Alien Eligibility for Public Assistance

96-617 EPW Updated November 6, 1998 CRS Report for Congress Received through the CRS Web Alien Eligibility for Public Assistance Joyce C. Vialet, Education and Public Welfare Division Larry M. Eig, American Law Division Summary The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (P.L. 104-193) changed almost every aspect of alien eligibility for federal, state and local government assistance programs. It established comprehensive new restrictions on the eligibility of legal aliens for designated means-tested public assistance, and also broadened restrictions on public benefits for illegal aliens and nonimmigrants (aliens temporarily here, e.g., to visit, attend school, or work). Previously, legal aliens who had settled here were eligible for public assistance on the same basis as citizens. The 1996 welfare law barred most legal aliens from Supplemental Security Income (SSI) for the Aged, Blind, and Disabled, and Food Stamps. It authorized the states to limit access to Medicaid and Temporary Assistance for Needy Families (TANF, which replaced AFDC). The 1996 changes in the rules governing noncitizen eligibility for public assistance proved controversial, particularly the termination of benefits for noncitizens already receiving them. P.L. 105-33 and P.L. 105-185 continue or restore SSI, Medicaid, and food stamps for some previous beneficiaries, and extend refugee eligibility for 2 years.1 Alien Eligibility for Federal Assistance. The 1996 welfare law and, to a lesser extent, the 1996 immigration law restricted alien eligibility for Federal benefits in three basic ways: (1) they barred access to programs based on alien status; (2) they required legally binding affidavits of support from immigrants’ sponsors; and (3) they required that sponsors’ income be deemed available to immigrants in determining eligibility for most means-tested programs. Alien eligibility for selected federal programs is summarized in Table 1. A more comprehensive summary of restrictions on alien access to benefits appears as Table 2. The eligibility of legal aliens for Social Security and Medicare is not affected by the new legislation. Legal aliens continue to remain eligible if they have met the requirements of these two programs, on the same basis as before. 1 P.L. 105-33, the “Balanced Budget Act of 1997,” included the SSI and Medicaid provisions. The food stamp provisions were in P.L. 105-185, the “Agricultural Research, Extension, and Education Reform Act of 1998.” Congressional Research Service ˜ The Library of Congress CRS-2 Program Ineligibility. The new welfare law replaced alien eligibility standards for many federal programs, which varied, with standards that are more comprehensive and restrictive. The alien eligibility provisions of the new welfare law deny illegal aliens access to many more federal programs than under previous law. The welfare law also imposed unprecedented restrictions on the ability of legal immigrants to receive assistance designated as federal means-tested benefits. Legal immigrants remain statutorily eligible for means-tested federal aid, including education assistance, child nutrition, and emergency medical assistance (see Table 2). The new welfare law allows the states to determine which aliens may receive state and local benefits, though illegal aliens may only obtain benefits under state laws passed after August 22, 1996, the date the welfare law was enacted. Classification of Aliens. The welfare law divided aliens into two general categories for purposes of benefit eligibility. The least restricted category is that of qualified aliens, a category that, despite its name, is subject to numerous new limitations. Qualified aliens consists of legal permanent residents (also referred to as immigrants), refugees, aliens paroled into the United States for at least 1 year, and aliens granted asylum or related relief. The immigration law added certain abused spouses and children as another class, and P.L. 105-33 added Cuban-Haitian entrants. The other, more restricted category is that of non-qualified aliens. It consists of other noncitizens, including illegal aliens, nonimmigrants (i.e., aliens admitted for a temporary purpose, such as tourists and foreign students), short-term parolees, asylum applicants, and various classes of aliens granted temporary permission to remain. Eligibility Standards. Non-qualified aliens are ineligible for almost all federal assistance provided directly to households or individuals, including health, education, retirement, or disability benefits, as well as for federal contracts, loans, licenses, and grants. The limited exceptions, summarized in Table 2 below, include emergency medical services and disaster relief. Qualified aliens are subject to three general restrictions, in addition to sponsor-toalien deeming discussed below: ! With significant exceptions, most legal immigrants are barred from Food Stamps and SSI. The welfare law has been amended to provide that “qualified aliens” who were receiving SSI (and related Medicaid) as of August 22, 1996 will continue to be eligible, regardless of whether their claim was based on disability or age.2 Food stamp eligibility will be restored November 1, 1998 to “qualified aliens” here by August 22, 1996 who were 65 or over, or until they turn 18. Additionally, qualified aliens who were here by August 22, 1996 and subsequently become disabled will be eligible for SSI and food stamps. 2 P.L. 105-306 continues eligibility for a small group of legal aliens on the SSI rolls as of August 22, 1996 who do not fall within one of the categories of “qualified aliens” defined by the 1996 law. CBO estimates their number to be about 3,400. Additionally, members of recognized Indian tribes and certain Canadian-born Indians are exempt from SSI and Medicaid restrictions. CRS-3 ! Second, most qualified aliens arriving after the date of enactment are barred from federal benefits designated as means-tested for 5 years after arrival. To date, the only programs so designated are TANF, Medicaid, SSI, and food stamps. ! Third, states are empowered to deny most qualified aliens state-funded assistance and assistance under federal block grants for Temporary Assistance for Needy Families (TANF, which replaces AFDC), Title XX Social Services Block Grant (SSBG) activities, and Medicaid, effective January 1, 1997. Because of the 5-year bar on federal benefits for new arrivals, states may permit newly arriving qualified aliens to receive TANF, Medicaid, and SSBG only after they have been here 5 years. Wyoming and Louisiana have opted to limit noncitizens to emergency Medicaid only. Alabama, Mississippi, South Carolina, and Guam are prohibiting noncitizen participation in TANF. Table 1. Alien Eligibility for Selected Federal Programs Alien Category SSI Food Stamps Medicaid TANF Yes, if 65 or over by 8/22/96, subsequently disabled, or while under 18 Yes, for SSIderivative benefits or emergency services. Otherwise, state option. State option a Immigrants a) Here before 8/22/96 (P.L. 104-193 enactment) Yes, if on rolls 8/22/96 or subsequently disabled b) 1st 5 yrs after 8/22/96 No No Emergency only c) after 5 yrs in U.S. No No Yes, for emergency services. Otherwise, state option. Yes Yes Yes Yes, for 2 more years Yes, for 2 more years No State option Refugees & Asyleesb a) 1st 5 yrs after entry/asylum b) after 5 yrs Yes, for 2 more years and emergency services. Otherwise, state option Yes State option No No Emergency only No Nonimmigrantsc Undocumented Aliensd a ”Immigrants.” Also known as permanent residents and green card holders. May live here indefinitely unless they commit a deportable act. Parolees admitted temporarily for at least l year under the Attorney General’s immigration parole power may receive same benefits. b ”Refugees & Asylees.” Status based on individualized persecution abroad. May eventually adjust to permanent residency. Includes Cuban/Haitians and Amerasians. c ”Nonimmigrants.” Admitted temporarily for a limited purpose. Includes, e.g., students, visitors, temporary workers. d Also known as illegal aliens. Includes aliens here in violation of immigration law for whom no legal relief or recognition has been extended. Certain qualified aliens are excepted from the SSI/food stamp bar; the state option on Medicaid, TANF, and SSBG; and the 5 year bar on new arrivals. These groups include: ! All aliens upon naturalization; CRS-4 ! Aliens who have worked, or may be credited with, 40 qualifying quarters. A qualifying quarter includes a 3 month work period with sufficient income to qualify as a social security quarter and, with respect to periods beginning after 1996, during which the worker did not receive federal means-based assistance. The qualifying quarter work test takes into account work performed by the alien, the alien’s parent before the alien became age 18, and the alien’s spouse (provided the alien remains married to the spouse or the spouse is deceased); ! Refugees for 7 years after admission and asylees 7 years after obtaining asylum for SSI, Medicaid, and food stamps; 5 years for TANF and any other programs designated as federal means-tested. The 1997 Act made Cuban/Haitian entrants and Amerasians eligible for the same benefits as refugees, as they had been prior to 1996; and ! Veterans, active duty members of the armed forces, and their spouses and unmarried dependent children. Sponsor-to-Alien Deeming. The new welfare and immigration laws3 significantly expand the use of sponsor-to-alien deeming for new arrivals and couple with it new, enforceable responsibilities for sponsors who pledge support through affidavits of support. Both deeming and the affidavits of support upon which deeming is based are intended to implement the provision of the Immigration and Nationality Act (INA) that excludes aliens who appear “likely at any time to become a public charge.” New deeming rules. Sponsor-to-alien deeming is intended to make it more difficult for sponsored aliens to meet the financial test for means-tested benefits by taking the income and resources of the sponsor (and the sponsor’s spouse) into account whenever a sponsored alien applies for covered assistance. The new welfare law expands sponsorto-alien deeming for new entrants by covering programs for a longer period and, in combination with the new immigration law, by covering more new immigrants. Deeming now applies until the sponsored alien becomes a citizen or, if earlier, meets the 40 qualifying quarter work test, discussed above. Previously, deeming applied for 3 years under AFDC and food stamps and for 5 years under SSI. The new deeming rules apply to aliens who enter after December 19, 1997, the effective date of the new affidavit of support.4 For purposes of sponsor-to-alien deeming, sponsorship refers to the individual who signs an affidavit of support for a prospective immigrant to assure that the new immigrant will not become a public charge. Under previous practice, the affidavit of support was one option for meeting the public charge requirement. The new immigration act will increase the number of new immigrants with affidavits of support because it requires them, regardless of income and means, for almost all family-based immigrants and for employment-based immigrants who are coming to work for relatives. 3 The Illegal Immigration Reform and Immigrant Responsibility Act of 1996, enacted as Division C of the Omnibus Consolidated Appropriations Act, 1997, and signed into law on September 30, 1996 (P.L. 104-208) 4 The accompanying regulations were published as an interim rule, effective December 19 with a comment period through February 17, 1998 (Fed. Reg., October 20, 1997, pp. 54346-54356). CRS-5 Sponsor-to-alien deeming applies to new sponsored entrants for “federal meanstested benefits.” This term is not statutorily defined, and federal agencies are designating which of their programs they have determined to be means-tested. Both HHS and SSA published notices in the Federal Register on August 26, 1997 interpreting the term to apply only to benefits provided by federal means-tested mandatory spending programs. They argue that means-tested programs under which the spending is discretionary are not included. Four programs—Medicaid, TANF, SSI, and Food Stamps—have been designated as means-tested. States are authorized but not required to adopt sponsor-to-alien deeming under statefunded programs. States are also allowed to make their own determinations of meanstested benefits, with exceptions prescribed by the welfare law. A state may sue sponsors for reimbursement of means-tested benefits received by sponsored immigrants regardless of whether the state has opted to deem sponsors’ income available to the sponsored immigrants. However, various health, nutrition, education, and humanitarian assistance are excepted from federal and state deeming and reimbursement requirements. As shown in Table 2, the federal programs exempted from deeming are the same as those exempted from the 5 year bar on new immigrants’ participation in means-tested programs. Deeming pertains to whether a sponsored alien meets the means test for a covered program, and application of deeming is unnecessary if an individual is categorically disqualified from benefits on alienage grounds. For example, deeming does not come into play for SSI or food stamps or, for the first 5 years after entry, for federal programs covered by the 5 year bar on new entrants. At the same time, deeming may be applied by a state for state programs during a new entrant’s first 5 years here if the state does not categorically bar noncitizens from those programs because of their alienage. Affidavits of support and sponsorship obligations. In implementing the public charge exclusion under the INA, administrative authorities had required that prospective immigrants without independent means or a sufficient job offer have an affidavit of support filed for them by a U.S. resident. For the first time, the welfare and immigration laws set statutory standards for affidavits of support and the pledges contained in them. The new standards, which are made part of the INA, cover requirements for sponsors, mandatory affidavits for family immigrants, and sponsorship liability, as follows: ! The sponsor signing the affidavit of support must be the person petitioning for the immigrant’s admission. ! Sponsors must demonstrate the ability to maintain an annual income of at least 125% of the federal poverty line (100% for sponsors who are on active duty in U.S. Armed Forces); or share liability with one or more joint sponsors, each of whom must independently meet the income requirement. ! All family-based immigrants and employment-based immigrants coming to work for relatives must have affidavits of support filed for them. ! Sponsors who fail to support sponsored aliens are legally liable to the sponsored aliens and to any government agency that provides sponsored aliens needs-based assistance. As modified by the new immigration law, a sponsor’s liability ends when the sponsored alien is no longer subject to deeming, either through naturalization or meeting the 40 hour qualifying quarter work test. CRS-6 Table 2. Alien Eligibility Provisions for Federal Benefits Under the Welfare and Immigration Laws Provisions Restricted Programs “Qualified aliens” regardless of entry date Food Stamps, unless here 8/22/96 and 65, while under 18, and/or later disabled; SSI, unless on rolls 8/22/96 or here then and later disabled At state option:* Temporary Assistance for Needy Families, Social Services Block Grant, and Medicaid (other than emergency services and SSI-related) “Qualified aliens” entering after 8/22/96 For 5 yrs after entry, federal public benefits designated as meanstested (so far including SSI, Medicaid, TANF, and food stamps) “Non-qualified aliens” Most federal public benefits (with exceptions noted below). Thereafter, the restrictions in the left column apply. Programs excepted from restrictions “Qualified aliens” here before 8/22/96 are not barred by alienage status from programs other than those listed above. Emergency medical services, disaster relief, public health assistance, community level services, school lunch, child nutrition, foster care and adoption assistance, Head Start, certain job training, higher education elem./sec., and Public Health Service Act education assistance. Emergency medical services, disaster relief, public health assistance, community services, housing assistance received at enactment, Social Security and Medicare benefits for lawful aliens, and school lunch and breakfast. Other child nutrition and food distribution programs at state option. (Does not change law regarding public education.) Individuals excepted from ineligibility Refugees & asylees—7 yrs. for SSI, Medicaid, food stamps; 5 yrs for TANF; immigrants with 40 Social Security work quarters;** and alien veterans, certain active duty personnel, and families. Refugees and asylees (see left column); immigrants with 40 Social Security work quarters;** alien veterans, certain active duty personnel, and families. Nonimmigrants only for contracts or licenses related to their authorized employment, and for benefits under reciprocal treaty agreements. Sponsor-toalien deeming New deeming rules applicable to qualified aliens entering after 12/19/97 and with affidavits complying with new INA requirements — see next column. After 5 yr bar, for designated federal means-tested programs until alien has 40 Social Security quarters;** with exceptions similar to 5 yr bar. Not applicable. *State option applies 5 years after entry for qualified aliens entering after 8/22/96. **Includes quarters worked by spouse or parent. For quarters worked after 1996, no quarter during which the alien received public assistance may be counted toward the 40-quarter exception.