Where this rule comes from
In 1996 Congress overhauled the U.S. welfare system through the statute known as PRWORA. Among other things, it created TANF, a program of federal block grants to states for assistance to low-income families, and adjusted SSI, the federal supplemental income benefit. In section 404, Congress attached a reporting duty to those funds: a state receiving them must furnish the federal government, at least four times a year and upon request, with the name, address and other identifying information of anyone the state knows to be unlawfully present in the United States.
Two years later, in 1998, the Executive itself narrowed that duty. The Office of Legal Counsel, the Justice Department component that advises the rest of the federal government on legal questions, read the word State there as meaning only the state agency administering the funded program, not the whole state. That reading governed for twenty-eight years.
What the September 1 opinion decided
At the request of the Department of Health and Human Services, made in June 2026, the Office of Legal Counsel reexamined the question and withdrew the 1998 opinion. The reasoning is textual. PRWORA itself defines State as the fifty states, the District of Columbia and certain territories, without distinguishing among internal agencies. Elsewhere in the same statute, when Congress meant a specific agency, it wrote State agency or named the official. In section 404 it wrote only State.
The 1998 opinion had reached a different result mainly on the argument that the broad reading would make other passages of the statute superfluous, and on the practical assumption that every state would always take part in TANF. The 2026 opinion answers that the assumption did not hold, citing American Samoa, which does not operate a TANF program, and that a surplusage argument built on a prediction about behavior does not override the express definition in the text.
What changes in practice, and what depends on implementation
| Point | Position after the September 1 opinion |
|---|---|
| Who owes the duty to report | Every agency of a state that participates in TANF and SSI, not only the welfare agency. |
| Which states are covered | According to the Justice Department press release, all fifty states, the District of Columbia and territories participate in both programs. |
| From when | The opinion applies prospectively. It says expressly that it does not allow clawback of funds disbursed under the earlier reading. |
| How it takes effect | Through federal agencies updating grant agreements and compliance processes. The opinion points to that route. |
| What happens if a state does not comply | The opinion mentions loss of program funding as a possible consequence. It describes neither a procedure nor a deadline. |
The open point: what it means for the state to know
The statute speaks of reporting anyone the state knows to be unlawfully present, and does not define knows. In 2000, federal agencies issued a joint regulation stating that knowledge exists only where unlawful presence results from a formal determination, subject to administrative review and supported by a decision of DHS or the immigration courts, such as a final order of removal. That was a narrow standard, and it explains why the duty produced little practical effect over twenty-five years.
The 2026 opinion criticizes that regulation in a footnote and argues for a broader standard, under which knowledge may come from a DHS notification to the state, from the person's own admission, from records showing expired or terminated status, or from a document that on its face shows the absence of status. But the opinion does not repeal the regulation, which remains on the books. How the two texts will coexist is, today, an open question, and we do not resolve it on our own.
What the opinion does not do
- It does not change the statute. Section 404 dates from 1996 and its wording is unchanged.
- It does not create any obligation for individuals. The duty it addresses runs from the state to the federal government.
- It does not change who is eligible for which benefit. The opinion says, in those terms, that it imposes no new affirmative obligation.
- It is not a court ruling and does not bind any court. It is advice that guides the Executive, and it can be challenged in litigation.
- It does not reach anyone holding lawful status in the United States.
What to watch from here
- Implementing acts by the Department of Health and Human Services and the Social Security Administration, which would update grant agreements and compliance processes. As of September 4, 2026 we found none.
- Any amendment or repeal of the 2000 joint regulation, which today defines knowledge more narrowly.
- Any lawsuit by a state against the new interpretation. As of September 4, 2026 we found none.
- How each state will internally organize compliance, if and when the agreements are updated.
Sources
- Office of Legal Counsel, Reconsidering State Reporting Requirements in Section 404 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, 50 Op. O.L.C. __ (September 1, 2026), 19 pages, read in full.
- Department of Justice, press release no. 26-1012, September 2, 2026, read in full.
- PRWORA, Pub. L. No. 104-193, section 404, codified at 8 U.S.C. 1614 and 42 U.S.C. 611a, 1383(e) and 1437y; definition of State at section 103(a)(2), codified at 42 U.S.C. 619(5).
- Office of Legal Counsel opinion of 1998, 22 Op. O.L.C. 204, and joint regulation of 2000, 65 Fed. Reg. 58301. We did not read those two texts in the original; what this text says about them is what the 2026 opinion states that they say.
Updated September 4, 2026, based on the Office of Legal Counsel opinion of September 1, 2026, read in full, and on the Department of Justice press release of September 2, 2026. The guidance may be changed by the Executive itself or suspended by a court, and its application depends on acts of federal agencies not yet issued. Confirm the situation before making any decision.