[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]
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