USDA Issues Policy Guidance on Immigrant Food Stamp Restoration

February 1, 2003

Author: Barbara Weiner

Implementation of the changes in immigrant eligibility for food stamp benefits brought about by the Food Stamp Program Reauthorization Act of last year has begun. On January 2, 2003, the Food and Nutrition Service of the United States Department of Agriculture (FNS/USDA) issued an extensive policy directive to the states to guide them in bringing back into the food stamp program what is estimated to be about 400,000 previously ineligible immigrants. New York, historically home to about 18 percent of the noncitizen participants in the food stamp program nationally, should see its food stamp participation rate jump by tens of thousands of needy individuals.

The Reauthorization Act of 2003 made the following changes in immigrant eligibility for food stamps:

• effective April 1, 2003, the Act restores eligibility to immigrants with a "qualified alien" status (a group made up primarily of lawful permanent residents or "green card holders") once they have resided in the United States for five years in such status;
• also effective April 1, 2003, the Act eliminates the 7 year time limit on the food stamp eligibility of refugees, asylees, Amerasians, persons whose deportation has been withheld and Cuban/Haitian entrants;
• effective October 1st of last year, the Act restored the eligibility of disabled noncitizens with a qualified status as long as they are in receipt of disability-based assistance that has eligibility standards as strict as the Supplemental Security Income program (SSI) (for disabled immigrants, there is no five year wait), and 
• effective October 1, 2003, children with qualified alien status will become eligible for food stamps without having to wait five years and without the imposition of sponsor deeming - an income budgeting methodology that counts the income and resources of immigrant sponsors who have signed an enforceable affidavit of support when evaluating the financial eligibility of the sponsored immigrant for benefits.

As before, lawful permanent residents who can be credited with 40 qualifying quarters in the Social Security system, or immigrants in a qualified alien status who are on active duty in the armed services or who have been honorably discharged, along with their dependents, are eligible for food stamps. These immigrants do not first have to wait five years. However, veterans and active duty service members are not exempt from sponsor deeming if their sponsor has signed an enforceable affidavit of support.

Applications May Be Taken As of February 1

Beginning on February 1st, food stamp agencies may begin to take applications from immigrants who have resided in the United States for five years in a qualified status, although the individual will not begin to receive food stamp benefits until the 1st of April. USDA provided state agencies with this option in order to allow agencies to avoid processing a crush of applications during the month of March. New York’s Office of Temporary and Disability Assistance (OTDA) has provided notice to the local social services districts of this option, though it has decided against mandating that the counties begin accepting applications before March 1st from immigrants eligible for restoration.

Local social services districts may be able to restore benefits automatically in certain cases, for example, for households currently receiving food stamp benefits from which an immigrant with a qualified alien status has been excluded but whose income has been budgeted against the remaining members of the household. If the coding in the case is sufficient to show that the excluded household member has been in a qualified alien for at least five years, such restoration could be automatic. Again, though OTDA has encouraged the districts to do this where they can, it is not mandated. Nevertheless, any immigrant who had been receiving food stamps on or before August 22, 1996 but whose benefits were terminated because of the PRWORA restrictions should, if otherwise eligible, be relatively easily restored to benefits.

USDA and OTDA, working with community nutrition advocacy organizations, have committed themselves to widespread outreach so that immigrants, understandably skittish after the 1996 welfare reform law shut them out of access to most benefits, will be encouraged to return to the food stamp program. Sponsor deeming and liability, issues that will become increasingly important in the future, should not serve as a barrier for this restoration since the overwhelming majority of immigrants who will become eligible for benefits as of April 1 do not have sponsors who have signed an enforceable affidavit of support. The enforceable affidavit of support did not go into effect until December 19, 1997. Thus, with the exception of family based immigrants who adjusted to lawful permanent resident status between December 19, 1997 and March 31, 1998, none of the immigrants with enforceable affidavits of support will have been here long enough on April 1 to qualify for benefits.

Restoration of Eligibility of Disabled Immigrants

As of October 1st of last year, disabled, needy immigrants with a qualified alien status became eligible for food stamps without having to wait five years. However, to be considered disabled under the food stamp law, the individual must be receiving disability-related assistance for which the eligibility criteria are at least as stringent as the criteria for determining disability in the Supplemental Security Income (SSI) program. The USDA Guidance has clarified that such assistance may include state disability-related Medicaid and disability-related general assistance.

As reported in the last issue of the LSJ, OTDA issued an administrative directive, 02 ADM-7, instructing the local districts that any immigrant with a qualified alien status who is receiving disability-related Medicaid should be considered disabled for food stamp purposes. The problem is that the poorest of these immigrants, those receiving or eligible to receive Safety Net Assistance (SNA), are unlikely to be referred for a disability determination since they are eligible for regular Medicaid in conjunction with their receipt of SNA. Although Medicaid rules direct that local districts refer disabled applicants or recipients of Medicaid for a determination of disability if they appear to be disabled and are less than 65 years old, in practice such referrals are not often made for individuals eligible for regular Medicaid since Medicaid disability determinations are a costly and time consuming. Thus another avenue must be found.

One possibility is for New York is to ask USDA to consider SNA "disability-related assistance" in those cases where a recipient has provided proof that his or her medical condition is sufficiently grave to meet the SSI criteria. Currently, the SNA program is very likely providing benefits to many immigrants who have disabilities severe and long lasting enough to meet the SSI standard, but who are ineligible for the federal disability benefit because of their immigration status. (Most immigrants entering the country after August 22, 1996 will not be eligible for SSI unless they naturalize or can be credited with 40 qualifying quarters). However, at most, the local district have only evaluated the disabilities of these immigrants in conjunction with an employability assessment, a process that does not employ the SSI disability standards and so does not meet the food stamp law’s requirement. Furthermore, elderly SNA recipients are not subject to work rules at all and so would not undergo even the employability evaluation.

The question for New York is whether a disability determination procedure less costly and cumbersome than the Medicaid process can be put into place to evaluate the severity of an immigrant’s disability who is receiving SNA and could be receiving food stamps if such a determination were made. USDA has taken a step in the direction of making it possible for New York to do this, by stating in its guidance that the determination of disability may be based on a medical practitioner’s statement. This would include the immigrant’s own treating physician. Discussions with OTDA have confirmed that the state is looking into this potential avenue for rendering disabled immigrants eligible for food stamps, at least in those cases where there is little question that the individual is suffering from a serious and long lasting disability and is not receiving SSI solely because of immigration status.

Deeming and Sponsor Liability

The eligibility of family based immigrants for means tested benefit programs whose status was adjusted to permanent residence after December 19, 1997, must be determined by counting the income and resources of the sponsor as available to the immigrant - a budgetary method called "sponsor deeming". If, because of certain exemptions from deeming provided by PRWORA, the sponsored immigrant ultimately receives the benefits anyway, the sponsor liability rules come into play. As noted above, the mass restoration of food stamp benefits scheduled for April 1st for immigrants who have been in a qualified status for five years will not involve implementation of the deeming and liability provisions to any significant extent.

For the future, however, with respect to sponsor liability, it must be understood that, under the 1996 welfare reform law, there is no requirement that states pursue sponsors for repayment of benefits, beyond requesting such reimbursement from the sponsor. However federal benefit agencies have not issued much in the way of guidance to the states to help them determine whether, and how, to pursue sponsors for repayment in particular cases. For example, although the states probably have the authority to waive the pursuit of sponsor repayment where the sponsor has been abusive, the availability of such a waiver has not been expressly articulated anywhere.

USDA has issued some rules on sponsor liability; for example, clarifying that where the sponsor is him- or herself in receipt of food stamps, the state may not pursue the sponsor for repayment of the food stamp benefits provided to the sponsored immigrant. It is also clear that states may, and should, consider cost effectiveness in deciding whether to pursue sponsors for repayment. In the case of food stamps, the taking of legal action by a district to recover the value of the benefits provided to a sponsored immigrant would probably not be considered cost effective since the states do not get to keep a share of the money recovered and there is no federal funding provided to the states for pursuing the sponsor.
It is expected that the Department of Health and Human Services (HHS) will publish guidance shortly on sponsor deeming and liability. This would address deeming and liability in the context of Medicaid and TANF benefits. In the meantime, at least with respect to Medicaid, the sponsor deeming and liability rules in 00 OMM ADM-9 should not yet be applied by the local districts. In light of the Aliessa v. Novello case, these rules will need updating.

The whole question of sponsor deeming and liability will be addressed in an upcoming issue of the LSJ, as soon as the additional guidance that is anticipated to be issued by OTDA and HHS comes out. In the meantime, it is important to clarify to the immigrants who have an opportunity to rejoin the food stamp program on April 1 that they should not hesitate to apply for benefits because of fear that their sponsor will be pursued for repayment. It is only the very, very few immigrants who adjusted status after December 19, 1997 and who have been here for five years in such status to whom the deeming and reimbursement rules would apply.

Advocates with questions about the restoration of immigrants to the food stamp program, including the particular problems for bringing disabled immigrants back into the food stamp program, or who are encountering difficulty with the local district’s implementation of these changes are encouraged to contact me at bweiner@empirejustice.org.