, if the applicant

possesses such documentation;

(b) Whether or not the applicant has

produced documentation satisfying

Section 104.22, the benefit granting

agency shall require the applicant to

produce (in lieu of or in addition to

evidence of alien registration) any other

documentation in the applicant’s

possession or control that relates to

whether the applicant has been

approved or has a petition pending

which sets forth a prima facie case for

a status, classification, or cancellation of

removal provided for in 8 U.S.C.

1641(c)(1)(B).

(c) If the documentation presented

under paragraphs (a) and (b) of this

section does not satisfy the

requirements of Section 104.24, the

applicant shall present an identification

document or, if the applicant does not

have an identification document, other

reasonable secondary evidence

sufficient to satisfy the benefit granting

agency that the applicant is the

individual to whom the documentation

presented under paragraphs (a) and (b)

of this section relates, which may
41684 Federal Register / Vol. 63, No. 149 /Tuesday, August 4, 1998 / Proposed Rules

include another document relating to

the applicant or a written declaration

under penalty of law from one or more

third parties with personal knowledge

of the applicant.

(d) In lieu of conducting primary

verification, the benefit granting agency

shall resort directly to the following

secondary verification procedure: For

applicants who present documentation

or otherwise indicate that they sought

relief from the Executive Office for

Immigration Review (‘‘EOIR’’) through

suspension of deportation under section

244(a)(3) of the Act (as in effect prior to

April 1, 1997) or cancellation of removal

under section 240A(b)(2) of the Act, the

benefit granting agency shall fax a

written request, and copies of any

documentation provided, to the Court

Administrator of the appropriate

immigration court, and obtain the

court’s response. For all other

applicants, the benefit granting agency

shall fax a written request, and copies

of documentation provided, to the

Battered Alien Review Unit of the

Service’s Vermont Service Center at

(802) 527–3252, or to such other number

as the Service may direct, and obtain the

Service’s response. Any information a

benefit granting agency receives from

the Service or EOIR pursuant to this

section regarding an applicant shall be

used solely in making its determination

whether the applicant is an eligible

qualified alien;

(e) Contemporaneously with its

verification whether the applicant meets

the requirements of 8 U.S.C.

1641(c)(1)(B) as provided in paragraphs

(a) through (d) of this section, the

benefit granting agency shall determine

by such means as it reasonably

determines to be appropriate whether

the applicant otherwise meets the

requirements of 8 U.S.C. 1641(c), after

considering the guidance promulgated

by the Attorney General pursuant to 8

U.S.C. 1641(c) concerning the meaning

of the terms ‘‘battery’’ and ‘‘extreme

cruelty’’ (see Notice, 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, 61366 (Exhibit B to

Attachment 5) (Nov. 17, 1997)), and the

standards and methods to be used for

determining whether a substantial

connection exists between battery or

cruelty suffered and an individual’s

need for benefits under a specific

Federal, State, or local program (see

Notice, 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)).

§ 104.49 Unauthorized uses of SAVE.

SAVE is not designed for the purpose

of verifying an alien’s work

authorization under section 274A of the

Act, or for the purpose of verifying U.S.

nationality. Use for either of these

purposes is not authorized, and may

result in termination of SAVE access.

§ 104.50 Training.

The Service shall provide training

materials sufficient to instruct the

benefit granting agency in the proper

use of SAVE. The benefit granting

agency shall devote sufficient

personnel, resources, and training to its

verification responsibilities to enable it

to use SAVE properly and comply with

this part.

§ 104.51 Use of information by the Service.

The Service will not use information

provided to it through SAVE by a

benefit granting agency for the purpose

of administrative (noncriminal)

enforcement of the Act. The Service

may use such information for the

purpose of enforcing any provision of

criminal law. Nothing in this part shall

be construed to waive or limit any civil

or criminal penalty or consequence,

including removal from the United

States, that may be applicable under the

Act or any other law to a false statement

or any other act relating to an

application for, or the receipt of any

public benefit. Nor shall anything in

this part be construed to waive, limit, or

deny any right or duty of a benefit

granting agency to report to the Service

the presence, whereabouts, or activities

of any alien not lawfully present in the

United States, or any lawful use the

Service may make of such a report, but

any such report shall be made by means

other than SAVE.

§ 104.52 Evaluation of SAVE.

The Department of Justice may

conduct evaluations of SAVE. Benefit

granting agencies that are participants in

SAVE shall cooperate with such

evaluations by providing such

information and assistance as is

necessary to evaluate the program,

consistent with other applicable law.

§§ 104.53–104.59 [Reserved].

Subpart D—Verification Requiring

Non-Service Information.

§ 104.60 Veteran and active duty

exception.

(a) With respect to certain public

benefits, an applicant is an eligible

qualified alien by virtue of being a

qualified alien lawfully residing in any

state who is:

(1) A veteran, with a discharge

characterized as an honorable discharge

and not on account of alienage, who

fulfills minimum active duty service

requirements;

(2) On active duty (other than active

duty for training) in the armed forces of

the United States; or

(3) The spouse, unremarried surviving

spouse, or unmarried dependent child

of an individual described in paragraphs

(a)(1) or (a)(2) of this section.

(b) If an applicant claims to be an

eligible qualified alien because of the

veteran and active duty exception, the

benefit granting agency shall comply

with paragraphs (c) and (d) of this

section.

(c) Vertification of qualified alien

status and lawful residence. The benefit

granting agency shall verify whether the

applicant is a qualified alien using the

procedures in subpart B, and the

procedures in subpart C to the extent

the benefit granting agency is required

to use them to verify eligibility for a

Federal pubic benefit, or has chosen to

use them to verify eligibility for a State

or local public benefit. The benefit

granting agency shall verify that the

alien is lawfully residing in the United

States as provided in section 104.64.

(d) Verification of veteran or active

duty status. (1) If the applicant claims

to be an honorably discharged veteran

who meets minimum active duty service

requirements, the benefit granting

agency shall require the applicant to

present a discharge certificate, Form DD

214 or equivalent, that shows active

duty in the Army, Navy, Air Force,

Marine Corps, or Coast Guard and

character of discharge. ‘‘Honorable’’ is

accepteable to quaify for the veteran

exception without further inquiry,

unless the certificate appears to have

been altered or is otherwise irregular. A

discharge ‘‘Under Honorable

Conditions’’ is not acceptable. A

discharge certificate that shows

‘‘Honorable’’ and any other branch of

service or any other type of duty (e.g.,

‘‘Active Duty for Training’’ or ‘‘Inactive

Duty for Training’’) should be referred

to the local Veterans Affairs (‘‘VA’’)

regional office. If veteran status is

claimed but the applicant has no papers

showing service or discharge, the

inquiry should be referred to the local

VA regional office to determine veteran

status. If a discharge certificate, DD

Form 214, or equivalent shows an

original enlistment in the Army, Navy,

Air Force, Marine Corps, or Coast Guard

before September 7, 1980, there is no

minimum active duty service

requirement. If the discharge certificate
Federal Register / Vol. 63, No. 149 /Tuesday, August 4, 1998 / Proposed Rules 41685

shows two or more years of continous

active duty in the Army, Navy, Air

Force, Marine Corps, or Coast Guard,

the applicant meets the minimum active

duty service requirement. If such a

discharge certificate is not available, or

if it shows active duty service of less

than 2 years with an original enlistment

after September 7, 1980, the inquiry

should be referred to the local VA

regional office to determine satisfaction

of the minimum active duty service

requirement;

(2) If the applicant claims to be on

active duty (other than active duty for

training) in the U.S. Armed Forces, the

benefit granting agency shall require the

applicant to present a current Military

Identification Card (DD) Form 2

(Active)). If the Military Identification

Card will expire within 1 year from the

date it is presented, the applicant must

also present to the benefit granting

agency a copy of the applicant’s military

orders. If the applicant is unable to

present a copy of his or her military

orders, the benefit granting agency must

verify active duty status through the

nearest RAPIDS (Real Time Automated

Personnel Identification System),

located at many military installations, or

by contacting the following office in

writing (which may be transmitted by

facsimile): DEERS Support Office, Attn:

Research and Analysis, 400 Gigling

Road, Seaside, CA, 93955–6771,

facsimile number (408) 655–8317.

Active duty for training is temporary

fulltime duty in the Armed Forces

performed by members of the Reserves,

Army National Guard, or Air National

Guard (the ‘‘Reserve Components’’) for

training purposes. The active duty

exception does not apply to an

applicant who is on active duty for

training. A member of a Reserve

Component who claims to be on active

duty, other than active duty for training,

must present a curret DD Form 2

(Reserve) and military active duty

orders showing the applicant to be on

active duty, but not on active duty for

training;

(3) If the applicant claims to be the

spouse, unremarried surviving spouse,

or unmarried dependent child of an

individual described in paragraphs

(a)(1) or (a)(2) of this section, the benefit

granting agency must verify both the

qualifying familial relationship between

the applicant and the veteran or active

duty individual, and the veteran on

active duty status of the individual. To

verify the latter, the benefit granting

agency must require the applicant to

present evidence of the individual’s

veteran or active duty status sufficient

to satisfy paragraphs (d)(1) or (d)(2) of

this section. This subpart does not

provide specific requirements for

verifying the qualifying familial

relationship. The benefit granting

agency shall use such verification

procedures (which may include

execution of a written attestation or

presentation of appropriate

documentation) as in the exercise of the

benefit granting agency’s discretion are

reasonably calculated to verify the

existence of the relationship. With

respect to an unremarried surviving

spouse, the verification procedures shall

take into account the fact that the

qualifying relationship must satisfy one

of the following conditions: (i) The unremarried surviving spouse

must have been married to the veteran

or individual on active duty within 15

years after the termination of the period

of service in which the injury or disease

causing the death of the veteran or

individual on active duty was incurred

or aggravated; (ii) The unremarried surviving spouse

must have been married to the veteran

or individual on active duty for 1 year

or more; or

(iii) A child must have been born to

the couple.

§ 104.61 Credited quarters of qualifying

work.

With respect to certain public

benefits, an applicant is an eligible

qualified alien by virtue of being an

alien who is lawfully admitted for

permanent residence under the Act; and

who has worked or can be credited with

40 qualifying quarters under the Social

Security Act. If an alien claims to be an

eligible qualified alien on this basis, the

benefit granting agency shall verify

whether the applicant is an alien

lawfully admitted for permanent

residence using the procedures in

subpart B, and the procedures in

subpart C to the extent the benefit

granting agency is required to use them

to verify eligibility for a Federal public

benefit, or has chosen to use them to

verify eligibility for a State or local

public benefit. The benefit granting

agency shall verify qualifying quarters

with the Social Security Administration

(‘‘SSA’’) using such guidance as may be

available upon request to SSA.

§ 104.62 Section 289 exception.

(a) With respect to certain public

benefits, an alien applicant may be

eligible by virtue of being an American

Indian born in Canada to whom the

provisions of section 289 of the Act

apply, regardless whether the applicant

is a qualified alien. If an applicant

claims to be eligible on this basis, the

benefit granting agency shall use the

procedures in subpart B, except as

specifically provided by this section. An

alien to whom section 289 of the Act

applies may, or may not, possess

evidence of alien registration issued by

the Service. In lieu of the requirement

in section 104.22 to present evidence of

alien registration, the benefit granting

agency shall require the applicant to

present the following documentary

evidence of section 289 status:

(1) An unexpired Form I–551 (Alien

Registration Receipt Card or Permanent

Resident Card) with the code S13;

(2) An unexpired temporary I–551

stamp in a Canadian passport or on

Form I–94, Arrival-Departure Record,

with the code S13; or

(3) A letter or other tribal document

certifying at least 50 per centum Indian

blood as required by section 289 of the

Act, combined with a birth certificate or

other satisfactory evidence of birth in

Canada.

(b) If the applicant presents the

documentary evidence referenced in

paragraphs (a)(1) or (a)(2) of this section,

the benefit granting agency shall use the

procedures in subpart C to the extent

the benefit granting agency is required

to use them to verify eligibility for a

Federal public benefit, or has chosen to

use them to verify eligibility for a State

or local public benefit.

§ 104.63 Members of Indian tribes.

(a) With respect to certain public

benefits, an alien applicant may be

eligible by virtue of being a member of

an Indian tribe, regardless whether the

applicant is a qualified alien. If an

applicant claims to be eligible on this

basis, the benefit granting agency shall

use the procedures in subpart B, except

as specifically provided by this section.

In lieu of the requirement of section

104.22 to present evidence of alien

registration, the benefit granting agency

shall require the applicant to present a

membership card or other tribal

document demonstrating membership

in an Indian tribe. If the applicant has

no document evidencing tribal

membership, the benefit granting agency

should contact the Indian tribe for

verification of membership. A benefit

granting agency that verifies that an

applicant is eligible by virtue of being

a member of an Indian tribe shall not

use subpart C verification procedures.

§ 104.64 Lawful residence.

(a) With respect to certain public

benefits, an alien applicant may be an

eligible qualified alien only if he or she

is lawfully residing in the United States

at the time of application, or that he or

she was lawfully residing in the United

States as of a specific prior date (such

as August 22, 1996). The benefit

granting agency shall use subpart B and
41686 Federal Register / Vol. 63, No. 149 /Tuesday, August 4, 1998 / Proposed Rules

subpart C verification procedures with

respect to such applicants. If those

procedures verify that the applicant is

or was a qualified alien (other than an

alien who is a qualified alien because he

or she is a victim of domestic violence)

on the requisite date, the benefit

granting agency need not perform

further verification procedures with

respect to lawful residence.

(b) If the subpart B and subpart C

verification procedures do not confirm

that the applicant is or was a qualified

alien (other than an alien who is a

qualified alien because he or she is a

victim of domestic violence), on the

requisite date and the applicant (if not

a qualified alien because he or she is a

victim of domestic violence) is not

rendered ineligible because he or she is

not a qualified alien, the benefit

granting agency shall:

(1) Verify, through review of the

information obtained through the

subpart B and subpart C procedures

and, if necessary, further inquiry to the

Service, that the applicant is or was

lawfully present on the requisite date;

and

(2) Verify that the applicant’s

residence is or was in the United States

on the requisite date by reviewing proof

of residence described in section

244.9(a)(2) of this chapter.

§ 104.65 Hmong or Highland Laotians.

(a) With respect to certain public

benefits effective November 1, 1998, an

alien applicant may be eligible by virtue

of being a Hmong or Highland Laotian,

regardless whether the applicant is a

qualified alien. If an applicant claims to

be eligible on this basis, the benefit

granting agency shall verify the

applicant’s lawful residence in the

United States as set forth in section

104.64, and shall use such verification

procedures (which may include

attestation or presentation of

appropriate documentation) as in the

exercise of the benefit granting agency’s

discretion are reasonably calculated to

verify that the applicant is a Hmong or

Highland Laotian.

(b) An alien applicant may also be

eligible by virtue of being the spouse or

unmarried dependent child of a Hmong

or Highland Laotian, or the unremarried

surviving spouse of a deceased Hmong

or Highland Laotian, regardless whether

the applicant is a qualified alien or is

lawfully residing in the United States. If

an applicant claims to be eligible by

virtue of a qualifying familial

relationship with a living or deceased

Hmong or Highland Laotian, the benefit

granting agency shall not verify the

applicant’s immigration status as

provided in subparts B and C. Instead,

the benefit granting agency shall use

such verification procedures (which

may include attestation or presentation

of appropriate documentation) as in the

exercise of the benefit granting agency’s

discretion are reasonably calculated to

verify the applicant’s qualifying familial

relationship with a Hmong or Highland

Laotian.

§§ 104.66–104.69 [Reserved].

Dated: July 27, 1998.

Janet Reno,

Attorney General.

[FR Doc. 98–20457 Filed 8–3–98; 8:45 am]

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