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    "ocrText": "Ronald Reagan Presidential Library\nDigital Library Collections\nThis is a PDF of a folder from our textual collections.\nCollection: Roberts, John G.: Files\nFolder Title: Immigration and Naturalization\n(3 of 13)\nBox: 28\nTo see more digitized collections visit:\nhttps://reaganlibrary.gov/archives/digital-library\nTo see all Ronald Reagan Presidential Library inventories visit:\nhttps://reaganlibrary.gov/document-collection\nContact a reference archivist at: [email protected]\nCitation Guidelines: https://reaganlibrary.gov/citing\nNational Archives Catalogue: https://catalog.archives.gov/\nTHE WHITE HOUSE\nWASHINGTON\nFebruary 18, 1986\nMEMORANDUM FOR BRANDEN BLUM\nLEGISLATIVE ATTORNEY\nOFFICE OF MANAGEMENT AND BUDGET\nFROM:\nRICHARD A. HAUSER Original signed by RAH\nDEPUTY COUNSEL TO THE PRESIDENT\nSUBJECT:\nDraft DOJ Report on H.R. 3810, the \"Immigration\nControl and Legalization Amendments Act of\n1985\" and Justice Response to Agency Comments\non Earlier (H.R. 3080) Version of this Report\nCounsel's Office has reviewed the above-referenced DOJ draft\nreport and comments and finds no objection to them from a legal\nperspective.\nRAH/JGR:jmk\nCC: RAHauser\nGRoberts\nsubject\nchron.\nTHE WHITE HOUSE\nWASHINGTON\nFebruary 18, 1986\nMEMORANDUM FOR RICHARD A. HAUSER\nFROM:\nJOHN G. ROBERTS Q2R\nSUBJECT:\nDraft DOJ Report on H.R. 3810, the \"Immigration\nControl and Legalization Amendments Act of\n1985\" and Justice Response to Agency Comments\non Earlier (H.R. 3080) Version of this Report\nOMB has requested views on the above-referenced draft report.\nThe bill in question is the latest House vehicle for compre-\nhensive immigration reform. The Justice report reiterates the\nAdministration's positions on immigration reform, which have\nbeen cleared and public for some time. Of particular interest,\nthe Justice report objects to the House bill anti-discrimination\nprovisions as unnecessary, objects to an effort to overturn\nOliver V. United States (which upheld warrantless open field\n\"searches\"), and supports verification of citizenship or\nimmigration registration as a condition of receipt of various\nwelfare benefits.\nAttachment\nID #.\nCU\nWHITE HOUSE\nCORRESPONDENCE TRACKING WORKSHEET\no * OUTGOING\nH INTERNAL\nI - INCOMING\nDate Correspondence\nReceived (YY/MM/DD)\n/\n/\nName of Correspondent:\nJames C. Murr\nMI Mail Report\nUser Codes: (A)\n(B)\n(C)\nSubject:\nDraft Depart ment of Justice Report and H.R. 3810,\nthe Immigration Control and Legalization Amendments\nAct of 1985\" and Justice response to spency comments and\nearlier (H R. 3080) Version of this report.\nROUTE TO:\nACTION\nDISPOSITION\nTracking\nType\nCompletion\nAction\nDate\nof\nDate\nOffice/Agency\n(Staff Name)\nCode\nYY/MM/DD\nResponse\nCode\nYY/MM/DD\nCUHOLL\nORIGINATOR 86102105\n/ /\nI\nReferral Note:\nfor RAH signature\nCUATI8\nD\n86102105\nS 86102110\nReferral Note:\nCOB\n/ /\n/ /\n-\nReferral Note:\n/ /\n/ /\n-\nI\nReferral Note:\n/ /\n/ /\nReferral Note:\nACTION CODES:\nDISPOSITION CODES:\nA - Appropriate Action\nI Info Copy Only/No Action Necessary\nA Answered\nC Completed\nC . Comment/Recommendation\nR Direct Reply w/Copy\nB Non-Special Referral\nS Suspended\nD Draft Response\nS For Signature\nF - Furnish Fact Sheet\nX Interim Reply\nto be used as Enclosure\nFOR OUTGOING CORRESPONDENCE:\nType of Response = Initials of Signer\nCode - \"A\"\nCompletion Date = Date of Outgoing\nComments:\nQuestions to Brandend Blum (395-3454)\nKeep this worksheet attached to the original incoming letter.\nSend all routing updates to Central Reference (Room 75, OEOB).\nAlways return completed correspondence record to Central Files.\nRefer questions about the correspondence tracking system to Central Reference, ext. 2590.\n5/81\nEXECUTIVE OFFICE OF THE PRESIDENT\nOF THE\nOFFICE OF MANAGEMENT AND BUDGET\nWASHINGTON, D.C. 20503\nFebruary 4, 1986\nLEGISLATIVE REFERRAL MEMORANDUM\nTO:\nDepartment of Agriculture\nDepartment of Commerce\nDepartment of Education\nDepartment of Health & Human Services\nDeapartment of Labor\nDepartment of State\nDepartment of the Treasury\nSmall Business Administration\nNational Security Council\nCouncil of Economic Advisers\nSUBJECT:\nDraft Department of Justice report on H.R. 3810, the\n\"Immigration Control and Legalization Amendments Act\n1985\" and Justice response to agency comments on earlier of\n(H.R. 3080) version of this report.\nThe Office of Management and Budget requests the views of your\nagency on the above subject before advising on its relationship\nto the program of the President, in accordance with OMB Circular\nA-19.\nPlease provide us with your views no later than February 11, 1986.\n(NOTE -- H.R. 3810 is a substitute for H.R. 3080, reflecting changes\nmade during subcommittee markup of H.R. 3080. Ful House Judiciary\nCommittee markup of H.R. 3810 is expected to occur later this month\nor early March. Reviewers of this draft report should ignore\nthe editorial annotations and underlines appearing in the text and\nmargin.)\nDirect your questions to Branden Blum (395-3454), the legislative\nattorney in this office.\nJames C. Murr for\nAssistant Director for\nLegislative Reference\nEnclosure\nCC: Fred Fielding\nSarah Brentling\nFrank Seidl\nJohn Cooney\nPhil Hanna\nCarol Ballew\nTara Treacy\nBarry White\nRoger Greene\nJim Barie\nAndrea Hoffman\nDepartment Justice\nOffice of Legislative and Intergovernmental Affairs\nOffice of the Assistant Attorney General\nWeshington, D.C. 20530\nHonorable Peter W. Rodino, Jr.\nChairman\nCommittee on the Judiciary\nU.S. House of Representatives\nWashington, D.C. 20515\nDear Mr. Chairman:\nThis responds to your request for the Department of Justice's\nviews on H.R. 3810, .the \"Immigration Control and Legalization\nAmendments Act of 1985.\" The Department supports enactment of\nthis legislation with certain major and several minor revisions.\nIn this following bill report, omission of any section indicates\nthat the Department supports the provision.\nThis Administration has consistently supported immigration\nreform, and the pressing need for legislation remains. We are\npleased that you and Congressman Mazzoli are sponsoring H.R. 3810.\nWe look forward to working with your Committee.\nEMPLOYMENT OF UNAUTHORIZED ALIENS\nSECTION 101\nSection 101 of the bill amends present Section 274 of the\nImmigration and Nationality Act (the Act) to provide penalties for\nemployers who commit two types of offenses: (1) knowingly hiring\nan alien who is not authorized to work; and (2) failing to comply\nwith the requirements of the Employment Verification System.\nEmployment Verification\nAn employer must verify that each applicant for employment\n(\"applicant\") has established his or her authorization to work in\nthe United States, including examining an applicant's identifying\ndocumentation and employment authorization. The applicant must\nalso attest that he is a citizen or national of the United States,\nan alien lawfully admitted for permanent residence, or an alien\nauthorized by the Attorney General to be employed. The employer\nmust retain these records for a period of time specified by the\nAttorney General. Good-faith compliance with these requirements\n18 an affirmative defense to a charge that the employer has know-\ningly employed an unauthorized alien.\nHonorable Peter Rodino, Jr.\nH.R. 3810 - Page 2\nHearing Process\nSection 101 also provides for a hearing, before an adminis-\ntrative law judge, to determine whether a violation has occurred.\nAn employer who requests a hearing may, within 60 days of an ad-\nverse decision, file a petition for review with the appropriate\ncourt of appeals, of the administrative fine. If no hearing 18\nrequested, the fine assessed shall not be appealable. If the\nassessed penalty is not timely paid, the Attorney General must\nfile a suit in a district court to enforce payment.\nDelayed Effective Date\nThe penalty provisions have a delayed effective date. For\nthe first six months after enactment, the Attorney General and the\nheads of certain Departments and agencies must disseminate infor-\nmation on these provisions, and no penalty may be imposed or pro-\nceeding conducted for a first violation. In the subsequent twelve\nmonths, the Attorney General is authorized to issue citations of\nviolations. Again, no penalty may be imposed or proceeding con-\nducted during this time.\nAnti-discrimination Provisions\nSection 101 also contains extensive procedures for dealing\nwith discrimination in hiring or discharging based on an individ-\nual's national origin or citizenship status. The coverage is\nbroad, encompassing citizens, \"intending citizens,\" aliens who are\npermanent residents, aliens temporarily admitted under the \"amnes-\nty\" provisions, and aliens granted either refugee status or asy-\n1um, and who have completed a declaration of intention to become a\ncitizen.\nAll employers are subject to this anti-discrimination provi-\nsion, except that claims of national-origin discrimination are\nbarred 1f: (1) the complainant is covered by Section 703 of the\nCivil Rights Act of 1964; or (2) United States citizenship is re-\nquired by Federal law, regulation, or executive order, a Federal,\nState or local-government contract, or by order of the Attorney\nGeneral; or (3) English-language skill 18 a bona fide occupational\nqualification reasonably necessary to the normal operation of the\nenterprise.\nAn employer found to violate these provisions may be ordered\nto maintain a record-keeping system for all applicants, to hire or\nre-hire individuals directly and adversely affected by the employ-\ner's hiring or discharge practices, with or without back pay, to\npay a civil penalty of $1,000 for each individual discriminated\nHonorable Peter Rodino, Jr.\nH.R. 3810 - Page 3\nagainst and to pay attorneys fees. A penalty of $2,000 per vio-\nlation may be assessed against an employer previously found to\nhave engaged in discrimination.\nProcedurally, a person may complain to a Special Counsel\nappointed by the President with the advice and consent of the Sen-\nate. The Special Counsel must investigate all such complaints, to\ndetermine whether there 18 reasonable cause to believe that the\ncharge 18 true. If so, then the Special Counsel may bring a com-\nplaint before an administrative law judge, who must be specially\ndesignated and trained by the Attorney General. The administra-\ntive law judge may subpoena witnesses and evidence, and hold\nhearings. Subpoena enforcement rests with the district courts.\nAn administrative order issued under this provision may be\nreviewed within 120 days under Section 10 (d), (e), (f), (g), and\n(j) of the National Labor Relations Act. The Special Counsel will\nexercise the powers of the National Labor Relations Board's Gen-\neral Counsel as specified by that Act.\nPenalties\nFor a first offense, under Section 101, an employer is sub-\nject to a $1 - 2,000 civil penalty for each unauthorized alien.\nFor a subsequent offense, an employer is subject to a $2 - 5,000\nfine for each unauthorized alien. An employer who engages in a\npattern or practice of violations would be subject to a fine of\n$1,000, six-months imprisonment, or both. The Attorney General is\nauthorized in such a case to bring a federal civil action to seek\nrelief such as injunctions or restraining orders.\nViolating the paperwork provisions of the Employee Verifica-\ntion System, subjects an employer to a $1,000 civil penalty for\neach individual-for whom the employer failed to comply.\nComments\nBarring the employment of unauthorized aliens is fundamental\nto curtailing illegal immigration. The Department supports Sec-\ntion 101 but suggests some revisions. Civil penalties should be\nfixed at specific amounts and not set within ranges. Fixed, spec-\n1fic fines would reduce potential litigation, and promote consist-\nency in the assessment of fines. Moreover, fixed civil penalties\nwill sufficiently deter the employment of unauthorized aliens;\naccordingly, we oppose criminal penalties, except possibly in\n\"pattern and practice\" situations.\nHonorable Peter Rodino, Jr.\nH.R. 3810 - Page 4\nEmployers of three or fewer persons should be exempted from\nthe record-keeping requirement, with mandated record-keeping if\nviolations occur.\nThe bill's anti-discrimination provisions are both unneces-\nsary and overly inclusive. Existing national-origin civil rights\nlaws are sufficient protection for all from unfair treatment.\nExisting federal agencies are able to investigate and deal with\ndiscrimination on this basis. No new administrative law judges\nare needed, since the present immigration judges, already familiar\nwith immigration laws, can readily handle the work. Creating new\nbureaucracies and uncontrollable new case loads is unwise, un-\nnecessary and unaoceptably expensive. (LINE DELETED)\nFRAUDULENT USE OF IMMIGRATION DOCUMENTS\nSECTION 102\nSection 102 of the bill amends 18 U.S.C. 1546 to bar the f-\nraudulent use of certain documents to establish employment auth-\norization. Fines for such activity are increased from $2,000 to\n$5,000. Likewise, the use of a false identification document or a\nfalse attestation 1s prohibited. The penalty for violating this\nsection 1s a $5,000 fine, or two years imprisonment, or both.\nComments\nEmployer sanctions will likely increase the manufacture and\nuse of immigration documents for fraudulent purposes. Penalties\nof the type and magnitude contemplated by Section 102 should help\ndeter this activity.\nAUTHORIZATION OF APPROPRIATION FOR ENFORCEMENT\nAND SERVICE ACTIVITIES OF INS\nSECTION 111\nSection 111 provides for increased funding to increase INS\nenforcement and service activities, authorizing, for fiscal years\n1986 and 1987 respectively, 422 million dollars and 419 million\ndollars over the regular authorization. These sums are to in-\ncrease the border patrol and other INS enforcement activities to\nensure prompt and efficient adjudications of applications under\nthe Act. The funding is also to be used to improve out-reach pro-\ngrams and in-service training of INS personnel. We support in-\ncreased funding for INS's enforcement activities, which now\nHonorable Peter Rodino, Jr.\nH.R. 3810 - Page 5\nresults in apprehending more than one million illegal aliens each\nyear. Compared to the same time period last year, there has been\na forty percent increase in the number of illegal aliens that have\nbeen apprehended. Increased funding will enhance INS's enforce-\nment activities and will also help to improve INS's service re-\nlated activities. We support the increased authorizations.\nSection 111 (d) bars the INS from acquiring or installing data\nprocessing equipment. Section 111(d) should be dropped. These\nprovisions are unnecessary, and will further delay sorely needed\ndata automation systems. Further, the sole basis for inclusion of\nthis provision has been the incorrect assumption that data systems\ncontracts were improperly granted. This is not the case.\nUNLAWFUL TRANSPORTATION OF ALIENS\nTO THE UNITED STATES\nSECTION 112\nSection 112 amends existing Section 274(a) of the Act to pro-\nvide criminal penalties against anyone who unlawfully transports\naliens to the United States. Criminal penalties can be imposed\nwhen: (1) a person knowingly brings or attempts to bring to the\nUnited States an alien at a place other than a port of entry or a\nplace not designated by the INS Commissioner; (2) a person know-\ningly transports or moves, or attempts to transport or move, an\nillegal alien within the United States; (3) a person knowingly\nconceals, harbors, or shields from detection an alien; or (4) a\nperson knowingly brings or attempts to bring an alien to the\nUnited States in any manner whatsoever. A person who violates any\nof the first three provisions can be fined up to $10,000, and 1m-\nprisoned for up to five years. For the fourth provision, a fine\nof not more than $5,000, or imprisonment of not more than one\nyear, or both can be imposed for each violation. A second of-\nfense, or an offense committed for commercial advantage or private\nfinancial gain, can result in a fine of not more than $10,000 or\nimprisonment for not more than five years, or both.\nComments\nWe support this section. It will reverse the judicial con-\nstruction of Section 274 of the Act in United States V. Anaya, 509\nF.Supp. 289, P. 297 (S.D. Fla. 1980), where the court held that\nSection 274 \"was designed by Congress to prevent aiding and abet-\nting the illegal entry of aliens into the United States in a\nfraudulent evasive or surreptitious manner.\" (emphasis added)\nHonorable Peter Rodino, Jr.\nH.R. 3810 - Page 6\nWe propose two changes, first, subsection (a) (1) (c), should\nbe amended to include language relating to attempts to conceal,\nharbor or shield. This language appears in subsection 274 (a) (3),\nand should be retained. United States V. Cantu, 557 F.2d 1173\n(5th Cir.), reh. den. 561 F.2d 831, cert. den. 434 U.S. 1063.\nSecond, language incorporating the present subsection 274\n(a) (4), should be added. This provision subjects to criminal\nsanctions \"any person ... who willfully or knowingly encourages\nor induces or attempts to encourage or induce, either directly or\nindirectly the entry into the United States of any alien . .not\nduly admitted by an immigration officer This provision has\nproven to be a useful tool in combatting alien smuggling. See,\nUnited States V. Nunez, 668 F.2d 10 (1st Cir. 1981); United States\nV. Castillio-Felix, 539 F.2d 9 (9th Cir. 1976). Moreover, this is\nthe only provision in Section 274 that has extra-territorial ap-\nplication. See, Nunez, supra; United States V. Correa-Negron, 462\nF.2d 613 (9th Cir. 1972), and cases cited therein.\nTREATMENT OF IMMIGRATION EMERGENCIES\nSECTION 113\nSection 113 amends the Act's existing Section 103 to direct\nthe Attorney General to develop a contingency plan in the event of\nan immigration emergency. This section also establishes an im-\nmigration emergency fund of 35,000,000 for use in such emergency.\nBefore monies can be withdrawn from this fund, the President must\ndetermine that an immigration emergency has occurred, and must BO\ncertify to the House and Senate Judiciary Committees.\nComments\nThis section, as drafted, does not provide the President with\nany new legal authority. Nonetheless, because this section re-\naffirms existing authority, and provides a funding mechanism we\nsupport its enactment.\nRESTRICTING WARRANTLESS ENTRY IN THE\nCASE OF OUTDOOR AGRICULTURAL OPERATIONS\nSECTION 114\nSection 114 amends existing Section 287 of the Act to re-\nstrict warrantless entries into open fields used for agricultural\npurposes. INS officers may not enter outdoor agricultural areas\nwithout a warrant or the consent of the owner or his agent, to\nHonorable Peter Rodino, Jr.\nH.R. 3810 - Page 7\ninterrogate persons as to their right to be in the United States.\nThe only exception to these requirements is existing Section\n287 (a) (3), which permits access to private lands within 25 miles\nof the border.\nComments\nThe Department of Justice strongly opposes this provision,\nand urges that it be entirely deleted. The Supreme Court in\nOliver V. United States, 104 S.Ct. 1735 (1984), held that the Gov-\nernment's entry onto an open field is not a search in the consti-\ntutional sense, and no privacy expectation can attach to such\nfields. Under this provision, INS will be the only law-enforce-\nment agency precluded from entering \"open fields,' and this will\ncurtail a major aspect of INS's enforcement operations.\nThis section undercuts one of the principal reasons for im-\nmigration reform, namely, the control of illegal aliens and the\nconcurrent enhancement of INS enforcement capabilities. Specifi-\ncally, INS will be unable to verify and monitor the employment of\ntemporary workers in agriculture. This provision 18 especially\nundesirable if a special temporary agricultural program is enacted\nfor the benefit of growers of perishable commodities.\nVERIFICATION OF IMMIGRATION STATUS OF\nALIENS APPLYING FOR BENEFITS UNDER CERTAIN PROGRAMS\nSECTION 121\nSection 121 establishes a verification requirement for per-\nsons applying for benefits under the AFDC, Medicaid, Unemployment\nCompensation and Food Stamp Programs. Each applicant or recipient\nmust present proof of citizenship, or proof of immigration regis-\ntration if the person is not a citizen. The state must verify an\nalien's status with the INS to determine the alien's eligibility\nfor the benefits.\nIn addition, this section provides a definition of \"Perman-\nently Residing in the United States Under Color of Law\" (PRUCOL)\nfor purposes of the Social Security Act, the Unemployment Tax Act\nand Section 484 of the Higher Education Act of 1965. Basically,\nthe definition limits \"PRUCOL\" to refugees, asylees, persons\ngranted withholding of deportation, registrants under Section 249,\naliens paroled into the United States, and persons granted defer-\nred action.\nHonorable Peter Rodino, Jr.\nH.R. 3810 - Page 8\nComments\nThe Department strongly supports Section 121. The \"Systemat-\n1c Alien Verification for Entitlements\" Program (SAVE) presently\nin effect on a limited basis, has shown the practical and fiscal\nV\nusefulness of this approach, and it has been enthusiastically\nsupported by participating states. The definition will go far to\nreduce the amount of litigation generated by the term \"PRUCOL\", as\nwell as to curb the inclination of courts to expand this category\nto include persons who are not lawfully in the United States.\nThis approach along with employer sanctions and strengthened\nborder enforcement. is A necessary element to deter illegal\nimmigration into the United States.\nLEGALIZATION STATUS\nSECTION 201\nSection 201 legalizes the status of certain aliens unlawfully\nin the United States. In general, this sanction applies to an\nalien who entered the United States prior to January 1, 1982, and\nwho has continuously and unlawfully resided in the U.S. since\nJanuary 1, 1982. The alien must also show that he has continuous-\nly, physically resided here since enactment. An alien shall not\nbe considered to have failed to maintain continuous physical\npresence in the United States for a brief, casual, and innocent\nabsence from the United States. In the case of the nonimmigrant,\nthe alien must show that his period of authorized stay expired\nbefore January 1, 1982, through the passage of time or that the\nalien's unlawful status was known to the Government on that date.\nAlthough eligibility is specifically confined to aliens who\nhave entered the United States, an exception is made for \"Cuban/\nHaitian Entrants (Status Pending)\" described in paragraph (1), or\n(2) (a), of Section 501(e) of Public Law 96-422. Persons in this\ncategory are deemed to have entered the United States for purposes\nof this section.\nThe applicant must also show that he is admissible as an im-\nmigrant with certain grounds of admissibility specifically waived,\nand others which may be waived in the discretion of the Attorney\nGeneral. The applicant is not admissible if he has been convicted\nof any felony, or has committed three or more misdemeanors in the\nUnited States.\nAn alien who meets these requirements shall be granted temp-\norary resident status. Twelve months after this grant, the alien\nmust apply for permanent resident status, and must do 80 within\nthe next twelve months. If he does not, then his temporary\n02/04/86\n10:15\nNO. 001\n010\nHonorable Peter Rodino, Jr.\nH.R. 3810 - Page 9\nresident status automatically expires on the twenty-fifth month\nfollowing the date it was granted.\nA temporary resident may seek to adjust his status to per-\nmanent resident if he can establish continuing eligibility for\ntemporary resident status, plus several additional criteria. He\nmust show that he has not meaningfully interrupted his continuous\nphysical presence in the United States, and that he has attained a\nminimal understanding of ordinary English, and a knowledge or un-\nderstanding of the history and government of the United States, or\nhe is satisfactorily pursuing a course of study in these fields.\nAn alien apprehended in the United States prior to the start\nof the application period who can establish a \"nonfrivolous case\nof eligibility\" for temporary residence may not be deported, and\nis authorized to work at least through the first thirty days of\nthe application period. An alien apprehended during the applica-\ntion period is also not deportable, if he or she makes a nonfrivo-\nlous application, until after a final determination is made on the\napplication. He is also authorized to work.\nAdministrative and judicial review of determination\nAn applicant denied temporary or permanent resident status is\nentitled to appeal to an administrative authority established by\nthe Attorney General. This review is to be based \"solely upon the\nadministrative record\" of the application, although updating the\nrecord is permitted.\nJudicial review of denial of an application for temporary or\npermanent residence is to be based \"solely upon the administrative\nrecord\" as part of an order of deportation. The court may review\nthe record for abuse of discretion, or to determine if the find-\nings are directly contrary to clear and convincing facts contained\nin the record as a whole.\nDisqualification from certain public-welfare benefits\nAn alien granted temporary resident status is generally in-\neligible for certain public welfare assistance programs for five\nyears beginning with obtaining that status. The Attorney General\nwill identify the programs covered in consultation with other fed-\neral agencies and departments. Participation in the Medicaid and\nFood Stamp programs is specifically prohibited. In addition,\nState and municipal governments may refuse financial or medical\nassistance to aliens in this category. Exceptions are made for\n\"Cuban/Haitian Entrants (Status pending),\" aged, blind or disabled\nindividuals, aliens under 18 years of age and pregnant women.\nHonorable Peter Rodino, Jr.\nH.R. 3810 - Page 10\nFor purposes of this section, \"financial assistance\" is de-\nfined not to include certain programs such as the National School\nLunch Act, the Child Nutrition Act of 1966, the Headstart-Follow\nThrough Act and others.\nComments\nThe Department supports the concept contained in Section 201\nbut certain revisions are necessary to establish a workable, cost-\neffective program. We believe that a January, 1980, cut-off date\nis preferable to January 1982. A 1982 cut-off date will result in\nentry of aliens who have no pressing claim to remain here perman-\nently. A 1982 date will encourage more aliens to enter illegally,\nand attempt to establish eligibility fraudulently. It will sub-\nstantially increase the cost of the legalization program. The\n1980 date, by contrast, will benefit illegal aliens who have been\nin the United States for a significant period of time. We note\nthat the Select Commission on Immigration Reform recommended a\n1980 cutoff date.\nThe provisions for both administrative and judicial review of\napplications for adjustment of status are unnecessary and likely\nto significantly increase the costs of administering this provi-\nsion, particularly since this section makes no distinction between\nreview of temporary and permanent resident applications. The De-\npartment considers a single administrative review sufficient to\nsafeguard the interests of an applicant.\nThe próvisions relating to administrative and judicial review\nare also ambiguous. Administrative review 1s to be limited to the\nrecord existing at the time an application is denied, but the re-\ncord on review may be updated. Judicial review is to be based\nsolely upon the administrative appellate authority. Its findings\nand determinations are to be conclusive, unless the court finds an\nabuse of discretion or that the \"findings are directly contrary to\nclear and convincing facts.\" These standards of review are not\nthe same, and will only invite controversy and litigation.\nThe Department also believes that the provisions relating to\n\"brief, casual and innocent\" absences from the United States will\nbe extremely difficult to administer. Application of this stan-\ndard is not supported by Rosenberg V. Fleuti, 374 U.S. 449 (1963).\nFleuti applied only to lawful permanent resident aliens, not\naliens illegally in the United States. We suggest that absences\nof a specific period of time, 1.e., no more than fifteen days in\nthe aggregate, from the date chosen for legalization, constitute\nthe qualifying limit. The bill should also specifically state\nthat absences related to violations of the immigration laws would\nHonorable Peter Rodino, Jr.\nH.R. 3810 - Page 11\nautomatically interrupt the physical presence requirement,\nregardless of the period of absence.\nThe Department finds particularly objectionable Section 201\n(b) (5) (c), which provides for five years imprisonment and a $5,000\nfine for using, publishing or permitting information from legali-\nzation files to be used in an unauthorized manner. No intent to\ndisclose is required, and the penalty is greatly excessive. By\ncontrast, Section 102 provides only two years imprisonment for the\nfraudulent use of documents. The Department strongly urges that\nSection 201 (b) (5) (c) be deleted. Information may be safeguarded\nby disciplinary proceedings against government employees who\nengage in unauthorized disclosure.\nThe Department has several problems with the bill's disqual-\nifications from certain public-welfare benefits. Certain programs\nfor which newly legalized aliens should logically be eligible are\nabsent from the list of education programs. This provision could\nprove to be an administrative nightmare for the Department of Edu-\ncation, the States, and local educational agencies if an attempt\nwas made to exclude the newly legalized aliens from certain pro-\ngrams while including them in others.\nWe are concerned that there 18 no provision in H.R. 3810 re-\nlating to assistance furnished on a basis other than financial\nneed. Certain merit-based education programs, such as the tuition\nportion of the National Graduate Fellows Program (20 U.S.C. 1134\n(h) et seq.) and certain international education programs, may be\naffected. H.R. 3810 may imply that newly legalized aliens are\neligible for these merit-based programs despite their temporary\nresident status; which would normally be insufficient for eligi-\nbility in accordance with the Education Department's regulations.\nWe support addition of language stating that nothing in the bill\nis designed to affect eligibility for non-need-based programs.\nFinally, including certain TRIO programs on the list of pre-\nscribed education programs presents substantial problems for in-\nstitutions of higher education and for student aid. In certain\nprograms, if a participant was a newly legalized alien and thus\nunder H.R. 3810 ineligible for Federal student aid, a participa-\nting institution could be faced with a substantial and unexpected\ndemand on its resources. Under such circumstances, it is conceiv-\nable that some schools would withdraw from the program, resulting\nin the denial of program benefits for other disadvantaged stu-\ndents.\nHonorable Peter Rodino, Jr.\nH.R. 3810 - Page 12\nIn view of these problems, the Department objects to proposed\nSection 245A(h) (3) of the Act as drafted. It should either be\nclarified to contain merely an illustrative list of programs that\nnewly legalized aliens would be eligible for (with the TRIO pro-\ngrams discussed above deleted), or that provision should be de-\nleted in its entirety.\nWe are also concerned about the proposed requirement that the\nAttorney General must approve courses of study in English and\nAmerican history and government in order to satisfy the bill's re-\nquirements. This course-approving function could potentially re-\nquire a very substantial commitment of the Attorney General's time\nand resources. Additionally, this provision might create strong\npressure for Federal funding for courses to satisfy this require-\nment. A provision stating that no new Federal funds are to be\nauthorized or expended would provide a simple remedy to this\nissue.\nIn addition, there are certain technical changes such as\nwaivers of standard government personnel, procurement, contract-\ning, real and personal property, printing, and forms-clearance\nrequirements. These changes, many of which were in last year's\nbills, will be submitted to the Committee shortly.\nCUBAN-HAITIAN ADJUSTMENT OF STATUS\nSECTION 202\nSection 202 provides for the adjustment of status to perman-\nent resident of all Cuban or Haitian nationals who fall within two\ncategories. The first consists of those persons who have been\ndesignated \"Cuban/Haitian Entrants (Status Pending).\" The second\nconsists of those Cuban and Haitian nationals who arrived in the\nUnited States before January 1, 1982, and with respect to whom INS\nestablished a record as of that date. A Cuban or Haitian national\nadmitted as a nonimmigrant who did not apply for asylum before\nthat same date is not eligible for adjustment of status.\nThe applicant must also be otherwise eligible for admission\nas an immigrant, except for the documentary requirements of Sec-\ntion 212(a) of the Act, and not come within Section 243(h)(2) of\nthat Act. The alien must be physically present in the United\nStates on the date the application is filed, and also have contin-\nuously resided in the United States since January 1, 1982. An ap-\nplicant has two years from the date of enactment to apply. If ad-\njustment of status is granted, a record of permanent residence as\nof January 1, 1982 will be established. A grant of adjustment of\nHonorable Peter Rodino, Jr.\nH.R. 3810 - Page 13\nstatus under this section will not count against the immigrant\nvisa allocation for either Cuba or Haiti.\nComments\nSeparate procedures for adjustment of status of \"Cuban/\nHaitian Entrants (Status Pending)\" are unnecessary. Section 201\nspecifically confers eligibility for legalization upon the same\npersons covered by this provision. There is no substantial reason\nto accord these Cuban and Haitian nationals preferential treat-\nment. All aliens unlawfully in the United States should meet the\nsame eligibility requirements, regardless of the country of\norigin, a principal adopted in the 1965 amendments to the Act.\nThe Cuban Adjustment Act of 1966 should be repealed.\nSTATE LEGALIZATION ASSISTANCE\nSECTION 204\nSection 204 directs the Secretary of Health and Human Ser-\nvices to reimburse States for all of the costs of public assist-\nance provided to any legalized alien, such as those which provide\ncash, medical or other assistance designed to meet basic subsis-\ntence or health needs, or public health interests.\nComments\nThe requirement for 100-percent reimbursement should be\ndropped. While there may be costs associated with the legali-\nzation program which may fall on the States, we believe that the\nnewly legalized population will be an asset to the States, con-\nsisting of productive, hard-working people. Similarly, education\nhas always been a State responsibility, and no States currently\nbar the education of illegal alien children. Accordingly, we see\nno rationale for Federal reimbursement.\nFinally, the SAVE program shows that states can save millions\nby appropriately verifying the status of applicants for assis\nUNELETED\ntance, and by not paying benefits to illegal aliens. The provi-\nsions of the bill mandating the use of the SAVE program and very\nimportant to the States.\nHonorable Peter Rodino, Jr.\nH.R. 3810 - Page 14\nH-2A WORKERS\nSECTION 301\nSection 301 establishes a nonimmigrant classification for\ntemporary agricultural workers (H-2A), and adopts a new program\nfor admitting them. A labor certification shall not be issued\nunder certain circumstances, e.g., a strike or lockout during a\nlabor dispute; employer violation of a previous labor certifica-\ntion; or employer failure to provide workers' compensation, if not\notherwise covered by State law.\nRules for consideration of applications\nApplications must be filed with the Secretary of Labor not\nmore than sixty days before an employer requires the services of a\ntemporary worker. The employer must be notified within seven days\nof the filing if the application is deficient. The certification\nmust be made not later than twenty days before the employer re-\nquires the services of a temporary worker. The certification re-\nmains effective only if the employer continues to accept for em-\nployment, qualified individuals who apply or are referred to him\nuntil the date when the H-2A workers depart. The employer, in\nlieu of providing housing, may provide a reasonable housing allow-\nance if housing 1s available near the employment. An H-2A peti-\ntion may also be filed by an agricultural association. When a\npetition is denied because there are sufficient workers who are\nable, willing and qualified, or because employment of the temp-\norary worker will adversely affect the wages and working condi-\ntions of similarly employed U.S. workers, there is an expedited\nadministrative appeal.\nIn administrative appeal circumstances, the Secretary of\nLabor must make a new determination within 72 hours of a request.\nThe employer has the burden of proof to establish that an eligible\nU.S. worker is not able, willing, or qualified to perform the re-\nquested labor.\nThe temporary worker cannot be admitted for longer than that\ndetermined by regulation. He may also not be admitted if in the\nprevious five-year period he had violated the terms of his admis-\nsion.\nFunding\nSection 301 also authorizes the appropriation, for fiscal\nyear 1986 and after, of 10 million dollars, to recruit domestic\nworkers for temporary services, and to monitor the H-2A program.\nHonorable Peter Rodino, Jr.\nH.R. 3810 - Page 15\nThe Secretary of Labor 1s authorized to impose appropriate penal-\nties and seek appropriate relief to ensure an employer's compli-\nance with the terms of the employment. The Secretary 18 also\nauthorized such sums of monies as may be appropriate to make H-2A\ndeterminations and certifications.\nAdvisory Commission\nSubsection 301(e) expresses the sense of Congress that the\nPresident should establish an advisory commission to consult with\ngovernments and advise the Attorney General regarding the opera-\ntions of the H-2A program and the agricultural labor transition\nprogram.\nComments\nThe Administration supports S. 1200's temporary worker re-\nforms, however, we believe that the Secretary of Labor should\nissue the regulations governing labor certification under this\nprogram after meaningful consultation with the Departments of\nJustice and Agriculture. Both the regulatory authority provision\nand the consultation requirement will be statutory.\nThe Department of Labor, acting independently and in response\nto recommendations from the Agricultural Workers' Commission, will\ntake meaningful steps to improve the H-2 program as a workable and\nacceptable means of meeting shortages in the domestic agricultural\nlabor market.\nThe Administration opposes Section 301(e). The United States\nhas already established lines of communication with the government\nof Mexico and other sending countries on immigration matters, with\nparticular regard for the protection of foreign worker's rights in\nour country. We believe that the establishment of an additional\nchannel of these foreign governments would be inappropriate, dup-\nlicative and bureaucratic.\nCHANGE IN COLONIAL QUOTA\nSECTION 311\nThe quota for immigrants born in a colony, as set forth in\nSection 202(c) of the Act, is increased from 600 to 3,000, start-\ning with fiscal years beginning after enactment.\nHonorable Peter Rodino, Jr.\nH.R. 3810 - Page 16\nComments\nThe Department supports increasing the colonial quota, but\nrecommends that it be raised to 5,000 to meet projected demand.\nSTUDENTS\nSECTION 312\nSection 312 requires a two-year foreign residence for non-\nimmigrants admitted as students. The Attorney General may waive,\nunder certain circumstances, the foreign-residency requirement for\nalien students, if he determines that the waiver is in the public\ninterest.\nIf the alien applies for a nonimmigrant visa he must meet\nadditional requirements. Moreover, the alien must annually fur-\nnish an affidavit attesting that he is in good standing with the\ntraining program, and will return to his country upon completion\nof the program. Section 312 would also make certain other amend-\nments relating to adjustment of status and deportation.\nComments\nWe oppose Section 312. The two-year foreign residence re-\nquirement will be burdensome on bona fide students and U.S. em-\nployers. It will also create a strong impetus for students to\nenter into fraudulent marriages to circumvent the foreign-res-\nidence requirement.\nG-IV SPECIAL IMMIGRANTS\nSECTION 313\nSection 313 would add a special immigrant category to benefit\nofficers or employees of international organizations and their 1m-\nmediate family members. An individual could qualify for special\nimmigrant status if he resided in the United States for only seven\nout of twenty-one years, as long as he had resided for some un-\nspecified time in the United States within the last seven years.\nIn contrast, an alien who has been employed by the United States\nabroad must have \"performed faithful service for a total of fif-\nteen years, or more,\" to qualify as a special immigrant.\nHonorable Peter Rodino, Jr.\nH.R. 3810 - Page 17\nComments\nWe oppose Section 313 because it would grant an unnecessary\nspecial preference.\nSECTION 314\nSection 314 provides authority to establish a pilot visa-\nwaiver program for certain nonimmigrant visitors. The waiver\nwould apply to visitors from countries providing a reciprocal\nwaiver for U.S. citizens.\nComments\nThe Department of Justice supports the pilot visa-waiver\nprogram. The program will facilitate legitimate travel to and\nfrom the United States.\nMISCELLANEOUS PROVISIONS\nSECTION 315\nSection 315(a) gives equal treatment to fathers to allow\nimmigration benefits for an illegitimate child. This amendment\noverrules Fiallo V. Bell, 430 U.S. 787 (1977), which held that an\nillegitimate child can claim immigration benefits only through its\nmother.\nWe support 315(a) because it provides equal treatment without\nregard to a parent's sex,\nSection 315(b) permits an alien to maintain continuous phys-\nical presence if his absence from the United States was brief,\ncasual, and innocent. This amendment would overrule INS V.\nPhinpathya, 104 S.Ct. 584 (1984), which held that any absence,\nhowever brief, breaks the continuity of physical presence.\nComments\nWe oppose this amendment because its vagueness invites Ju-\ndicial lawmaking and encourages litigation. We recommend either\ndeleting this provision or amending 1t to preclude the establish-\nment of continuous physical presence if the alien's departure is\n15 days or longer, or where the alien has engaged in activities\ncontrary to the immigration laws.\nHonorable Peter Rodino, Jr.\nH.R. 3810 - Page 18\nTRIENNIAL REPORTS CONCERNING IMMIGRATION\nSECTION 401\nSection 401 requires that the President submit to the House\nand Senate Judiciary Committees a triennial report on the Act.\nThe comprehensive report must include the number of aliens admit-\nted in various immigrant and nonimmigrant categories, and their\nimpact on the economy, labor and housing markets, educational\nquality systems, social services, and population growth rate of\nthe United States. The President must also provide a reasonable\nestimate of the number of aliens who entered the United States\nillegally, or who became deportable during the three-year period.\nThe report must also project for the following five-year period\nthe information contained in the report. The President must also\ninclude in the report any appropriate recommendation bearing on\nthe admission and entry of aliens in the United States.\nREPORTS ON UNAUTHORIZED EMPLOYMENT\nAND DISCRIMINATION\nSECTION 402\nSection 402 requires the President to report on the imple-\nmentation of the employer-sanctions provisions to the House and\nSenate Judiciary Committees every six months beginning the twelfth\nmonth after enactment. This report must contain an analysis of\nthe employment verification system and status of the telephone-\nverification project. The President must also report on the 1m-\npact of the employer-sanctions provisions on the employment, wages\nand working conditions of United States workers, illegal immigra-\ntion, and violation of status by nonimmigrant visa holders.\nA separate report on the effect of the employer-sanctions\nprovision on discrimination against minority group citizens and\npermanent residents and the paperwork and record-keeping burden of\nemployers must be submitted. This report is due 18, 36 and 54\nmonths following enactment.\nThe Civil Rights Commission must submit its own report, due\n18 months after enactment, on the implementation and enforcement\nof this section. The Commission must additionally investigate\nallegations that there has been unlawful discrimination based on\nrace or nationality against citizens or aliens authorized to work.\nHonorable Peter Rodino, Jr.\nH.R. 3810 - Page 19\nREPORTS ON H-2A PROGRAM AND ON AGRICULTURAL\nLABOR TRANSITION PROGRAM\nSECTION 403\nSection 403 requires the President to transmit to the House\nand Senate Judiciary Committees an annual report for three contin-\nuing years on the agricultural transition program, and a bi-annual\nreport on the H-2A program, including the number of foreign work-\ners employed under each program, compliance of employers with the\nterms and conditions of the program, and impact of the programs on\nthe labor needs of the United States agricultural employers. The\nreport must also include recommendations for modifications of the\nprograms.\nREPORT ON THE LEGALIZATION PROGRAM\nSECTION 404\nSection 404 requires the President to transmit to Congress\ntwo reports. The first report, required within 12 months after\nthe end of the application period for temporary residence, is to\ninclude a significant amount of data relating to the legalized\npopulation, describing the geographical origins and manner of\nentry of these aliens, their demographic characteristics and a\ngeneral profile of the population. The second report, due three\nyears after the first report, is to contain information describing\nthe impact of the program on State and local governments, public\nhealth and medical needs, patterns of employment and participation\nof legalized aliens in social service programs. The Department\ngenerally opposes the proliferation of statutorily mandated\nreporting requirements. preferring instead to provide the Congress\nwith information requested on an as needed basis.\nConclusion\nFinally, in response to requests from members of your Commit-\ntee, we have submitted amendments to H.R. 3080, and we will be\nsubmitting amendments to H.R. 3810. These amendments were prepar-\ned expressly at the request of members of Congress and they do not\nnecessarily represent the position of this Department or this\nAdministration.\n02/04/86\n10:20\nNO. 001\n020\nHonorable Peter Rodino, Jr.\nH.R. 3810 - Page 20\nThe Department would like to reiterate its strong support for\nimmigration reform. We know that we share a mutual interest in\nenacting legislation that will be most beneficial to the people of\nthe United States.\nThe Office of Management and Budget has advised that there is\nno objection to the submission of this report from the standpoint\nof the Administration's program.\nSincerely,\nJohn R. Bolton\nAssistant Attorney General\nU.S. Department of Justice\nOffice of Legislative and Intergovernmental Affairs\nOffice of the Assistant Attorney General\nWashington, D.C. 20530\nJanuary 31, 1986\nHonorable James C. Miller III\nDirector\nOffice of Management and Budget\nWashington, D.C. 20530\nDear Mr. Miller:\nThis responds to the revisions suggested by the Office of\nManagement and Budget (OMB) and other agencies, to the Department\nof Justice's report on H.R. 3080, (presently H.R. 3810), the\n\"Immigration Control and Legalization Amendments Act of 1985,\"\nand to amendments adopted by the House Subcommittee on Immigra-\ntion, Refugees and International Law. A copy of the revised\nreport is attached.\nThe Department of Education (DOE) was particularly concerned\nabout Sections 201 and 203 of the bill, relating to impact-assist-\nance grants, and the eligibility of newly legalized aliens for\ncertain education programs. Most of the additional language sug-\ngested is included in our revised bill report.\nThe Department of State suggested that our report should\nrecommend an increase in the \"colonial quota\" from 3,000 to 5,000.\nState also recommended that the report reflect the Administra-\ntion's opposition to establishing a bilateral advisory commission\nto consult with foreign governments on the H2-A agricultural\nworkers program. Both suggestions are included.\nThe Small Business Administration (SBA) suggested that the\nDepartment oppose the record-keeping requirements of Section 101.\nSBA supports the S. 1200 approach, under which an employer who has\nan employment verification and record-keeping system has an af-\nfirmative defense to a charge of illegal employment. An employer\nwithout such a system would face the rebuttable presumption that\nthe alien was illegally hired. These comments are not included in\nthe report because the Administration opposes optional employment-\nverification systems.\nThe Department of Agriculture (USDA) offered extensive com-\nments. In response we included the Administration's statement of\nprinciples on agricultural workers. Our report does not make all\nof USDA's suggested revision's because many were too detailed and\nnarrow in scope. Additionally, many of USDA's comments pertained\nto issues that are being debated within the Administration.\nThe Department of Health and Human Services (HHS) submitted\nonly an annotated copy of Justice's report. It was difficult to\nunderstand the rationale behind the annotations, since HHS\nprovided no explanation.\nWe have included most of the revisions suggested by OMB.\nHowever, we feel that we should retain the Department's support\nfor the reporting requirements of the Systematic Alien Verifi-\ncation for Entitlement (SAVE) program. We strongly believe that\nH.R. 3810 should require a report on the effects of the SAVE\nprogram on state and local governments. The present SAVE program\nhas already resulted in substantial cost reductions in entitlement\nprograms. A reporting requirement would enable the government to\nobtain highly useful information on this program's continued\nimpact.\nWe hope that the views included in the revised bill report,\nmeet with your support.\nSincerely,\nJeRBotto John R. Bolton\nAssistant Attorney General\nTHE WHITE HOUSE\nWASHINGTON\nFebruary 18, 1986\nMEMORANDUM FOR BRANDEN BLUM\nLEGISLATIVE ATTORNEY\nOFFICE OF MANAGEMENT AND BUDGET\nFROM:\nASSOCIATE COUNSEL OPR THE PRESIDENT\nJOHN G. ROBERTS\nSUBJECT:\nHHS Proposed Amendment to Immigration Reform\nLegislation (H.R. 3810/S. 1200) to Require\nVerification of Immigration Status of Aliens\nApplying for Benefits under Certain\nAssistance Programs\nCounsel's Office has reviewed the above-referenced amendment and\nfinds no objection to it from a legal perspective.\nID #\nCU\nWHITE HOUSE\nCORRESPONDENCE TRACKING WORKSHEET\no . OUTGOING\nH . INTERNAL\nI * INCOMING\nDate Correspondence\nReceived (YY/MM/DD)\n/\n/\nName of Correspondent:\nJames murr\nMI Mail Report\nUser Codes: (A)\n(B)\n(C)\nSubject: H HS proposed amendment to Immigration\nRefarm Regislation (H.R. 3810 / 5.1200) to require\nverification of immigration status of aliens\napplying Programs for benefits under certain assistance\nROUTE TO:\nACTION\nDISPOSITION\nTracking\nType\nCompletion\nAction\nDate\nof\nDate\nOffice/Agency\n(Staff Name)\nCode\nYY/MM/DD\nResponse\nCode\nYY/MM/DD\nCUHOLL\nORIGINATOR 86,02,13\n/ /\nReferral Note:\ncuat 18\nR\n86,02,13\n5 86,02,18\nReferral Note:\n/\n/\n/ /\nReferral Note:\n/ /\n/ /\nI\nReferral Note:\n/\n/\n/\n/\nReferral Note:\nACTION CODES:\nDISPOSITION CODES:\nA Appropriate Action\n1. * Info Copy Only/No Action Necessary\nA Answered\nC Completed\nC . Comment/Recommendation\nR Direct Reply w/Copy\nB - Non-Special Referral\nS Suspended\nD Draft Response\nS For Signature\nF . Furnish Fact Sheet\nX Interim Reply\nto be used as Enclosure\nFOR OUTGOING CORRESPONDENCE:\nType of Response = Initials of Signer\nCode = \"A\"\nCompletion Date = Date of Outgoing\nComments:\nKeep this worksheet attached to the original incoming letter.\nSend all routing updates to Central Reference (Room 75, OEOB).\nAlways return completed correspondence record to Central Files.\nRefer questions about the correspondence tracking system to Central Reference, ext. 2590.\n5/81\nEXECUTIVE OFFICE OF THE PRESIDENT\nDEPERT UNITED\nOFFICE OF MANAGEMENT AND BUDGET\nWASHINGTON, D.C. 20503\nFebruary 12, 1986\nLEGISLATIVE REFERRAL MEMORANDUM\nTO: Department of Justice\nDepartment of Agriculture\nDepartment of Labor\nCouncil of Economic Advisers\nSUBJECT: Department of Health & Human Services propsed amendment\nto Immigration Reform legislation (H.R. 3810/S. 1200) to\nrequire verification of immigration status of aliens applying\nfor benefits under certain assistance programs.\nThe Office of Management and Budget requests the views of your\nagency on the above subject before advising on its relationship\nto the program of the President, in accordance with OMB Circular\nA-19.\nPlease provide us with your views no later than February 20, 1986.\nDirect your questions to Branden Blum (395-3454), the legislative\nattorney in this office.\nJames C. Murr for\nAssistant Director for\nLegislative Reference\nEnclosure\nCC: John Cooney\nSarah Brentlinger\nPhil Hanna\nTara Treacy\nAndrea Hoffman\nFred Fielding\nVERIFICATION OF IMMIGRATION STATUS OF ALIENS\nAPPLYING FOR BENEFITS UNDER CERTAIN PROGRAMS\nSec.\n(a) REQUIRING ALIEN VERIFICATION SYSTEM.-\n(1) UNDER AFDC, MEDICAID, ADULT ASSISTANCE,\nUNEMPLOYMENT COMPENSATION, AND FOOD STAMP PROGRAMS.--\nSection 1137 of the Social Security Act is amended --\n(A) by redesignating subsections'(b) and (c) as\nsubsections (c) and (d), respectively;\n(B) by inserting after subsection (a) a new\nsubsection (b) as follows:\n\"(b) In order to meet the requirements of this section, a\nState also must have in effect for fiscal years after 1988 an\nalien verification system under which --\n\"(1) the State shall --\n\"(A) require, as a condition of eligibility for\nbenefits under any program listed in subscction (c),\nthat each applicant for such benefits (other than an\napplicant for medical assistance under title XIX whose\neligibility for such assistance is determined by the\nSecretary in accordance with an agreement entered into\nby the State and the Secretary pursuant to section\n1634) --\n\"(i) declare in writing, under penalty of\nperjury, whether or not the individual is a\ncitizen of the United States, and\n2\n\"(ii) if not a citizen of the United\nStates, present alien registration documentation\nor such other proof of immigration registration\nas may be required by the Immigration and\nNaturalization Service for this purpose, and\n\"(B) exchange with the Immigration and\nNaturalization Service (by means of an automated or\nother system designated by the Immigration and\nNaturalization Service for this purpose) such\ninformation as may be necessary for the purpose of\ndetermining whether an individual who is not a citizen\nof the United States is in an immigration status that\nrenders the individual ineligible for benefits under\nsuch program, and\n\"(c) if advised by the Immigration and\nNaturalization Service that an individual is in such\na\nstatus, afford such individual the opportunity to\nprove otherwise by submitting satisfactory evidence of\nan immigration status that does not render the\nindividual so ineligible, prior to making any decision\nto deny or terminate the individual's benefits under\nthe applicable program;\n\"(2) the State shall follow the procedures described\nin subparagraphs (B) and (c) of paragraph (1) whenever a\nreconsideration or redetermination is made of the continued\n3\neligibility of a recipient of benefits under a program\nlisted in subsection (c) who is not a citizen of the United\nStates (other than B recipient of medical assistance under\ntitle XIX whose continued eligibility for such assistance\nis determined by the Secretary in accordance with an\nagreement entered into by the State and the Secretary\npursuant to section 1634), and in no case less frequently\nthan annually in the case of such a recipient:\n\"(3) the State shall have in effect such safeguards\nas assure that information received from an individual or\nthe Immigration and Naturalization Service pursuant to\nparagraph (1) is used only to the extent necessary to\nassist in the valid administrative needs of the program\nreceiving such information, and is adequately protected\nagainst unauthorized disclosure for other purposes; and\n\"(4) the State shall have in effect laws that --\n\"(A) authorize the solicitation of written\ndeclarations under penalty of perjury, and\n(B) provide that any individual who, in any\ndeclaration required under paragraph (1) (A), willfully\nsubscribes as true any material matter which he does\nnot believe to be true, is guilty of perjury;\nunless the Secretary of Health and Human Services (or, in the\ncase of the unemployment compensation program, the Secretary of\nLabor, or, in the case of the food stamp program, the Secretary\nof Agriculture), in consultation with the Commissioner of\nImmigration and Naturalization, determines on or before July 1,\n4\n1988, on the basis of an application for a waiver received prior\nto April 1, 1988, that the State has in effect an alternative\nsystem which is as effective for purposes of verifying alien\neligibility for the applicable program in that State.\";\n(c) in subsection (c) (as redesignated by\nparagraph (1) (A) of this subsection), by striking out\n\"income verification system\" and inserting in lieu\nthereof \"income verification and alien verification\nsystems\"; and\n(D) in subsection (a) and subsection (d) (as\nredesignated by paragraph (1) (A) of this subsection),\nby striking out \"subsection (b)\" each place it occurs\nand inserting in lieu thereof \"subsection (c)\".\n(2) UNDER THE SUPPLEMENTAL SECURITY INCOME\nPROGRAM.--Section 1631 (e) (1) (B) of such Act is amended in\nthe first sentence by inserting \"the requirements of\nsection 1614 (a) (1) (B) and other\" after \"concerning\".\n(b) PROVIDING 50 PERCENT MATCHING FUNDS FOR THE COSTS OF\nDEVELOPMENT, INSTALLATION, AND OPERATION OF SYSTEM.--\n(1) UNDER THE AFDC PROGRAM.--Section 403 (a) (3) (c) of\nsuch Act is amended --\n(A) by inserting \"(i)\" after \"subparagraph\", and\n(B) by inserting \", (ii) all expenses related to\nthe development, installation, and operation of an\nalien verification system that meets the requirements\nof section 1137(b)\" after \"section 402 (a) (35) (B)\n5\n(2) UNDER THE MEDICAID PROGRAM.--ection 1903(a)(7)\nof such Act is amended by inserting \"(including as\nexpenditures under this paragraph all expenses related to\nthe development, installation, and operation of an alien\nverification system that meets the requirements of section\n1137(b))\" after \"State plan\".\n(3) UNDER THE ADULT ASSISTANCE PROGRAMS. Sections\n3 (a) (4) (B), 1003 (a) (3) (B), 1403(a)(3)(B), and 1603(a)(4)(B)\nof such Act (as in effect with respect to Puerto Rico,\nGuam, and the Virgin Islands) are each amended by inserting\n\"(including as expenditures under this paragraph all\nexpenses related to the development, installation, and\noperation of an alien verification system that meets the\nrequirements of section 1137(b))\" after \"expenditures\".\n(4) UNDER THE UNEMPLOYMENT COMPENSATION PROGRAM. The\nfirst sentence or section 302(a) or such Act is amended by\ninserting before the period at the end thereof the\nfollowing: \", including 50 percent of so much of the\nreasonable expenditures of the State as are attributable to\nthe development, installation, and operation of an alien\nverification system that meets the requirements of section\n1137(b)\".\n86. 02/12 13:17 P10 *HQ COMMCENTER B 472 6927\n6\n(5) UNDER THE FOOD STAMP PROGRAM.--Section 16 (a) of\nthe Food Stamp Act is amended by striking out \"and (4) fair\nhearings\" and inserting in lieu thereof \"(4) fair hearings,\nand (5) the development, installation, and operation of an\nalien verification system that meets the requirements of\nsection 1137(b) of the Social Security Act\".\n(c) SOCIAL SECURITY ACT DEFINITION OF PERMANENTLY RESIDING\nIN THE UNITED STATES UNDER COLOR OF LAW.--\n(1) IN GENERAL.--Section 1101(a) of the Social\nSecurity Act is amended by adding at the end thereof the\nfollowing new paragraph:\n\"(10) The term \"alien permanently residing in the\nUnited States under color of law\" means an alien who is\nlawfully present in the United States as a result of the\napplication of the provisions of --\n\"(A) section 207 of the Immigration and\nNationality Act (relating to refugees);\n\"(B) section 208 of such Act (relating to\nasylum);\n\"(C) section 203 (a) (7) of such Act as in effect\nprior to April 1, 1980 (relating to conditional entry\nprior to such date):\n\"(D) section 212(d)(5) of such Act (relating to\nparole) at least five years earlier; or\n\"(E) section 243(h) of such Act (relating to a\ndecision of the Attorney General to withhold\ndeportation) .\".\n86. 02/12 13:17 P11 *HQ COMMENTER B 472 6927\n7\n(2) - CONFORMING AMENDMENTS.--(A) Section\n1614 (a) (1) (B) of the Social Security Act is amended by\nstriking out \"otherwise permanently residing\" and all that\nfollows, and inserting in lieu thereof \"(111) an alien\npermanently residing in the United States under color of\nlaw (as defined in section 1101 (a) (10) .\".\n(B) Section 402 (a) (33) (B) of such Act is amended by\nstriking out \"otherwise permanently residing\" and all that\nfollows, and inserting in lieu thereof \"(c) an alien\npermanently residing in the United States under color of\nlaw (as defined in section 1101 (a) (10) 11\".\n(c) Section 3304 (a) (14) (A) of the Federal\nUnemployment Tax Act is amended by striking out\n\"was permanently residing\" and all that follows, and\ninserting in lieu thereof \"was an alien permanently\nreclaing in in United States under color of law (as\ndefined in section 1101 (a) (10) of the Social Security Act)\nat the time such services were performed.\"\n(3) EFFECTIVE DATE.-The amendments made by this\nsubsection shall be effective upon the date of enactment of\nthis Act, except that such amendments shall not apply in\nthe case of any alien who, on the basis of an application\nfiled prior to such date, is eligible to receive benefits\nunder the program of aid to families with dependent\nchildren authorized by part A of title IV of the Social\nSecurity Act or the supplemental security income program\nauthorized by title XVI of such Act (which includes, for\n86. 02/12 13:17 P12 *HQ COMMCENTER B 472 6927\n8\npurposes of this subsection, the program of State\nsupplementary payments which are made pursuant to section\n1616 1616(a) (a) of such Act or section 212(b) of Public Law 93-66)\nfor the month in which this Act is enacted, for such time\nas such alien continues without interruption to be eligible\nto receive such benefits.\n86. 02/12 13:17 P13 *HQ COMMCENTER 8 472 6927\nVERIFICATION OF IMMIGRATION STATUS OF ALIENS\nAPPLYING FOR BENEFITS UNDER CERTAIN PROGRAMS\nSection 1137 of the Social Security Act currently requires\nStates to have in place a system to verify income eligibility\nfor purposes of the AFDC, Medicaid, adult assistance,\nunemployment compensation, and food stamp programs. Subsection\n(à) of section would amend section 1137 to additionally\nrequire that States have in operation by October 1, 1988 a\nsystem to determine whether aliens who apply for or receive\nbenefits under those programs are in an immigration status\ncompatible with the receipt of such benefits.\nUnder the amendment, States would require program\napplicants to declare whether or not they are citizens of the\nUnited States and, if not citizens, to furnish alien\nregistration documentation or such other proof of immigration\nregistration as the Immigration and Naturalization Service (INS)\ndetermines to be appropriate. States would then be required to\nexchange information with the INS by means of an automated or\nother system designated by the INS for the purpose of\ndetermining whether the individual's immigration status renders\nhim ineligible to participate in the applicable program. If\nINS furnishes unfavorable information with respect to any\nindividual, the State would be required to afford the individual\nthe opportunity to submit satisfactory evidence of a favorable\nimmigration status prior to making any decision with respect to\nthe individual's eligibility for benefits.\nAt :- the CRRA with BRV individual whose claim for benefits\nis denied, any alien who is denied benefits due to a\ndetermination that his immigration status renders him ineligible\nfor program participation would be afforded the opportunity to\ncontest that determination at a hearing in accordance with\nprogram practices. The amendment does not create any right to a\nhearing prior to a denial of benefits.\nStates also would be required to re-examine the alien\nstatus of any non-citizen program recipient whenever any\nredetermination of the recipient's eligibility is made, and in\nno case less frequently than annually.\nThe Secretary of Health and Human Services (or the\nSecretary of Labor or the Secretary of Agriculture, as\nappropriate), in consultation with the Commissioner of\nImmigration and Naturalization, may waive the requirement for an\nalien verification system if the Secretary determines, on the\nbasis of an application for a waiver submitted before April 1,\n1988, that the State has in place an equally effective\nalternative for verifying the alien status of program applicants\nand recipients.\n86. 02/12 13:17 P14 *HQ COMMCENTER B 472 6927\nDue to the possibility of short-term difficulties in\nadopting systems to conform with the requirements of these\namendments, it is the intent of Congress that the Departments of\nAgriculture and Health and Human Services will, for purposes of\ntheir quality control systems, forgive errors directly resulting\nfrom implementation of these amendments for a period of not more\nthan one year.\nSubsection (b) of the amendment provides 50 percent\nmatching funds to States for expenses associated with the cost\nof developing, installing, and operating alien verification\nsystems.\nSubsection (c) adds to the Social Security Act a definition\nof the term \"alien permanently residing in the United States\nunder color of law\". This term currently appears as an\neligibility criterion in the AFDC, SSI and unemployment\ncompensation programs, and has been the subject of recent\nlitigation in connection with the former two programs. The new\ndefinition would specifically enumerate, by means of explicit\nreferences to the Immigration and Nationality Act, the\ncategories of aliens who could henceforth be considered as\n\"permanently residing in the United States under color of law\".\nThe new definition would be effective upon enactment. A\ngrandfather clause would exempt from the application of the\namendment those \"color of law\" aliens who, based on applications\nfiled prior to the date of enactment, are eligible for benefits\nfor the month of enactment, for such time as they continuously\nmaintain their eligibility"
}