OTDA Issues Guidance to Local Districts on Immigrant Food Stamp Restorations

August 1, 2003

Author: Barbara Weiner

Last year, Congress passed the Food Stamp Reauthorization Act. Among the many changes to food stamp program rules and policies the law made - most if not all for the better - was the restoration of access to the food stamp program to an estimated 400,000 legal immigrants.

Specifically, last year’s amendments granted eligibility for food stamp benefits to disabled immigrants with a “qualified alien” status without regard to their date of entry to the United States. This provision became effective October 1st of last year. As of April 1st of this year, all non-disabled immigrants become eligible for food stamps once they have lived in the United States in a qualified status for five years. Later this year, on October 1st, immigrant children in a qualified status will become eligible for food stamps, like disabled immigrants, without any waiting period. Children will not be subject to sponsor income deeming rules.

Immigrants with “qualified alien” status include, among others, lawful permanent residents, certain battered spouses and children, and refugees and other immigrants admitted on the basis of persecution in their home country. Even before these most recent amendments, the latter group, refugees and other humanitarian entrants, had been eligible for food stamps immediately upon being granted their status. Nevertheless, humanitarian immigrants also benefited under last year’s Reauthorization Act, by having the seven year limit on their eligibility eliminated.

On April 2, 2003, the Office of Temporary and Disability Assistance issued an Informational Letter, 03-14, which was based on guidance that was issued earlier in the year by the United States Department of Agriculture, Food and Nutrition Service (USDA / FNS). The INF reviews the various “qualified alien” immigrant categories and answers specific questions raised by the restorations. It is available on the Online Resource Center at http://www.wnylc.net/pb/docs/03-inf-14.pdf

Food Stamp Restoration to Disabled Qualified Immigrants

One of the important issues addressed in the INF is the question of how an immigrant will be determined to be disabled, and therefore eligible for food stamps, without first having to wait in a qualified status for five years. Under the food stamp law, a person is considered disabled if he or she is receiving “disability related” assistance. Included in the category of disability related assistance is Supplemental Security Income (SSI), Social Security Disability (SSD), veteran’s disability benefits, and, most importantly for immigrant food stamp purposes, disability-related Medicaid.

As a practical matter, however, an immigrant’s access to most types of disability related benefits, especially SSI, is substantially more restricted than his or her access to the food stamp program. The one exception is New York’s Medicaid program, to which immigrants with lawful permanent status have access without regard to their date of entry to the United States or the date they obtained a qualified status. The INF instructs local districts that, although the food stamp program itself does not require (or make) disability determinations, “individuals who are also applying for or receiving Medicaid benefits, including applicants/recipients of temporary assistance and Medicaid, must have a Medicaid disability determination if there is indication that they may qualify for disability-related Medicaid.” (Emphasis added.)

It is apparent from the reports of advocates that such referrals are not always made in practice, especially if the immigrant already qualifies for Medicaid as a recipient of temporary assistance. The failure of local districts to make disability referrals in such cases is no doubt due in part to the added financial and administrative burden these referrals place on the districts.

The Medicaid rule that requires the local district to refer an applicant or recipient for a disability determination when there is an indication the person is disabled is neither new nor particular only to immigrants. Ordinarily, the local district has a financial incentive to make such referrals - because the district receives federal funding for disability related Medicaid. However, this incentive is lacking with immigrants, since most immigrants arriving after August 22, 1996, are not eligible for federally funded Medicaid for their first five years in a qualified status. Under these circumstances, immigrants and their advocates may have to exert pressure on the social services district to refer immigrants for disability determinations in appropriate cases. Difficulties in getting local worker cooperation should be reported both to the directors of local districts and to the Department of Health. (Advocates encountering such difficulties should also feel free to contact GULP’s Albany office.)

Food Stamp Eligibility After 5 Years in a Qualified Status

Beginning on April 1st of this year, non-disabled immigrants who have been residing in the United States for at least five years in a qualified status are eligible for food stamps. It was expected that as a result of this immigrant eligibility expansion, tens of thousands of New York immigrant residents would return to the food stamp program. However, in spite of substantial outreach by both federal and state agencies, as well as the advocacy community, the return of immigrants to the food stamp program has been much slower than expected.

Nevertheless, in New York City in April, about eight thousand newly eligible immigrants who were living with households that were participating in the food stamp program were automatically added to the household’s food stamp case by the Human Resources Administration (HRA). The automatic inclusion of eligible immigrants into existing food stamp household was a one time deal, and happened only in New York City. From now on, it will primarily be at re-certification that excluded immigrant household members who have met the five year requirement will be added to the household’s food stamp grant. If the immigrant’s presence in the household was known to the district from the previous certification, the household will be eligible to receive benefits back to the date that the immigrant actually met the five year requirement. However, food stamp households living with immigrants don’t have to wait for re-certification but can ask to have an excluded immigrant household member included in the budget as soon as the immigrant has been in a qualified status for five years.

Immigrants with qualified status living alone, or with households that are not participating in the food stamp program, must apply for benefits when they reach their five year anniversary date in order to get them.

Sponsor Income Deeming and Repayment Liability

Sponsors of family based immigrants who apply for admission to the United States, or for adjustment of status to permanent resident, on or after December 19, 1997 have to sign enforceable affidavits of support. By signing the affidavit, the sponsor agrees to support the immigrant at 125% of poverty. If the sponsored immigrant obtains any means tested benefits during the period the affidavit is enforceable, the sponsor agrees to reimburse the federal, state or local agency for the cost of such benefits.

Immigrants with sponsors who have signed enforceable affidavits of support are subject to deeming when they apply for means tested benefits. Deeming is a budgeting methodology that allows the benefits agency to apply the income and resources of the sponsor to the immigrant, even if the sponsor is not actually providing such support. Deeming and sponsor liability are imposed until the immigrant naturalizes or can be credited with 40 qualifying work quarters under the Social Security system.

Food stamps are considered a means tested benefit and therefore deeming and sponsor liability apply. Nevertheless, there are probably very few immigrants currently participating in the food stamp program who have sponsors who signed enforceable affidavits of support. This is because, except for immigrants receiving disability related benefits, family sponsored immigrants must first be in a qualified status for five years before becoming eligible for benefits. This means that to be eligible for benefits now, an immigrant would have had to receive his or her green card before August of 1998.

Because the wait is usually so long between the time immigrants apply for permanent resident status and the point at which they actually have their interview and get their green card, the vast majority of immigrants who currently have had a green card for five years or more must have filed their application for permanent resident status well before December 19, 1997, the date the new enforceable affidavits were first put into use . It is only family based immigrants who applied for permanent status on or after December 19, 1997 whose sponsors will have signed enforceable affidavits of support and who will be subjected to sponsor deeming and liability.

Even though it currently affects only a few immigrants, the INF does discuss sponsor liability and deeming and how these rules should be implemented by the local districts in the future.

The main exceptions to deeming and sponsor liability set out in the INF include the following:

• Family sponsored immigrants whose sponsors have not signed a legally binding affidavit of support are not subject to income deeming and their sponsors are not liable to repay food stamps provided the immigrant (this should include all family based immigrant who applied for adjustment or admission before December 19, 1997 and their sponsors).
• Family sponsored immigrants who can be credited with forty qualifying quarters or who naturalize are not subject to deeming and their sponsors are not liable to reimburse government agencies for food stamp benefits provided the immigrant after that point.
• A sponsor is not liable to repay benefits received by an immigrant whom (s)he sponsored for any period during which the sponsor was him- or herself a recipient of food stamp benefits.
• Deeming is not imposed if the sponsored immigrant’s household is determined to be indigent (actual income of 130% of the federal poverty level or less). Each indigence determination is effective for 12 months. (Local districts must provide the name of the sponsor and the immigrant to OTDA each time the district exempts the household from deeming on the basis of indigency. OTDA in turn sends these names to the statistical division of the Bureau of Immigration and Citizenship Services - BICES. The understanding is that this information is collected so that BICES can make its report to Congress about how many immigrants whose sponsors signed enforceable affidavits of support are receiving federal means tested benefits.)
• Deeming is not applied to battered spouses and children as long as they are not living with the person responsible for the battery. The exemption is available for 12 months. It can be extended for additional 12 month periods if the battery is recognized by a court, administrative finding or by the BCIS.

Immigrants who are not required to have sponsors under the immigration law, such as refugees, asylees and other humanitarian entrants, are not subject to deeming or sponsor liability, even though some of them may have group or individual sponsors. These sponsors will not have signed an enforceable affidavit of support.

Acritically important decision made by OTDA and set out in the INF concerns the implementation of sponsor liability. The INF states clearly that “New York state districts do not pursue legal action against the sponsor in federal or State court.” (03 INF-14, page 12.) Thus, although the local social services district may request that the sponsor reimburse the agency for the food stamp benefits provided to a sponsored immigrant, the districts have been instructed not to pursue the claim any further than the letter of request.

Sponsor deeming and liability raises several questions that are not answered in the INF. For example, can immigrants who do not want their name or the name of their sponsor submitted to BCIS choose to opt out of the indigence determination and have sponsor income and resource deemed to them? The USDA has stated it will allow state agencies to let households decline the “indigency” determination as long as the agencies explain to the household that as a result of the application of deeming, the household may be found ineligible for benefits or, if eligible, receive a smaller grant.
Submission of the immigrant’s name and that of his or her sponsor to BICES may not be the only potentially negative consequence for a sponsored immigrant who becomes a member of a household receiving food stamps. If the immigrant is working, (s)he will not be able to count any quarter during which (s)he receives food stamp benefits towards the forty qualifying quarters necessary to terminate sponsor deeming and liability altogether, or to be eligible for certain other benefits, such as SSI.

In light of these concerns, OTDA should consider providing sponsored immigrants with a way of declining to participate in the food stamp household with which they reside. One method would be to permit sponsored immigrants to declare themselves “non-applicants” at the time the rest of the household applies for food stamps. USDA has confirmed that states can continue to permit immigrants under certain circumstances to choose to be non-applicants early on in the application process. However, to date OTDA has demonstrated a reluctance to adopt that option in the food stamp program, perhaps because of the mandatory filing rules that preclude it as an option in the public assistance program.
It should be pointed out, however, that the food stamp law itself gives individuals who don’t want to be part of the food stamp household with which they live a way of “refusing” applicant status, by failing to provide the agency with their SSN or immigration verification documents. The food stamp agency is required to continue to process the application of the rest of the household in any case, in effect leaving the non-cooperating member a “non-applicant.”

There is another, perhaps better, alternative than the sponsored immigrant’s refusal to provide immigration verification or an SSN that would allow immigrants whose sponsors signed enforceable affidavits of support the option to decline participation in the food stamp household. USDA has given state agencies the discretion to utilize a process that requires the sponsored immigrant to sign a consent form in order to allow the agency to share information about the sponsored immigrant with the sponsor or the Attorney General. Failure to give consent would make the sponsored immigrant ineligible to participate in the food stamp household, since the agency would be unable to carry out the deeming requirement, including making a determination of indigency.

In the coming months, fully understanding the intricacies of sponsor deeming and liability will become increasingly important, as will the development of mechanisms that minimize, to the greatest degree possible, its impact on the immigrants whose sponsors have signed enforceable affidavits of support.

(For additional information about sponsor deeming and liability, or to talk about individual client experiences, please call Barbara Weiner at (518) 462-6831.  We are interested in learning how the local social services districts are dealing with these issues, not only with respect to the food stamp program but with respect to all means tested benefit programs.)