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The U.S. Dept. of Agriculture (USDA) has issued helpful guidance on the immigrant-related
requirements in the Food Stamp Program. Released in Jan. 2003, the "Non-Citizen
Requirements in the Food Stamp Program" is intended to assist states in implementing
the immigrant provisions of the Farm Security and Rural Investment Act of 2002
("2002 farm bill"). The Bush administration estimates that, when fully implemented,
the 2002 farm bill will restore access to nutrition assistance for 400,000 immigrants,
including low-wage working families, children, seniors, and persons with disabilities.
In addition to reviewing the immigrant eligibility criteria, the guidance
addresses various factors that prevent eligible families from seeking assistance,
such as public charge and confidentiality concerns. The federal agency noted
that less than half of the eligible immigrants and only 38 percent of the eligible
U.S. citizen children in immigrant households participated in the program (compared
with a 59 percent overall participation rate). Finally, the guidance clarifies
the "immigrant sponsor deeming" and "sponsor liability" rules for lawful permanent
residents (LPRs) whose sponsors signed enforceable affidavits of support (Immigration
and Naturalization Service Form I-864). A small but growing number of these
immigrants will become eligible for food stamps beginning in April 2003.
The key provisions in the guidance are summarized below:
New Immigrant Eligibility
Groups. In addition to the immigrants who are currently eligible
for food stamps, the following three groups became eligible as a result of the
2002 Farm Bill:
• Persons receiving disability assistance, regardless of their
date of entry into the U.S. (effective Oct. 1, 2002). Disability-related assistance
includes Supplemental Security Income (SSI), interim assistance pending the
processing of an application for SSI, Social Security disability, federal or
state disability retirement benefits for a permanent disability, veteran's disability
benefits, or railroad retirement disability. It also includes persons receiving
disability-related Medicaid, state or federal supplemental assistance, benefits
from state-funded Medicaid and SSI replacement programs, and disability-related
state general assistance benefits if the disability determination uses criteria
that are as stringent as federal SSI criteria. The guidance confirmed that general
assistance and state medical programs may use a doctor's statement to determine
that the immigrant meets the SSI disability criteria.
• Persons who have been in "qualified" immigrant status in the U.S.
for at least five years (effective Apr. 1, 2003). This provision applies
to all qualified immigrants regardless of when they entered the U.S. It effectively
eliminates the current seven-year time period for "refugee-like" groups (refugees,
persons granted asylum or withholding of deportation/removal, Cuban/Haitian
entrants, and Amerasian immigrants), allowing these immigrants to receive assistance
indefinitely.
• Children under 18 years of age, regardless of their date of entry
into the U.S (effective Oct. 1, 2003). Immigrant sponsor deeming rules will
not apply to these children. Children who turn 18 during a certification period
can wait until the household's next recertification date to report the change.
Agencies must examine whether the 18-year-old remains eligible based on other
criteria before decreasing benefits.
Immigrant Sponsor Deeming.
Under "immigrant sponsor deeming," most of a sponsor's income and
resources are added to the immigrant's in determining eligibility for benefits.
As a result, deeming rules often render an immigrant ineligible for benefits
as having an income higher than the maximum allowed. However, there are several
important exceptions to these rules.
The Food Stamp Program applies deeming only to immigrants whose sponsors signed
"enforceable" affidavits of support (INS Form I-864). Enforceable affidavits
are used by
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most family-based immigrants who applied for lawful permanent residence
after Dec. 19, 1997; and
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most immigrants applying for lawful permanent residence through an employer
after Dec. 19, 1997, if the employer is a relative or if a relative owns more
than five percent of the business.
(Note that immigrants with credit for 40 quarters of work history in the U.S.
are not required to file an affidavit of support.)
Deeming begins when the immigrant becomes an LPR and continues until the immigrant
becomes a U.S. citizen, abandons LPR status, or secures credit for 40 quarters
of work history in the U.S.
Deeming does not apply to
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immigrants without sponsors, or those whose sponsors did not sign an enforceable
affidavit of support;
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immigrants whose sponsor lives in the same food stamp household;
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ineligible member of the household (If the sponsored immigrant is ineligible
for food stamps based on his or her immigration status, the sponsor's income
is not deemed to other eligible members of the sponsor's household.);
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immigrants with credit for 40 quarters of work history (including work performed
by a spouse during marriage, and by parents before the immigrant turned 18
years of age) (Immigrants cannot get credit for quarters in which the worker
or the immigrant received a federal means-tested public benefit-i.e., federal
food stamps, Medicaid, SCHIP, SSI or TANF.);
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children (beginning Oct. 1, 2003);
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domestic violence survivors (Deeming does not apply for 12 months and can
be extended if the abuse is recognized by a court, administrative order, or
the INS.); and
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immigrants who would go hungry or homeless without assistance (the "indigence"
exemption). An immigrant is considered indigent if the immigrant's household
income, including any in-kind assistance received, is less than 130 percent
of the federal poverty level. Indigence determinations are effective for 12
months and are renewable for additional 12-month periods. Agencies making
indigence determinations must report the names and addresses of these immigrants
and their sponsors to the INS Statistics Division. Although it is highly unlikely
that this reporting provision will have any immigration consequences for the
immigrant or his or her sponsor, it could deter many immigrants from seeking
assistance.
The guidance confirms that immigrants who are exempt from deeming do not
need to provide information about a sponsor's income and resources. Generally,
the immigrant is responsible for obtaining the cooperation of the sponsor, but
the state agency must assist the household in obtaining the necessary verification.
Pending verification, the state agency cannot delay, deny, reduce, or terminate
the individual's eligibility for benefits based on his or her immigration status.
The USDA clarified that state agencies are not required to impose deeming rules
in state-funded programs.
Sponsor Liability.
Sponsors
who sign the enforceable affidavit of support (INS Form I-864) may be liable
to repay certain means-tested public benefits, including food stamps, used by
the sponsored immigrant. However, there are important exceptions to these rules.
The affidavit of support goes into effect when the immigrant becomes an LPR.
The affidavit remains in effect until the immigrant secures credit for 40 quarters
of work history in the U.S. (including work performed by a spouse during marriage
or by parents before the immigrant was 18 years old), abandons lawful permanent
residence, becomes a citizen, or until the sponsor or the sponsored immigrant
dies. If the immigrant receives benefits during this time, the sponsor may be
liable for 10 years after the benefits were last received.
The sponsor is not responsible for benefits used before the immigrant
became an LPR. The sponsor also is not responsible for benefits used by unsponsored
members of the household (e.g., U.S. citizen children) or for benefits used
while the sponsor was receiving food stamps.
Although state agencies must "request" reimbursement from sponsors where applicable,
they are not required to pursue legal action against sponsors. Before
requesting reimbursement, state agencies must verify that the immigrant's sponsor
is subject to liability (e.g., by determining whether the sponsor signed an
enforceable affidavit, whether the immigrant had credit for 40 quarters of work,
and whether the sponsor was receiving food stamps while the sponsorship agreement
was in effect).
It is important to note that the USDA confirmed that state agencies may not
keep any portion of the reimbursement for food stamps recouped from sponsors
and that sponsor liability actions are not subject to review for quality control
errors.
Reporting Requirements.
The USDA confirmed that state agencies may comply with the food stamp
reporting provision by following the guidance on section 404 of the 1996 welfare
law, issued by the Depts. of Health and Human Services and Housing and Urban
Development, the Social Security Administration, and the INS (65 Fed. Reg. 58,301,
Sept. 28, 2000). The requirement applies only to persons applying for benefits
and only when the agency "knows" that the applicant is unlawfully in the U.S.
According to the interagency guidance, such knowledge is present only when the
finding is made as part of a formal determination subject to administrative
review and is supported by a determination of the INS or Executive Office of
Immigration Review, such as a final order of deportation. There is no requirement
that agencies file reports if there is no such finding.
Public Charge.
The
USDA guidance reiterates the INS policy that the use of food stamps is not weighed
against an immigrant in the "public charge" decision, and it references various
materials on the INS Web site.
Verification.
The
USDA guidance confirms that food stamp agencies must not delay, deny, reduce,
or terminate benefits once the applicant's documents have been submitted to
the INS for verification. Applicants who provide documentation that the SSA
is investigating a claim that they have 40 quarters of work history in the U.S.
should be granted food stamps for up to six months, pending results of the investigation.
In addition, the guidance confirms that food stamp agencies are not required
to verify the status of nonapplicant family or household members and should
not deny benefits to other household members if one member has not disclosed
his or her immigration status. An applicant who does not wish to provide information
about citizenship, immigration status, or Social Security number may withdraw
his or her application without affecting the benefits of the other household
members. These nonapplicant household members must, however, disclose information
about their income. A separate chapter of the guidance describes the state options
for counting the income and resources of ineligible household members.
The guidance also reviews procedures for verifying various immigrant eligibility
categories and includes a chapter on victims of trafficking and battered immigrants.
The "Non-Citizen Requirements in the Food Stamp Program" can be downloaded
from the USDA's Web site at www.fns.usda.gov/fsp/rules/Legislation/pdfs/Non_Citizen_Guidance.pdf.
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