Final Food Stamp Regulations Clarify Rules for Immigrant Families

IMMIGRANTS & PUBLIC BENEFITS

Food and Nutrition Programs

FINAL FOOD STAMP REGULATIONS CLARIFY RULES FOR IMMIGRANT FAMILIES
Immigrants' Rights Update, Vol. 14, No. 8, Dec. 27, 2000

The U.S. Dept. of Agriculture's (USDA's) Food and Nutrition Service has issued final food stamp regulations to implement the 1996 welfare law. The 80 pages of regulations issued Nov. 21, 2000, cover a range of issues, including "transitional benefits" for households leaving welfare for work, more generous auto resource exemptions, and options for lengthening the income reporting periods. The rules provide extensive details on immigrant eligibility, verification, income counting, and benefit levels for families with ineligible immigrants, and on the treatment of sponsors' income and resources. The provisions in the final rules relating to immigrants incorporate many of the comments submitted by advocates and agencies in response to the Feb. 29, 2000, proposed rules.

IMMIGRANT SPONSOR DEEMING

Under "immigrant sponsor deeming," the income and resources of an immigrant's sponsor and the sponsor's spouse are added to those of the immigrant in determining eligibility for benefits. Deeming rules often render an immigrant ineligible for benefits because their income, when added to the sponsor's income, is too high to qualify for the program. The final regulations clarify some of the deeming rules for immigrants whose sponsors signed enforceable affidavits of support (INS Forms I-864 and I-864A). Advocates should note that many immigrants with sponsors are not subject to deeming under the welfare law.

No deeming for ineligible immigrants. Only immigrants who meet the immigrant eligibility requirements for food stamps must have their sponsor's income and resources deemed to the household in determining eligibility or benefit levels.

Income and resource deductions for sponsors. The rule adopts the same income and resource deductions that had been used for sponsors who sign traditional affidavits of support (INS Form I-134). These include (1) a 20 percent deduction for earned income; (2) a deduction equal to the gross income eligibility limit for the sponsor's household size; and (3) a $1,500 resource deduction. In addition, under the new rules, if a sponsor has sponsored other immigrants, then the amount deemed must also be divided by the total number of sponsored immigrants. This policy recognizes that not all of a sponsor's income and resources are actually available to support the sponsored immigrant. Rather, some of the sponsor's income must also be used to cover job expenses and to support the sponsor's own family as well as other sponsored immigrants. Advocates hope that USDA's interpretation will guide states and local governments as they determine the rules in other programs where deeming applies.

Indigence exception to deeming clarified. Under the 1996 welfare law, an "indigent" immigrant is not subject to immigrant sponsor deeming in the Food Stamp or other federal programs, even if the immigrant has a sponsor who signed one of the new affidavits of support. The new rules clarify that, for purposes of the Food Stamp Program, this indigence exception applies whenever the immigrant's household's income (including actual contributions from the sponsor or others, and in-kind assistance) is at or below 130 percent of poverty for the household's size. Most households receiving food stamps will qualify for this exemption. Each indigence determination lasts for 12 months and is renewable for additional 12-month periods.

Other immigrants not subject to deeming. Deeming does not apply to immigrants (1) whose sponsor is participating in the same food stamp household, (2) who are sponsored by an organization, or (3) who are not required by law to have a sponsor; nor does deeming apply to certain immigrants who are victims of domestic violence. The regulations incorporate the rules adopted by the Dept. of Justice for purposes of determining whether an immigrant falls within this domestic violence exception (see Exhibit B to Attachment 5 of the Dept. of Justice Interim Guidance, 62 Fed. Reg. 61,344 (Nov. 17, 1997)).

COUNTING THE INCOME OF INELIGIBLE IMMIGRANTS

States have certain options about how to count the income of ineligible immigrants in determining the eligibility of a household and the amount of benefits it can receive. A state's choices among these options could greatly affect the amount of federal food stamps that immigrant households actually receive. Advocates can encourage states to adopt the most liberal options.

Immigrants ineligible under pre-1996 law. State agencies have discretion to decide whether to count all, or only a pro rata share, of the income of immigrant household members who were ineligible for food stamps under the pre-1996 rules. These include undocumented immigrants and those who are unable or unwilling to provide documentation of their immigration status.

Immigrants made ineligible by the 1996 welfare law. State agencies have discretion to decide whether to count a pro rata share, or none, of the income of immigrant household members who would have been eligible under the pre-1996 rules, but who lost eligibility due to the 1996 welfare law. These include "qualified" immigrants who are ineligible because they do not meet any of the welfare law's exceptions. A state must select one method for all such households. If an agency does not count an ineligible immigrant's income, the total household benefit cannot exceed the amount that would have been granted if the immigrant had been eligible for benefits.

SPONSOR LIABILITY

Under the 1996 welfare law, agencies administering means-tested programs are required, under certain circumstances, to request reimbursement from sponsors for benefits granted to sponsored immigrants, and they may also seek to enforce the reimbursement obligation in court. The new regulation clarifies one of the issues in this tricky area of law: a state agency cannot seek reimbursement for food stamps received by a sponsored immigrant if the sponsor is receiving food stamps. USDA notes that it plans to address additional sponsor liability issues in the future, in coordination with other federal agencies.

40 QUARTERS OF WORK HISTORY

The 1996 welfare law provides a number of benefits to lawful permanent residents who have worked for 40 quarters, or who can be credited with 40 quarters, including their work and that of their spouses or parents. For example, these immigrants are exempt from the bar on food stamp eligibility, they are not subject to deeming, and their sponsors are not required to reimburse state agencies for food stamps obtained by the sponsored immigrant. The new regulations clarify some of the issues surrounding the 40 quarters concept.

Credit for a divorced spouse's quarters. If a recipient's eligibility is based on his or her spouse's work history, and the couple divorces, eligibility continues only until recertification.

Other details on earning credit for work. Immigrants cannot earn credit for any quarters worked after Dec. 31, 1996, if they are receiving a federal means-tested public benefit (Temporary Assistance for Needy Families, Medicaid, State Children's Health Insurance Program, food stamps, or Supplemental Security Income) during that quarter. The regulations clarify that if an applicant works 4 quarters in one year and receives a federal means-tested public benefit in 2 of those quarters, the person earns 2 quarters of credit. If he or she earns the 40th quarter before applying for food stamps in that same quarter, then the quarter counts. Quarters of work earned in jobs that do not count for Social Security purposes can be credited toward the 40 quarters exemption for food stamp eligibility.

FIVE-YEAR BAR DOES NOT APPLY TO FOOD STAMPS

Under the 1996 welfare law, with certain exceptions, immigrants who physically entered the United States on or after Aug. 22, 1996, are ineligible for certain "federal means-tested benefits" during the first 5 years after obtaining qualified immigrant status. There is a complicated interaction between this 5-year bar and all of the other food stamp restrictions and exemptions in the welfare law. Under the final regulations, the 5-year bar does not apply to the Food Stamp Program, but the preamble to the regulations states that this issue is under review and may be revisited in a future guidance.

VERIFICATION OF ELIGIBILITY

The final regulations provide clarification of a number of verification issues.

Contacting the INS to verify status. If an immigrant does not wish the state agency to contact the INS to verify the immigrant's status, the immigrant's household must be allowed the option of either withdrawing the application or participating without that member.

Eligibility pending verification. A state agency must give applicants at least 10 days to submit acceptable documentation of their immigration status. The 10th day must fall within the first 30 days after the application is submitted. If the agency fails to meet this requirement, it must provide benefits starting on the 30th day following the application if the immigrant is otherwise eligible. Once an immigrant has submitted evidence of immigration status, a state agency may not delay, deny, reduce, or terminate eligibility on the basis of the person's immigration status pending Immigration and Naturalization Service verification of the documents.

Certification pending federal agency verification. An applicant must be certified for up to 6 months of food stamps pending federal agency verification of information based on immigration status. The applicant must also be certified for up to 6 months while the Social Security Administration investigates an immigrant's claim that he or she should be credited with 40 quarters of work.

Verification of U.S. citizenship. An applicant's claim to U.S. citizenship may be verified only if it is "questionable." In the absence of other documentation, agencies must accept a signed statement from a third party (under penalty of perjury) attesting to the applicant's citizenship.

Inquiries regarding immigration status and Social Security numbers. The preamble reiterates previous guidance that USDA promulgated jointly with the Dept. of Health and Human Services on Sept. 21, 2000, that encourages states to allow persons in immigrant households who are not seeking benefits to designate themselves as "nonapplicants" early in the application process (see "Federal Agencies Issue Guidance Clarifying Proper Use of Immigration Status and Social Security Number Inquiries on Benefit Application Forms," Immigrants' Rights Update, Oct. 19, 2000, p. 10). Persons who designate themselves as nonapplicants are not required to provide information about their immigration status, and they are not required to provide a Social Security number.

REPORTING TO THE INS

A longstanding food stamp rule requires state agencies to report to the INS applicants for food stamps whom the agency determines are unlawfully present in the U.S. Courts and regulations have clarified that this requirement applies only to persons seeking benefits for themselves (not, for example, on behalf of their eligible children) and have prevented state agencies from investigating the status of persons who are not applying for assistance. The final regulations conform this rule to the welfare law. Food stamp agencies may meet this reporting requirement by complying with the federal guidance issued on Sept. 28, 2000, which details a similar requirement imposed on three other federal programs (see "New Rule Explains Limits of INS Reporting Requirements under the 1996 Welfare Law," Immigrants' Rights Update, Oct. 19, 2000, p. 10). Under the September 28 guidance, only persons who apply for benefits for themselves may be reported. Further, the benefits-granting agency may report such persons only if it makes a formal finding that the applicant is not lawfully present in the U.S. and the finding is supported by a determination of the INS or the Dept. of Justice's Executive Office of Immigration Review (such as a final order of deportation).

The final regulations can be downloaded from USDA's web site at www.fns.usda.gov/fsp/regulations/Noncitizen.pdf.

65 Fed. Reg. 70,133-212 (Nov. 21, 2000).