DIRECTIVE	:	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:

   1. 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.

   2. 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.

   3. 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.