[Federal Register Volume 90, Number 134 (Wednesday, July 16, 2025)]
[Notices]
[Pages 32023-32026]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-13318]
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DEPARTMENT OF JUSTICE
[A.G. Order No. 6335-2025]
Revised Specification Pursuant to the Personal Responsibility and
Work Opportunity Reconciliation Act of 1996
AGENCY: Department of Justice.
ACTION: Order.
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SUMMARY: This document contains an Order of the Attorney General issued
pursuant to sections 401 and 411 of the Personal Responsibility and
Work Opportunity Reconciliation Act of 1996 (``PRWORA'' or the
``Act''). This Order withdraws the Attorney General's January 5, 2001,
order issued pursuant to PRWORA.
DATES: The effective date of this Order is August 15, 2025.
[[Page 32024]]
FOR FURTHER INFORMATION CONTACT: Christina Greer, Office of Legal
Policy, Department of Justice, Room 4254, 950 Pennsylvania Avenue NW,
Washington, DC 20530, telephone 202-514-5739, for general information.
For information regarding particular programs, contact the Federal
agency that administers the program.
SUPPLEMENTARY INFORMATION
I. Background on PRWORA
On August 22, 1996, President Clinton signed the Personal
Responsibility and Work Opportunity Reconciliation Act of 1996, Public
Law 104-193, currently codified in relevant part at 8 U.S.C. 1611 et
seq., as amended. With certain exceptions, PRWORA makes aliens who are
not ``qualified alien[s]'' ineligible for any ``Federal public
benefit,'' as those terms are defined by PRWORA. 8 U.S.C. 1611(a); see
also id. 1611(c) (defining ``Federal public benefit''), 1641 (defining
``qualified alien''). PRWORA also restricts, with certain exceptions,
all aliens from receiving ``Federal means-tested public benefit[s]''
for a five-year period from their entry into the United States with a
status within the meaning of the term ``qualified alien.'' 8 U.S.C.
1613(a). Additionally, PRWORA imposes limits on the receipt of State
and local benefits by aliens but permits States to authorize the
receipt of State and local benefits by otherwise ineligible aliens
through the enactment of a State law postdating PRWORA. See 8 U.S.C.
1621(a), (d); see also id. 1621(c) (defining ``State or local public
benefit''). Finally, PRWORA added section 213A to the Immigration and
Nationality Act, which excepts from reimbursement certain benefits
provided to a sponsored alien pursuant to an affidavit of support. Id.
1183a note.
PRWORA requires the creation of uniform verification requirements
to ensure that only ``qualified aliens'' eligible for benefits under
PRWORA receive them. 8 U.S.C. 1642. Section 1642(a) requires the
Attorney General, who at the time of PRWORA's enactment oversaw the
Immigration and Naturalization Service within the Department of Justice
(``DOJ''), to promulgate regulations requiring verification that a
person applying for a Federal public benefit is a qualified alien and
is eligible to receive the benefit. Section 1642(a)(2) requires
establishment of fair and nondiscriminatory procedures for a person to
provide proof of citizenship. Section 1642(b) requires States to have
in effect a verification system that complies with the regulations
promulgated under section 1642(a). The Attorney General issued interim
guidance about the implementation of these verification requirements in
1997. 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 (Nov. 17,
1997).
II. Authority To Specify Exceptions to PRWORA's Verification
Requirements
Sections 401(b)(1)(D) and 411(b)(4) of PRWORA (codified at 8 U.S.C.
1611(b)(1)(D) and 1621(b)(4)), provide that the Attorney General may,
in her ``sole and unreviewable discretion after consultation with
appropriate Federal agencies and departments,'' specify as excepted
from PRWORA's prohibition on receipt of public benefits by unqualified
aliens certain types of programs, services, and assistance that meet
all of the following criteria: (1) deliver in-kind services at the
community level, including through public or private non-profit
agencies; (2) do 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 (3) are necessary for
the protection of life or safety.
Shortly after PRWORA was signed into law, the Attorney General
issued an order implementing this authority by making a ``provisional
specification'' of benefits excepted from PRWORA. Specification of
Community Programs Necessary for Protection of Life or Safety Under
Welfare Reform Legislation, 61 FR 45985 (Aug. 30, 1996) (``Provisional
Order''). Approximately one year later, the Attorney General issued a
notice to solicit input from ``federal, state, and local agencies
operating programs or providing services or assistance that may be
covered by the final Order.'' Request for Comments on the Attorney
General's Specification of Community Programs Necessary for the
Protection of Life or Safety Under the Welfare Reform Act, 62 FR 48308,
48308 (Sept. 15, 1997). The Attorney General subsequently issued a
final order specifying these programs in 2001. Final Specification of
Community Programs Necessary for Protection of Life or Safety Under
Welfare Reform Legislation, 66 FR 3613 (Jan. 16, 2001) (``Final
Order''). In both the Provisional Order and the Final Order--the latter
of which was, in substance, unchanged in response to the comments
received by DOJ--the Attorney General exercised her authority to except
programs, services, or assistance to the fullest extent permitted by
law by excepting from PRWORA ``any . . . programs, services, or
assistance'' that satisfied all three statutory criteria. 61 FR at
45985 (Provisional Order); 66 FR at 3616 (Final Order); see also id. at
3615 (``[the] Attorney General has fully exercised the power delegated
to her under Sec. Sec. 401(b)(1)(D) and 411(b)(4) of [PRWORA]'').
The Attorney General's exercise of discretion to determine whether
to except benefits from PRWORA does not require notice-and-comment
rulemaking. Because PRWORA commits a decision about exceptions to the
Attorney General's ``sole and unreviewable discretion'' after
consultation with Federal officials, PRWORA ``renders the formal
notice-and-comment rulemaking regime inapplicable'' to this action. See
Make The Rd. New York v. Wolf, 962 F.3d 612, 634 (D.C. Cir. 2020).
Moreover, the action is exempt from notice-and-comment procedures
because the designation of certain benefits as excepted is a ``matter
relating to . . . public property, loans, grants, benefits, or
contracts.'' 5 U.S.C. 553(a)(2).
III. Executive Order 14218
On February 19, 2025, the President signed Executive Order 14218,
``Ending Taxpayer Subsidization of Open Borders,'' 90 FR 10581. One
purpose of the Executive Order is to confirm agencies are complying
with PRWORA in administering Federal programs by ensuring, ``to the
maximum extent permitted by law, that no taxpayer-funded benefits go to
unqualified aliens.'' Id. sec. 2(a). The Executive Order directs
agencies to identify ``all federally funded programs administered by
the agency that currently permit illegal aliens to obtain any cash or
non-cash public benefit, and, consistent with applicable law, take all
appropriate actions to align such programs with the purpose of the
Executive Order and applicable law, including . . . PRWORA.'' Id. sec.
2(a)(i).
IV. Re-Evaluation of the 2001 Specification
A. Review of Reliance on the Final Order
In the discharge of her responsibilities under Executive Order
14218 and PRWORA, the Attorney General has reviewed the Final Order
issued in 2001. As required by PRWORA, she has engaged in consultation
with appropriate Federal agencies and departments about the propriety
of
[[Page 32025]]
specifying exceptions to PRWORA, including the extent to which agencies
rely on the Final Order to except programs, services, or assistance
from PRWORA, in order to determine whether the Final Order should be
withdrawn or modified.
Multiple agencies responded that they do not rely on the Final
Order at all because they do not confer benefits subject to PRWORA;
because they rely only on PRWORA's statutory exceptions; or because
they do not except the benefits they provide from PRWORA's eligibility
requirements. The fact that a particular program does not fall within
the scope of PRWORA does not mean that eligibility requirements imposed
by other Federal statutes do not apply to the benefit. Some Federal
programs, such as Medicaid, unemployment compensation, educational
assistance under Title IV of the Higher Education Act of 1965, and
assisted housing programs administered by the Department of Housing and
Urban Development (``HUD'') already require, absent a waiver,
verification of the immigration status of an alien to ensure the alien
meets the eligibility requirements for the program. 62 FR at 61345. To
verify recipient status and eligibility, agencies use the Systematic
Alien Verification for Entitlements (``SAVE'') system, operated by U.S.
Citizenship and Immigration Services. See id. Except where specified in
the statute, PRWORA does not alter preexisting legal requirements
regarding the use of the SAVE system or relieve the administrators of
statutorily mandated programs of their obligations to comply with the
SAVE program. Id. The Attorney General defers to agencies as to the
extent to which PRWORA applies to the programs they administer and as
to whether authorities other than PRWORA require them to ascertain the
immigration status of benefit recipients.
Some agencies purported to rely upon the Final Order to except from
PRWORA programs that are likely subject to one of PRWORA's statutory
exceptions. For example, the Federal Emergency Management
Administration purported to rely on the Final Order as to certain
emergency or disaster relief programs. But PRWORA already excepts
short-term, in-kind, emergency disaster relief from its eligibility
requirements, so the Attorney General's exception authority under
PRWORA is not legally necessary to except such programs. See 8 U.S.C.
1611(b)(1)(B).
Agencies also purported to rely upon the Final Order to except
programs that may fail to meet the requirements of PRWORA because
eligibility is conditioned on the income or resources of the
recipients. For instance, many of the benefits provided through the
Community Development Block Grant (``CDBG'') program, managed by HUD,
must be conferred to low- or moderate-income persons by statute. See 42
U.S.C. 5301 et seq. PRWORA, however, grants the Attorney General
authority to except only programs for which eligibility is not
conditioned on the resources or income of the recipients. See, e.g., 8
U.S.C. 1611(b)(1)(D)(ii).
Agencies also purported to rely upon the Final Order for programs
that may go beyond PRWORA's limitation of benefits to programs that are
``necessary for the protection of life or safety.'' 8 U.S.C.
1611(b)(1)(D)(iii). Neither PRWORA nor the Final Order attempts to
define this phrase more precisely. This lack of guidance has led to the
exception being used more broadly than Congress intended. PRWORA
provides examples of the kinds of assistance that the Attorney General
has authority to except from the statute's limitation on eligibility--
i.e., ``soup kitchens, crisis counseling and intervention, and short-
term shelter.'' But agencies have excepted from PRWORA forms of
assistance that are quite unlike these examples. For instance, the
Department of Homeland Security (``DHS'') funds ``scientific
leadership,'' ``citizenship education and training,'' and law
enforcement officer training. Such programs--focused more on career
building or personal development than human necessities--are not
``necessary for the protection life or safety'' in the sense the
drafters of PRWORA used that phrase. Nor is it clear why unqualified
aliens would need to receive benefits from such programs. Similarly,
while grants, contracts, and loans are a public benefit under PRWORA,
many projects funded by HUD through CDBG to address infrastructure
improvements or combat urban blight are too far removed from the
circumstances that would make them ``necessary for the protection of
life or safety'' in the sense that Congress directed when it enacted
PRWORA.
B. Revision of the Final Order
Based on her consultations with the appropriate Federal agencies
and departments, the Attorney General has determined that the Final
Order has created confusion about what sorts of programs are subject to
PRWORA's requirements and is being applied more broadly than the
statute permits. As a result, unqualified aliens have been able to
receive public benefits for which they are not lawfully eligible. To
correct this, the Attorney General, in the exercise of her discretion,
has chosen not to except any benefits from PRWORA beyond those excepted
by the statute itself.
In making this change, the Attorney General is aware that some
aliens may have been able to receive certain types of in-kind public
benefits that would otherwise be subject to PRWORA's requirements
because of the exceptions detailed in the Final Order. Such aliens will
not be eligible for those benefits in the future due to this revised
specification. To the extent that aliens may have relied on such
benefits, the Attorney General concludes, based on her consultation
with Federal agencies and departments and other considerations, that
the changes described in this specification are nonetheless warranted.
This is so for several reasons. First, as noted earlier, some agencies
have been excepting from PRWORA certain benefits based on a
misunderstanding of the Attorney General's exception authority and
hence have been providing benefits to aliens who were not lawfully
eligible to receive them. ``No amount of reliance could ever justify
continuing a program'' that an ``agency lacked statutory authority to''
implement in the first place, see Dep't of Homeland Sec. v. Regents of
the Univ. of California, 140 S. Ct. 1891, 1930 (2020) (``Regents'')
(Thomas, J., concurring in part and dissenting in part), so bringing
the Federal Government into compliance with the law is a powerful
reason to withdraw the Final Order regardless of any reliance
interests. Second, as also noted above, some of the benefits previously
provided under the Final Order were not, in fact, necessary for life or
safety. The lack of any connection to aliens' immediate welfare
necessarily reduces the extent of any reliance interests in these
benefits. Third, even as to benefits that the Attorney General has the
legal authority (but not the duty) to except from PRWORA, any reliance
interests are significantly outweighed by the need to reduce the
incentive for aliens to illegally migrate to the United States. See 8
U.S.C. 1601(2) (``It continues to be the immigration policy of the
United States that . . . the availability of public benefits not
constitute an incentive for immigration to the United States.'').
Finally, Congress has delegated to the Attorney General the authority
to determine the appropriate scope of this specification in her ``sole
and unreviewable discretion.'' E.g., 8 U.S.C. 1611(b)(1)(D). This
delegation indicates Congress's intent that the scope of this
specification not be subject to the sort of arbitrary-and-capricious
review that would typically require consideration of
[[Page 32026]]
reliance interests. See Regents, 140 S. Ct. at 1907, 1913 (assessing an
agency's consideration of reliance interests only after concluding that
the agency's action was subject to judicial review).
Although the Attorney General has the authority to except certain
benefits from PRWORA, the decision to do so is expressly committed to
her sole and unreviewable discretion. See, e.g., 8 U.S.C.
1611(b)(1)(D). The Attorney General has concluded, in the exercise of
that discretion, that the benefits of creating additional exceptions to
PRWORA, beyond those set forth in the statute itself, are outweighed by
the risks of creating incentives for unlawful migration by allowing
access to such programs to individuals who are not ``qualified aliens''
as defined by PRWORA.
This Order does not purport to define what benefit programs are,
and are not, ``public benefits'' subject to PRWORA. This Order also has
no effect on other statutory eligibility requirements, including those
found in PRWORA itself. See, e.g., 8 U.S.C. 1611(b), 1615, 1621(b)(4).
The Attorney General has the right, in her sole and unreviewable
discretion, to revisit and amend the specification in the future.
Order Specifying Community Programs Necessary for the Protection of
Life or Safety Under the Personal Responsibility and Work Opportunity
Reconciliation Act of 1996
By virtue of the authority vested in me as Attorney General by law,
including Title IV of the Personal Responsibility and Work Opportunity
Reconciliation Act of 1996 (the ``Act''), I hereby specify that:
1. Effective August 15, 2025, the Final Order of the Attorney
General dated January 16, 2001, and published at 66 FR 6313, is
withdrawn and no longer in force.
2. After undertaking the necessary consultations with appropriate
Federal agencies and departments, the Attorney General has concluded,
in her sole and unreviewable discretion, not to except any benefits
from PRWORA pursuant to her authority to make such exceptions under
section 401 and section 411 of PRWORA.
3. I do not construe the Act to preclude aliens from receiving
police, fire, ambulance, transportation (including paratransit),
sanitation, and other similar services. See 8 U.S.C. 1611(c), 1621(c).
As a result, I need not specify and am not specifying any such services
as being excepted from the Act.
4. It is not the purpose of this Order to define more specifically
the scope of the public benefits that Congress intended to include
within the scope of the Act, and nothing herein should be construed to
do so.
Date: July 11, 2025.
Pamela Bondi,
Attorney General.
[FR Doc. 2025-13318 Filed 7-15-25; 8:45 am]
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