USDA Issues Proposed Food Stamp Regulations

Implementing Immigrant Provisions of the 2002 Farm Bill

June 1, 2004

Author: Barbara Weiner

On April 16, 2004, the Food and Nutrition Service of the United States Department of Agriculture (FNS) issued proposed regulations implementing the food stamp program provisions of the Farm Security and Rural Investment Act of 2002 (FSRIA). See 69 Fed. Reg. 20724, et seq. The 2002 re-authorization of the food stamp program and amendments to its rules was only a small, and relatively inexpensive, part of FSRIA, which dealt primarily with the setting of agricultural subsidy amounts and other major agribusiness related policies.

Much of what is contained in these proposed regulations has already been implemented through administrative guidance issued by FNS over the past two years to help states comply with the food stamp provisions of FSRIA, which were effective upon enactment. The “catch up” role that the issuance of these food stamp regulations plays is not unusual. It almost always takes the FNS several years to implement statutory changes through the regulatory process, with the promulgation of regulations occurring long after the statutory provisions have already been implemented in practice. Nevertheless, one advantage of this time lag is that experimentation with various implementation alternatives during the period before regulations are issued gives FNS the benefit of practical experience when it begins to formulate implementing regulations.

These regulation implement several major revisions to the eligibility and certification provisions of the food stamp program that were enacted in FSRIA. These statutory revisions included the expansion of immigrant eligibility (the subject of this article) and several other, non-immigration related, revisions to food stamp eligibility and certification rules, including granting state the option to greatly simplify food stamp household reporting requirements; to use income and resource definitions from other benefit programs for the purpose of determining food stamp eligibility, and to provide transitional food stamp benefits to households leaving the Temporary Assistance to Needy Families (TANF) program. These provisions are the subject of a companion article in this issue on page 17. For additional background on the 2002 legislation reauthorizing the food stamp program, see “Food Stamp Program is Reauthorized - Program’s Supporters Score Major Victory,” Legal Services Journal, June 2002.

Expansion of Immigrant Eligibility

The 2002 FSRIA expanded food stamp eligibility to immigrants who had resided in the United States in a qualified status for five years or more. This brought the eligibility provisions of the food stamp program more in line with two other major federal benefit programs, TANF and Medicaid. However, going even further, FSRIA provided that children or disabled immigrants who are in a qualified status are immediately eligible for food stamps, without a five year wait in a qualified status. Thus, for example, a child who enters the U.S. as a permanent resident (with a green card), or who has been determined eligible to self-petition for status because she has been battered or abused by a citizen parent, is eligible for food stamps regardless of how long she has held that status.

To be considered disabled under the Food Stamp Act, an individual must be receiving a disability based benefit. The proposed regulations clarify that such benefits include a state’s Medicaid program, if the criteria for eligibility are as stringent as federal SSI criteria. So, in New York, if an immigrant with a qualified status is determined eligible for disability based Medicaid, (s)he would also be eligible for the food stamp program, without regard to how long (s)he had been in the qualified status.

In these proposed regulations, FNS also addresses certain questions about immigrant eligibility under the amendments made by FSRIA that state agencies and advocates have raised over the last year or so. First, FNS clarified that an immigrant who is in a qualified status for five years is eligible for food stamps regardless of what the individual’s status was on entry to the U.S., including if the individual initially entered the U. S. illegally.

A second issue addressed by FNS was whether the five years in a qualified status requirement means five consecutive or merely five cumulative years. The issue could arise if, for example, a lawful permanent resident left the U.S. for a period greater than 6 months without advance permission. Under these circumstances, immigration could treat the individual as having abandoned lawful resident status. If the immigrant is able to regain lawful resident status, the question was raised whether the five year period starts over.

FNS answered in the negative. Any years the immigrant accrued in a qualified status before losing lawful permanent resident status should be added to the years accrued in a qualified status after regaining permanent resident status.

Deeming and Sponsor Liability

Several issues were addressed by FNS with regard to deeming of sponsor income and resources. Any family based immigrant who applies for permanent resident status after December of 1997 must have a sponsor who signs an enforceable affidavit of support. Deeming of sponsor income when determining the sponsored immigrant’s eligibility for benefits is one way of enforcing sponsor liability, by attributing the sponsor’s income to the immigrant regardless of whether the sponsor is actually supporting the immigrant (s)he sponsored. In 2002, the law was amended to exclude immigrant children from having income deemed to them that their sponsoring relative is not actually providing.

The question arises as to how sponsor income is deemed if the household contains both sponsored adults and sponsored children. For example, suppose a U.S. citizen petitions for his brother, his brothers wife, and their children. In order to bring his family members to the U.S. the U.S. citizen must sign an affidavit of support. How would sponsor deeming work in this case, if the immigrant family were to apply for food stamps? FNS proposes that one third of the sponsor’s deemable income be applied to each of the adults and one third to the child. To determine the household’s eligibility for benefits, only two thirds of the sponsor’s deemable income would count against the household. The one third attributable to the child would be excluded. (Of course, for the first five years in their permanent resident status, only the child would be eligible for food stamps. No sponsor income would be deemed to the food stamp household consisting only of the child.)

The sponsor income deeming rules have three basic exceptions. The first is that no sponsor income is deemed against other household members if the sponsored immigrant is not actually eligible for benefits. In addition, sponsor income may not be deemed against an immigrant in the food stamp household if the immigrant has been battered or abused by her sponsoring relative. Finally, a household that is indigent is also exempt from deeming. Indigence is defined as having income at or below 130% of poverty. One troubling issue with respect to this last exemption is that the food stamp agency is required to send the name of the sponsor and the sponsored immigrant to the U.S. Attorney General. Although there is no real risk to someone’s immigration status growing out of this reporting requirement, since the information is gathered by the Attorney General’s statistical service primarily for the purpose of making reports to Congress, the requirement is likely to have a chilling effect on households being asked to supply this information.

Advocates had proposed that an individual to whom deeming applies be provided with the opportunity to decline to provide the sponsor information, rendering him - or herself ineligible for benefits but allowing the remaining household members to continue with their application. The proposed regulations allow the state to utilize a process under which information about the sponsored immigrant with the Attorney General is not shared without the consent of the sponsored immigrant. The state agency must advise the sponsored immigrant that failure to provide this information would render him or her ineligible.

New York’s Implementation of the Immigrant Eligibility Expansion in FSRIA

As noted, many of the provisions of FSRIA expanding immigrant eligibility have already been implemented in New York. The Office of Temporary and Disability Assistance (OTDA) issued an extensive Informational Policy Letter on April 2, 2003 (03 INF-14), implementing the provisions discussed above. With respect to sponsor deeming and liability, OTDA directed local districts not to initiate court actions against sponsors for reimbursement of food stamps provided to the immigrants to avoid the food stamp program in order to protect their sponsors against potential legal action by the local districts.

GULP and other statewide advocacy organizations have heard very little about whether deeming and liability issues are having a negative impact on the access of immigrants to food stamp benefits. It may very well be that the number of immigrants applying for food stamps who are sponsored by family members who signed enforceable affidavits of support is still extremely small. It is only the family sponsors of immigrants who apply for green cards after December of 1997 who are required to execute the new affidavit. Since most sponsored immigrants must wait five years before becoming eligible for food stamps, problems with deeming may not really emerge until sometime in the future.