Sejal Zota is the School of Government Immigration Law Specialist.
This is the third and last installment in a series of posts discussing whether immigrant populations may legally participate in community development programs. In my last post, I discussed whether these types of programs qualify as restricted federal, state, or local public benefits. In short, the answer is that some programs do not qualify as public benefits while some others probably do, depending on the particulars of the program. For programs that do qualify as “federal public benefits,” immigration status must be verified by the benefit provider. Nonprofit charitable organizations, however, are exempt from these requirements—they do not have to determine, verify, or require proof of immigration status for such programs. In this post, I will focus on how providers should verify immigration status and whether penalties exist for providing restricted benefits to unauthorized immigrants.
What Benefit Providers Should Do
When community development programs do qualify as a “federal public benefit,” the benefit provider should verify that the applicant is a U.S. citizen or a “qualified” immigrant, assuming the applicant meets general program requirements. An agency guidance published by the U.S. Department of Justice (DOJ) contains detailed guidance on how to verify citizenship, immigration status and eligibility under the federal welfare law. Attachment 5 to the guidance provides a laundry list of documents and forms that can provide evidence of status as a “qualified” immigrant. Many federal agencies use SAVE, an intergovernmental information-sharing program, to determine an applicant’s immigration status.
What Benefit Providers Should Not Do
Nondiscrimination requirements apply to the provision of public benefits. Thus, benefit providers should verify eligibility without regard to national origin and employ neutral procedures that apply equally to all applicants without regard to their appearance, ethnicity, or accent. They should not single out individuals who look or sound foreign for closer scrutiny or require them to provide additional documentation of citizenship or immigration status. Such actions may result in prohibited discrimination under Title VI of the Civil Rights Act of 1964.
The DOJ agency guidance also directs benefit providers to seek information only about the person applying for benefits and not about his or her family members. In the case of an individual applying for benefits on behalf of another person, benefit providers should only verify the status of the person who will actually receive the benefits.
How is the federal law enforced? Are there penalties for providing restricted assistance to unauthorized immigrants?
Any restrictions on federal, state and local public benefits depend, for their effective enforcement, on the determinations made by state and local service providers of the eligibility of applicants. There is no specific enforcement mechanism in the welfare law—it does not contain criminal or civil penalties for violation of the law by benefit providers. The Housing and Community Development Act of 1974, as amended, (which authorizes the CDBG program) also does not contain a penalty directed to the federal welfare law. Federal agencies may enforce compliance through state audits or other actions, however.