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USDA Issues New Guidance on Immigrant Eligibility for Food Stamp Benefits

August 18, 2011

Author: Barbara Weiner

In June, the Food and Nutrition Service (FNS) of the United States Department of Agriculture (USDA) issued updated guidance on the eligibility of immigrants for food stamp benefits 1 in order “…to assist people in understanding current eligibility requirements.”  The impetus for the issuance of the guidance was a study by Mathematica Policy Research that showed that only 51% of eligible immigrant households participated in the food stamp program as compared to a national participation rate of 67% among all eligible households.  Of particular concern to FNS was that the rate of participation of citizen children living with non-citizen adults was 55% as compared to a national participation rate of 86% for all eligible children. (The link to the guidance on the FNS website is available at: http://tinyurl.com/3o5sujx.)
 
There is no change in the basic immigrant eligibility rules.  To be eligible for food stamp benefits, a non-citizen must first have an immigration status that is included in the list of “qualified alien” statuses created by Congress in the 1996 welfare reform statute (PRWORA, P.L. 104-193).  This means that the non-citizen must be either a lawful permanent resident, a humanitarian based entrant (refugee, asylee, Iraq or Afghan Special Immigrant, Cuban/Haitian Entrant, Amerasian, granted withholding of removal or a victim of Trafficking), or a battered spouse or child eligible for adjustment under the Violence Against Women Act (VAWA). 

Also considered qualified aliens are non-citizens granted parole for a period of a year or more.  In addition, though not classified as “qualified aliens,” Canadian born Native Americans and Hmong Laotian tribal members and their immediate family members have access to food stamp benefits on the same basis as humanitarian entrants and U.S. citizens. 2

The Five Year Bar

Because food stamp benefits are classified as federal “needs based” benefits, there are additional eligibility requirements imposed on certain immigrants even though they are included in the “qualified alien” classification.   The first of these is the 5-year bar.  See 8 USC § 1613.  Lawful permanent residents, non-citizens granted parole for a period of a year or more and battered spouses eligible for adjustment under VAWA have a five year wait before they are eligible for food stamps.  Children under 18 and those who are in receipt of disability based benefits (such as disability based Medicaid) are not subject to the five year wait.  Also not subject to the 5 year period of initial ineligibility are lawful permanent residents (LPR) who initially entered the U.S. in a humanitarian based category but have since adjusted to LPR status, LPRs who can be credited with 40 qualifying quarters in the Social Security system or LPRs who are honorably discharged veterans or active duty service members (including dependents).  See 8 U.S.C. §§ 1612, 1613.

Sponsor Income Deeming and Sponsor Liability

The guidance also addresses focuses on the sponsor deeming and liability requirements that were imposed by the 1996 welfare reform law on family based immigrants whose sponsors have signed enforceable affidavits of support in conjunction with their petition on behalf of the immigrant. 3  See 8 USC § 1631.  The new guidance clarifies the limits on the reach of these provisions.  Sponsor income and resource deeming does not apply to immigrants:

  • who are children under 18 years old;
  • who are battered spouses eligible for adjustment under VAWA;
  • whose sponsor lives in the same household, or
  • who are members of households classifiable as indigent (defined in food stamp regulations as having income of 130% of poverty or less).

Clarification is also provided about sponsor liability, which often operates as a deterrent to immigrants who are afraid that their sponsors will be sued if they apply for food stamp benefits. The immigrants’ concern arises out of provisions in the 1996 welfare reform legislation that authorize benefit granting agencies to sue sponsors of family based immigrants for reimbursement if the immigrant they sponsored received any means tested benefit. New York’s Office of Temporary and Disability Assistance has instructed local social services districts not to pursue sponsors for repayment of food stamp benefits. (See Informational Letter, 03 INF-14, available at http://otda.ny.gov/policy/directives/2003/INF/03-INF-14.pdf.)  The guidance clarifies that a state agency, like OTDA, that does not intend to sue need not request reimbursement from the sponsor, something that was unclear until now.

Clarification of the Cuban/Haitian Entrant Classification

For the first time, the guidance sets forth for food stamp eligibility purposes the legal definition of Cuban/Haitian Entrant as contained in Section 501(e) of the Refugee Education Assistance Act of 1980.  The first, and until now often misunderstood, provision in Section 501(e) defines Cuban/Haitian Entrant as any national of Cuba or Haiti who was “…granted parole as a Cuban/Haitian Entrant (status pending) or granted any other special status subsequently established under the immigration law for nationals of Cuba or Haiti, regardless of the status of the individual at the time assistance or services are provided.”  This means that FNS acknowledges that Cubans who have been ordered deported but, because the order is not legally enforceable, are currently under Orders of Supervision must be treated as Cuban Entrants for food stamp purposes. 

To date, New York’s Office of Temporary and Disability Assistance (OTDA) has not allowed Cubans who were initially paroled into the US and who are now under an Order of Supervision access to the food stamp program.  Because they have an Order of Supervision, OTDA classifies them as “permanently residing under color of law” (PRUCOL), which makes them eligible only for state funded Medicaid and public assistance.  This is contrary to the explicit guidance issued long ago by the Office of Refugee Resettlement which clarifies that Cubans with an Order of Supervision who were initially paroled into the US at any time after October of 1980 are to be treated as Cuban/Haitian Entrants. (See ORR State Letter #01-22, at http://www.acf.hhs.gov/programs/orr/policy/cheparol.htm .)

Verification of Status, Unlawful Presence and Public Charge

The guidance clarifies that benefit agencies are not to inquire about the immigration status of anyone who is not applying for benefits on his or her own behalf, but who is only applying for benefits on behalf of others in their household.  If a household member is unwilling or unable to provide documentation of immigration status for himself or any other household member, that individual or other household member is to be classified as ineligible and all attempts at obtaining additional information about him or her must stop.   Benefit agencies cannot deny benefits to an otherwise eligible household because some members fail to provide verification of immigration status, a Social Security number or immigrant sponsorship information.  And, unless questionable, an attestation of US citizenship under penalty of perjury is generally sufficient for food stamp purposes without additional documentation.

The guidance also reiterates the parameters of the requirement that the benefit agency report any individual applying for benefits who is known by the agency to be “not lawfully present” in the United States to the immigration service.  As articulated by the Interagency Guidance published in the Federal Register of September 28, 2000 (65 Fed. Reg. 58301), a benefit agency’s “knowledge” of unlawful presence must be supported by a determination of the Department of Homeland Security (DHS) or the Executive Office for Immigration Review (EOIR), such as a final Order of Removal or Deportation.  The fact that the individual cannot or does not provide evidence of lawful status does not entitle the agency to conclude that the individual is not lawfully present and should therefore be reported to immigration.  In New York, OTDA has directed the local districts that any reporting to immigration must be done through OTDA and that the local district is not to contact the immigration  service other than to verify qualified immigration status through the SAVE system. (See 99 INF-17, available at http://otda.ny.gov/policy/directives/1999/INF/99_INF-17.pdf .)

The concern that immigrants may have that the use of food stamp benefits may affect their immigration status or their ability to naturalize is also allayed by the guidance.  The guidance refers to the long standing policy of the immigration service that the public charge ground of inadmissibility does not apply to an individual’s use of food stamp benefits.  (For fact sheets and other information on public charge issues, visit the USCIS website at www.uscis.gov.)  The guidance encourages benefit agencies to make sure that eligible non-citizens and families within non-citizen communities know that applying for or receiving food stamp benefits will not affect their ability to obtain lawful permanent resident status, to keep that status and, when eligible, to become a US citizen.

Conclusion

FNS “Guidance on Non-Citizen Eligibility” in the Supplemental Nutrition Assistance Program (known popularly as the food stamp program) is not only a very useful summary of the eligibility rules but also focuses on those issues that have created barriers to participation in the program by eligible immigrants.  In addition, the guidance serves to clarify certain issues that have remained clouded until now; in particular, the definition of Cuban/Haitian Entrants and the responsibility of benefit agencies with respect to sponsor reimbursement.  If you have questions about these issues or the eligibility of particular immigrant clients for food stamp benefits, please feel free to contact the Barbara Weiner at (518) 462-6831 or at bweiner@empirejustice.org

Endnotes

1   The name of the Food Stamp Program was changed a few years ago on the federal level to the Supplemental Nutrition Assistance Program (SNAP) but the new name has not yet come into use in New York.
2   Qualified aliens are defined in 8 USC § 1641.  The food stamp eligibility rules are found at 8 USC § 1612.
3   Income and resource deeming is a budgetary fiction which counts the income and resources of a sponsor as available to the immigrant regardless of the actual contribution of the sponsor to the food stamp household.
4   The federal means tested benefit programs are Medicaid, Child Health Plus, TANF, SSI and food stamps.

 





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