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USDA Issues Guidance on Food Stamp Rules

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USDA issues guidance on implementation of immigrant food stamp rules

Immigrants' Rights Update, Vol. 17, No. 1, February 21, 2003

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

  • most family-based immigrants who applied for lawful permanent residence after Dec. 19, 1997; and

  • 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

  • immigrants without sponsors, or those whose sponsors did not sign an enforceable affidavit of support;

  • immigrants whose sponsor lives in the same food stamp household;

  • 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.);

  • 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.);

  • children (beginning Oct. 1, 2003);

  • 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

  • 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.