USDA issues proposed rules affecting immigrants’ access to food stamps

IMMIGRANTS & PUBLIC BENEFITS

Food and Nutrition Programs

USDA issues proposed rules affecting immigrants’ access to food stamps
Immigrants' Rights Update, Vol. 18, Issue 4, June 18, 2004

The U.S. Dept. of Agriculture (USDA) has issued proposed rules to implement the Farm Security and Rural Investment Act of 2002 (“farm bill”). The farm bill restored federal food stamps eligibility to three groups of immigrants who had been rendered ineligible by the 1996 federal welfare law: (1) “qualified” immigrants with disabilities, regardless of their date of entry into the U.S.; (2) persons who have resided in the U.S. in a “qualified” immigrant status for at least five years; and (3) “qualified” immigrant children, regardless of their date of entry into the U.S. The proposed rules implement eleven provisions of the farm bill, including the restorations for immigrants.

The proposed rules, like earlier guidance issued by the USDA, provide helpful clarifications of the law and address some of the barriers that prevent eligible immigrants from securing food stamps. The rules could be improved, however, to ensure that, as Congress intended, immigrant families with children have access to critical nutrition assistance.

For example, Congress explicitly exempted immigrant children from the sponsor deeming rules. Under deeming, the income of an immigrant’s sponsor (the person who filed an affidavit of support on behalf of the immigrant) is added to the immigrant’s in determining his or her eligibility for benefits, often rendering the immigrant ineligible as “over-income.” In households where the parent and child have the same sponsor, the proposed rules would deem only a portion of the sponsor’s countable income as available to the household. But adding even a portion of the sponsor’s income could reduce or eliminate the child’s nutrition assistance. And the proposed rules fail to provide a similar “disregard” to households with sponsored immigrant parents and U.S. citizen children; all of the sponsor’s countable income is added to these households’ incomes.

Reducing the food stamp allocation of unsponsored family members based on a sponsor’s income also violates the terms of the affidavit of support, which in no way obligates the sponsor to provide for other family members. To resolve this issue, the household should be divided into different units. In a household with a sponsored parent and two children (either sponsored immigrant or U.S. citizen children), for example, the two children should be considered separately, with only their parent’s income counted in determining their eligibility. Then the sponsored parent’s eligibility would be determined separately, with the sponsor’s income considered. Alternatively, the sponsored immigrant could be allowed to “opt out” of the household and be treated under the state’s procedures for lawfully present immigrants rendered ineligible for food stamps by the 1996 federal welfare law. The rules also should ensure that U.S. citizen children with sponsored immigrant parents receive the same level of assistance as similarly situated immigrant children.

The proposed rules include helpful provisions that should be retained. For example, the USDA confirmed that a sponsored immigrant can “opt out” of the assisted unit if the family is concerned about the requirement that the immigrant’s and sponsor’s names and addresses be reported to the U.S. attorney general if the sponsored immigrant is granted the “indigence” exemption from deeming (for households earning less than 130 percent of the federal poverty level). The rules encourage states to ensure that the immigrant consents to any information-sharing with the attorney general or the sponsor.

The proposed rules should be amended to clarify that victims of trafficking, spouses and children of U.S. citizen veterans, and lawful permanent residents who have left the U.S. for short periods of time without abandoning their residency in the U.S. are eligible for food stamps.

Finally, to ensure that eligible immigrants are not deterred from seeking assistance, the food stamp rules should address other barriers, such as concerns about sponsor liability. The regulations should remind agencies that they are not required to pursue sponsors and that they can take equitable factors into account in determining whether to do so. The USDA should reiterate the language in its January 2003 Guidance (“Non-Citizen Requirements in the Food Stamp Program,” available at www.fns.usda.gov/fsp/rules/Legislation/pdfs/Non_Citizen_Guidance.pdf), which explains that state agencies cannot keep any portion of reimbursement collected and will not be penalized for choosing not to pursue sponsors.

There are particularly strong reasons to ensure that children are not penalized by the sponsor liability rules. Congress restored food stamps for children and exempted them from the sponsor deeming rules. The farm bill also excluded children’s food stamps from the list of benefits to which the sponsor’s contract (the affidavit of support) refers in defining the benefits subject to reimbursement. To be consistent with congressional intent, the rules should instruct states not to pursue reimbursement for food stamp benefits used by these children.

NILC’s comments on the proposed rules are posted at www.nilc.org/immspbs/fnutr/foodasst/nilcfdstmpcmnts_061504.pdf.

69 Fed. Reg. 20723–64 (Apr. 16, 2004).