Program Letter 20-2
Part 1626 Eligibility Documentation During COVID-19 Pandemic
From: Ronald S. Flagg, President
Date: April 2, 2020
This program letter describes how LSC grantees (“recipients”) can comply with 45 C.F.R. Part 1626’s requirements for documentation of non-U.S. citizen eligibility while operating with restricted access to clients and client documents due to the COVID-19 pandemic.
SUMMARY
45 C.F.R. § 1626.8 provides options for recipients to document an applicant’s eligible non-U.S. citizen status “in an emergency” when the applicant cannot provide the required documents. LSC deems the COVID-19 pandemic an emergency under § 1626.8. When necessary, recipients may use the § 1626.8 procedures to temporarily document Part 1626 eligibility for non-U.S. citizens when an applicant “cannot feasibly come to the recipient’s office or otherwise transmit written documentation to the recipient” or otherwise “cannot produce the required documentation before commencement of the representation.” Additionally, in these pandemic-related situations, LSC deems any permissible legal assistance in which delay could cause harm to a client to be “limited emergency legal assistance” under § 1626.8.
Recipients must fully screen applicants for Part 1626 eligibility. These temporary options apply only to the collection of documentation. The final section of this letter discusses options for applicants who cannot adequately describe the facts relevant to the basis for eligibility absent the relevant documents (e.g., a person who knows they are in the country legally but does not know their specific status). Each applicant must submit the required documentation as soon as possible under the circumstances, and the recipient must notify the applicant of the limitations on this temporary legal assistance.
1) When possible, the recipient must have the applicant execute and return a “statement of eligibility” by any means meeting the electronic execution requirements of Program Letter 16-2 or as a physical document.
2) Otherwise, the recipient must document in its records the “information to establish eligibility” provided by the applicant orally or by a suitable equivalent.
The “statement of eligibility” or “information to establish eligibility” must provide credible details for the recipient to make a reasonable determination that, absent the documentation, the applicant is eligible under Part 1626. For example, the applicant may make a statement that she has lawful permanent resident status, which she provisionally obtained in 2014 based on marriage to a U.S. citizen and then converted to a regular “green card” around 2016.
BACKGROUND
On March 11, 2020, the World Health Organization declared the COVID-19 outbreak a pandemic. In response to the spread of COVID-19 in the United States, the Secretary of Health and Human Services declared a public health emergency under section 319 of the Public Health Service Act on January 31, 2020. On March 13, 2020, the U.S. President declared it a national emergency.
Many governors, mayors, and other elected officials have ordered “social distancing” measures to mitigate or stop the spread of COVID-19. Such measures include the curtailing or closure of non-essential businesses, closure of public schools, and limits on mass gatherings. Many jurisdictions have issued “stay-at-home” orders requiring or strongly urging individuals to remain at home except for trips necessary to maintain health, safety, and welfare. Many courts have transitioned to remote operations with only limited emergency in-person appearances.
Low-income individuals nationwide continue to need legal assistance, including assistance to address issues arising out of the pandemic, and LSC recipients continue to be essential in meeting that need. However, because most LSC recipients have shifted all or most of their staff to remote work, in-person contact with clients is strongly discouraged or impracticable for the foreseeable future. Additionally, due to stay-at-home requirements and the closure or limited access to businesses and government offices, many applicants and clients cannot access information or documentation that is not at their current location.
Additionally, some subpopulations of LSC-eligible clients face unique challenges in communicating with recipients during this time. For example, individuals experiencing homelessness, isolated elderly individuals, and persons with disabilities may not have access to a phone or the internet. Individuals experiencing domestic violence, especially those sheltering in place with an abuser, may not have private access to a phone. Even if an applicant or client can contact a recipient via phone, they may lack the means to transmit documents to the recipient. Many individuals rely on community centers and public libraries for access to copiers, scanners, fax machines, email, and the internet, and lose that access as public services close.
Finally, even if an applicant has the means to transmit documents to a recipient, they may nevertheless face issues in accessing or obtaining these documents themselves. Many federal, state, and local government agencies are closed to the public, which prevents or delays individuals from obtaining government documents to which they may not have immediate access. In some cases, applicants may not have the documents because they are at a location that is now inaccessible due to stay-at-home or related orders.
EMERGENCY DOCUMENTATION UNDER PART 1626
Part 1626 of the LSC regulations requires recipients to show that all accepted clients are either U.S. citizens or meet the eligibility requirements for non-U.S. citizens.[1] Non-U.S. citizen applicants must “submit appropriate documents to verify eligibility,” with one exception for some remote brief advice and consultation cases.[2] 45 C.F.R. § 1626.7. See Program Letter 14-2 for a chart of acceptable forms of documentation to verify eligible non-citizen status.
Section 1626.8 provides that “in an emergency,” the recipient can temporarily accept substitutes for the required documentation. Accepted clients must “submit the necessary documentation as soon as possible” and the recipient must advise the applicant that “only limited emergency legal assistance may be provided without satisfactory documentation” and that legal assistance may be discontinued if the documentation is not provided when possible.
LSC deems the COVID-19 global pandemic an emergency for purposes of § 1626.8. As such, when necessary, recipients can use the § 1626.8 alternatives to providing the required documentation until the client has a reasonable opportunity to provide the required documentation. Recipients should make clear to clients and staff that the authorized “limited emergency legal assistance” includes any legal services for which a delay could cause legal or other harm to the client.
PROCEDURES FOR COMPLYING WITH PART 1626.8
Recipients must screen all applicants for Part 1626 eligibility and collect required documentation (subject to the exception discussed in footnote 2). When possible, recipients must collect that documentation through traditional or alternative means (per Program Letter 16-2 regarding electronic execution of documents). The § 1626.8 options apply only when the applicant credibly demonstrates that they meet the Part 1626 requirements for non-U.S. citizen eligibility, but merely lacks the ability to obtain or provide the required documentation under the emergency circumstances. In such cases, the applicant must provide the required documentary evidence as soon as possible.
The alternatives in § 1626.8 apply when either:
(a) An applicant cannot feasibly come to the recipient’s office or otherwise transmit written documentation to the recipient before commencement of the representation required by the emergency[]; or
(b) An applicant is able to come to the recipient’s office but cannot produce the required documentation before commencement of the representation[.]
45 C.F.R. § 1626.8. The following are examples of how recipients can handle situations in which when an applicant cannot physically deliver the required documents to the recipient due to the pandemic.
1) The client has the documentation and a means of sending it such as by photos sent via a phone or computer. Those clients can provide the documentation, so the recipient does not need to use the § 1626.8 emergency provisions.
2) The client has no means of sending the documents. For example, the client has no smartphone and no way to make a copy that they could mail to the recipient. Those clients can answer questions over the phone about their eligibility and the relevant documents (if they have them) to “provide oral information to establish eligibility which the recipient records[.]” Id. § 1626.8(a).
3) The client has a means of remotely executing documents and sending them to the recipient (per Program Letter 16-2), but does not have their immigration or citizenship documents on hand to send to the recipient. Those clients can execute and send “a statement of eligibility” to the recipient. Id. § 1626.8(b).
When the applicant has a required immigration document and can describe it, LSC recommends recipients use the same standard described in § 1626.4(e) for recording immigration documents presented by non-citizen victims of domestic violence. Recipients should record the “type of document, [applicant’s] alien registration number (‘A number’), the date of the document,” the date on which the recipient took oral evidence of the document, and the signature of the staff member who took the oral evidence (including by electronic signature methods). In cases where an applicant does not have the document, a recipient should ask the applicant sufficiently detailed questions to determine that the applicant has an eligible non-citizen status or is eligible under one of the anti-abuse statutes and record the applicant’s responses, the date on which the recipient conducted the interview, and the signature of the staff member who conducted the interview or electronic equivalent.
In both cases, LSC recommends that recipients record the reason that documentation is not presented at the time of intake or case acceptance. For cases accepted under § 1626.8(a), examples of reasons include:
- The office is closed, and the staff are practicing social distancing;
- The state or jurisdiction in which the recipient’s service area is located has ordered individuals to stay at home;
- The applicant is in the hospital or is otherwise in isolation or quarantine and cannot meet with recipient personnel.
For cases accepted under § 1626.8(b), examples of reasons why documentation is not available include:
- The applicant fled domestic violence without their documents and cannot return to the location;
- The applicant is homeless and cannot access the location or government agency where their documents are on file;
- The applicant is in quarantine, in the hospital, or otherwise prevented from returning to their belongings in another location;
- The applicant left the document in another location which they cannot now access due to a shelter-in-place or stay-at-home order; or
- The applicant lost the document and cannot easily obtain a replacement because the issuing agency is not operating, is operating at reduced capacity, or continues to require replacement requests to be made in person and the person must self-isolate.
As soon as possible under the circumstances, the client must submit the required documentation to the recipient to complete the § 1626.7 requirements. Upon receiving a document after the emergency, the recipient must add the document to the client’s file and document its determination whether the client meets the Part 1626 eligibility requirements and if the recipient will continue providing representation. The recipient should also take any reasonable steps to remind the client of the obligation to provide the documents as soon as possible and provide assistance in doing so.
Procedure When Status Cannot be Clearly Determined
In some cases, the applicant will not be able to clearly describe their status without documentation, which they do not have access to. For example, the applicant may know that they have lawful work status and pays taxes, but they are not sure if they have temporary protected status (not eligible under Part 1626) or refugee status (eligible under Part 1626). The recipient can make a determination based on asking detailed questions of the applicant and a plan for the applicant to obtain a copy of the needed documentation as soon as possible.
If you have any questions about this guidance, please do not hesitate to contact Mark Freedman, Senior Associate General Counsel, at mfreedman@lsc.gov, 202-295-1623, or Stefanie Davis, Senior Assistant General Counsel, at sdavis@lsc.gov, 202-295-1563.
Thank you for all you do to continue serving our most vulnerable community members during this crisis.
[1] U.S. citizen applicants must provide an attestation of citizenship, which may be by electronic means as provided in Program Letter 16-2. See also LSC President Ronald S. Flagg’s March 26, 2020 email to recipients stating that “clients can execute Part 1611 retainers and Part 1626 client attestations through electronic methods” (emphasis added).
[2] The requirement for providing documentation does not apply when “the only service provided . . . is brief advice and consultation by telephone [or other non-in person means], . . . which does not include continuous representation of a client.” 45 C.F.R. § 1626.7.