UIPL 12-87 Attachment III

 

EXPLANATION AND INTERPRETATION
of the Immigration Reform and Control Act of 1986
(Public Law 99-603) Relating to the Federal and
Federal-State Unemployment Compensation Programs

 

  1. Section 121.  Provisions for Determining and Verifying Alien Status for Entitlement to Unemployment Compensation.

    1. General. Section 121 of the Immigration Reform and Control Act of 1986, P.L. 99-603, contains three provisions affecting the Federal and Federal-State UC programs.  Section 121(a)(i) amends Part A of Title XI of the SSA by adding new subsections (d) and (e) to Section 1137 - "Income and Eligibility Verification System." These new subsections establish immigration status verification procedures for UC programs. Section 121(b)(3) of the Act amends Section 302(a) of the SSA to provide for reimbursement to State agencies of 100 percent of the reasonable costs of implementing and operating the immigration status verification system. Section 121(c) of the Act establishes effective dates, and includes provisions for waiver of verification system requirements and certain reports to Congress. Section 121(d) also requires certain General Accounting Office reports, which involve the Department of Labor and the State agencies. Following is an explanation of these new provisions. Detailed instructions for implementing these provisions will be issued at a later date.

      The purpose of these provisions is to require States who do not receive a waiver to verify through Immigration and Naturalization Service (INS) records the legal status of all aliens applying for benefits under certain Federally-assisted and Federally-funded programs beginning October 1, 1988. The UC program is included through an amendment to the existing provisions for the income and eligibility verification system in Section 1137 of the SSA. Existing Section 303(f) of the SSA requires State UC agencies to participate in the income and eligibility verification system as described in Section 1137.

      Under these new requirements, States who do not qualify for a waiver under conditions spelled out in the law must determine, as a condition of an individuals eligibility for benefits, that an individual is either a United States citizen or in a "satisfactory immigration status" and verify through INS records the authenticity of any immigration document submitted by the individual. However, prior to denying benefits because of immigration status, the State agency must follow certain minimum procedural safeguards. The requirement for a State agency to participate in the immigration status verification system may be waived by the Secretary of Labor if specified conditions are met. To the extent these new requirements apply to the States for the purposes of the Federal-State UC program, they will also apply to Federal unemployment benefit and allowance programs administered by the States under agreements with the Secretary of Labor.

    2. Effective Dates. Section 121(c) of the Immigration Reform and Control Act of 1986 contains several effective dates which impact State employment security agencies.

      1. All States must begin complying with the requirements for immigration status determination and verification on October 1, 1988, unless participation is waived by the Secretary of Labor.

      2. The INS is required to implement a system for verifying immigration status and make the system available to all States not later than October 1, 1987.

      3. An amendment to Section 302(a) of the SSA providing for funding the costs of implementing and operating the immigration status verification system is effective October 1, 1987.

      4. The Secretary of Labor is required to submit a report by April 1, 1988 to the House Ways and Means Committee and to the Senate Finance Committee on implementation of the new requirements for the UC programs. The Comptroller General is required to submit a report to Congress and to the Commissioner of INS by October 1, 1987, on the effectiveness of current pilot projects relating to the INS System for Alien Verification of Eligibility (SAVE). In addition, the Comptroller General must submit a report to the Congress and to the Secretary of Labor by April 1, 1989, on implementation of the new immigration status verification system requirements.

    3. Declaration of Citizenship or Satisfactory Immigration Status. Section 1137(d)(1) specifies that the State shall require, as a condition of eligibility, that each individual sign a declaration under penalty of perjury stating:

      1. whether the individual is a citizen, or national of the United States, and

      2. if not, whether the individual is in a "satisfactory immigration status."

    4. Satisfactory Immigration Status.  Section 1137(d)(1)(B)(ii)(III) defines "satisfactory immigration status" as an immigration status that does not make the individual ineligible for unemployment benefits.

      1. Section 3304(a)(14)(A), FUTA, prescribes the conditions under which benefits may be paid based on services performed by an alien.  Specifically, the FUTA requires that compensation shall not be payable on the basis of services performed by an alien unless:

        1. the alien was lawfully admitted for permanent residence at the time the services were performed,

        2. the alien was lawfully present for the purposes of performing the services, or

        3. the alien was permanently residing in the United States under color of law at the time the services were performed.

      2. In addition, an alien must be legally authorized to work at the time benefits are claimed to be considered "available for work."

        A complete explanation of the Federal requirements relating to alien eligibility for unemployment benefits is found in UIPL 1-86, issued October 29, 1985.

    5. Provisions Relating to Determining Alien Status. The Act contains provisions requiring State action to verify that an alien is in "satisfactory immigration status." However, in making any determination of eligibility based on immigration status, the State agency must provide an individual with certain procedural safeguards.

      1. Verification of Status. If on the declaration of citizenship statement an individual indicates that he or she is in a satisfactory immigration status, the individual must present documentary evidence.  Section 1137(d)(2), SSA, specifies that the individual must present either:

        1. an alien registration document or other proof of immigration registration from INS that contains the individual's alien admission number or alien file number (or numbers if the individual has more than one number), or,

        2. such other documents as the State determines constitute reasonable evidence indicating a satisfactory immigration status.

        In addition, Section 3304(a)(14)(B), FUTA, requires that the same information be uniformly required of all claimants.  Section 1137(d)(3), SSA, further requires the State agency to verify documentation referred to in (a) above with the INS through an automated system or other system designated by the INS.  Under subsection (3)(B), this system must protect "the individual's privacy to the maximum degree possible."  The State agency must use the individual's alien file number or alien admission number as the basis for verifying alien status.  If instead of an alien number the State agency has other documents which the State determines constitute reasonable evidence of satisfactory immigration status.  Section 1137(d)(4)(B), SSA, requires the State agency to submit a photocopy of the documents to INS for verification.

      2. Procedural Safeguards. The Act contains specific requirements relating to procedures for fact-finding, promptness of payment, and a right to a hearing. A summary and explanation of these requirements follow.

        1. The State agency must provide the individual with a reasonable opportunity to submit documentation indicating satisfactory immigration status if such documentation is not presented at the time of filing for UC. The State must also provide the individual reasonable opportunity to submit evidence of satisfactory immigration status if the documentation presented is not verified by the INS. Time periods under State law for providing information needed to determine eligibility for benefits will meet the requirement for "reasonable opportunity." Attachment 1 to UIPL 15-78, issued January 24, 1978, contains guidance in handling cases where the claimant declines to provide information with respect to immigration status. This guidance is still applicable.

        2. Under Section 1137(d)(4)(A)(ii), SSA, a State agency may not delay, deny, reduce or terminate an individual's eligibility for benefits on the basis of immigration status until a reasonable opportunity has been provided for the individual to present required documentation. If the alien does present such documentation, pending its verification, a State may not delay, deny, reduce, or terminate the individual's eligibility for benefits on the basis of the individual's status. Section 1137(d)(4)(B)(ii), SSA. However, under Section 1137(d)(4)(B)(iii), SSA, the State shall not be liable for the consequences of INS action, delay or failure to conduct such verification.

        3. Section 1137(d)(5) provides if a State determines that an individual is not in a satisfactory immigration status, the individual must be given the opportunity for a fair hearing. This is already a requirement of Section 303(a)(3), SSA, and thus adds nothing to existing Federal requirements.

          In addition, Section 3304(a)(14)(C), FUTA, requires an evidentiary burden to be met that is not present in Section 1137(d), SSA. Thus, Section 3304(a)(14)(C) requires that no determination denying benefits based on alien status shall be made except on the preponderance of the evidence. Attachment 1 to UIPL 15-78 contains guidance on what constitutes preponderance of evidence.

    6. Limitations on Federal Agency Action.  Under Section 1137(e), the Department of Labor may not take any compliance, disallowance, penalty or other regulatory action against the State agency because of an error in a determination holding an individual eligible for benefits based on citizenship or immigration status:

      1. if the determination was based on verification provided by the INS;

      2. because the State was required under Section 1137(d)(4)(A) or (B), to pay benefits to the individual during the period required to provide the individual with reasonable opportunity to submit documentation or pending official verification of immigration status by the INS;

      3. as a result of the outcome of the determination and hearing process afforded the individual under State law.

    7. itle III Funding. Section 121(b)(3) amends Section 302(a) of the SSA to permit the use of Title III funds for "100 percent of so much of the reasonable expenditures of the State as are attributable to the costs of the implementation and operation of the immigration status verification system described in section 1137(d)." Section 302(a) of the SSA authorizes the Secretary of Labor to provide payment to the States for the costs of administering the employment security program.

    8. Waiver of Requirements. Under Section 121(c)(4)(B), the Secretary of Labor may waive the requirements of the Act on his own initiative or upon an application by a State and based on information the Secretary deems persuasive, provided certain conditions are met.

      1. In order to waive the requirements with respect to a State, the Secretary must determine that:

        1. the State agency is using an alternative system which is as effective and timely as the INS immigration status verification system and which provides for hearing and appeal rights at least to the extent required under Section 1137(d)(5), or

        2. the costs of administering the immigration status verification system exceed the estimated savings.

      2. Section 121(c)(4)(C) contains the following criteria by the Secretary of Labor to be used in determining cost effectiveness:

        1. the proportion of aliens claiming unemployment benefits to the total number of individuals claiming unemployment benefits,

        2. any savings in benefit outlays resulting from implementation of the verification system,

        3. the labor and nonlabor costs of administering the verification system,

        4. the degree to which the INS is capable of providing timely and reliable information to the State agency, and

        5. such other factors as the Secretary of Labor deems relevant.

        A letter will be sent to each State early in 1987 requesting the information the Secretary needs to determine whether a waiver will apply.

    9. Reports to Congress. The Act requires reports by the applicable Secretary and Comptroller General on the immigration status verification system.

      1. Report by the Secretary. Under Section 121(c)(4)(A), the Secretary of Labor must report to the House Ways and Means Committee and the Senate Finance Committee by April 1, 1988, whether (and the extent to which) application of the SAVE program in the UC program is cost-effective and appropriate to the program and whether there should be a waiver of the application of the SAVE program under Section 121(c)(4)(B).

      2. Reports by the Comptroller General. By October 1, 1987, the Comptroller General is required by Section 121(d) to report to Congress and to the Commissioner of INS on current pilot projects using the INS System for Alien Verification of Eligibility (SAVE). The report must examine the effectiveness of the projects and any problems with implementation. In addition, the Comptroller General is directed to monitor and analyze implementation of the new system. By April 1, 1989, the Comptroller General must report to Congress and the appropriate Secretaries on implementation of the immigration status verification system, including recommendations for change, as appropriate.

  2. Provisions for Legalization of Status Relating to Entitlement to Unemployment Compensation.

    1. General. Section 201(a) of the Immigration Reform and Control Act of 1986, P.L. 99-603, amends the Immigration and Nationality Act to add a new Section 245A to authorize the adjustment of status of certain aliens who entered the United States before January 1, 1982, to that of  "lawfully admitted for temporary residence."  Section 245A(a) establishes a new category of  "lawfully admitted for temporary residence" and specifies the requirements that must be met to obtain an adjustment of status.  Section 245A(b) provides for termination of temporary resident status and otherwise specifies the terms and conditions of temporary resident status.  This section also prescribes the conditions for subsequent adjustment of status from "lawfully admitted for temporary residence" to that of  "lawfully admitted for permanent residence."  Section 245A(e) provides for the temporary stay of deportation and work authorization for certain applicants.

      Following is an explanation of these new provisions as they affect the UC program.

    2. Temporary Resident Status.  Section 245A(a) establishes a new category of  "lawfully admitted for temporary residence."

      1. This new category allows for the adjustment of status of an alien with no documentation of legal entry to that of an alien lawfully admitted for temporary residence if the alien:

        1. Makes a timely application as specified in Section 245A(a)(1); that is, files a proper application within a 12-month period beginning on a date (not later than 180 days after the date of enactment) designated by the Attorney General;

        2. Had continuous unlawful residence beginning with entry into the United States before January 1, 1982;

        3. Has been continuously present in the United States with the exception of brief, casual, and innocent absences, since November 5, 1986;

        4. Is admissible as an immigrant under Section 245A(a)(4).

      2. After 18 months of temporary resident status, an alien has one year to apply for an adjustment of status to that of lawfully admitted for permanent residence. To be eligible for adjustment of status, the alien must meet the four conditions specified in Section 245A(b)(1).

      3. Section 245A(b)(2) specifies the conditions under which the Attorney General shall provide for termination of temporary resident status; and

      4. Section 245A(b)(3) provides that an alien with temporary resident status shall be granted "authorization to engage in employment in the United States and be provided with an 'employment authorized' endorsement or other appropriate work permit."  Paragraph (3) also spells out the conditions on authorization to travel abroad.

    3. Temporary Stay of Deportation and Work Authorization for Certain Applicants. Section 245A(e) provides for a hold on deportation and the furnishing of work authorization to an alien who presents a prima facie case or application for change of status before or during the application period.

      1. Before Application Period. An alien may not be deported and must be granted employment authorization if the alien is apprehended before the beginning of the application period and can establish a prima facie case of eligibility for an adjustment of status to temporary residence. The alien must then apply for adjustment within the first 30 days of the application period as provided in Section 245A(e)(1).

      2. During Application Period. An alien may not be deported and must be granted employment authorization, pending a final determination of alien status, if the alien can establish prima facie application for adjustment of status to temporary resident.

    4. Impact on Federal Requirements.  For the UC program there are two separate aspects to alien eligibility: non-monetary eligibility during the benefit year, and monetary eligibility during the base period.

      1. Availability for Work. When an individual is granted work authorization under these new provisions, the individual becomes legally available for work. The individual must have some dated documentation from INS substantiating the work authorization issued under Section 245A. An alien with INS issued work authorization is eligible, if also able to work, unemployed, and otherwise entitled to benefits under the State law.

      2. Section 3304(a)(14), FUTA. Even though an individual has work authorization, the requirements of section 3304(a)(14), FUTA, still apply. The state must determine monetary eligibility during the base period. The FUTA prescribes the conditions under which benefits may be paid based on services performed by an alien who was in a proper status "at the time services were performed." Benefits based on services performed while an alien is lawfully admitted for temporary residence, or is granted work authorization pending a ruling on his/her application, is payable because the work authorization grants an alien the status of being lawfully present for purposes of performing services. The status of temporary residence or granting of work authorization does not, however, confer retroactive lawful presence for purposes of monetary eligibility.

        Further, an alien whose status is adjusted to "lawfully admitted for permanent residence" is, from the date such status is granted, "permanently residing in the United States under color of law" within the meaning of that phrase as used in Section 3304(a)(14)(A), FUTA, and further consideration is being given to whether an alien in such status falls under the first category of Section 3304(a)(14)(A), FUTA, as "lawfully admitted for permanent residence."

  3. Admission of Temporary Agricultural (H-2A) Workers and Their Entitlement To Unemployment Compensation.

    1. General. Title III of the Immigration Reform and Control Act of 1986, P.L. 99-603, provides for the reform of legal immigration. Section 301 of the Act establishes a new "H-2A" nonimmigrant classification for temporary agricultural worker. Section 301(a) and (b) amends Sections 101(a)(15)(H) and 214(c) of the Immigration and Nationality Act to provide for this new classification. Following is an explanation of these new provisions as they effect the UC programs.

    2. New "H-2A" Workers. Section 301(a) provides a new "H-2A" nonimmigrant classification for temporary agricultural labor by amending Section 101(a)(15)(H) of the Immigration and Nationality Act. Section 301(c) added a new Section 216 to the Immigration and Nationality Act which allows for the admission of "H-2A" workers to perform agricultural labor or services "of a temporary or seasonal nature" as defined by the Secretary of Labor.

    3. Impact on States. The services performed by the new "H-2A" workers are excludable from coverage on the same basis as those performed by "H-2A" workers. Section 3306(c)(1)(B), FUTA, exempts from coverage services performed by aliens in agricultural labor, including the new "H-2A" workers through calendar year 1992. However, it requires consideration of such service in determining the size of a firm under section 3306(c)(1)(A), FUTA.

  4. Provisions for Lawful Residence of Certain Special Agricultural Workers and Their Entitlement to Unemployment Compensation.

    1. General. Title III of the Immigration Reform and Control Act of 1986, P.L. 99-603, provides for the lawful residence of certain agricultural workers.  Section 302(a)(1) of Title III adds a new Section 210 to the Immigration and Nationality Act that allows for the adjustment of status of special agricultural workers to that of an alien lawfully admitted for temporary residence, and further adjustment of such lawful temporary residents' status to permanent resident.

    2. Lawful Residence. The new Section 210 creates a new category of special agricultural worker.

      1. This new category allows for the adjustment of status to an alien lawfully admitted for temporary residence if the following requirements are met:

        1. The alien must apply for the adjustment during the period specified in Section 210(a)(1)(A), and

        2. The alien must establish residence in the United States, and have performed seasonal agricultural services in the United States for at least "90 man-days" during the period specified in Section 210(a)(1)(B).

        3. Except as provided in subsection (c)(2) of Section 210, the alien must establish that he/she is admissible to the United States as an immigrant.

      2. Once granted the status of lawful temporary resident under Section 210(a)(1), an alien "shall be granted authorization to engage in employment in the United States and shall be provided an 'employment authorized' endorsement or other appropriate work permit, in the same manner as for aliens lawfully admitted for permanent residence." (Section 210(a)(4)).

      3. In accordance with the specific dates listed in Section 210(a)(2), the Attorney General shall adjust the status of any alien with temporary resident status under Section 210(a)(1) to that of an alien lawfully admitted for permanent residence.

      4. Section 210(a)(3) provides for the termination of "temporary resident status" by the Attorney General only upon a determination that the alien is deportable.

    3. Temporary Stay of Exclusion or Deportation and Work Authorization for Certain Applicants . New Section 210(d) allows for a stay of exclusion or deportation and work authorization for certain aliens.

      1. Before Application Period. An alien may not be excluded or deported and must be granted employment authorization if apprehended before the beginning of the application period and can establish a nonfrivolous case of eligibility to have an adjustment of status.  The alien must then apply for adjustment within the first 30 days of the application period as provided in Section 245A(e)(1).

      2. During Application Period. An alien may not be excluded or deported and must be granted employment authorization if the alien can present a nonfrivolous application for adjustment of status, and until a final determination of the application has been made.

                3.  In both cases the alien must be granted work authorization and provided documentation of work authorization.

    4. Impact on States. For the UC program, there are two separate aspects to alien eligibility: non-monetary eligibility during the benefit year, and monetary eligibility during the base period.

      1. Availability for Work. When an individual is granted work authorization under these new provisions, the individual becomes legally available for work.  The individual must have some dated documentation from INS substantiating the work authorization.

      2. Section 3304(a)(14)(A), FUTA. Even though an individual has work authorization, the requirements of Section 3304(a)(14), FUTA, still apply. The State must determine monetary eligibility during the base period. The FUTA prescribes the conditions under which benefits may be paid based on the status of the alien "at the time services were performed." It is possible that an agricultural worker's base period wage credits may meet the criteria under 3304(a)(14), FUTA. For example, if all the wage credits were performed as an H-2 worker, then the worker "was lawfully present for purposes of performing such services . . . ." Benefits based on services performed while an alien is lawfully admitted for temporary residence are payable under the FUTA because the work authorization grants the alien the status "lawfully present for purposes of performing services." The status of "temporary resident" does not, however, confer retroactive lawful presence for purposes of monetary eligibility under the FUTA. An alien granted the status of "lawfully admitted for permanent residence" is at least a third category of "permanently residing in the United States under color of law" under Section 3304(a)(14)(A), and consideration is being given to whether such alien also falls into the first category of "lawfully admitted for permanent residence."