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New legal opinion expands states’ obligations

For US states that receive federal funding, the scope of immigration reporting requirements has been widened. Under a new legal opinion released by the US Department of Justice, a state administration could face the risk of losing federal funding for some programs aimed at low-income households if it does not share information with the DHS (Department of Homeland Security) about people it knows do not have lawful status.

The new assessment overturns a 1998 interpretation by the Justice Department’s Office of Legal Counsel. The previous view limited the information-sharing obligation to specific state agencies administering the Temporary Assistance for Needy Families program and the Supplemental Security Income program.

Which agencies are covered?

According to the department, because the 1996 Personal Responsibility and Work Opportunity Reconciliation Act uses a broad definition of a state, not only welfare agencies but all state administrations and affiliated bodies in states that accept TANF or SSI funding will be subject to the federal rule. Under this framework, information about people the state knows are not legally in the country would have to be passed on to the Department of Homeland Security.

How large is the funding and what is the financial risk?

The financial impact of the decision is being closely watched because of the scale of the programs involved. According to Justice Department data, annual TANF grants of more than $16.4 billion alone represent a major budget item. All 50 states, as well as Washington, D.C. and some US territories, participate in both programs.

  • TANF is a federal program that provides temporary cash and support assistance to low-income families.
  • SSI is another federal aid mechanism aimed at people who need income support.

Why could state budgets come under pressure?

Although the new opinion does not directly announce a new funding cut, it opens the door to the loss of program financing in the event of noncompliance. That could create administrative and fiscal pressure, especially for state budgets that rely on federal shares in social assistance spending.

It will apply prospectively, not retroactively

The Justice Department said the new opinion will not apply to past TANF and SSI records and will only take effect going forward. The department also argued that it is not imposing a new obligation on states, but rather clarifying the scope of a condition Congress had already written into law.

According to CNBC, comments on the new opinion were requested from the attorneys general of many major states. At the time the report was published, there was no clear indication of whether the states would pursue legal action against the guidance.

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