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Immigration and Naturalization (3 of 13)
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Ronald Reagan Presidential Library
Digital Library Collections
This is a PDF of a folder from our textual collections.
Collection: Roberts, John G.: Files
Folder Title: Immigration and Naturalization
(3 of 13)
Box: 28
To see more digitized collections visit:
https://reaganlibrary.gov/archives/digital-library
To see all Ronald Reagan Presidential Library inventories visit:
https://reaganlibrary.gov/document-collection
Contact a reference archivist at: [email protected]
Citation Guidelines: https://reaganlibrary.gov/citing
National Archives Catalogue: https://catalog.archives.gov/
THE WHITE HOUSE
WASHINGTON
February 18, 1986
MEMORANDUM FOR BRANDEN BLUM
LEGISLATIVE ATTORNEY
OFFICE OF MANAGEMENT AND BUDGET
FROM:
RICHARD A. HAUSER Original signed by RAH
DEPUTY COUNSEL TO THE PRESIDENT
SUBJECT:
Draft DOJ Report on H.R. 3810, the "Immigration
Control and Legalization Amendments Act of
1985" and Justice Response to Agency Comments
on Earlier (H.R. 3080) Version of this Report
Counsel's Office has reviewed the above-referenced DOJ draft
report and comments and finds no objection to them from a legal
perspective.
RAH/JGR:jmk
CC: RAHauser
GRoberts
subject
chron.
THE WHITE HOUSE
WASHINGTON
February 18, 1986
MEMORANDUM FOR RICHARD A. HAUSER
FROM:
JOHN G. ROBERTS Q2R
SUBJECT:
Draft DOJ Report on H.R. 3810, the "Immigration
Control and Legalization Amendments Act of
1985" and Justice Response to Agency Comments
on Earlier (H.R. 3080) Version of this Report
OMB has requested views on the above-referenced draft report.
The bill in question is the latest House vehicle for compre-
hensive immigration reform. The Justice report reiterates the
Administration's positions on immigration reform, which have
been cleared and public for some time. Of particular interest,
the Justice report objects to the House bill anti-discrimination
provisions as unnecessary, objects to an effort to overturn
Oliver V. United States (which upheld warrantless open field
"searches"), and supports verification of citizenship or
immigration registration as a condition of receipt of various
welfare benefits.
Attachment
ID #.
CU
WHITE HOUSE
CORRESPONDENCE TRACKING WORKSHEET
o * OUTGOING
H INTERNAL
I - INCOMING
Date Correspondence
Received (YY/MM/DD)
/
/
Name of Correspondent:
James C. Murr
MI Mail Report
User Codes: (A)
(B)
(C)
Subject:
Draft Depart ment of Justice Report and H.R. 3810,
the Immigration Control and Legalization Amendments
Act of 1985" and Justice response to spency comments and
earlier (H R. 3080) Version of this report.
ROUTE TO:
ACTION
DISPOSITION
Tracking
Type
Completion
Action
Date
of
Date
Office/Agency
(Staff Name)
Code
YY/MM/DD
Response
Code
YY/MM/DD
CUHOLL
ORIGINATOR 86102105
/ /
I
Referral Note:
for RAH signature
CUATI8
D
86102105
S 86102110
Referral Note:
COB
/ /
/ /
-
Referral Note:
/ /
/ /
-
I
Referral Note:
/ /
/ /
Referral Note:
ACTION CODES:
DISPOSITION CODES:
A - Appropriate Action
I Info Copy Only/No Action Necessary
A Answered
C Completed
C . Comment/Recommendation
R Direct Reply w/Copy
B Non-Special Referral
S Suspended
D Draft Response
S For Signature
F - Furnish Fact Sheet
X Interim Reply
to be used as Enclosure
FOR OUTGOING CORRESPONDENCE:
Type of Response = Initials of Signer
Code - "A"
Completion Date = Date of Outgoing
Comments:
Questions to Brandend Blum (395-3454)
Keep this worksheet attached to the original incoming letter.
Send all routing updates to Central Reference (Room 75, OEOB).
Always return completed correspondence record to Central Files.
Refer questions about the correspondence tracking system to Central Reference, ext. 2590.
5/81
EXECUTIVE OFFICE OF THE PRESIDENT
OF THE
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON, D.C. 20503
February 4, 1986
LEGISLATIVE REFERRAL MEMORANDUM
TO:
Department of Agriculture
Department of Commerce
Department of Education
Department of Health & Human Services
Deapartment of Labor
Department of State
Department of the Treasury
Small Business Administration
National Security Council
Council of Economic Advisers
SUBJECT:
Draft Department of Justice report on H.R. 3810, the
"Immigration Control and Legalization Amendments Act
1985" and Justice response to agency comments on earlier of
(H.R. 3080) version of this report.
The Office of Management and Budget requests the views of your
agency on the above subject before advising on its relationship
to the program of the President, in accordance with OMB Circular
A-19.
Please provide us with your views no later than February 11, 1986.
(NOTE -- H.R. 3810 is a substitute for H.R. 3080, reflecting changes
made during subcommittee markup of H.R. 3080. Ful House Judiciary
Committee markup of H.R. 3810 is expected to occur later this month
or early March. Reviewers of this draft report should ignore
the editorial annotations and underlines appearing in the text and
margin.)
Direct your questions to Branden Blum (395-3454), the legislative
attorney in this office.
James C. Murr for
Assistant Director for
Legislative Reference
Enclosure
CC: Fred Fielding
Sarah Brentling
Frank Seidl
John Cooney
Phil Hanna
Carol Ballew
Tara Treacy
Barry White
Roger Greene
Jim Barie
Andrea Hoffman
Department Justice
Office of Legislative and Intergovernmental Affairs
Office of the Assistant Attorney General
Weshington, D.C. 20530
Honorable Peter W. Rodino, Jr.
Chairman
Committee on the Judiciary
U.S. House of Representatives
Washington, D.C. 20515
Dear Mr. Chairman:
This responds to your request for the Department of Justice's
views on H.R. 3810, .the "Immigration Control and Legalization
Amendments Act of 1985." The Department supports enactment of
this legislation with certain major and several minor revisions.
In this following bill report, omission of any section indicates
that the Department supports the provision.
This Administration has consistently supported immigration
reform, and the pressing need for legislation remains. We are
pleased that you and Congressman Mazzoli are sponsoring H.R. 3810.
We look forward to working with your Committee.
EMPLOYMENT OF UNAUTHORIZED ALIENS
SECTION 101
Section 101 of the bill amends present Section 274 of the
Immigration and Nationality Act (the Act) to provide penalties for
employers who commit two types of offenses: (1) knowingly hiring
an alien who is not authorized to work; and (2) failing to comply
with the requirements of the Employment Verification System.
Employment Verification
An employer must verify that each applicant for employment
("applicant") has established his or her authorization to work in
the United States, including examining an applicant's identifying
documentation and employment authorization. The applicant must
also attest that he is a citizen or national of the United States,
an alien lawfully admitted for permanent residence, or an alien
authorized by the Attorney General to be employed. The employer
must retain these records for a period of time specified by the
Attorney General. Good-faith compliance with these requirements
18 an affirmative defense to a charge that the employer has know-
ingly employed an unauthorized alien.
Honorable Peter Rodino, Jr.
H.R. 3810 - Page 2
Hearing Process
Section 101 also provides for a hearing, before an adminis-
trative law judge, to determine whether a violation has occurred.
An employer who requests a hearing may, within 60 days of an ad-
verse decision, file a petition for review with the appropriate
court of appeals, of the administrative fine. If no hearing 18
requested, the fine assessed shall not be appealable. If the
assessed penalty is not timely paid, the Attorney General must
file a suit in a district court to enforce payment.
Delayed Effective Date
The penalty provisions have a delayed effective date. For
the first six months after enactment, the Attorney General and the
heads of certain Departments and agencies must disseminate infor-
mation on these provisions, and no penalty may be imposed or pro-
ceeding conducted for a first violation. In the subsequent twelve
months, the Attorney General is authorized to issue citations of
violations. Again, no penalty may be imposed or proceeding con-
ducted during this time.
Anti-discrimination Provisions
Section 101 also contains extensive procedures for dealing
with discrimination in hiring or discharging based on an individ-
ual's national origin or citizenship status. The coverage is
broad, encompassing citizens, "intending citizens," aliens who are
permanent residents, aliens temporarily admitted under the "amnes-
ty" provisions, and aliens granted either refugee status or asy-
1um, and who have completed a declaration of intention to become a
citizen.
All employers are subject to this anti-discrimination provi-
sion, except that claims of national-origin discrimination are
barred 1f: (1) the complainant is covered by Section 703 of the
Civil Rights Act of 1964; or (2) United States citizenship is re-
quired by Federal law, regulation, or executive order, a Federal,
State or local-government contract, or by order of the Attorney
General; or (3) English-language skill 18 a bona fide occupational
qualification reasonably necessary to the normal operation of the
enterprise.
An employer found to violate these provisions may be ordered
to maintain a record-keeping system for all applicants, to hire or
re-hire individuals directly and adversely affected by the employ-
er's hiring or discharge practices, with or without back pay, to
pay a civil penalty of $1,000 for each individual discriminated
Honorable Peter Rodino, Jr.
H.R. 3810 - Page 3
against and to pay attorneys fees. A penalty of $2,000 per vio-
lation may be assessed against an employer previously found to
have engaged in discrimination.
Procedurally, a person may complain to a Special Counsel
appointed by the President with the advice and consent of the Sen-
ate. The Special Counsel must investigate all such complaints, to
determine whether there 18 reasonable cause to believe that the
charge 18 true. If so, then the Special Counsel may bring a com-
plaint before an administrative law judge, who must be specially
designated and trained by the Attorney General. The administra-
tive law judge may subpoena witnesses and evidence, and hold
hearings. Subpoena enforcement rests with the district courts.
An administrative order issued under this provision may be
reviewed within 120 days under Section 10 (d), (e), (f), (g), and
(j) of the National Labor Relations Act. The Special Counsel will
exercise the powers of the National Labor Relations Board's Gen-
eral Counsel as specified by that Act.
Penalties
For a first offense, under Section 101, an employer is sub-
ject to a $1 - 2,000 civil penalty for each unauthorized alien.
For a subsequent offense, an employer is subject to a $2 - 5,000
fine for each unauthorized alien. An employer who engages in a
pattern or practice of violations would be subject to a fine of
$1,000, six-months imprisonment, or both. The Attorney General is
authorized in such a case to bring a federal civil action to seek
relief such as injunctions or restraining orders.
Violating the paperwork provisions of the Employee Verifica-
tion System, subjects an employer to a $1,000 civil penalty for
each individual-for whom the employer failed to comply.
Comments
Barring the employment of unauthorized aliens is fundamental
to curtailing illegal immigration. The Department supports Sec-
tion 101 but suggests some revisions. Civil penalties should be
fixed at specific amounts and not set within ranges. Fixed, spec-
1fic fines would reduce potential litigation, and promote consist-
ency in the assessment of fines. Moreover, fixed civil penalties
will sufficiently deter the employment of unauthorized aliens;
accordingly, we oppose criminal penalties, except possibly in
"pattern and practice" situations.
Honorable Peter Rodino, Jr.
H.R. 3810 - Page 4
Employers of three or fewer persons should be exempted from
the record-keeping requirement, with mandated record-keeping if
violations occur.
The bill's anti-discrimination provisions are both unneces-
sary and overly inclusive. Existing national-origin civil rights
laws are sufficient protection for all from unfair treatment.
Existing federal agencies are able to investigate and deal with
discrimination on this basis. No new administrative law judges
are needed, since the present immigration judges, already familiar
with immigration laws, can readily handle the work. Creating new
bureaucracies and uncontrollable new case loads is unwise, un-
necessary and unaoceptably expensive. (LINE DELETED)
FRAUDULENT USE OF IMMIGRATION DOCUMENTS
SECTION 102
Section 102 of the bill amends 18 U.S.C. 1546 to bar the f-
raudulent use of certain documents to establish employment auth-
orization. Fines for such activity are increased from $2,000 to
$5,000. Likewise, the use of a false identification document or a
false attestation 1s prohibited. The penalty for violating this
section 1s a $5,000 fine, or two years imprisonment, or both.
Comments
Employer sanctions will likely increase the manufacture and
use of immigration documents for fraudulent purposes. Penalties
of the type and magnitude contemplated by Section 102 should help
deter this activity.
AUTHORIZATION OF APPROPRIATION FOR ENFORCEMENT
AND SERVICE ACTIVITIES OF INS
SECTION 111
Section 111 provides for increased funding to increase INS
enforcement and service activities, authorizing, for fiscal years
1986 and 1987 respectively, 422 million dollars and 419 million
dollars over the regular authorization. These sums are to in-
crease the border patrol and other INS enforcement activities to
ensure prompt and efficient adjudications of applications under
the Act. The funding is also to be used to improve out-reach pro-
grams and in-service training of INS personnel. We support in-
creased funding for INS's enforcement activities, which now
Honorable Peter Rodino, Jr.
H.R. 3810 - Page 5
results in apprehending more than one million illegal aliens each
year. Compared to the same time period last year, there has been
a forty percent increase in the number of illegal aliens that have
been apprehended. Increased funding will enhance INS's enforce-
ment activities and will also help to improve INS's service re-
lated activities. We support the increased authorizations.
Section 111 (d) bars the INS from acquiring or installing data
processing equipment. Section 111(d) should be dropped. These
provisions are unnecessary, and will further delay sorely needed
data automation systems. Further, the sole basis for inclusion of
this provision has been the incorrect assumption that data systems
contracts were improperly granted. This is not the case.
UNLAWFUL TRANSPORTATION OF ALIENS
TO THE UNITED STATES
SECTION 112
Section 112 amends existing Section 274(a) of the Act to pro-
vide criminal penalties against anyone who unlawfully transports
aliens to the United States. Criminal penalties can be imposed
when: (1) a person knowingly brings or attempts to bring to the
United States an alien at a place other than a port of entry or a
place not designated by the INS Commissioner; (2) a person know-
ingly transports or moves, or attempts to transport or move, an
illegal alien within the United States; (3) a person knowingly
conceals, harbors, or shields from detection an alien; or (4) a
person knowingly brings or attempts to bring an alien to the
United States in any manner whatsoever. A person who violates any
of the first three provisions can be fined up to $10,000, and 1m-
prisoned for up to five years. For the fourth provision, a fine
of not more than $5,000, or imprisonment of not more than one
year, or both can be imposed for each violation. A second of-
fense, or an offense committed for commercial advantage or private
financial gain, can result in a fine of not more than $10,000 or
imprisonment for not more than five years, or both.
Comments
We support this section. It will reverse the judicial con-
struction of Section 274 of the Act in United States V. Anaya, 509
F.Supp. 289, P. 297 (S.D. Fla. 1980), where the court held that
Section 274 "was designed by Congress to prevent aiding and abet-
ting the illegal entry of aliens into the United States in a
fraudulent evasive or surreptitious manner." (emphasis added)
Honorable Peter Rodino, Jr.
H.R. 3810 - Page 6
We propose two changes, first, subsection (a) (1) (c), should
be amended to include language relating to attempts to conceal,
harbor or shield. This language appears in subsection 274 (a) (3),
and should be retained. United States V. Cantu, 557 F.2d 1173
(5th Cir.), reh. den. 561 F.2d 831, cert. den. 434 U.S. 1063.
Second, language incorporating the present subsection 274
(a) (4), should be added. This provision subjects to criminal
sanctions "any person ... who willfully or knowingly encourages
or induces or attempts to encourage or induce, either directly or
indirectly the entry into the United States of any alien . .not
duly admitted by an immigration officer This provision has
proven to be a useful tool in combatting alien smuggling. See,
United States V. Nunez, 668 F.2d 10 (1st Cir. 1981); United States
V. Castillio-Felix, 539 F.2d 9 (9th Cir. 1976). Moreover, this is
the only provision in Section 274 that has extra-territorial ap-
plication. See, Nunez, supra; United States V. Correa-Negron, 462
F.2d 613 (9th Cir. 1972), and cases cited therein.
TREATMENT OF IMMIGRATION EMERGENCIES
SECTION 113
Section 113 amends the Act's existing Section 103 to direct
the Attorney General to develop a contingency plan in the event of
an immigration emergency. This section also establishes an im-
migration emergency fund of 35,000,000 for use in such emergency.
Before monies can be withdrawn from this fund, the President must
determine that an immigration emergency has occurred, and must BO
certify to the House and Senate Judiciary Committees.
Comments
This section, as drafted, does not provide the President with
any new legal authority. Nonetheless, because this section re-
affirms existing authority, and provides a funding mechanism we
support its enactment.
RESTRICTING WARRANTLESS ENTRY IN THE
CASE OF OUTDOOR AGRICULTURAL OPERATIONS
SECTION 114
Section 114 amends existing Section 287 of the Act to re-
strict warrantless entries into open fields used for agricultural
purposes. INS officers may not enter outdoor agricultural areas
without a warrant or the consent of the owner or his agent, to
Honorable Peter Rodino, Jr.
H.R. 3810 - Page 7
interrogate persons as to their right to be in the United States.
The only exception to these requirements is existing Section
287 (a) (3), which permits access to private lands within 25 miles
of the border.
Comments
The Department of Justice strongly opposes this provision,
and urges that it be entirely deleted. The Supreme Court in
Oliver V. United States, 104 S.Ct. 1735 (1984), held that the Gov-
ernment's entry onto an open field is not a search in the consti-
tutional sense, and no privacy expectation can attach to such
fields. Under this provision, INS will be the only law-enforce-
ment agency precluded from entering "open fields,' and this will
curtail a major aspect of INS's enforcement operations.
This section undercuts one of the principal reasons for im-
migration reform, namely, the control of illegal aliens and the
concurrent enhancement of INS enforcement capabilities. Specifi-
cally, INS will be unable to verify and monitor the employment of
temporary workers in agriculture. This provision 18 especially
undesirable if a special temporary agricultural program is enacted
for the benefit of growers of perishable commodities.
VERIFICATION OF IMMIGRATION STATUS OF
ALIENS APPLYING FOR BENEFITS UNDER CERTAIN PROGRAMS
SECTION 121
Section 121 establishes a verification requirement for per-
sons applying for benefits under the AFDC, Medicaid, Unemployment
Compensation and Food Stamp Programs. Each applicant or recipient
must present proof of citizenship, or proof of immigration regis-
tration if the person is not a citizen. The state must verify an
alien's status with the INS to determine the alien's eligibility
for the benefits.
In addition, this section provides a definition of "Perman-
ently Residing in the United States Under Color of Law" (PRUCOL)
for purposes of the Social Security Act, the Unemployment Tax Act
and Section 484 of the Higher Education Act of 1965. Basically,
the definition limits "PRUCOL" to refugees, asylees, persons
granted withholding of deportation, registrants under Section 249,
aliens paroled into the United States, and persons granted defer-
red action.
Honorable Peter Rodino, Jr.
H.R. 3810 - Page 8
Comments
The Department strongly supports Section 121. The "Systemat-
1c Alien Verification for Entitlements" Program (SAVE) presently
in effect on a limited basis, has shown the practical and fiscal
V
usefulness of this approach, and it has been enthusiastically
supported by participating states. The definition will go far to
reduce the amount of litigation generated by the term "PRUCOL", as
well as to curb the inclination of courts to expand this category
to include persons who are not lawfully in the United States.
This approach along with employer sanctions and strengthened
border enforcement. is A necessary element to deter illegal
immigration into the United States.
LEGALIZATION STATUS
SECTION 201
Section 201 legalizes the status of certain aliens unlawfully
in the United States. In general, this sanction applies to an
alien who entered the United States prior to January 1, 1982, and
who has continuously and unlawfully resided in the U.S. since
January 1, 1982. The alien must also show that he has continuous-
ly, physically resided here since enactment. An alien shall not
be considered to have failed to maintain continuous physical
presence in the United States for a brief, casual, and innocent
absence from the United States. In the case of the nonimmigrant,
the alien must show that his period of authorized stay expired
before January 1, 1982, through the passage of time or that the
alien's unlawful status was known to the Government on that date.
Although eligibility is specifically confined to aliens who
have entered the United States, an exception is made for "Cuban/
Haitian Entrants (Status Pending)" described in paragraph (1), or
(2) (a), of Section 501(e) of Public Law 96-422. Persons in this
category are deemed to have entered the United States for purposes
of this section.
The applicant must also show that he is admissible as an im-
migrant with certain grounds of admissibility specifically waived,
and others which may be waived in the discretion of the Attorney
General. The applicant is not admissible if he has been convicted
of any felony, or has committed three or more misdemeanors in the
United States.
An alien who meets these requirements shall be granted temp-
orary resident status. Twelve months after this grant, the alien
must apply for permanent resident status, and must do 80 within
the next twelve months. If he does not, then his temporary
02/04/86
10:15
NO. 001
010
Honorable Peter Rodino, Jr.
H.R. 3810 - Page 9
resident status automatically expires on the twenty-fifth month
following the date it was granted.
A temporary resident may seek to adjust his status to per-
manent resident if he can establish continuing eligibility for
temporary resident status, plus several additional criteria. He
must show that he has not meaningfully interrupted his continuous
physical presence in the United States, and that he has attained a
minimal understanding of ordinary English, and a knowledge or un-
derstanding of the history and government of the United States, or
he is satisfactorily pursuing a course of study in these fields.
An alien apprehended in the United States prior to the start
of the application period who can establish a "nonfrivolous case
of eligibility" for temporary residence may not be deported, and
is authorized to work at least through the first thirty days of
the application period. An alien apprehended during the applica-
tion period is also not deportable, if he or she makes a nonfrivo-
lous application, until after a final determination is made on the
application. He is also authorized to work.
Administrative and judicial review of determination
An applicant denied temporary or permanent resident status is
entitled to appeal to an administrative authority established by
the Attorney General. This review is to be based "solely upon the
administrative record" of the application, although updating the
record is permitted.
Judicial review of denial of an application for temporary or
permanent residence is to be based "solely upon the administrative
record" as part of an order of deportation. The court may review
the record for abuse of discretion, or to determine if the find-
ings are directly contrary to clear and convincing facts contained
in the record as a whole.
Disqualification from certain public-welfare benefits
An alien granted temporary resident status is generally in-
eligible for certain public welfare assistance programs for five
years beginning with obtaining that status. The Attorney General
will identify the programs covered in consultation with other fed-
eral agencies and departments. Participation in the Medicaid and
Food Stamp programs is specifically prohibited. In addition,
State and municipal governments may refuse financial or medical
assistance to aliens in this category. Exceptions are made for
"Cuban/Haitian Entrants (Status pending)," aged, blind or disabled
individuals, aliens under 18 years of age and pregnant women.
Honorable Peter Rodino, Jr.
H.R. 3810 - Page 10
For purposes of this section, "financial assistance" is de-
fined not to include certain programs such as the National School
Lunch Act, the Child Nutrition Act of 1966, the Headstart-Follow
Through Act and others.
Comments
The Department supports the concept contained in Section 201
but certain revisions are necessary to establish a workable, cost-
effective program. We believe that a January, 1980, cut-off date
is preferable to January 1982. A 1982 cut-off date will result in
entry of aliens who have no pressing claim to remain here perman-
ently. A 1982 date will encourage more aliens to enter illegally,
and attempt to establish eligibility fraudulently. It will sub-
stantially increase the cost of the legalization program. The
1980 date, by contrast, will benefit illegal aliens who have been
in the United States for a significant period of time. We note
that the Select Commission on Immigration Reform recommended a
1980 cutoff date.
The provisions for both administrative and judicial review of
applications for adjustment of status are unnecessary and likely
to significantly increase the costs of administering this provi-
sion, particularly since this section makes no distinction between
review of temporary and permanent resident applications. The De-
partment considers a single administrative review sufficient to
safeguard the interests of an applicant.
The próvisions relating to administrative and judicial review
are also ambiguous. Administrative review 1s to be limited to the
record existing at the time an application is denied, but the re-
cord on review may be updated. Judicial review is to be based
solely upon the administrative appellate authority. Its findings
and determinations are to be conclusive, unless the court finds an
abuse of discretion or that the "findings are directly contrary to
clear and convincing facts." These standards of review are not
the same, and will only invite controversy and litigation.
The Department also believes that the provisions relating to
"brief, casual and innocent" absences from the United States will
be extremely difficult to administer. Application of this stan-
dard is not supported by Rosenberg V. Fleuti, 374 U.S. 449 (1963).
Fleuti applied only to lawful permanent resident aliens, not
aliens illegally in the United States. We suggest that absences
of a specific period of time, 1.e., no more than fifteen days in
the aggregate, from the date chosen for legalization, constitute
the qualifying limit. The bill should also specifically state
that absences related to violations of the immigration laws would
Honorable Peter Rodino, Jr.
H.R. 3810 - Page 11
automatically interrupt the physical presence requirement,
regardless of the period of absence.
The Department finds particularly objectionable Section 201
(b) (5) (c), which provides for five years imprisonment and a $5,000
fine for using, publishing or permitting information from legali-
zation files to be used in an unauthorized manner. No intent to
disclose is required, and the penalty is greatly excessive. By
contrast, Section 102 provides only two years imprisonment for the
fraudulent use of documents. The Department strongly urges that
Section 201 (b) (5) (c) be deleted. Information may be safeguarded
by disciplinary proceedings against government employees who
engage in unauthorized disclosure.
The Department has several problems with the bill's disqual-
ifications from certain public-welfare benefits. Certain programs
for which newly legalized aliens should logically be eligible are
absent from the list of education programs. This provision could
prove to be an administrative nightmare for the Department of Edu-
cation, the States, and local educational agencies if an attempt
was made to exclude the newly legalized aliens from certain pro-
grams while including them in others.
We are concerned that there 18 no provision in H.R. 3810 re-
lating to assistance furnished on a basis other than financial
need. Certain merit-based education programs, such as the tuition
portion of the National Graduate Fellows Program (20 U.S.C. 1134
(h) et seq.) and certain international education programs, may be
affected. H.R. 3810 may imply that newly legalized aliens are
eligible for these merit-based programs despite their temporary
resident status; which would normally be insufficient for eligi-
bility in accordance with the Education Department's regulations.
We support addition of language stating that nothing in the bill
is designed to affect eligibility for non-need-based programs.
Finally, including certain TRIO programs on the list of pre-
scribed education programs presents substantial problems for in-
stitutions of higher education and for student aid. In certain
programs, if a participant was a newly legalized alien and thus
under H.R. 3810 ineligible for Federal student aid, a participa-
ting institution could be faced with a substantial and unexpected
demand on its resources. Under such circumstances, it is conceiv-
able that some schools would withdraw from the program, resulting
in the denial of program benefits for other disadvantaged stu-
dents.
Honorable Peter Rodino, Jr.
H.R. 3810 - Page 12
In view of these problems, the Department objects to proposed
Section 245A(h) (3) of the Act as drafted. It should either be
clarified to contain merely an illustrative list of programs that
newly legalized aliens would be eligible for (with the TRIO pro-
grams discussed above deleted), or that provision should be de-
leted in its entirety.
We are also concerned about the proposed requirement that the
Attorney General must approve courses of study in English and
American history and government in order to satisfy the bill's re-
quirements. This course-approving function could potentially re-
quire a very substantial commitment of the Attorney General's time
and resources. Additionally, this provision might create strong
pressure for Federal funding for courses to satisfy this require-
ment. A provision stating that no new Federal funds are to be
authorized or expended would provide a simple remedy to this
issue.
In addition, there are certain technical changes such as
waivers of standard government personnel, procurement, contract-
ing, real and personal property, printing, and forms-clearance
requirements. These changes, many of which were in last year's
bills, will be submitted to the Committee shortly.
CUBAN-HAITIAN ADJUSTMENT OF STATUS
SECTION 202
Section 202 provides for the adjustment of status to perman-
ent resident of all Cuban or Haitian nationals who fall within two
categories. The first consists of those persons who have been
designated "Cuban/Haitian Entrants (Status Pending)." The second
consists of those Cuban and Haitian nationals who arrived in the
United States before January 1, 1982, and with respect to whom INS
established a record as of that date. A Cuban or Haitian national
admitted as a nonimmigrant who did not apply for asylum before
that same date is not eligible for adjustment of status.
The applicant must also be otherwise eligible for admission
as an immigrant, except for the documentary requirements of Sec-
tion 212(a) of the Act, and not come within Section 243(h)(2) of
that Act. The alien must be physically present in the United
States on the date the application is filed, and also have contin-
uously resided in the United States since January 1, 1982. An ap-
plicant has two years from the date of enactment to apply. If ad-
justment of status is granted, a record of permanent residence as
of January 1, 1982 will be established. A grant of adjustment of
Honorable Peter Rodino, Jr.
H.R. 3810 - Page 13
status under this section will not count against the immigrant
visa allocation for either Cuba or Haiti.
Comments
Separate procedures for adjustment of status of "Cuban/
Haitian Entrants (Status Pending)" are unnecessary. Section 201
specifically confers eligibility for legalization upon the same
persons covered by this provision. There is no substantial reason
to accord these Cuban and Haitian nationals preferential treat-
ment. All aliens unlawfully in the United States should meet the
same eligibility requirements, regardless of the country of
origin, a principal adopted in the 1965 amendments to the Act.
The Cuban Adjustment Act of 1966 should be repealed.
STATE LEGALIZATION ASSISTANCE
SECTION 204
Section 204 directs the Secretary of Health and Human Ser-
vices to reimburse States for all of the costs of public assist-
ance provided to any legalized alien, such as those which provide
cash, medical or other assistance designed to meet basic subsis-
tence or health needs, or public health interests.
Comments
The requirement for 100-percent reimbursement should be
dropped. While there may be costs associated with the legali-
zation program which may fall on the States, we believe that the
newly legalized population will be an asset to the States, con-
sisting of productive, hard-working people. Similarly, education
has always been a State responsibility, and no States currently
bar the education of illegal alien children. Accordingly, we see
no rationale for Federal reimbursement.
Finally, the SAVE program shows that states can save millions
by appropriately verifying the status of applicants for assis
UNELETED
tance, and by not paying benefits to illegal aliens. The provi-
sions of the bill mandating the use of the SAVE program and very
important to the States.
Honorable Peter Rodino, Jr.
H.R. 3810 - Page 14
H-2A WORKERS
SECTION 301
Section 301 establishes a nonimmigrant classification for
temporary agricultural workers (H-2A), and adopts a new program
for admitting them. A labor certification shall not be issued
under certain circumstances, e.g., a strike or lockout during a
labor dispute; employer violation of a previous labor certifica-
tion; or employer failure to provide workers' compensation, if not
otherwise covered by State law.
Rules for consideration of applications
Applications must be filed with the Secretary of Labor not
more than sixty days before an employer requires the services of a
temporary worker. The employer must be notified within seven days
of the filing if the application is deficient. The certification
must be made not later than twenty days before the employer re-
quires the services of a temporary worker. The certification re-
mains effective only if the employer continues to accept for em-
ployment, qualified individuals who apply or are referred to him
until the date when the H-2A workers depart. The employer, in
lieu of providing housing, may provide a reasonable housing allow-
ance if housing 1s available near the employment. An H-2A peti-
tion may also be filed by an agricultural association. When a
petition is denied because there are sufficient workers who are
able, willing and qualified, or because employment of the temp-
orary worker will adversely affect the wages and working condi-
tions of similarly employed U.S. workers, there is an expedited
administrative appeal.
In administrative appeal circumstances, the Secretary of
Labor must make a new determination within 72 hours of a request.
The employer has the burden of proof to establish that an eligible
U.S. worker is not able, willing, or qualified to perform the re-
quested labor.
The temporary worker cannot be admitted for longer than that
determined by regulation. He may also not be admitted if in the
previous five-year period he had violated the terms of his admis-
sion.
Funding
Section 301 also authorizes the appropriation, for fiscal
year 1986 and after, of 10 million dollars, to recruit domestic
workers for temporary services, and to monitor the H-2A program.
Honorable Peter Rodino, Jr.
H.R. 3810 - Page 15
The Secretary of Labor 1s authorized to impose appropriate penal-
ties and seek appropriate relief to ensure an employer's compli-
ance with the terms of the employment. The Secretary 18 also
authorized such sums of monies as may be appropriate to make H-2A
determinations and certifications.
Advisory Commission
Subsection 301(e) expresses the sense of Congress that the
President should establish an advisory commission to consult with
governments and advise the Attorney General regarding the opera-
tions of the H-2A program and the agricultural labor transition
program.
Comments
The Administration supports S. 1200's temporary worker re-
forms, however, we believe that the Secretary of Labor should
issue the regulations governing labor certification under this
program after meaningful consultation with the Departments of
Justice and Agriculture. Both the regulatory authority provision
and the consultation requirement will be statutory.
The Department of Labor, acting independently and in response
to recommendations from the Agricultural Workers' Commission, will
take meaningful steps to improve the H-2 program as a workable and
acceptable means of meeting shortages in the domestic agricultural
labor market.
The Administration opposes Section 301(e). The United States
has already established lines of communication with the government
of Mexico and other sending countries on immigration matters, with
particular regard for the protection of foreign worker's rights in
our country. We believe that the establishment of an additional
channel of these foreign governments would be inappropriate, dup-
licative and bureaucratic.
CHANGE IN COLONIAL QUOTA
SECTION 311
The quota for immigrants born in a colony, as set forth in
Section 202(c) of the Act, is increased from 600 to 3,000, start-
ing with fiscal years beginning after enactment.
Honorable Peter Rodino, Jr.
H.R. 3810 - Page 16
Comments
The Department supports increasing the colonial quota, but
recommends that it be raised to 5,000 to meet projected demand.
STUDENTS
SECTION 312
Section 312 requires a two-year foreign residence for non-
immigrants admitted as students. The Attorney General may waive,
under certain circumstances, the foreign-residency requirement for
alien students, if he determines that the waiver is in the public
interest.
If the alien applies for a nonimmigrant visa he must meet
additional requirements. Moreover, the alien must annually fur-
nish an affidavit attesting that he is in good standing with the
training program, and will return to his country upon completion
of the program. Section 312 would also make certain other amend-
ments relating to adjustment of status and deportation.
Comments
We oppose Section 312. The two-year foreign residence re-
quirement will be burdensome on bona fide students and U.S. em-
ployers. It will also create a strong impetus for students to
enter into fraudulent marriages to circumvent the foreign-res-
idence requirement.
G-IV SPECIAL IMMIGRANTS
SECTION 313
Section 313 would add a special immigrant category to benefit
officers or employees of international organizations and their 1m-
mediate family members. An individual could qualify for special
immigrant status if he resided in the United States for only seven
out of twenty-one years, as long as he had resided for some un-
specified time in the United States within the last seven years.
In contrast, an alien who has been employed by the United States
abroad must have "performed faithful service for a total of fif-
teen years, or more," to qualify as a special immigrant.
Honorable Peter Rodino, Jr.
H.R. 3810 - Page 17
Comments
We oppose Section 313 because it would grant an unnecessary
special preference.
SECTION 314
Section 314 provides authority to establish a pilot visa-
waiver program for certain nonimmigrant visitors. The waiver
would apply to visitors from countries providing a reciprocal
waiver for U.S. citizens.
Comments
The Department of Justice supports the pilot visa-waiver
program. The program will facilitate legitimate travel to and
from the United States.
MISCELLANEOUS PROVISIONS
SECTION 315
Section 315(a) gives equal treatment to fathers to allow
immigration benefits for an illegitimate child. This amendment
overrules Fiallo V. Bell, 430 U.S. 787 (1977), which held that an
illegitimate child can claim immigration benefits only through its
mother.
We support 315(a) because it provides equal treatment without
regard to a parent's sex,
Section 315(b) permits an alien to maintain continuous phys-
ical presence if his absence from the United States was brief,
casual, and innocent. This amendment would overrule INS V.
Phinpathya, 104 S.Ct. 584 (1984), which held that any absence,
however brief, breaks the continuity of physical presence.
Comments
We oppose this amendment because its vagueness invites Ju-
dicial lawmaking and encourages litigation. We recommend either
deleting this provision or amending 1t to preclude the establish-
ment of continuous physical presence if the alien's departure is
15 days or longer, or where the alien has engaged in activities
contrary to the immigration laws.
Honorable Peter Rodino, Jr.
H.R. 3810 - Page 18
TRIENNIAL REPORTS CONCERNING IMMIGRATION
SECTION 401
Section 401 requires that the President submit to the House
and Senate Judiciary Committees a triennial report on the Act.
The comprehensive report must include the number of aliens admit-
ted in various immigrant and nonimmigrant categories, and their
impact on the economy, labor and housing markets, educational
quality systems, social services, and population growth rate of
the United States. The President must also provide a reasonable
estimate of the number of aliens who entered the United States
illegally, or who became deportable during the three-year period.
The report must also project for the following five-year period
the information contained in the report. The President must also
include in the report any appropriate recommendation bearing on
the admission and entry of aliens in the United States.
REPORTS ON UNAUTHORIZED EMPLOYMENT
AND DISCRIMINATION
SECTION 402
Section 402 requires the President to report on the imple-
mentation of the employer-sanctions provisions to the House and
Senate Judiciary Committees every six months beginning the twelfth
month after enactment. This report must contain an analysis of
the employment verification system and status of the telephone-
verification project. The President must also report on the 1m-
pact of the employer-sanctions provisions on the employment, wages
and working conditions of United States workers, illegal immigra-
tion, and violation of status by nonimmigrant visa holders.
A separate report on the effect of the employer-sanctions
provision on discrimination against minority group citizens and
permanent residents and the paperwork and record-keeping burden of
employers must be submitted. This report is due 18, 36 and 54
months following enactment.
The Civil Rights Commission must submit its own report, due
18 months after enactment, on the implementation and enforcement
of this section. The Commission must additionally investigate
allegations that there has been unlawful discrimination based on
race or nationality against citizens or aliens authorized to work.
Honorable Peter Rodino, Jr.
H.R. 3810 - Page 19
REPORTS ON H-2A PROGRAM AND ON AGRICULTURAL
LABOR TRANSITION PROGRAM
SECTION 403
Section 403 requires the President to transmit to the House
and Senate Judiciary Committees an annual report for three contin-
uing years on the agricultural transition program, and a bi-annual
report on the H-2A program, including the number of foreign work-
ers employed under each program, compliance of employers with the
terms and conditions of the program, and impact of the programs on
the labor needs of the United States agricultural employers. The
report must also include recommendations for modifications of the
programs.
REPORT ON THE LEGALIZATION PROGRAM
SECTION 404
Section 404 requires the President to transmit to Congress
two reports. The first report, required within 12 months after
the end of the application period for temporary residence, is to
include a significant amount of data relating to the legalized
population, describing the geographical origins and manner of
entry of these aliens, their demographic characteristics and a
general profile of the population. The second report, due three
years after the first report, is to contain information describing
the impact of the program on State and local governments, public
health and medical needs, patterns of employment and participation
of legalized aliens in social service programs. The Department
generally opposes the proliferation of statutorily mandated
reporting requirements. preferring instead to provide the Congress
with information requested on an as needed basis.
Conclusion
Finally, in response to requests from members of your Commit-
tee, we have submitted amendments to H.R. 3080, and we will be
submitting amendments to H.R. 3810. These amendments were prepar-
ed expressly at the request of members of Congress and they do not
necessarily represent the position of this Department or this
Administration.
02/04/86
10:20
NO. 001
020
Honorable Peter Rodino, Jr.
H.R. 3810 - Page 20
The Department would like to reiterate its strong support for
immigration reform. We know that we share a mutual interest in
enacting legislation that will be most beneficial to the people of
the United States.
The Office of Management and Budget has advised that there is
no objection to the submission of this report from the standpoint
of the Administration's program.
Sincerely,
John R. Bolton
Assistant Attorney General
U.S. Department of Justice
Office of Legislative and Intergovernmental Affairs
Office of the Assistant Attorney General
Washington, D.C. 20530
January 31, 1986
Honorable James C. Miller III
Director
Office of Management and Budget
Washington, D.C. 20530
Dear Mr. Miller:
This responds to the revisions suggested by the Office of
Management and Budget (OMB) and other agencies, to the Department
of Justice's report on H.R. 3080, (presently H.R. 3810), the
"Immigration Control and Legalization Amendments Act of 1985,"
and to amendments adopted by the House Subcommittee on Immigra-
tion, Refugees and International Law. A copy of the revised
report is attached.
The Department of Education (DOE) was particularly concerned
about Sections 201 and 203 of the bill, relating to impact-assist-
ance grants, and the eligibility of newly legalized aliens for
certain education programs. Most of the additional language sug-
gested is included in our revised bill report.
The Department of State suggested that our report should
recommend an increase in the "colonial quota" from 3,000 to 5,000.
State also recommended that the report reflect the Administra-
tion's opposition to establishing a bilateral advisory commission
to consult with foreign governments on the H2-A agricultural
workers program. Both suggestions are included.
The Small Business Administration (SBA) suggested that the
Department oppose the record-keeping requirements of Section 101.
SBA supports the S. 1200 approach, under which an employer who has
an employment verification and record-keeping system has an af-
firmative defense to a charge of illegal employment. An employer
without such a system would face the rebuttable presumption that
the alien was illegally hired. These comments are not included in
the report because the Administration opposes optional employment-
verification systems.
The Department of Agriculture (USDA) offered extensive com-
ments. In response we included the Administration's statement of
principles on agricultural workers. Our report does not make all
of USDA's suggested revision's because many were too detailed and
narrow in scope. Additionally, many of USDA's comments pertained
to issues that are being debated within the Administration.
The Department of Health and Human Services (HHS) submitted
only an annotated copy of Justice's report. It was difficult to
understand the rationale behind the annotations, since HHS
provided no explanation.
We have included most of the revisions suggested by OMB.
However, we feel that we should retain the Department's support
for the reporting requirements of the Systematic Alien Verifi-
cation for Entitlement (SAVE) program. We strongly believe that
H.R. 3810 should require a report on the effects of the SAVE
program on state and local governments. The present SAVE program
has already resulted in substantial cost reductions in entitlement
programs. A reporting requirement would enable the government to
obtain highly useful information on this program's continued
impact.
We hope that the views included in the revised bill report,
meet with your support.
Sincerely,
JeRBotto John R. Bolton
Assistant Attorney General
THE WHITE HOUSE
WASHINGTON
February 18, 1986
MEMORANDUM FOR BRANDEN BLUM
LEGISLATIVE ATTORNEY
OFFICE OF MANAGEMENT AND BUDGET
FROM:
ASSOCIATE COUNSEL OPR THE PRESIDENT
JOHN G. ROBERTS
SUBJECT:
HHS Proposed Amendment to Immigration Reform
Legislation (H.R. 3810/S. 1200) to Require
Verification of Immigration Status of Aliens
Applying for Benefits under Certain
Assistance Programs
Counsel's Office has reviewed the above-referenced amendment and
finds no objection to it from a legal perspective.
ID #
CU
WHITE HOUSE
CORRESPONDENCE TRACKING WORKSHEET
o . OUTGOING
H . INTERNAL
I * INCOMING
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MI Mail Report
User Codes: (A)
(B)
(C)
Subject: H HS proposed amendment to Immigration
Refarm Regislation (H.R. 3810 / 5.1200) to require
verification of immigration status of aliens
applying Programs for benefits under certain assistance
ROUTE TO:
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to be used as Enclosure
FOR OUTGOING CORRESPONDENCE:
Type of Response = Initials of Signer
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5/81
EXECUTIVE OFFICE OF THE PRESIDENT
DEPERT UNITED
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON, D.C. 20503
February 12, 1986
LEGISLATIVE REFERRAL MEMORANDUM
TO: Department of Justice
Department of Agriculture
Department of Labor
Council of Economic Advisers
SUBJECT: Department of Health & Human Services propsed amendment
to Immigration Reform legislation (H.R. 3810/S. 1200) to
require verification of immigration status of aliens applying
for benefits under certain assistance programs.
The Office of Management and Budget requests the views of your
agency on the above subject before advising on its relationship
to the program of the President, in accordance with OMB Circular
A-19.
Please provide us with your views no later than February 20, 1986.
Direct your questions to Branden Blum (395-3454), the legislative
attorney in this office.
James C. Murr for
Assistant Director for
Legislative Reference
Enclosure
CC: John Cooney
Sarah Brentlinger
Phil Hanna
Tara Treacy
Andrea Hoffman
Fred Fielding
VERIFICATION OF IMMIGRATION STATUS OF ALIENS
APPLYING FOR BENEFITS UNDER CERTAIN PROGRAMS
Sec.
(a) REQUIRING ALIEN VERIFICATION SYSTEM.-
(1) UNDER AFDC, MEDICAID, ADULT ASSISTANCE,
UNEMPLOYMENT COMPENSATION, AND FOOD STAMP PROGRAMS.--
Section 1137 of the Social Security Act is amended --
(A) by redesignating subsections'(b) and (c) as
subsections (c) and (d), respectively;
(B) by inserting after subsection (a) a new
subsection (b) as follows:
"(b) In order to meet the requirements of this section, a
State also must have in effect for fiscal years after 1988 an
alien verification system under which --
"(1) the State shall --
"(A) require, as a condition of eligibility for
benefits under any program listed in subscction (c),
that each applicant for such benefits (other than an
applicant for medical assistance under title XIX whose
eligibility for such assistance is determined by the
Secretary in accordance with an agreement entered into
by the State and the Secretary pursuant to section
1634) --
"(i) declare in writing, under penalty of
perjury, whether or not the individual is a
citizen of the United States, and
2
"(ii) if not a citizen of the United
States, present alien registration documentation
or such other proof of immigration registration
as may be required by the Immigration and
Naturalization Service for this purpose, and
"(B) exchange with the Immigration and
Naturalization Service (by means of an automated or
other system designated by the Immigration and
Naturalization Service for this purpose) such
information as may be necessary for the purpose of
determining whether an individual who is not a citizen
of the United States is in an immigration status that
renders the individual ineligible for benefits under
such program, and
"(c) if advised by the Immigration and
Naturalization Service that an individual is in such
a
status, afford such individual the opportunity to
prove otherwise by submitting satisfactory evidence of
an immigration status that does not render the
individual so ineligible, prior to making any decision
to deny or terminate the individual's benefits under
the applicable program;
"(2) the State shall follow the procedures described
in subparagraphs (B) and (c) of paragraph (1) whenever a
reconsideration or redetermination is made of the continued
3
eligibility of a recipient of benefits under a program
listed in subsection (c) who is not a citizen of the United
States (other than B recipient of medical assistance under
title XIX whose continued eligibility for such assistance
is determined by the Secretary in accordance with an
agreement entered into by the State and the Secretary
pursuant to section 1634), and in no case less frequently
than annually in the case of such a recipient:
"(3) the State shall have in effect such safeguards
as assure that information received from an individual or
the Immigration and Naturalization Service pursuant to
paragraph (1) is used only to the extent necessary to
assist in the valid administrative needs of the program
receiving such information, and is adequately protected
against unauthorized disclosure for other purposes; and
"(4) the State shall have in effect laws that --
"(A) authorize the solicitation of written
declarations under penalty of perjury, and
(B) provide that any individual who, in any
declaration required under paragraph (1) (A), willfully
subscribes as true any material matter which he does
not believe to be true, is guilty of perjury;
unless the Secretary of Health and Human Services (or, in the
case of the unemployment compensation program, the Secretary of
Labor, or, in the case of the food stamp program, the Secretary
of Agriculture), in consultation with the Commissioner of
Immigration and Naturalization, determines on or before July 1,
4
1988, on the basis of an application for a waiver received prior
to April 1, 1988, that the State has in effect an alternative
system which is as effective for purposes of verifying alien
eligibility for the applicable program in that State.";
(c) in subsection (c) (as redesignated by
paragraph (1) (A) of this subsection), by striking out
"income verification system" and inserting in lieu
thereof "income verification and alien verification
systems"; and
(D) in subsection (a) and subsection (d) (as
redesignated by paragraph (1) (A) of this subsection),
by striking out "subsection (b)" each place it occurs
and inserting in lieu thereof "subsection (c)".
(2) UNDER THE SUPPLEMENTAL SECURITY INCOME
PROGRAM.--Section 1631 (e) (1) (B) of such Act is amended in
the first sentence by inserting "the requirements of
section 1614 (a) (1) (B) and other" after "concerning".
(b) PROVIDING 50 PERCENT MATCHING FUNDS FOR THE COSTS OF
DEVELOPMENT, INSTALLATION, AND OPERATION OF SYSTEM.--
(1) UNDER THE AFDC PROGRAM.--Section 403 (a) (3) (c) of
such Act is amended --
(A) by inserting "(i)" after "subparagraph", and
(B) by inserting ", (ii) all expenses related to
the development, installation, and operation of an
alien verification system that meets the requirements
of section 1137(b)" after "section 402 (a) (35) (B)
5
(2) UNDER THE MEDICAID PROGRAM.--ection 1903(a)(7)
of such Act is amended by inserting "(including as
expenditures under this paragraph all expenses related to
the development, installation, and operation of an alien
verification system that meets the requirements of section
1137(b))" after "State plan".
(3) UNDER THE ADULT ASSISTANCE PROGRAMS. Sections
3 (a) (4) (B), 1003 (a) (3) (B), 1403(a)(3)(B), and 1603(a)(4)(B)
of such Act (as in effect with respect to Puerto Rico,
Guam, and the Virgin Islands) are each amended by inserting
"(including as expenditures under this paragraph all
expenses related to the development, installation, and
operation of an alien verification system that meets the
requirements of section 1137(b))" after "expenditures".
(4) UNDER THE UNEMPLOYMENT COMPENSATION PROGRAM. The
first sentence or section 302(a) or such Act is amended by
inserting before the period at the end thereof the
following: ", including 50 percent of so much of the
reasonable expenditures of the State as are attributable to
the development, installation, and operation of an alien
verification system that meets the requirements of section
1137(b)".
86. 02/12 13:17 P10 *HQ COMMCENTER B 472 6927
6
(5) UNDER THE FOOD STAMP PROGRAM.--Section 16 (a) of
the Food Stamp Act is amended by striking out "and (4) fair
hearings" and inserting in lieu thereof "(4) fair hearings,
and (5) the development, installation, and operation of an
alien verification system that meets the requirements of
section 1137(b) of the Social Security Act".
(c) SOCIAL SECURITY ACT DEFINITION OF PERMANENTLY RESIDING
IN THE UNITED STATES UNDER COLOR OF LAW.--
(1) IN GENERAL.--Section 1101(a) of the Social
Security Act is amended by adding at the end thereof the
following new paragraph:
"(10) The term "alien permanently residing in the
United States under color of law" means an alien who is
lawfully present in the United States as a result of the
application of the provisions of --
"(A) section 207 of the Immigration and
Nationality Act (relating to refugees);
"(B) section 208 of such Act (relating to
asylum);
"(C) section 203 (a) (7) of such Act as in effect
prior to April 1, 1980 (relating to conditional entry
prior to such date):
"(D) section 212(d)(5) of such Act (relating to
parole) at least five years earlier; or
"(E) section 243(h) of such Act (relating to a
decision of the Attorney General to withhold
deportation) .".
86. 02/12 13:17 P11 *HQ COMMENTER B 472 6927
7
(2) - CONFORMING AMENDMENTS.--(A) Section
1614 (a) (1) (B) of the Social Security Act is amended by
striking out "otherwise permanently residing" and all that
follows, and inserting in lieu thereof "(111) an alien
permanently residing in the United States under color of
law (as defined in section 1101 (a) (10) .".
(B) Section 402 (a) (33) (B) of such Act is amended by
striking out "otherwise permanently residing" and all that
follows, and inserting in lieu thereof "(c) an alien
permanently residing in the United States under color of
law (as defined in section 1101 (a) (10) 11".
(c) Section 3304 (a) (14) (A) of the Federal
Unemployment Tax Act is amended by striking out
"was permanently residing" and all that follows, and
inserting in lieu thereof "was an alien permanently
reclaing in in United States under color of law (as
defined in section 1101 (a) (10) of the Social Security Act)
at the time such services were performed."
(3) EFFECTIVE DATE.-The amendments made by this
subsection shall be effective upon the date of enactment of
this Act, except that such amendments shall not apply in
the case of any alien who, on the basis of an application
filed prior to such date, is eligible to receive benefits
under the program of aid to families with dependent
children authorized by part A of title IV of the Social
Security Act or the supplemental security income program
authorized by title XVI of such Act (which includes, for
86. 02/12 13:17 P12 *HQ COMMCENTER B 472 6927
8
purposes of this subsection, the program of State
supplementary payments which are made pursuant to section
1616 1616(a) (a) of such Act or section 212(b) of Public Law 93-66)
for the month in which this Act is enacted, for such time
as such alien continues without interruption to be eligible
to receive such benefits.
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VERIFICATION OF IMMIGRATION STATUS OF ALIENS
APPLYING FOR BENEFITS UNDER CERTAIN PROGRAMS
Section 1137 of the Social Security Act currently requires
States to have in place a system to verify income eligibility
for purposes of the AFDC, Medicaid, adult assistance,
unemployment compensation, and food stamp programs. Subsection
(à) of section would amend section 1137 to additionally
require that States have in operation by October 1, 1988 a
system to determine whether aliens who apply for or receive
benefits under those programs are in an immigration status
compatible with the receipt of such benefits.
Under the amendment, States would require program
applicants to declare whether or not they are citizens of the
United States and, if not citizens, to furnish alien
registration documentation or such other proof of immigration
registration as the Immigration and Naturalization Service (INS)
determines to be appropriate. States would then be required to
exchange information with the INS by means of an automated or
other system designated by the INS for the purpose of
determining whether the individual's immigration status renders
him ineligible to participate in the applicable program. If
INS furnishes unfavorable information with respect to any
individual, the State would be required to afford the individual
the opportunity to submit satisfactory evidence of a favorable
immigration status prior to making any decision with respect to
the individual's eligibility for benefits.
At :- the CRRA with BRV individual whose claim for benefits
is denied, any alien who is denied benefits due to a
determination that his immigration status renders him ineligible
for program participation would be afforded the opportunity to
contest that determination at a hearing in accordance with
program practices. The amendment does not create any right to a
hearing prior to a denial of benefits.
States also would be required to re-examine the alien
status of any non-citizen program recipient whenever any
redetermination of the recipient's eligibility is made, and in
no case less frequently than annually.
The Secretary of Health and Human Services (or the
Secretary of Labor or the Secretary of Agriculture, as
appropriate), in consultation with the Commissioner of
Immigration and Naturalization, may waive the requirement for an
alien verification system if the Secretary determines, on the
basis of an application for a waiver submitted before April 1,
1988, that the State has in place an equally effective
alternative for verifying the alien status of program applicants
and recipients.
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Due to the possibility of short-term difficulties in
adopting systems to conform with the requirements of these
amendments, it is the intent of Congress that the Departments of
Agriculture and Health and Human Services will, for purposes of
their quality control systems, forgive errors directly resulting
from implementation of these amendments for a period of not more
than one year.
Subsection (b) of the amendment provides 50 percent
matching funds to States for expenses associated with the cost
of developing, installing, and operating alien verification
systems.
Subsection (c) adds to the Social Security Act a definition
of the term "alien permanently residing in the United States
under color of law". This term currently appears as an
eligibility criterion in the AFDC, SSI and unemployment
compensation programs, and has been the subject of recent
litigation in connection with the former two programs. The new
definition would specifically enumerate, by means of explicit
references to the Immigration and Nationality Act, the
categories of aliens who could henceforth be considered as
"permanently residing in the United States under color of law".
The new definition would be effective upon enactment. A
grandfather clause would exempt from the application of the
amendment those "color of law" aliens who, based on applications
filed prior to the date of enactment, are eligible for benefits
for the month of enactment, for such time as they continuously
maintain their eligibility