      Qualification Requirement for Aliens Under the Personal
     Responsibility and Work Opportunity Reconciliation Act of
                               1996
T he phrase “ 4 0 qualify ing quarters of cov erag e” in title IV o f the P ersonal R esponsibility and W ork
    O ppo rtu n ity R econciliation A ct of 1996 can fairly be interpreted as incorporating the m ethodology
    under section 213 o f the Social Security A ct for calculating quarters o f coverage, but not also
    the strict defin itio n s o f w ages, em ploym ent, and self-em ploym ent incom e under other sections o f
    the S ocial Security Act.

                                                                                                       March 27, 1997

                         M e m o r a n d u m O p in io n    fo r t h e    G   eneral     C o u n sel
                                    S o c ia l S e c u r i t y A d m i n i s t r a t i o n


   You have asked for the views o f the Office of Legal Counsel on the meaning
of the phrase “ 40 qualifying quarters of coverage” in title IV of the Personal
Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No.
 104—193, 110 Stat. 2105, 2260 ( “ PRA” or “ Act” ).1 We understand that you
have considered the issue and have concluded that the phrase ‘‘can fairly be inter­
preted as incorporating the methodology under section 213 of the Social Security
Act for calculating quarters of coverage, but not also the strict definitions of
wages, employment and self-employment income under other sections of the
Social Security Act.” 2 You have further indicated that the Department of Health
and Human Services and the Department of Agriculture concur in your construc­
tion of the provision.3 For the reasons set forth below, we also concur in your
interpretation.

                                               BACKGROUND

          I. Personal Responsibility and Work Opportunity Reconciliation Act

   Title IV o f the PRA imposes a broad set of limitations on the availability of
federal and state public benefits to aliens. Although the most categorical limita­
tions apply to aliens who are not classified as “ qualified alien[s]” for purposes

    1See Letter for Randolph D. Moss, Deputy Assistant Attorney General, Office of Legal Counsel, from Arthur
J. Fried, General Counsel, Social Security Administration (Nov 15, 1996)
    2 Id. at 1-2.
    3 When determining whether an agency’s interpretation is entitled to judicial deference, the concurrence of other
agencies may be relevant. See Nashville Gas Co. v Satty, 434 U S 136, 142 n.4 (1977) (agency interpretation
may be entitled to more weight when consistent with interpretations of other agencies). In addition to the other
agencies. Representative Bill Archer, Chairman, House Committee on Ways and Means, and Representative Clay
Shaw, Chairman of the Ways and Means Subcommittee on Human Resources, have indicated that they also concur
in your interpretation. We note, however, that the post-enactment views of members of Congress generally provide
little guidance in statutory interpretation. See Weinberger v Rossi, 456 U S 25, 35 (1982), Consumer Prod. Safety
Com m'n v. GTE Sylvama, Inc , 447 U.S 102, 118 (1980)


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    Qualification Requirement fo r Aliens Under the Personal Responsibility and Work Opportunity
                                       Reconciliation Act o f 1996

of the Act, see, e.g., PRA §401, 110 Stat. at 2261, significant limitations apply
even to those aliens generally deemed “ qualified.” 4 For purposes of this memo­
randum, three such limitations are significant. First, under section 402 of the Act,
with certain exceptions, “ qualified aliens” are precluded from receiving Food
Stamps and Supplemental Security Income benefits, and, at the option of the state
in which the alien resides, might also be denied Temporary Assistance for Needy
Families, Social Security Block Grants, and Medicaid benefits. Second, under sec­
tion 412 of the Act, again subject to defined exceptions, states are authorized
to deny “ any State public benefits” to “ qualified aliens.” Finally, under section
421 of the Act, in determining the eligibility for “ any Federal means-tested public
benefits program,” an alien’s income and resources are deemed to include the
income and resources of his or her sponsor (and the sponsor’s spouse).
   Each of these three limitations on the availability of benefits, however, comes
to an end once the “ qualified alien:”

          has worked 40 qualifying quarters o f coverage as defined under
          title II o f the Social Security Act or can be credited with such quali­
          fying quarters as provided under section 435, and . . . in the case
          of any such qualifying quarter creditable for any period beginning
          after December 31, 1996, did not receive any Federal means-tested
          public benefit. . . during any such period.

PRA § 402(a)(2)(B)(ii), 110 Stat. at 2262-63 (emphasis added); PRA
§412(b)(2)(B)(i), 110 Stat. at 2269; PRA § 421(b)(2)(A), 110 Stat. at 2270.5 Under
section 435 of the Act, an alien is entitled to be credited with ‘‘qualifying quarters
of coverage . . . worked by a parent . . . while the alien was under age 18”
or by a spouse “ during their marriage.” PRA §435(1) & (2), 110 Stat. at 2275.

  4 A “ qualified alien” is “ an alien who, at the time the alien applies for, receives, or attempts to receive a Federal
public benefit is —
          (1) an alien who is lawfully admitted for permanent residence under the Immigration and Nationality
          Act,
          (2) an alien who is granted asylum under section 208 of such Act,
          (3) a refugee who is admitted to the United States under section 207 of such Act,
         (4) an alien who is paroled into the United States under section 212(d)(5) of such Act for a penod
         of at least 1 year,
          (5) an alien whose deportation is being withheld under section 243(h) of such Act, or
           (6) an alien who is granted conditional entry pursuant to section 203(a)(7) of such Act as m effect
           prior to April 1, 1980 ”
PRA §431(b), 110 Stat at 2274. In addition, certain categories of aliens who (or whose children) have been subjected
to battery or extreme cruelty in the United States by a family member with whom they reside are also “ qualified
aliens” for purposes of the PRA See Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub
L No 104-208, §501, 110 Stat 3009-546, 3009-670.
   3 In addition, under sections 402 and 412, the “ qualified alien” must be “ lawfully admitted . . for permanent
residence under the Immigration and Nationality Act.” PRA § 402(a)(2)(B)(i), 110 Stat. at 2262, PRA § 4 12(b)(2)(A),
 110 Stat. at 2269. No similar condition exists under section 421

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                    Opinions of the Office o f Legal Counsel in Volume 21


                                II. Social Security Act

   Title II of the Social Security Act ( “ SSA” ), 42 U.S.C. §§401^133 (1994),
defines the phrase “ quarter of coverage” in section 213. For calendar years before
1978, with certain exceptions, the phrase means a period of three calendar months
in which an individual has been paid $50 or more in “ wages” or for which he
or she has been credited with $100 or more in “ self-employment income.” 42
U.S.C. § 413(a). For the calendar year 1978, the amount of wages and self-employ­
ment income required for a quarter of coverage is $250. Id. § 413(d). Thereafter,
the requisite amount is indexed to national average wages and published in the
Federal Register on or before November 1 of each year. Id.
   A separate section of title II defines the term “ wages.” In particular, section
209 defines “ wages” to mean, in relevant part, “ remuneration paid . . . for
employment.” 42 U.S.C. § 409(a). Section 409 provides numerous exemptions
from the term “ wages,” including remuneration above certain dollar thresholds
in specified calendar years, id. § 409(a)(1), and below certain dollars thresholds
for specified employment, such as domestic service, id. § 409(a)(6)(B), agricultural
labor, id. § 409(a)(7)(B), home worker service, id. § 409(a)(8), and service for a
tax-exempt organization, id. §409(a)(14)(A).
   Still another section of title II defines the term “ employment” to mean, in
pertinent part, “ any service of whatever nature, performed . . . by an employee
for the person employing him.” 42 U.S.C. § 410(a). Section 210 contains various
exemptions from the term “ employment,” including service performed by certain
federal government employees, id. § 410(a)(5) & (6), service performed by certain
state and local governments employees, id. § 410(a)(7), and service performed by
certain church ministers and other employees, id. §410(8)(A) & (B).

                                     DISCUSSION

   With this background in mind, we analyze the meaning of the phrase “ has
worked 40 qualifying quarters of coverage.” Congress clearly provided that the
phrase should be defined as “ in title II of the Social Security Act.” As described
above, in defining the phrase “ quarters of coverage,” section 213 of the SSA
describes the methodology for computing the amount of earnings that constitutes
a quarter of coverage. In doing so, however, that provision uses the term
“ wages,” which itself is defined elsewhere in title II of the SSA. The definition
of the term “ wages,” in turn, uses the word “ employment,” which, similarly,
is defined elsewhere in title II of the SSA. The definitions of both “ wages” and
“ employment,” moreover, contain limitations on the types of employment cov­
ered by the SSA (herein referred to as “ covered employment limitations” ). The
question presented here is whether Congress intended to include these covered
employment limitations in the PRA. Although a close question, we believe that

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   Qualification Requirement fo r Aliens Under the Personal Responsibility and Work Opportunity
                                      Reconciliation Act o f 1996

Congress did not and that the phrase “ has worked 40 quarters of coverage as
defined in title II of the Social Security Act” is best interpreted to adopt the
SSA’s mechanism for calculating the amount of wages necessary to obtain a
quarter of coverage, but not the limitations on the types of employment in which
the wages may be earned.
   Although the most formalistic reading of the reference to title II of the SSA
would incorporate all of its substantive provisions, including the cross-referenced
covered employment limitations, it is not at all clear that this was what Congress
intended. When confronting similarly complex statutory regimes that make use
of cross-referenced definitional or comparable provisions, the courts of appeals
have not mechanically incorporated the cross-referenced provisions on a wholesale
basis. They instead have carefully considered the distinct statutory purposes and
structures of the provisions at issue. For example, in Skidgel v. Maine Dept, of
Human Servs., 994 F.2d 930 (1st Cir. 1993), the Court of Appeals for the First
Circuit refused to interpret a section of the SSA to include all the requirements
of a cross-referenced provision of that statute. Section 602(a)(38) of the SSA gov­
erned the composition of a filing unit for purposes of receiving Aid to Families
with Dependent Children. It provided that, in making the determinations of need
with respect to a dependent child, states must include any parent of a dependent
child and any sibling if such sibling “ meets the conditions described in clauses
(1) and (2) of section 606(a) . . . or in section 607(a).” 42 U.S.C. § 602(a)(38)(B)
(1994). At issue was whether Congress intended to incorporate all of the descrip­
tive terms in § 607(a), including a restrictive condition requiring a showing of
need before the sibling may be included in the filing unit. The court rejected
a rigid reading of the statutory language, observing that “ [a] thorough analysis
is especially warranted where, as here, we are charged with interpreting a complex
and technical statute which has been amended over time and which contains elabo­
rate, internal cross-references.” Skidgel, 994 F.2d at 937. After carefully exam­
ining the family filing rule “ in the context of its place in the statutory scheme
and in light of its statutory purpose,” id., the court concluded that Congress did
not intend the need requirement to apply. Id. at 938-39.
   Similarly, in Weingarden v. Commissioner, 825 F.2d 1027 (6th Cir. 1987), the
Court of Appeals for the Sixth Circuit declined to read a tax provision to include
all the limitations of a cross-referenced section. Section 170(b)(1)(A) of the
Internal Revenue Code permitted more generous charitable deductions for certain
specified charitable organizations (such as churches, schools, and hospitals) and
“ an organization described in section 509(a)(2) or (3).” 26 U.S.C.
§ 170(b)(l)(A)(viii) (1994). The prefatory language contained in § 509(a) cross-
referenced another tax provision, § 501(c)(3), that effectively would have limited
the type of organizations that could qualify for more favorable tax treatment under
§ 170(b)(1)(A). 26 U.S.C. §§ 509(a), 501(c)(3) (1994). The court refused to inter­
pret the ambiguous language of § 170(b)(1)(A) to incorporate this indirect limita­

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                            Opinions o f the O ffice o f Legal Counsel in Volume 21


tion, and instead followed the canon of construction that charitable donations
should be construed liberally in favor of the taxpayer. Weingarden, 825 F.2d at
 1029-30.
   Likewise, in United States v. N ational M arine Engineers’ Beneficial A s s ’n, 294
F.2d 385 (2d Cir. 1961), the Court of Appeals for the Second Circuit, per Judge
Friendly, refused to interpret a provision of the Labor Management Relations Act
(“ LM RA ” ) to incorporate an exclusion in a cross-referenced statute. The LMRA
defined the term “ strike” to include “ any concerted slowdown or other concerted
interruption of operations by employees,” 29 U.S.C. § 142(2) (1994), and defined
“ employee” to have “ the same meaning as when used in [the National Labor
Relations Act (” NLRA“ )].” Id. § 142(3). The NLRA, in turn, excluded super­
visors from the definition of “ employee.” Thus, the question arose whether Con­
gress intended to exclude supervisors from the definition of “ strike” in the
LMRA. Rejecting the claim that the court was required to read the statute to
incorporate the cross-referenced limitation, Judge Friendly stated that “ not only
are we not required, we are not permitted to interpret statutes in the mechanical
fashion for which appellants contend.” N ational Marine Engineers’ Beneficial
A ss’n, 294 F.2d at 390-91. Rather, he stated, the court must look “ to the reason
of the enactment and inquire into its antecedent history and give it effect in
accordance with its design and purpose, sacrificing, if necessary, the literal
meaning.” Id. at 391. After comparing the history and purpose of the two labor
statutes and their relationship to the supervisor exclusion, Judge Friendly con­
cluded that Congress did not intend to exclude supervisors from the definition
of “ strike” in the LMRA.6
   As in these cases, the path from the PRA to the covered employment limitations
in the SSA is a circuitous one. The PRA makes no mention of any limitations
on the types of employment covered by the exception, but refers only to the defini­
tion of “ quarters of coverage” contained in the SSA. The SSA definition of
“ quarter o f coverage,” moreover, also makes no mention of the covered employ­
ment limitations, but simply uses the word “ wages.” It is not until we reach
the definition of “ wages” and the term “ employment,” which is used in defining
“ wages,” that the covered employment limitations are introduced. In light of this
circuitous path, it cannot be said that the PRA, on its face, plainly and unambig­
uously incorporates not only the mechanism for calculating “ quarters o f cov­

   6In Crilly v Southeastern Pa. Transp. Auth., 529 F2d 1355 (3d Cir. 1976), the Court of Appeals for the Third
Circuit adopted a similar approach, although it ultimately arrived at the same conclusion produced by a more for­
malistic reading of the provision in question There, the court construed the meaning of the term “ employer” in
the LMRA, which also was defined “ as when used in [the NLRA] ” 29 U S C. § 142(3) (1994). The cross-reference,
the Court observed, “ applied literally, suggests that political subdivisions of states are excluded from coverage under
either act.” Crilly, 529 F.2d at 1359. The court noted, however, that “ several significant decisions have cautioned
that literalism may not be lan] appropriate canon o f          . construction” in the labor relations context Id Thus,
it began the process of discerning congressional intent Finding no dispositive legislauve history, the court “ assessed]
the precedential consequences of attributing to Congress one or the other intention.” Id at 1361 Only after con­
ducting this extensive analysis did the court conclude that Congress intended to exclude state and local government
employees from the coverage of the LMRA Id at 1362-63.

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   Qualification Requirement fo r Aliens Under the Personal Responsibility and Work Opportunity
                                      Reconciliation Act o f 1996

erage,” but also the covered employment limitations. Accordingly, we beUeve
it is necessary to examine the “ design and purpose” of the PRA to determine
whether Congress intended to incorporate the covered employment limitations of
the SSA. In our view, such an analysis demonstrates that Congress did not.
   Looking first to the language of the PRA, we note a specific emphasis on
“ work,” but not on a particular type of work. While the SSA focuses on whether
the applicant has acquired “ not less than” the requisite number of quarters of
coverage, the PRA focuses on whether the applicant “ has worked” for at least
ten years. The choice of this particular language suggests, on the face of the
statute, an emphasis on work, without restriction.
   The legislative history of the PRA confirms this emphasis. It contains numerous
references to the length of work required to qualify under the exception to the
bar on public benefits in the PRA, but no reference to the type of work. With
respect to the public benefits restriction in section 402, the Conference Report
states that ‘ ‘excepted are legal permanent residents who have worked (in combina­
tion with their spouse and parents) fo r at least 10 years.” H.R. Conf. Rep. No.
104-725, at 380 (1996) (emphasis added). Similarly, with regard to section 412,
the Conference Report simply provides that “ [e]xceptions to State authority to
deny benefits are made for . . . permanent resident aliens who have worked in
the United States (in combination with their spouse or parents) fo r at least JO
years.” Id. at 384 (emphasis added). In connection with section 421, the Con­
ference Report states that “ [d]eeming extends until citizenship, unless the noncit­
izen has worked f o r a t least 10 years in the United States (either individually
or in combination with the noncitizen’s spouse and parents).” Id. at 385 (emphasis
added). Finally, the Conference Report describes the qualifying quarters provision
in section 435 as follows:

       In determining whether an alien may qualify for benefits under the
       exception for individuals who have worked at least 40 quarters
       while in the United States . . . work performed by parents and
       spouses may be credited to aliens under certain circumstances. Each
       quarter o f work perform ed by the parent while an alien was under
       the age o f 18 is credited to the alien, provided the parent did not
       receive any Federal public benefits during the quarter. Similarly,
       each quarter o f work perform ed by a spouse o f an alien during
       their marriage is credited to the alien, if the spouse did not receive
       any Federal public benefits during the quarter.

Id. at 391-92 (emphasis added).
  The focus in the PRA and its legislative history on whether the applicant has
worked the requisite number of quarters — without regard to the type of work
performed — is consistent with the PRA’s express purpose, among other things,

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                            Opinions o f the O ffice o f Legal Counsel in Volume 21


to promote self-sufficiency among immigrants. In the PRA, Congress observed
that “ [s]elf-sufficiency has been a basic principle of United States immigration
law since this country’s earliest immigration statutes. . . . It is a compelling
government interest to enact new rules . . . in order to assure that aliens be self-
reliant.” PRA §400, 110 Stat. at 2260.
   Title IV rewards self-sufficiency by denying certain public benefits to aliens
unless they “ ha[ve] worked” for ten years. The covered employment limitations
in the SSA, by contrast, serve a very different purpose that is unrelated to the
principle of self-sufficiency. They were designed for a purpose unique to the insur­
ance scheme established by the SSA — namely, to prevent the payment of social
security benefits to those who, for a variety of reasons, have not paid into that
system. Incorporating the covered employment limitations into the PRA would
fail to reward long-standing work in an equitable fashion and thus would be incon­
sistent with the Act’s purpose of promoting self-sufficiency among immigrants.
We can conceive of no reason to reward most aliens who have worked for ten
years, but not those who have worked for that period in certain government jobs
or for churches, for example.7 We do not believe Congress intended such a strange
result.8
   Finally, interpreting the PRA to include the covered employment limitations
of the SSA would run counter to the canon of construction that remedial provi­
sions should be construed liberally. See Peyton v. Rowe, 391 U.S. 54, 65 (1968);
see also C onsolidated Rail Corp. v. Gottshall, 512 U.S. 532, 543 (1994); Jefferson
County Pharm. A s s ’n v. Abbott Lab., 460 U.S. 150, 159 (1983). Application of
this canon of construction further supports our conclusion that Congress did not
intend to restrict benefits only to those employees who could demonstrate 40 quar­

   7 In enacting title IV of the PRA, Congress also expressly intended that “ the availability of public benefits not
constitute an incentive for immigration to the United States” and found that “ [i]t is a compelling government interest
to remove the incentive for illegal immigration provided by the availability of public benefits.” PRA §400, 110
Stat. at 2260 Construing the PRA to incorporate the covered employment limitations would not further this purpose
The need to demonstrate ten years of work might well provide a disincentive to immigration for the purpose of
receiving benefits. There is no reason to believe, however, that Congress concluded that a different (and more severe)
limitation need apply to qualified aliens, who have spent all or a portion of their careers working in non-covered
employment, in order to achieve the statutory purpose of removing a possible incentive to immigration
   8 It might be argued that Congress intended to include the covered employment limitations of the SSA to reduce
the administrative burden of verifying quarters of coverage for PRA purposes. While administrators of PRA benefits
may rely on the social security database in determining whether a “ covered” alien had worked 40 qualifying quarters
of coverage, they arguably have no such resource of “ noncovered” aliens Although this may be true in some
cases, it does not apply categorically Specifically, we understand that many covered employees have incomplete
social security records, while many noncovered employees have complete records Incomplete (or no) documentation
exists for covered employees whose employers have failed properly to report their income to the Social Security
Administration. In addition, no computer data generally exist for any quarters of covered employment worked in
the current year (so-called “ lag earnings” ) Computer documentation does exist, however, for many noncovered
employees dating as far back as 1978 In that year, due to a change in the law, many employers began reporting
the annual earnings of all their employees, including noncovered employees The Social Security Administration
has retained the raw data for these noncovered employees in its database. In any event, there is no evidence whatso­
ever that Congress intended to exclude classes of potential welfare recipients — such as those who had once worked
for state government — to reduce the burden of verification To the contrary, §432 recognizes the need to develop
complicated verification procedures for the host of new criteria imposed by the Act, PRA § 432(a) & (b), 110 Stat.
at 2274-75 (giving the Attorney General 18 months and states 24 months to comply)

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    Qualification Requirement fo r Aliens Under the Personal Responsibility and Work Opportunity
                                       Reconciliation Act o f 7996

ters of work in a particular type of employment.9 Rather, to effectuate the remedial
purpose of the 40 quarters exception, the Act extends benefits to all employees
who have worked for at least ten years.

                                                                          DAWN E. JOHNSEN
                                                                 Acting Assistant Attorney General
                                                                      Office o f Legal Counsel




   9 We note that the Court of Appeals for the Sixth Circuit applied a similar analysis in determining whether Congress
intended a provision of the tax code to incorporate all the limitations of a cross-referenced section. See Weingarden,
