Verifying immigration status for unemployment claims

Official letter (https://www.dol.gov/sites/dolgov/files/ETA/advisories/UIPL/1998/UNEMPLOYMENT%20INSURANCE%20PROGRAM%20LETTER%20NO.%2007-98.html):

U.S. DEPARTMENT OF LABOR, Employment and Training Administration
Washington, D.C. 20210
CLASSIFICATION: UI
CORRESPONDENCE SYMBOL: TEUPDR
ISSUE DATE: December 17, 1997
RESCISSIONS: None
EXPIRATION DATE: 12/31/98

UNEMPLOYMENT INSURANCE PROGRAM LETTER NO. 07-98
TO: ALL STATE EMPLOYMENT SECURITY AGENCIES
FROM: GRACE A. KILBANE, Director, Unemployment Insurance Service
SUBJECT: Procedures for Verification of Alien Status

1. Purpose. To advise State Employment Security Agencies (SESAs) of a
   Departmental interpretation of Federal statutes relating to aliens'
   eligibility for unemployment compensation when satisfactory
   immigration status is not established through the primary
   verification process with the Immigration and Naturalization Service
   (INS).

2. References. UIPL 1-86; UIPL 12-87; Section 1137(d) of the Social
   Security Act (SSA).

3. Background. Section 1137(d), SSA, directs that States require each
   applicant for unemployment benefits, as a condition of eligibility,
   to declare under penalty of perjury whether he/she is a citizen or
   national of the United States and, if not, whether he/she is in a
   satisfactory immigration status. For UI purposes, this means an
   alien must be legally authorized to work at the time benefits are
   claimed to meet available for work requirements. A claimant who is
   not a citizen or national must present alien registration
   documentation that the SESA can use to verify satisfactory
   immigration status through the INS.

   A detailed explanation and interpretation of eligibility of aliens
   for unemployment benefits was presented in UIPL 1-86. Attachment III
   to UIPL 12-87 discussed provisions for determining and verifying
   alien status for entitlement to unemployment benefits. This
   directive elaborates on the proper procedures where the INS's
   primary verification process does not establish satisfactory
   immigration status for aliens.

   The INS does not make determinations of aliens' eligibility for
   benefits. SESAs make these determinations based upon information
   provided by the INS. The INS has established verification procedures
   through a process known as Systematic Alien Verification for
   Entitlements (SAVE). The SAVE system has both primary (automated)
   and secondary (manual) procedures for verification, as referenced in
   the SSA, Sections 1137(d)(3) and (4). The SESA initiates the primary
   procedure by accessing the INS's data base and entering the alien
   registration number (A-Number). This provides an immediate,
   automated response about the alien of record. If the data base can
   substantiate that the alien is authorized to work, the response will
   provide an employment eligibility statement and identify the alien's
   immigration classification. If legal status cannot be determined,
   the response from INS will instruct the SESA to "institute secondary
   verification" to obtain sufficient information to make a
   determination. Thus, the primary response will never indicate that
   the alien is not authorized to work; this can only be accomplished
   through the secondary process.

   The secondary procedure consists of a more extensive validation
   process, including manual paper searches, when questions arise
   during the primary procedure or when computerized records are not
   found in the SAVE data base. The secondary response from the INS
   indicates whether the alien's documentation "appears valid" or "is
   not valid" and what the alien's immigration status and work
   eligibility status are.

   The SSA requires procedural safeguards to ensure that payments to
   eligible aliens are not delayed because of the verification process.
   Under Section 1137(d)(4)(A), SSA, aliens whose status has not been
   verified through primary verification must be provided a "reasonable
   opportunity" to submit evidence of satisfactory immigration status.
   The SESA "may not delay, deny, reduce, or terminate an individual's
   eligibility for benefits" because of immigration status until this
   reasonable opportunity has been provided. The SSA does not specify
   time limits for this reasonable opportunity. However, UIPL 12-87,
   Attachment III, I.E.2.a., provided that [t]ime periods under State
   law for providing information needed to determine eligibility for
   benefits will meet the requirement for reasonable opportunity".

   If, as a result of this reasonable opportunity, an alien whose
   status was not verified through primary verification submits what
   the SESA "determines constitutes reasonable evidence", then
   secondary verification must be initiated. (Section 1137(d)(4)(B),
   SSA.) During secondary verification, the SESA "may not delay, deny,
   reduce, or terminate an individual's eligibility for benefits"
   because of immigration status.

4. Office of Inspector General (OIG) Study. In 1996, the Department's
   OIG began studies in four States of UI benefits paid to claimants
   who had used unissued Social Security Numbers to establish claims.
   Preliminary findings revealed that SESAs had made many payments to
   illegal aliens, despite the INS's responses via the SAVE primary
   verification process that indicated mismatches between the claimants
   and the legal aliens registered with INS. The OIG discovered
   numerous cases where both the names and dates-of-birth were entirely
   disparate. In all such cases investigated by the OIG, the claims
   were found to be fraudulent.

5. Procedures. The findings from the OIG study indicate a need to
   clarify the procedural protections for verification of aliens'
   immigration status. A distinction needs to be recognized between
   material and non-material discrepancies with regard to the
   information provided by INS's response and that provided by the
   claimant. A material discrepancy exists when the claimant identity
   is not verified by the biographical data in the SAVE system.

   A SAVE response via the primary procedure may suggest non-material
   discrepancies, e.g., transposition of numbers, incomplete surnames
   when the name includes multiple words, transposed versions of names,
   name change due to recent marriage, etc. At the discretion of the
   SESA, secondary verification may be initiated because of the
   questions that have arisen from the primary response. However,
   pending such verification, payments may not be delayed on the basis
   of immigration status.

   Also, some SAVE primary requests will be returned without
   verification, i.e., neither biographical data nor status information
   will be provided, and the SESA will be instructed to Ainstitute
   secondary verification". In such a situation, the SSA requires that
   a claimant be given a reasonable opportunity to submit evidence
   indicating satisfactory immigration status that the SESA can use to
   initiate the secondary SAVE verification process. If the SESA
   receives reasonable evidence of satisfactory immigration status,
   secondary verification must be initiated. Pending such verification,
   SESAs are prohibited from delaying payments.

   However, when a SAVE response via the primary process indicates that
   the claimant is not the same person as the alien registered with
   INS, e.g., different name and date-of-birth, material discrepancies
   exist, and one of the following actions should be taken:

   a. If the claimant acknowledges the accuracy of the SAVE response
   (i.e., the filing of a fraudulent claim), issue an immediate
   denial under the appropriate State provisions, e.g., monetary
   denial of base period wages, nonmonetary denial under the
   availability provision, and/or misrepresentation.

   b. If the claimant disputes the accuracy of the SAVE response and
   submits "reasonable evidence" indicating satisfactory
   immigration status, initiate the secondary SAVE request, and do
   not delay payment of benefits.

   c. If the claimant disputes the accuracy of the SAVE response but
   does not submit "reasonable evidence" indicating satisfactory
   immigration status, the SSA, Section 1137(d)(4)(A) requires that
   the claimant be provided "reasonable opportunity" to submit such
   evidence. The claimant must be instructed to provide the
   evidence within time limits established for claims filing under
   State law. The SESA may not delay or deny benefits until this
   reasonable opportunity has been provided; however, for practical
   purposes, this provision should have no effect on processing the
   claim because "reasonable opportunity" should, in most cases,
   transpire before the claimant certifies for the first week. One
   of the following actions should then be taken as appropriate:

   - if reasonable evidence is provided, initiate the secondary
     SAVE request, and do not delay payment of benefits, or
   
   - if reasonable evidence is not provided, issue a denial under
     the SESA provisions as in (a) above. (Reference the SSA,
     Section 1137(d)(5).)
   

   On occasion, an alien applying for UI may present immigration
   documentation that appears to be counterfeit or altered. In such
   instances, the SESA should initiate the secondary verification
   process immediately, in lieu of the primary process, because the
   alien has not submitted the documentation described in the SSA,
   Section 1137(d)(2). Although the SESA must provide the claimant the
   opportunity to present satisfactory documentation as required by the
   SSA, Section 1137(d)(4)(A), the SESA should, if appropriate, issue
   an immediate denial under the State law provision for
   misrepresentation. This action does not fall within the protections
   of the SSA since the denial is for reasons related to fraud, not
   immigration status.

6. Action Required. SESA Administrators are requested to provide copies
   of this UIPL to appropriate staff and ensure that effective
   procedures are implemented to establish eligibility for benefits.

7. Inquiries. Questions should be directed to the appropriate Regional
   Office.