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Assistant Secretary for Planning & Evaluation |
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HUMAN SERVICES POLICY |
This document summarizes the immigrant eligibility restrictions under the following recently enacted laws: the Personal Responsibility and Work Opportunity Reconciliation Act, [PRWORA PL 104-193], as amended by the Illegal Immigration Reform and Immigrant Responsibility Act [Immigration Law PL 104-208], the Balanced Budget Act of 1997 [PL 105-33], the Agricultural Research, Extension and Education Reform Act of 1998 [PL 105-185], the Noncitizen Benefit Clarification and Other Technical Amendments Act of 1998 [PL 105-306], the Trafficking Victims Protection Act of 2000 [P.L. 106-386], and the Food Stamp Reauthorization Act of 2002 [PL 107-171].
PRWORA restricts access by some legal immigrants to certain programs and denies access by undocumented immigrants to many government funded programs. Immigrants remain eligible for benefits and services, however, unless specifically restricted as indicated below. (Citation to sections below refer to PRWORA, unless noted.)
Qualified aliens include (Sec 431):
With many important exceptions, Qualified Aliens are ineligible for Food Stamps and SSI. States have the authority to determine their eligibility for TANF, SSBG, and Medicaid. With some exceptions, Qualified Aliens entering the country after August 22, 1996, are denied Federal meanstested public benefits for their first five years in the U.S. as qualified aliens.
Qualified aliens are ineligible for Food Stamps for a period of 5 years beginning on the date of an aliens entry into the United States. (Sec 402 (a))
Exceptions to the 5-year ban on Food Stamps:
Most qualified aliens who enter the US on or after August 22, 1996 are ineligible for SSI until they become U.S. citizens, which generally requires at least five years residency. (Sec 402(a))
Exceptions to the ban on SSI:
States can decide the eligibility for TANF and Medicaid of most "qualified aliens" who arrived in this country prior to August 22, 1996; states can decide the eligibility of most qualified aliens for the Social Services Block Grant (Title XX) regardless of date of entry. (Sec 402(b)). [NOTE: Most qualified aliens who entered the U.S. on or after 8/22/96 are barred from receiving TANF and Medicaid for the first 5 years after their entry see Section D, below.]
Exceptions:
Most qualified aliens entering the country on or after enactment are banned from receiving Federal meanstested public benefits for a period of 5 years beginning on the date of the aliens entry with a qualified alien status (Sec 403) (see exceptions below). The HHS interpretation, published in the Federal Register on August 26, 1997 (62 FR 45256), designated TANF and Medicaid (except assistance for an emergency medical condition under Medicaid) as the Federal meanstested public benefits administered by the Department. Subsequently, HHS has communicated that the Childrens Health Insurance Program (CHIP) is also a Federal meanstested public benefit. The Social Security Administration has stated that Supplemental Security Income is a Federal meanstested public benefit. The Department of Agriculture has also stated that food stamps is such a benefit. No other program has been determined to be a Federal meanstested public benefit program.
Exceptions to the 5-year ban on Federal MeansTested Public Benefits:
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Aliens who are not qualified aliens are ineligible for Federal Public Benefits.
The statute defines a federal public benefit as:
The HHS interpretation of the term federal public benefit published in the Federal Register on August 4, 1998 (63 FR 41658 41661) states that the following HHS programs meet the definition of Federal Public Benefits and are not otherwise excluded. Therefore, nonexempted providers of such benefits (see the exception from verification requirements for nonprofit charitable organizations in V below) must verify the citizenship and immigration status of applicants in order to deny federal public benefits to nonqualified aliens.
No other programs have been determined to be federal public benefit programs.
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States have authority to determine immigrants eligibility for state and local programs, with some conditions. (Sec 411, 412)
Undocumented immigrants are not eligible for state/local public benefits unless the state passes a new law after 8/22/96 affirmatively making them eligible. No legislation is required to retain access to state and local benefits for nonimmigrants or aliens paroled into the U.S. for less than 1 year. (Sec 411(a))
States may restrict the eligibility of qualified aliens, nonimmigrants, and certain parolees. They may not restrict eligibility for: refugees, asylees, or aliens whose deportation has been withheld, during their first five years from entry; members of the military, veterans, and their family members; and those who have been credited with 40 qualifying quarters. (Sec 412)
States may not deny access by any alien to state or local benefits that meet the definition of excepted services described in Sec 411(b). States can now require an applicant for state or local public benefits to provide proof of eligibility. (Sec 413)
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The Department of Justice published a Notice of Proposed Rule Making on Verification of Eligibility for Public Benefits in the Federal Register on August 4, 1998 (64 FR 41662-41686). Interim guidance was issued on November 17, 1997, in the Federal Register (62 FR 61344). States must have a verification system in place 24 months after the final regulations are promulgated for the federal public benefits they administer. (Sec. 432(b))
Exemption for Nonprofit charitable organizations:
Nonprofit charitable organizations are specifically exempt from any of these requirements to determine, verify, or otherwise require proof of alien eligibility or status. (Sec 432(d)) A state may not require that such organizations verify the citizenship or immigration status of individuals applying for or receiving benefits.
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Prior to the new welfare statute, affidavits of support signed for sponsored immigrants were not legally enforceable and timelimited deeming of sponsor income occurred in only three programs: SSI, Food Stamps, and AFDC. The new welfare statute requires a legally binding affidavit of support to be executed by a sponsor on behalf of most aliens seeking admission to the U.S., in order to establish that an alien is not excludable as a public charge. The statute requires sponsortoalien deeming procedures under programs providing Federal meanstested benefits until the immigrant with the new affidavit becomes a citizen, or has been credited with 40 qualifying quarters of coverage, and permits deeming for any State public benefits.
The new affidavit is legally enforceable against the sponsor by the alien and by federal and state governments which provide any meanstested benefits, but not later than 10 years after an alien last receives any such benefit. The affidavit is enforceable with respect to meanstested benefits until the sponsored alien attains citizenship or accumulates 40 qualifying quarters.
The Affidavit was released by INS on October 20, 1997, as part of an Interim Rule with Request For Comments (62 FR 54346), and was effective December 19, 1997.
With some exceptions, sponsors must now have an income of at least 125 percent of federal poverty to sponsor an immigrant (previously 100 percent). All familybased immigrants, and certain employmentbased immigrants, must be sponsored, meaning that a family member (and an additional co-sponsor, if necessary) must have signed an affidavit stating that they will provide assistance to maintain the immigrant at an annual income of at least 125 percent of the federal poverty line as long as it is enforceable (see Section A. Affidavit).
When determining eligibility for Federal meanstested public benefits (i.e., Medicaid, TANF, SSI, and Food Stamps), the income and resources of the sponsor, who executed a new affidavit of support, and the sponsors spouse, shall be deemed available to the sponsored immigrant. (Sec 421) Benefits specifically excluded from the 5-year eligibility ban (Sec 403(c)) are also not subject to deeming and reimbursement by the sponsor.
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No state or local governments may be prohibited from sending to, or receiving from, the INS information regarding the immigration status of an alien in the U.S. (Sec 434)
States in administering their TANF block grants, the Social Security Administration in administering the SSI programs, the Department of Housing and Urban Development, and public housing agencies must report to INS four times a year aliens they know are unlawfully in the U.S. (Sec 404)
Several Federal Agencies (HHS, SSA, HUD, DoL, and the INS) provided clarifying guidance (65 FR 58301-58303) regarding what constitutes knowledge that an alien is unlawfully in the U.S. Specifically, an entity will know that an alien is not lawfully present in the United States only when the unlawful presence is a finding of fact or conclusion of law that is made by the entity as part of a formal determination that is subject to administrative review on an aliens claim for any of the statutorily specified programs. In addition, that finding or conclusion of unlawful presence must be supported by a determination by the [INS] or the Executive Office of Immigration Review, such as a Final Order of Deportation.
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Updated: 10/04/04