October 2011
by Tanya Broder and Jonathan Blazer
The major public benefits programs have always prevented some noncitizens from securing assistance. Since the inception of programs such as food stamps (now called the Supplemental Nutrition Assistance Program, or SNAP), nonemergency Medicaid, Supplemental Security Income (SSI), and Temporary Assistance for Needy Families (TANF) and its precursor, Aid to Families with Dependent Children (AFDC), undocumented immigrants and persons in the United States on temporary visas have been ineligible for assistance. However, the 1996 federal welfare and immigration laws1introduced an unprecedented new era of restrictionism. Prior to the enactment of these laws, lawful permanent residents of the U.S. generally were eligible for assistance in a similar manner as U.S. citizens. Thereafter, most lawfully residing immigrants were barred from receiving assistance under one of the major federal benefits programs for five years or longer. Even where eligibility for immigrants was preserved by the 1996 laws or restored by subsequent legislation, many immigrant families hesitate to enroll in critical health care, job-training, nutrition, and cash assistance programs due to fear and confusion caused by the laws’ chilling effects. As a result, the participation of immigrants in public benefit programs decreased sharply after passage of the 1996 laws, causing severe hardship for many low-income families who lacked the support available to other low-income families.2
This article focuses on eligibility and other rules governing immigrants’ access to federal public benefits programs. Many states have attempted to fill some of the gaps in noncitizen coverage resulting from the 1996 laws. In fact, about half the states have spent their own money to cover at least some of the immigrants who are ineligible for federally funded services. Several states or counties provide health coverage to children and/or pregnant women, regardless of their immigration status. Many state-funded programs, however, have been reduced or eliminated in state budget battles. Some of these proposed cuts have been challenged in court.3 In determining an immigrants' eligibility for benefits, it is necessary to understand the federal rules as well as the rules of the state in which an immigrant resides. Updates on federal and state rules are available on NILC’s website.4
Immigrant Eligibility Restrictions
Categories of Immigrants: “Qualified” and “Not Qualified”
The 1996 welfare law created two categories of immigrants for benefits eligibility purposes: “qualified” and “not qualified.” Contrary to what these names suggest, the law excluded most people in both groups from eligibility for many benefits, with a few exceptions. The qualified immigrant category includes:
Lawful permanent residents, or LPRs (persons with green cards).
Refugees, persons granted asylum or withholding of deportation/removal, and conditional entrants.
Persons granted parole by the Department of Homeland Security (DHS) for a period of at least one year.
Cuban and Haitian entrants.
Certain abused immigrants, their children, and/or their parents.5
Certain victims of trafficking.6
All other immigrants, including undocumented immigrants as well as many persons lawfully present in the U.S., are considered “not qualified.”7
In 2000, Congress established a new category of noncitizens, victims of trafficking, who are eligible for federal public benefits to the same extent as refugees, regardless of whether they have a “qualified” immigrant status.8 In 2003, Congress clarified that “derivative beneficiaries” listed on trafficking victims’ visa applications (spouses and children of adult trafficking victims; spouses, children, parents, and minor siblings of child victims) also may secure federal benefits.9
Federal Public Benefits Generally Denied to “Not Qualified” Immigrants
With some important exceptions detailed below, the law prohibits “not qualified” immigrants from enrolling in most federal public benefit programs.10Federal public benefits include a variety of safety-net services paid for by federal funds.11 But the welfare law’s definition does not specify which particular programs are covered by the term, leaving that clarification to each federal benefit granting agency. In 1998, the U.S. Department of Health and Human Services (HHS) published a notice clarifying which of its programs fall under the definition.12 The list of 31 HHS programs includes Medicaid, the Children’s Health Insurance Program (CHIP), Medicare, Temporary Assistance for Needy Families (TANF), Foster Care, Adoption Assistance, the Child Care and Development Fund, and the Low-Income Home Energy Assistance Program.
Exceptions to the Restrictions
The law includes important exceptions for certain types of services. Regardless of their status, “not qualified” immigrants remained eligible for emergency Medicaid13 if they are otherwise eligible for their state’s Medicaid program.14 The law does not restrict access to public health programs providing immunizations and/or treatment of communicable disease symptoms (whether or not those symptoms are caused by such a disease). School breakfast and lunch programs remain open to all children regardless of immigration status, and every state has opted to provide access to the Special Supplemental Nutrition Program for Women, Infants and Children (WIC).15 Short-term noncash emergency disaster assistance remains available without regard to immigration status. Also exempted from the restrictions are other in-kind services necessary to protect life or safety, as long as no individual or household income qualification is required. In January 2001, the U.S. attorney general published a final order specifying the types of benefits that meet these criteria. The attorney general’s list includes child and adult protective services; programs addressing weather emergencies and homelessness; shelters, soup kitchens, and meals-on-wheels; medical, public health, and mental health services necessary to protect life or safety; disability or substance abuse services necessary to protect life or safety; and programs to protect the life or safety of workers, children and youths, or community residents.16
Verification Rules
When a federal agency designates a program as a federal public benefit foreclosed to “not qualified” immigrants, the law requires the state or local agency to verify the immigration and citizenship status of all applicants. However, many federal agencies have not specified which of their programs provide federal public benefits. Until they do so, state and local agencies are not obligated to verify immigration status. Also, under an important exception contained in the 1996 immigration law, nonprofit charitable organizations are not required to “determine, verify, or otherwise require proof of eligibility of any applicant for such benefits.” This exception relates specifically to the immigrant benefits restrictions in the 1996 laws.17
Eligibility for Major Federal Benefit Programs
Congress restricted eligibility even for many qualified immigrants by arbitrarily distinguishing between those who entered the U.S. before or “on or after” the date the law was enacted, August 22, 1996. The law barred most immigrants who entered the U.S. on or after that date from “federal means-tested public benefits” during the five years after they secure qualified immigrant status.18 Federal agencies clarified that “federal means-tested public benefits” are Medicaid (except for emergency care), CHIP, TANF, food stamps, and SSI.19
TANF, Medicaid, and CHIP
States can receive federal funding for TANF, Medi-caid, and CHIP to serve qualified immigrants who have completed the federal five-year bar.20“Humanitarian immigrants” — refugees, persons granted asylum or withholding of deportation/removal, Cuban/Haitian entrants, certain Amerasian immigrants,21 Iraqi and Afghan Special Immigrants,22 and victims of trafficking — are exempt from the five-year bar, as are “qualified” immigrant veterans, active duty military, and their spouses and children.
Approximately half of the states have been using state funds to provide TANF, Medicaid, and/or CHIP to some or all of the immigrants who are subject to the five-year bar on federally funded services, or to a broader group of immigrants.23
In February 2009, when Congress reauthorized the CHIP program, states were granted an option to provide federally funded Medicaid and CHIP to “lawfully residing” children and pregnant women, regardless of their date of entry into the United States.24 Almost half of the states have opted to take advantage of this federal funding for immigrant health coverage, which became available on April 1, 2009.
Over a dozen states provide prenatal care to women regardless of status with federal funds, under the CHIP program’s “fetus” option.25 A few other states provide prenatal care to women regardless of status, with state funds.
Although the federal health care reform law, known as the Affordable Care Act, did not alter immigrant eligibility for Medicaid or CHIP, it will provide new pathways for lawfully present immigrants to purchase affordable coverage through health insur-ance exchanges or, in states that elect this option, “Basic Health” programs.26
Food Stamps
Although the 1996 law severely restricted immigrant eligibility for food stamps, now called the Supplemental Nutrition Assistance Program, subsequent legislation restored access for many of these immigrants. Qualified immigrant children, the humanitarian immigrants and veterans groups described above, lawful permanent residents with credit for 40 quarters of work history, certain Native Americans, lawfully residing Hmong and Laotian tribe members (described below), and immigrants receiving disability-related assistance27 are now eligible regardless of their date of entry into the U.S. Qualified immigrant seniors who were born before August 22, 1931, may be eligible if they were lawfully residing in the U.S. on August 22, 1996. Other qualified immigrant adults, however, must wait until they have been in qualified status for five years before they may become eligible for food stamps.
A few states continue to provide state-funded food stamps to some or all of the immigrants who were rendered ineligible for the federal program.28
Supplemental Security Income
Congress imposed its most harsh restrictions on immigrant seniors and immigrants with disabilities who seek assistance under the SSI program.29Although advocacy efforts in the two years following the welfare law’s passage achieved a partial restoration of these benefits, significant gaps in eligibility remained. SSI, for example, continues to exclude “not qualified” immigrants who were not already receiving the benefits, as well as most qualified immigrants who entered the country after the welfare law passed30 and seniors without disabilities who were in the United States before that date.
Refugees and individuals granted asylum or withholding of deportation/removal, Amerasian immigrants, Cuban and Haitian entrants, Iraqi and Afghan Special Immigrants, and victims of trafficking can receive SSI, but only during the first seven years after having obtained the relevant status. The main rationale for the seven-year time limit was that it was intended to provide a sufficient opportunity for humanitarian immigrant seniors, and those with disabilites to naturalize and retain their eligibility for SSI as U.S. citizens. However, a combination of factors, including immigration backlogs, processing delays, former statutory caps on the number of asylees who can adjust their status, language barriers, and other obstacles made it impossible for many of these individuals to naturalize within seven years.
Recognizing these barriers, in 2008 Congress enacted an extension of eligibility for refugees who faced a loss of benefits due to the seven-year time limit. However, that extension expired on September 30, 2011.31
A few states provide cash assistance to immigrant seniors and persons with disabilities who were rendered ineligible for SSI; some others provide much smaller general assistance grants to these immigrants. Although the Senate passed a law reauthorizing the extension, the House has yet to take up the measure, resulting in the termination from SSI of thousands of seniors and persons with disabilities.
A few states provide cash assistance to immigrant seniors and persons with disabilities who were rendered ineligible for SSI; some others provide much smaller general assistance grants to these immigrants.32
Sponsor Deeming
Under the 1996 welfare and immigration laws, family members and some employers eligible to file a petition to help a person immigrate must become financial sponsors of the immigrant by signing a contract with the government (an affidavit of support). Under the enforceable affidavit (Form I 864), the sponsor promises to support the immigrant and to repay certain benefits that the immigrant may use.
Congress imposed additional eligibility restrictions on immigrants whose sponsors sign an enforceable affidavit of support. When an agency is determining a lawful permanent resident’s financial eligibility for TANF, food stamps, SSI, nonemergency Medicaid, or CHIP,33 in some cases the law requires the agency to deem the income of the immigrant’s sponsor or the sponsor’s spouse as available to the immigrant. The sponsor’s income and resources are added to the immigrant’s, which often disqualifies the immigrant as over-income for the program. The 1996 laws imposed deeming rules until the immigrant becomes a citizen or secures credit for 40 quarters (approximately 10 years) of work history in the U.S.34
Domestic violence survivors and immigrants who would go hungry or homeless without assistance (“indigent” immigrants) are exempt from sponsor deeming for at least 12 months.35 Some programs apply additional exemptions from the sponsor deeming rules.36
Beyond Eligibility: Overview of Barriers That Impede Access to Benefits for Immigrants
Confusion about Eligibility
Confusion about eligibility rules pervades benefit agencies and immigrant communities. The confusion stems from the complex interaction of the immigration and welfare laws, differences in eligibility criteria for various state and federal programs, and a lack of adequate training on the rules as clarified by federal agencies. Consequently, many eligible immigrants have assumed that they should not seek services, and eligibility workers mistakenly have turned away eligible immigrants.
Public Charge
The immigration laws allow officials to deny applications for lawful permanent residence or to deny entry into the U.S. if the authorities determine that the immigrant is “likely to become a public charge.” In deciding whether an immigrant is likely to become a public charge, immigration or consular officials review the “totality of the circumstances,” including an immigrant’s health, age, income, education and skills, employment, family circumstances, and, most importantly, the affidavits of support. In May 1999, the Immigration and Naturalization Service (INS) issued helpful guidance and a proposed regulation on the public charge doctrine.37 The guidance clarifies that receipt of health care and other noncash benefits will not jeopardize the immigration status of recipients or their family members by putting them at risk of being considered a public charge.38 Nevertheless, nearly a decade after the issuance of this guidance, widespread confusion and concern about the public charge rules remain, deterring many eligible immigrants from seeking critical services.
Affidavit of Support
The 1996 laws enacted rules that make it more difficult to immigrate to the U.S. to reunite with family members. Effective December 19, 1997, relatives (and some employers) have been required to meet strict income requirements and to sign a long-term contract, or affidavit of support (USCIS Form I 864), promising to maintain the immigrant at 125 percent of the federal poverty level and to repay any means-tested public benefits the immigrant may receive.39 The specific federal benefits for which sponsors may be liable have been defined to be TANF, SSI, food stamps, nonemergency Medicaid, and SCHIP. Federal agencies have issued little guidance on these provisions, however. Regulations on the affidavits of support issued in 2006 make clear that states are not obligated to pursue sponsors and that states cannot collect reimbursement for services used prior to public notification that they are considered meanstested public benefits for which sponsors will be liable.40
Most states have not designated the programs that would give rise to sponsor liability, and NILC is aware of only one state that has attempted to pursue reimbursement. However, the specter of sponsor liability has deterred some eligible immigrants from applying for benefits, based on concerns about exposing their sponsors to government collection efforts.
Language Policies
Many immigrants face significant linguistic and cultural barriers to obtaining benefits. Almost 20 percent of the U.S. population speaks a language other than English at home.41 Although 97 percent of long-term immigrants to the U.S. eventually learn to speak English well,42 many are in the process of learning the language. Almost 8 percent of people living in the U.S. speak English less than very well.43 These limited English proficient (LEP) residents cannot effectively apply for benefits or meaningfully communicate with a health care provider without language assistance.
Title VI of the Civil Rights Act of 1964 prohibits recipients of federal funding from discriminating on the basis of national origin, and such discrimination can include failure to address language barriers that prevent LEP persons from securing assistance. Benefit agencies, health care providers, and other entities that receive federal financial assistance are required to take “reasonable steps” to assure that LEP individuals have “meaningful access” to federally funded programs.44 Compliance with this mandate varies significantly.
Verification
In 1997, DOJ issued an interim guidance for federal benefit providers to use in verifying immigration status until DOJ issues final regulations governing verification.45 The guidance, which remains in effect, directs benefit agencies already using DOJ’s computerized Systematic Alien Verification for Entitlements (SAVE) program to continue to do so. It recommends that agencies make financial and other eligibility decisions before asking the applicant for information about his or her immigration status. The guidance also directs agencies to seek information only about the person applying for benefits and not about his or her family members.
Questions on Application Forms
In September 2000, HHS and the U.S. Department of Agriculture issued guidance recommending that states delete from benefits application forms questions that are unnecessary and may chill participation by immigrant families.46 The guidance confirms that only the immigration status of the applicant for benefits is relevant. It encourages states to allow family or household members who are not seeking benefits to be designated as nonapplicants early in the application process. Similarly, under Medicaid, TANF, and the Supplemental Nutrition Assistance Program (SNAP), only the applicant must provide a Social Security number (SSN). SSNs are not required for persons seeking only emergency Medicaid. In June 2001, HHS indicated that states providing CHIP through separate programs (rather than through Medicaid expansions) are authorized, but not obligated, to require SSNs on their CHIP applications.47
In February 2011, the USDA issued a memo instructing states to apply these principles in their online application procedures.48
Reporting to the Dept. of Homeland Security
Another source of fear in immigrant communities is the occasional misapplication of a 1996 reporting provision that is in fact quite narrow in scope.49 The reporting requirement applies only to three programs — SSI, public housing, and TANF — and requires the administering agency to report to the INS (now the DHS) only persons whom the agency knows are not lawfully present in the U.S.50
In September 2000, federal agencies issued a joint guidance outlining the limited circumstances under which the reporting requirement may be triggered.51 The guidance clarifies that only persons who are actually seeking benefits (not relatives or household members applying on their behalf) are subject to the reporting requirement. Agencies are not required to report such applicants unless there has been a formal determination, subject to administrative review, on a claim for SSI, public housing, or TANF. The conclusion that the person is unlawfully present also must be supported by a determination by the immigration authorities, “such as a Final Order of Deportation.”52 Findings that do not meet these criteria (e.g., a DHS response to a SAVE computer inquiry indicating an immigrant’s status,53 an oral or written admission by applicants, or suspicions of agency workers) are insufficient to trigger the reporting requirement. Finally, the guidance stresses that agencies are not required to make immigration status determinations that are not necessary to confirm eligibility for benefits.
Looking Ahead
The 1996 welfare law produced sharp decreases in public benefits participation by immigrants. Proponents of welfare “reform” see that fact as evidence of the bill’s success, noting that a reduction of welfare use, particularly among immigrants, was precisely what the legislation intended. Critics of the restrictions question, among other things, the fairness of excluding immigrants from programs that are sup-ported by the taxes they pay. These debates rage on at the federal, state, and local levels.
Posted via email from Global Politics
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