[Federal Register Volume 61, Number 174 (Friday, September 6, 1996)]
[Rules and Regulations]
[Pages 47039-47041]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-22963]
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DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Part 103
[AG Order No. 2054-96; INS No. 1792-96]
RIN 1115-AE51
Definition of the Term Lawfully Present in the United States for
Purposes of Applying for Title II Benefits Under Section 401(b)(2) of
Public Law 104-193
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Interim rule with request for comments.
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SUMMARY: This interim rule amends the Immigration and Naturalization
Service (Service) regulations to define the term ``an alien who is
lawfully present in the United States'' so that the Social Security
Administration may determine which aliens in the United States are
eligible for benefits under title II of the Social Security Act. Aliens
who are considered ``lawfully present in the United States,'' however,
must otherwise satisfy the requirements for benefits under title II of
the Social Security Act in order to receive social security benefits.
DATES: This rule is effective September 6, 1996. Written comments must
be received on or before November 5, 1996.
ADDRESSES: Please submit written comments, in triplicate, to the
Director, Policy Directives and Instructions Branch, Immigration and
Naturalization Service, 425 I Street, NW., Room 5307, Washington, DC
20536. To ensure proper handling, please reference INS number 1792-96
on your correspondence. Comments are available for public inspection at
this location by calling (202) 514-3048 to arrange an appointment.
FOR FURTHER INFORMATION CONTACT:
Derek C. Smith, Assistant General Counsel, Office of the General
Counsel; or Sophia Cox, Adjudications Officers, Adjudications Division;
Immigration and Naturalization Service, 425 I Street, NW., Room 3214,
Washington, DC 20536, telephone (202) 514-2895 or (202) 514-5014.
SUPPLEMENTARY INFORMATION: On August 22, 1996, the President signed the
Personal Responsibility and Work Opportunity Reconciliation Act of 1996
(Personal Responsibility Act), Pub. L. 104-193. Section 401(a) of the
Personal Responsibility Act provides that, subject to limited
exceptions, only ``qualified aliens,'' as defined under section 431,
may receive Federal public benefits,
[[Page 47040]]
including retirement, welfare, health, disability, public or assisted
housing, postsecondary education, food assistance, and unemployment
benefits, among others.
Section 431(b) of the Personal Responsibility Act defines the term
``qualified alien'' to mean the following six groups of aliens:
(1) Aliens who are lawfully admitted for permanent residence under
the Immigration and Nationality Act (Act);
(2) Aliens who are granted asylum under section 208 of the Act;
(3) Refugees admitted into the United States under section 207 of
the Act;
(4) Aliens who are paroled into the United States under section
212(d)(5) of the Act for a period of at least 1 year;
(5) Aliens whose deportation is being withheld under section 243(h)
of the Act; and
(6) Aliens who are granted conditional entry pursuant to section
203(a)(7) of the Act as in effect prior to April 1, 1980.
Section 401(b)(2) of the Personal Responsibility Act, however,
provides an exception, which allows aliens who are ``lawfully present
in the United States,'' as determined by the Attorney General, to
receive benefits under title II of the Social Security Act. (Title II
benefits include, for example, retirement benefits.) The purpose of
this regulation, therefore, is to define the term ``an alien who is
lawfully present in the United States,'' as required under section
401(b)(2) of the Personal Responsibility Act, thereby enabling the
Social Security Administration to determine whether aliens who are not
``qualified aliens'' are eligible to receive title II benefits, if they
are lawfully present in this country. This definition is made solely
for the purpose of determining an alien's eligibility for payment of
title II social security benefits, as required under section 401(b)(2)
of the Personal Responsibility Act, and is not intended to confer any
immigration status or benefit under the Immigration and Nationality
Act.
In determining which aliens are lawfully present for the purposes
of section 401(b)(2) of Public Law 104-193, the Service had to
distinguish among many classes of aliens in the United States. The
characteristic common to all the classes of aliens defined as
``lawfully present in the United States'' is that their presence in the
United States has been sanctioned by a policy determination that a
particular class of aliens should be allowed to remain in the United
States, and that policy determination has almost always been
implemented by an official act having the force of law. Each of the
five categories defined as lawfully present fits within this rationale.
First, the Service has concluded that Congress intended for qualified
aliens, as defined in section 431(b) of the Personal Responsibility
Act, to be included in the definition of lawfully present. Second,
aliens who have been inspected and admitted to the United States and
have not violated their status are lawfully present under the terms of
the Immigration and Nationality Act. Third, an alien who has been
paroled into the United States is lawfully present pursuant to section
212(d)(5) of the Act. However, persons who are paroled in order to
determine whether or not they must be excluded under the Act are not
lawfully present because no determination has been made as to the
lawfulness of their presence, and they are allowed into the United
States to avoid having to keep them in detention while they wait
proceedings. Fourth, aliens who belong to one of the seven classes of
aliens listed in section 103.12(a)(4) of this rule have been permitted
to remain in the United States either by an act of Congress or through
some other policy determination affecting that class of aliens. Aliens
in temporary resident status pursuant to section 210 or 245A of the
Act, aliens under Temporary Protected Status (TPS) pursuant to section
244A of the Act, and Family Unity beneficiaries pursuant to section 301
of Pub. L. 101-649 are all in lawful status under the Act. Cuban-
Haitian entrants, aliens in deferred action status, aliens under
Deferred Enforced Departure, and aliens who are the spouses and
children of a United States citizen with an approved visa petition all
remain in the United States under a Presidential or administrative
policy that permits them to do so. Finally, applicants for asylum and
withholding of deportation are permitted to remain in the United States
because section 208(a) of the Act requires the Attorney General to
create a procedure for adjudicating claims for asylum made by aliens
physically present in the United States. Section 208(a) of the Act was
passed to implement the obligations of the United States under the
Convention Relating to the Status of Refugees, of July 28, 1951, as
incorporated into the Protocol Relating to the Status of Refugees, of
January 31, 1967.
Good Cause Exception
This interim rule is effective upon publication in the Federal
Register although the Service invites post-promulgation comments and
will address any such comments in a final rule. For the following
reasons, the Service finds that good cause exists for adopting this
rule without the prior notice and comment period ordinarily required by
5 U.S.C. 553(b). Section 401(b)(2) of Pub. L. 104-193 requires the
Attorney General to define the term ``an alien lawfully present in the
United States'' so that the Social Security Administration can
determine which aliens are eligible for payment of title II social
security benefits under the terms of the Social Security Act. Absent a
definition of ``an alien lawfully present in the United States,''
section 401(a) of Pub. L. 104-193 requires the Social Security
Administration to suspend payments under title II for aliens who are
not ``qualified aliens'' (as defined under section 431(b)) and who file
applications on or after September 1, 1996. It is therefore
impracticable to adopt this rule with the prior notice and comment
period normally required under 5 U.S.C. 553(b).
Regulatory Flexibility Act
The Attorney General, in accordance with the Regulatory Flexibility
Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving
it, certifies that this rule will not have a significant economic
impact on a substantial number of small entities, because this
regulation affects individuals, not small entities.
Executive Order 12866
This interim rule is considered by the Department of Justice,
Immigration and Naturalization Service, to be a ``significant
regulatory action'' under E.O. 12866, section 3(f), Regulatory Planning
Review, and it has been submitted to the Office of Management and
Budget for review under E.O. 12866.
Executive Order 12988
This interim rule meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of E.O. 12988.
Executive Order 12612
This regulation will not have a substantial direct effect on the
States, on the relationships between the National government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with E.O. 12612,
it is determined that this rule does not have sufficient Federalism
implications to warrant the preparation of a Federalism Assessment.
List of Subjects in 8 CFR Part 103
Administrative practice and procedure, Authority delegations
[[Page 47041]]
(Government agencies), Freedom of Information, Privacy, Reporting and
recordkeeping requirements, Surety bonds.
Accordingly, part 103 of chapter I of title 8 of the Code of
Federal Regulations is amended as follows:
PART 103--POWERS AND DUTIES OF SERVICE OFFICERS; AVAILABILITY OF
SERVICE RECORDS
1. The authority citation for part 103 continues to read as
follows:
Authority: 5 U.S.C. 552, 552(a); 8 U.S.C. 1101, 1103, 1201, 1252
note, 1252b, 1304, 1356; 31 U.S.C. 9701; L E.O. 12356; 47 FR 14874,
15557; 3 CFR 1982 Comp., p. 166; 8 CFR part 2.
2. A new Sec. 103.12 is added to read as follows:
Sec. 103.12 Definition of the term ``lawfully present'' aliens for
purposes of applying for Title II social security benefits under Public
Law 104-193.
(a) Definition of the term an ``alien who is lawfully present in
the United States.'' For the purposes of section 401(b)(2) of Pub. L.
104-193 only, an ``alien who is lawfully present in the United States''
means:
(1) A qualified alien as defined in section 431(b) of Pub. L. 104-
193;
(2) An alien who has been inspected and admitted to the United
States and who has not violated the terms of the status under which he
or she was admitted or to which he or she has changed after admission;
(3) An alien who has been paroled into the United States pursuant
to section 212(d)(5) of the Act for less than 1 year, except:
(i) Aliens paroled for deferred inspection or pending exclusion
proceedings under 236(a) of the Act; and
(ii) Aliens paroled into the United States for prosecution pursuant
to 8 CFR 212.5(a)(3);
(4) An alien who belongs to one of the following classes of aliens
permitted to remain in the United States because the Attorney General
has decided for humanitarian or other public policy reasons not to
initiate deportation or exclusion proceedings or enforce departure:
(i) Aliens currently in temporary resident status pursuant to
section 210 or 245A of the Act;
(ii) Aliens currently under Temporary Protected Status (TPS)
pursuant to section 244A of the Act;
(iii) Cuban-Haitian entrants, as defined in section 202(b) Pub. L.
99-603, as amended;
(iv) Family Unity beneficiaries pursuant to section 301 of Pub. L.
101-649, as amended;
(v) Aliens currently under Deferred Enforced Departure (DED)
pursuant to a decision made by the President;
(vi) Aliens currently in deferred action status pursuant to Service
Operations Instructions at OI 242.1(a)(22);
(vii) Aliens who are the spouse or child of a United States citizen
whose visa petition has been approved and who have a pending
application for adjustment of status;
(5) Applicants for asylum under section 208(a) of the Act and
applicants for withholding of deportation under section 243(h) of the
Act who have been granted employment authorization, and such applicants
under the age of 14 who have had an application pending for at least
180 days.
(b) Non-issuance of an Order to Show Cause and non-enforcement of
deportation and exclusion orders. An alien may not be deemed to be
lawfully present solely on the basis of the Service's decision not to,
or failure to, issue an Order to Show Cause or solely on the basis of
the Service's decision not to, or failure to, enforce an outstanding
order of deportation or exclusion.
Dated: September 4, 1996.
Janet Reno,
Attorney General.
[FR Doc. 96-22963 Filed 9-4-96; 3:10 pm]
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