[Federal Register Volume 63, Number 149 (Tuesday, August 4, 1998)]
[Proposed Rules]
[Pages 41662-41686]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-20457]


      

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

[[Page 41662]]



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.

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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

[[Page 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

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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 Sec. 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 Sec. 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 Sec. 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 
Sec. 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 Sec. 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

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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 non-exempted 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 non-qualified 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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. 
Sec. 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

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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

[[Page 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 Sec. 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 Sec. 104.1's list of programs that by definition are not 
``Federal public benefits,'' or Sec. 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 Secs. 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

[[Page 41668]]

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 Sec. 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. Sec. 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,

[[Page 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 Sec. 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 broad-based 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, Secs. sections 
104.23(d), (e),and 104.28). In addition, of course, the general 
requirements of Sec. 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. 
Sec. 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

[[Page 41670]]

cases, however, as authorized by Sec. 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 Secs. 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 Sec. 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 Sec. 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 Secs. 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 Sec. 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; Sec. 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 Sec. 104.24's requirement of additional

[[Page 41671]]

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

[[Page 41672]]

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 Non-Service 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. Sec. 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

[[Page 41673]]

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, Sec. 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 Sec. 104.1 by 
incorporating Sec. 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 Sec. 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

[[Page 41674]]

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 Sec. 104.1 and provides a verification procedure in 
Sec. 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 non-PWORA 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, Sec. 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, 
Sec. 3(f). Accordingly, this rule has been reviewed by the Office of 
Management and Budget (``OMB'').

[[Page 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, Secs. 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 non-Service 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.

[[Page 41676]]

Subpart A--General


Sec. 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

[[Page 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 
quasi-governmental 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 
Sec. 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

[[Page 41678]]

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 Sec. 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.


Sec. 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.


Sec. 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.


Sec. 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.


Sec. 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.


Sec. 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

[[Page 41679]]

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.


Sec. 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. Sec. 552a, 
or the Freedom of Information Act, 5 U.S.C. Sec. 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).


Sec. 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 Sec. 104.44.


Sec. 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.


Sec. 104.10  Verification requirement for certain nutrition programs.

    A benefit granting agency providing Food Stamps shall comply with 
Sec. 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. Sec. 1615(b)(2) shall comply with Sec. 104.3 rather than 
Sec. 104.2.


Secs. 104.11-104.19  [Reserved].

Subpart B--Declaration of applicant and examination of documents.


Sec. 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

[[Page 41680]]

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.


Sec. 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.


Sec. 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.


Sec. 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 jurisdiction-approved 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);

[[Page 41681]]

    (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. non-citizen 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.


Sec. 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.


Sec. 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 
Secs. 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

[[Page 41682]]

Sec. 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.


Sec. 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.


Sec. 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.


Sec. 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 Sec. 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 Secs. 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 Secs. 104.23 and 104.24 at that time.


Sec. 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.


Sec. 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 Sec. 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 Secs. 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 
Sec. 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.


Secs. 104.31-104.39  [Reserved].

Subpart C--Systematic Alien Verification for Entitlements (SAVE)


Sec. 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 Secs. 104.2, 104.3, and 104.4


Sec. 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

[[Page 41683]]

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.


Sec. 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.


Sec. 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.


Sec. 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.


Sec. 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.


Sec. 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.


Sec. 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.


Sec. 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

[[Page 41684]]

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)).


Sec. 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.


Sec. 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.


Sec. 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.


Sec. 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.


Secs. 104.53-104.59  [Reserved].

Subpart D--Verification Requiring Non-Service Information.


Sec. 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

[[Page 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.


Sec. 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.


Sec. 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.


Sec. 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.


Sec. 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

[[Page 41686]]

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.


Sec. 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.


Secs. 104.66-104.69  [Reserved].

    Dated: July 27, 1998.
Janet Reno,
Attorney General.
[FR Doc. 98-20457 Filed 8-3-98; 8:45 am]
BILLING CODE 4410-10-P