Responsibility of Certain Entities To Notify the Immigration and Naturalization Service of Any Alien Who the Entity “Knows” Is Not Lawfully Present in the United States

AGENCIES:

Social Security Administration (SSA); Department of Health and Human Services (HHS); Department of Labor (DOL); Department of Housing and Urban Development (HUD); Immigration and Naturalization Service, Justice.

ACTION:

Notice.

SUMMARY:

Section 404 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Public Law 104-193, as amended, requires certain Federal and State entities, at least four times annually, to notify the Immigration and Naturalization Service (Service) of any alien the entity “knows” is not lawfully present in the United States. The Federal agencies responsible for implementing section 404 are providing notice of how this provision is being implemented. Under this notice, an entity is not required to make quarterly reports to the Service unless it has knowledge of an individual who is not lawfully present in the United States, as detailed below.

FOR FURTHER INFORMATION CONTACT:

SSA

John Watson, Associate General Counsel for Program Law, Office of the General Counsel, Social Security Administration, 6401 Security Boulevard, Baltimore, MD 21235, (410) 965-3137.

HHS

Robert Shelbourne, Director, Division of Policy and Program Development, Office of Family Assistance, Administration for Children and Families, Department of Health and Human Services, 370 L'Enfant Promenade, SW., Washington, DC 20447, (202) 401-5150.

DOL

Dennis Lieberman, Director, Division of Welfare-to-Work, Employment and Training Administration, Department of Labor, 200 Constitution Avenue, NW., Room N-4671, Washington, DC 20210, (202) 219-7694, extension 132.

HUD

Patricia Arnaudo, Senior Program Manager, Office of Public and Indian Housing, Department of Housing and Urban Development, 451 7th St., SW., Room 4226, Washington, DC 20410, (202) 708-0744.

Service

Jacquelyn Bednarz, Special Assistant to the Acting Executive Associate Commissioner, Office of Policy and Planning, Immigration and Naturalization Service, 425 I Street NW., Room 7309, Washington, DC 20536, (202) 514-3242.

SUPPLEMENTARY INFORMATION:

The Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Public Law 104-193 (hereinafter PRWORA), and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Public Law 104-208 (IIRIRA), include significant provisions affecting the eligibility of aliens in the United States for public benefits. (See HHS Notice, Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA); Interpretation of “Federal Public Benefit,” 63 FR 41658 (August 4, 1998)). Section 401 of PRWORA generally provides that, with some exceptions, only “qualified aliens” (in addition to U.S. citizens and nationals) are eligible to receive Federal public benefits. PRWORA and IIRIRA also include significant provisions specifically limiting the eligibility of qualified aliens for certain specified Federal programs, including Supplemental Security Income (SSI) under Title XVI of the Social Security Act. Finally, section 403 of PRWORA limits the eligibility of qualified aliens for certain “Federal means-tested public benefits.” (See Department of Agriculture, Food and Nutrition Service, Federal Means-Tested Public Benefits, 63 FR 36653 (July 7, 1998); HHS, Office of the Secretary, Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA); Interpretation of “Federal Means-Tested Public Benefit,” 62 FR 45256 (August 26, 1997); SSA, Personal Responsibility and Work Opportunity Reconciliation Act of 1996: Federal Means-Tested Public Benefits Paid by the Social Security Administration, 62 FR 45284 (August 26, 1997).

Section 404 of PRWORA, as amended by section 5564 of the Balanced Budget Act of 1997, Public Law 105-33, requires each entity or type of entity specified in that statute to report to the Service, at least four times annually, any individual who the entity, under certain specified programs, “knows is not lawfully present in the United States” (emphasis supplied). Entities required to report under this provision in the course of administering certain specified programs are as follows: (1) Any State agency that administers a block grant under part A of Title IV of the Social Security Act, as amended, 42 U.S.C. 601 et seq. (Temporary Assistance for Needy Families, Welfare-to-Work); (2) SSA (with respect only to the SSI program under Title XVI of the Social Security Act, 42 U.S.C. 1381 et seq.); (3) any State agency responsible for an SSI Optional State Supplementation under the SSI program if the State has entered into an agreement with SSA for Federal administration of payments under that program pursuant to section 1616(a) of the Social Security Act, as amended, 42 U.S.C. 1382e(a); (4) HUD (with respect only to the Public and Assisted Housing Program provided under the United States Housing Act of 1937, as amended, 42 U.S.C. 1437 et seq.); and, (5) any public housing agency that enters into a contract for assistance under section 6 or 8 of Title I of the United States Housing Act 1937, as amended, 42 U.S.C. 1437 et seq. No other entity is required to report under the provisions of Title IV of PRWORA.

Section 404 of PRWORA is not explicit with respect to the meaning of the term “knows.” After consultation, the responsible Federal agencies have determined that, for purposes of the requirement under section 404 that an entity report four times annually, an entity will “know” that an alien is not lawfully present in the United States only when the unlawful presence is a finding of fact or conclusion of law that is made by the entity as part of a formal determination that is subject to administrative review on an alien's claim for any of the statutorily specified programs set out above. In addition, that finding or conclusion of unlawful presence must be supported by a determination by the Service or the Executive Office of Immigration Review, such as a Final Order of Deportation. A Systematic Alien Verification for Entitlements (SAVE) response showing no Service record on an individual or an immigration status making the individual ineligible for a benefit is not a finding of fact or conclusion of law that the individual is not lawfully present. Equating “knowing” under section 404 of PRWORA with the formal determination described above under any of the statutorily specified programs affected by section 404 gives rational substance to an arguably ambiguous term and is not inconsistent with the legislative history of this provision.

This notice is not meant to suggest that a benefit granting agency is required to make a determination as to an applicant's lawful presence if that determination is not otherwise necessary in order to determine whether the applicant is eligible for the benefit. Nor is it meant to suggest that a finding or conclusion as to immigration status made by a benefit granting agency has any weight outside the context of the alien's eligibility for that particular benefit. Determinations of status for purposes of the Immigration and Nationality Act are the responsibility of the Department of Justice, not of any other agency.

At least four times annually, the reporting entity that knows of the unlawful presence of any alien as specified above must make a report to the Service. The entity will make the report within 45 days after the close of the appropriate calendar year quarter. The report must include the name, address, and other identifying information in the entity's possession regarding the individual who the reporting entity knows is not lawfully present in the United States. In order to reduce unnecessary administrative burden, the reporting entity is not required to submit reports to the Service unless it has knowledge of an individual who is not lawfully present in the United States as specified above. The reports will be sent to the Service at the following address: Director, Policy Directives and Instructions Branch, Immigration and Naturalization Service, 425 I Street NW, Room 4034, Washington, DC 20536, Att'n: INS No. 2070-00.