[Federal Register Volume 63, Number 75 (Monday, April 20, 1998)]
[Notices]
[Pages 19517-19518]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-10288]


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DEPARTMENT OF LABOR

Employment and Training Administration


Federal-State Unemployment Compensation Program: Unemployment 
Insurance Program Letters Interpreting Federal Unemployment Insurance 
Law

    The Employment and Training Administration interprets Federal law 
requirements pertaining to unemployment compensation (UC) as part of 
its role in the administration of the Federal-State UC program. These 
interpretations are issued in Unemployment Insurance Program Letters 
(UIPLs) to the State Employment Security Agencies (SESAs). The UIPL 
described below is published in the Federal Register in order to inform 
the public.

UIPL 07-98

    Section 1137(d), Social Security Act, directs that States require 
each applicant for UC as a condition of eligibility, to declare under 
penalty of perjury whether he/she is a citizen or national of the 
United States and, if not, whether he/she is in a satisfactory 
immigration status. This means an alien must be legally authorized to 
work at the time UC is claimed to meet available for work requirements. 
If a claimant is not a citizen or national, he/she must present alien 
registration documentation that the SESA can use to verify satisfactory 
immigration status through the Immigration and Naturalization Service 
(INS).
    A detailed explanation and interpretation of eligibility of aliens 
for UC was presented in UIPL 1-86. Attachment III to UIPL 12-87 
discussed provisions for determining and verifying alien status for 
entitlement to UC. UIPL 07-98 elaborates on the proper procedures where 
the INS's primary verification process does not establish satisfactory 
immigration status for aliens.

    Dated: April 13, 1998.
Raymond J. Uhalde,
Acting Assistant Secretary of Labor.

U.S. Department of Labor

Employment and Training Administration, Washington, D.C. 20210

Directive: Unemployment Insurance Program Letter No. 7-98
To: All State Employment Security Agencies
From: Grace A. Kilbane, Director, Unemployment Insurance Service
Subject: Procedures for Verification of Alien Status

    1. Purpose. To advise State Employment Security Agencies (SESAs) 
of a Departmental interpretation of Federal statutes relating to 
aliens' eligibility for unemployment compensation when satisfactory 
immigration status is not established through the primary 
verification process with the Immigration and Naturalization Service 
(INS).
    2. References. UIPL 1-86; UIPL 12-87; Section 1137(d) of the 
Social Security Act (SSA).
    3. Background. Section 1137(d), SSA, directs that States require 
each applicant for unemployment benefits, as a condition of 
eligibility, to declare under penalty of perjury whether he/she is a 
citizen or national of the United States and, if not, whether he/she 
is in a satisfactory immigration status. For UI purposes, this means 
an alien must be legally authorized to work at the time benefits are 
claimed to meet available for work requirements. A claimant who is 
not a citizen or national must present alien registration 
documentation that the SESA can use to verify satisfactory 
immigration status through the INS.
    A detailed explanation and interpretation of eligibility of 
aliens for unemployment benefits was presented in UIPL 1-86. 
Attachment III to UIPL 12-87 discussed provisions for determining 
and verifying alien status for entitlement to unemployment benefits. 
This directive elaborates on the proper procedures where the INS's 
primary verification process does not establish satisfactory 
immigration status for aliens.
    The INS does not make determinations of aliens' eligibility for 
benefits. SESAs make these determinations based upon information 
provided by the INS. The INS has established verification procedures 
through a process known as Systematic Alien Verification for 
Entitlements (SAVE). The SAVE system has both primary (automated) 
and secondary (manual) procedures for verification, as referenced in 
the SSA, Sections 1137(d)(3) and (4). The SESA initiates the primary 
procedure by accessing the INS's data base and entering the alien 
registration number (A-Number). This provides an immediate, 
automated response about the alien of record. If the data base can 
substantiate that the alien is authorized to work, the response will 
provide an employment eligibility statement and identify the alien's 
immigration classification. If legal status cannot be determined, 
the response from INS will instruct the SESA to ``institute 
secondary verification'' to obtain sufficient information to make a 
determination. Thus, the primary response will never indicate that 
the alien is

[[Page 19518]]

not authorized to work; this can only be accomplished through the 
secondary process.
    The secondary procedure consists of a more extensive validation 
process, including manual paper searches, when questions arise 
during the primary procedure or when computerized records are not 
found in the SAVE data base. The secondary response from the INS 
indicates whether the alien's documentation ``appears valid'' or 
``is not valid'' and what the alien's immigration status and work 
eligibility status are.
    The SSA requires procedural safeguards to ensure that payments 
to eligible aliens are not delayed because of the verification 
process. Under Section 1137(d)(4)(A), SSA, aliens whose status has 
not been verified through primary verification must be provided a 
``reasonable opportunity'' to submit evidence of satisfactory 
immigration status. The SESA ``may not delay, deny, reduce, or 
terminate an individual's eligibility for benefits'' because of 
immigration status until this reasonable opportunity has been 
provided. The SSA does not specify time limits for this reasonable 
opportunity. However, UIPL 12-87, Attachment III, I.E.2.a., provided 
that ``[t]ime periods under State law for providing information 
needed to determine eligibility for benefits will meet the 
requirement for `reasonable opportunity' ''.
    If, as a result of this reasonable opportunity, an alien whose 
status was not verified through primary verification submits what 
the SESA ``determines constitutes reasonable evidence'', then 
secondary verification must be initiated. (Section 1137(d)(4)(B), 
SSA.) During secondary verification, the SESA ``may not delay, deny, 
reduce, or terminate an individual's eligibility for benefits'' 
because of immigration status.
    4. Office of Inspector General (OIG) Study. In 1996, the 
Department's OIG began studies in four States of UI benefits paid to 
claimants who had used unissued Social Security Numbers to establish 
claims. Preliminary findings revealed that SESAs had made many 
payments to illegal aliens, despite the INS's responses via the SAVE 
primary verification process that indicated mismatches between the 
claimants and the legal aliens registered with INS. The OIG 
discovered numerous cases where both the names and dates-of-birth 
were entirely disparate. In all such cases investigated by the OIG, 
the claims were found to be fraudulent.
    5. Procedures. The findings from the OIG study indicate a need 
to clarify the procedural protections for verification of aliens' 
immigration status. A distinction needs to be recognized between 
material and non-material discrepancies with regard to the 
information provided by INS's response and that provided by the 
claimant. A material discrepancy exists when the claimant identity 
is not verified by the biographical data in the SAVE system.
    A SAVE response via the primary procedure may suggest non-
material discrepancies, e.g., transposition of numbers, incomplete 
surnames when the name includes multiple words, transposed versions 
of names, name change due to recent marriage, etc. At the discretion 
of the SESA, secondary verification may be initiated because of the 
questions that have arisen from the primary response. However, 
pending such verification, payments may not be delayed on the basis 
of immigration status.
    Also, some SAVE primary requests will be returned without 
verification, i.e., neither biographical data nor status information 
will be provided, and the SESA will be instructed to ``institute 
secondary verification''. In such a situation, the SSA requires that 
a claimant be given a reasonable opportunity to submit evidence 
indicating satisfactory immigration status that the SESA can use to 
initiate the secondary SAVE verification process. If the SESA 
receives reasonable evidence of satisfactory immigration status, 
secondary verification must be initiated. Pending such verification, 
SESAs are prohibited from delaying payments.
    However, when a SAVE response via the primary process indicates 
that the claimant is not the same person as the alien registered 
with INS, e.g., different name and date-of-birth, material 
discrepancies exist, and one of the following actions should be 
taken:
    a. If the claimant acknowledges the accuracy of the SAVE 
response (i.e., the filing of a fraudulent claim), issue an 
immediate denial under the appropriate State provisions, e.g., 
monetary denial of base period wages, nonmonetary denial under the 
availability provision, and/or misrepresentation.
    b. If the claimant disputes the accuracy of the SAVE response 
and submits ``reasonable evidence'' indicating satisfactory 
immigration status, initiate the secondary SAVE request, and do not 
delay payment of benefits.
    c. If the claimant disputes the accuracy of the SAVE response 
but does not submit ``reasonable evidence'' indicating satisfactory 
immigration status, the SSA, Section 1137(d)(4)(A) requires that the 
claimant be provided ``reasonable opportunity'' to submit such 
evidence. The claimant must be instructed to provide the evidence 
within time limits established for claims filing under State law. 
The SESA may not delay or deny benefits until this reasonable 
opportunity has been provided; however, for practical purposes, this 
provision should have no effect on processing the claim because 
``reasonable opportunity'' should, in most cases, transpire before 
the claimant certifies for the first week. One of the following 
actions should then be taken as appropriate:
     If reasonable evidence is provided, initiate the 
secondary SAVE request, and do not delay payment of benefits, or
     If reasonable evidence is not provided, issue a denial 
under the SESA provisions as in (a) above. (Reference the SSA, 
Section 1137(d)(5).)
    On occasion, an alien applying for UI may present immigration 
documentation that appears to be counterfeit or altered. In such 
instances, the SESA should initiate the secondary verification 
process immediately, in lieu of the primary process, because the 
alien has not submitted the documentation described in the SSA, 
Section 1137(d)(2). Although the SESA must provide the claimant the 
opportunity to present satisfactory documentation as required by the 
SSA, Section 1137(d)(4)(A), the SESA should, if appropriate, issue 
an immediate denial under the State law provision for 
misrepresentation. This action does not fall within the protections 
of the SSA since the denial is for reasons related to fraud, not 
immigration status.
    6. Action Required. SESA Administrators are requested to provide 
copies of this UIPL to appropriate staff and ensure that effective 
procedures are implemented to establish eligibility for benefits.
    7. Inquiries. Questions should be directed to the appropriate 
Regional Office.

[FR Doc. 98-10288 Filed 4-17-98; 8:45 am]
BILLING CODE 4510-30-P