must report individuals known to be not lawfully present in the United States to the Department of Homeland Security (DHS).
“Congress wrote this requirement plainly,” said Assistant Attorney General T. Elliot Gaiser of the Justice Department’s Office of Legal Counsel. “When a state chooses to participate in TANF, it accepts the obligation to report illegal aliens in the United States. Tax dollars intended to help vulnerable Americans should not perversely encourage illegal entry into the United States, but rather should reinforce our laws and our borders.”
“Our clarification does not impose new obligations on states,” said Deputy Assistant Attorney General Joshua Craddock of the Justice Department’s Office of Legal Counsel and author of the opinion. “It simply restores the original meaning of the statute Congress enacted and ensures that DHS receives the information it is legally entitled to. States that accept TANF funding must abide by federal law, and failure to comply may lead to serious consequences, including loss of program funding.”
The Office withdrew a Clinton-era opinion from 1998 that construed the reporting requirement much more narrowly. Under that prior interpretation, only the specific state agencies administering TANF or SSI were required to provide information to federal immigration authorities. All fifty states, the District of Columbia, and several U.S. territories currently participate in TANF and SSI, and federal TANF funding grants exceed $16.4 billion annually.
The Office of Legal Counsel’s Sept. 1 opinion explains that Congress defined “State” broadly in the Personal Responsibility and Work Opportunity Reconciliation Act of 1996. As a result, when a state accepts federal TANF or SSI funds, the entire state government – including all component agencies – is bound by federal law to share information with DHS about individuals the state knows to be not lawfully present.
The opinion applies prospectively. States will not face retroactive penalties for past reliance on the 1998 interpretation. Federal agencies may rely on OLC’s advice to update TANF and SSI grant agreements and compliance processes to reflect the correct legal standard moving forward.
Note: Read the full opinion here .