Office of the
	Assistant Secretary for Planning & Evaluation
	HUMAN SERVICES POLICY

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Summary of Immigrant Eligibility Restrictions
Under Current Law

As of 10/04/2004

This document summarizes the immigrant eligibility restrictions under the following recently enacted laws:  the Personal Responsibility and Work Opportunity Reconciliation Act, [“PRWORA” PL 104-193], as amended by the Illegal Immigration Reform and Immigrant Responsibility Act [“Immigration Law” PL 104-208], the Balanced Budget Act of 1997 [PL 105-33], the Agricultural Research, Extension and Education Reform Act of 1998 [PL 105-185], the Noncitizen Benefit Clarification and Other Technical Amendments Act of 1998 [PL 105-306], the Trafficking Victims Protection Act of 2000 [P.L. 106-386], and the Food Stamp Reauthorization Act of 2002 [PL 107-171].

PRWORA restricts access by some legal immigrants to certain programs and denies access by undocumented immigrants to many government funded programs.  Immigrants remain eligible for benefits and services, however, unless specifically restricted as indicated below.  (Citation to sections below refer to PRWORA, unless noted.)

Table of Contents

1. Definition of “Qualified Aliens”
2. Eligibility Rules with Exceptions
3. “Federal Public Benefits”
4. State and Local Benefit Programs
5. Verification of Eligibility for Public Benefits
6. Affidavits of Support and Attribution of Income (Deeming)
7. Other Provisions

I.  Definition of “Qualified Aliens”

Qualified aliens include (Sec 431):

• Legal Permanent Residents
• Asylees
• Refugees
• Aliens paroled into the U.S. for at least one year
• Aliens whose deportations are being withheld
• Aliens granted conditional entry (prior to April 1, 1980)
• Battered alien spouses, battered alien children, the alien parents of battered children, and alien children of battered parents who fit certain criteria
• Cuban/Haitian entrants
• Victims of a severe form of trafficking

II.  Eligibility Rules with Exceptions

With many important exceptions, “Qualified Aliens” are ineligible for Food Stamps and SSI.  States have the authority to determine their eligibility for TANF, SSBG, and Medicaid.  With some exceptions, “Qualified Aliens” entering the country after August 22, 1996, are denied “Federal means­tested public benefits” for their first five years in the U.S. as qualified aliens.

A.  Food Stamps

“Qualified aliens” are ineligible for Food Stamps for a period of 5 years beginning on the date of an alien’s entry into the United States. (Sec 402 (a))

Exceptions to the 5-year ban on Food Stamps:

• Children (under 18 years old).  (Sec 402(a)(2)(J))
• Aliens who were lawfully residing in the U.S. and were age 65 or older on August 22, 1996.  (Sec 402(a)(2)(I))
• Aliens who are receiving assistance for blindness or disability.  (Sec 402(a)(2)(F))
• Certain Indians.  (Sec 402(a)(2)(G))
• Certain Hmong and Highland Laotians.  (Sec 402(a)(2)(K))
• Refugees and Asylees, aliens whose deportation is being withheld, Amerasians, and Cuban/Haitian entrants, and victims of a severe form of trafficking.  (Sec 402(a)(2)(A))
• Veterans, members of the military on active duty, and their spouses and unmarried dependent children.  (Sec 402(a)(2)(C))
• Legal Permanent Residents who have worked 40 qualifying quarters of coverage.  After 12/31/96, no quarter can be considered a “qualifying quarter” if the individual is receiving a “federal means­tested public benefit.”  (See Section D below for the definition)  Quarters worked by parents when the alien was a child, or by a spouse while married, may be counted by spouses and dependent children as satisfying the 40 quarter requirement.  (Sec 402(a)(2)(B))

B.  Supplemental Security Income

Most qualified aliens who enter the US on or after August 22, 1996 are ineligible for SSI until they become U.S. citizens, which generally requires at least five years residency.  (Sec 402(a))

Exceptions to the ban on SSI:

• All aliens who were receiving SSI on August 22, 1996, retain eligibility for SSI (Sec 402(a)(2)(E) and Sec 401(b)(5)) and, if related to SSI receipt, Medicaid benefits.  (Sec 402(b)(2)(F))
• Qualified aliens lawfully residing in the US on August 22, 1996, who were not receiving SSI but are or become disabled in the future will also be eligible.  (Sec 402(a)(2)(F))
• Refugees and Asylees, aliens whose deportation is being withheld, Amerasians, and Cuban/Haitian entrants, and victims of a severe form of trafficking are exempted from the ban on SSI for their first 7 years in the U.S.  (Sec 402(a)(2)(A))
• Veterans, members of the military on active duty, and their spouses and unmarried dependent children.  (Sec 402(a)(2)(C))
• Legal Permanent Residents who have worked 40 qualifying quarters.  After 12/31/96, no quarter can be considered a “qualifying quarter” if the individual received a “federal means­tested public benefit” during the quarter (See section D below for the definition of “federal means­tested public benefit”) Quarters worked by parents when the alien was a child, or by a spouse while married, may be counted by spouses and dependent children as satisfying the 40 quarter requirement.  (Sec 402(a)(2)(B))

C.  State authority for eligibility of “Qualified Aliens” for TANF, SSBG, and Medicaid

States can decide the eligibility for TANF and Medicaid of most "qualified aliens" who arrived in this country prior to August 22, 1996; states can decide the eligibility of most “qualified aliens” for the Social Services Block Grant (Title XX) regardless of date of entry.  (Sec 402(b)).  [NOTE:  Most qualified aliens who entered the U.S. on or after 8/22/96 are barred from receiving TANF and Medicaid for the first 5 years after their entry – see Section D, below.]

Exceptions:

• Medicaid exception for those immigrants who are receiving SSI benefits if Medicaid is related to SSI receipt.  (Sec 402 (b)(2)(F))
• Refugees and Asylees, aliens whose deportation is being withheld, Amerasians, and Cuban/Haitian entrants, and victims of a severe form of trafficking are exempted from the state determination of eligibility for their first 5 years in the U.S. for TANF and SSBG and their first 7 years in the U.S. for Medicaid.  (Sec 402 (b)(2)(A)
• Legal Permanent Residents who have worked 40 qualifying quarters of coverage.  After 12/31/96, no quarter can be considered a “qualifying quarter” if the individual is receiving a “federal means­tested public benefit.”  (See section D below for the definition) Quarters worked by parents when the alien was a child, or by a spouse while married, may be counted by spouses and dependent children as satisfying the 40 quarter requirement.  (Sec 402(a)(2)(B))
• Medicaid exception for certain Indians.  (Sec 402(b)(2)(E))
• Veterans, members of the military on active duty, and their spouses and unmarried dependent children.  (Sec 402 (b)(2)(C)

D.  “Federal Means­Tested Public Benefits” – TANF, Medicaid, and CHIP

Five year ban for Qualified Aliens who entered the country on or after 8/22/96

Most “qualified aliens” entering the country on or after enactment are banned from receiving “Federal means­tested public benefits” for a period of 5 years beginning on the date of the alien’s entry with a qualified alien status (Sec 403) (see exceptions below).  The HHS interpretation, published in the Federal Register on August 26, 1997 (62 FR 45256), designated TANF and Medicaid (except assistance for an emergency medical condition under Medicaid) as the Federal means­tested public benefits administered by the Department.  Subsequently, HHS has communicated that the Children’s Health Insurance Program (CHIP) is also a “Federal means­tested public benefit.”  The Social Security Administration has stated that Supplemental Security Income is a “Federal means­tested public benefit.”  The Department of Agriculture has also stated that food stamps is such a benefit.  No other program has been determined to be a “Federal means­tested public benefit” program.

Exceptions to the 5-year ban on “Federal Means­Tested Public Benefits”:

• Refugees, Asylees, aliens whose deportation is being withheld, Amerasians, and Cuban/Haitian entrants and victims of a severe form of trafficking..  (Sec 403(b)(1))
• Veterans, members of the military on active duty, and their spouses and unmarried dependent children.  (Sec 403(b)(2))
• Certain Indians, Hmong, and Highland Laotians are eligible for Food Stamps.  (Sec 403(d))

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III.  “Federal Public Benefits”

Aliens who are not “qualified aliens” are ineligible for “Federal Public Benefits”.

A.  Examples of aliens who are not qualified are:

Non-immigrants (temporary residents)

Individuals here on time­limited visas to work, study, or travel.

Undocumented immigrants

Individuals who entered as temporary residents and overstayed their visas, or are engaged in activities forbidden by their visa, or who entered without a visa.

Others

Individuals who are given temporary administrative statuses (e.g. stay of deportation, voluntary departure) until they can formalize permanent status, or individuals paroled for less than one year, or individuals under deportation procedures.

B.  Definition of “Federal Public Benefit” (Sec 401)

The statute defines a “federal public benefit” as:

• Any grant, contract, loan, professional or commercial license provided by an agency of the United States or by appropriated funds of the United States; and
• Any retirement, welfare, health, disability, public or assisted housing, postsecondary education, food assistance, unemployment benefit, or any other similar benefit for which payments or assistance are provided to an individual, household, or family eligibility unit by the United States or by funds of the United States.

The HHS interpretation of the term “federal public benefit” published in the Federal Register on August 4, 1998 (63 FR 41658 – 41661) states that the following HHS programs meet the definition of “Federal Public Benefits” and are not otherwise excluded.  Therefore, non­exempted providers of such benefits (see the exception from verification requirements for non­profit charitable organizations in V below) must verify the citizenship and immigration status of applicants in order to deny federal public benefits to non­qualified aliens.

• Adoption Assistance
• Administration on Developmental Disabilities (ADD) – State Developmental Disabilities Councils (direct services only)
• ADD – Special Projects (direct services only)
• ADD – University Affiliated Programs (clinical disability assessment services only)
• Adult Programs/Payments to Territories
• Agency for Health Care Policy and Research Dissertation Grants
• Child Care and Development Fund
• Clinical Training Grant for Faculty Development in Alcohol & Drug Abuse
• Foster Care
• Health Profession Education and Training Assistance
• Independent Living Program
• Job Opportunities for Low­Income Individuals (JOLI)
• Low Income Home Energy Assistance Program (LIHEAP)
• Medicare (except that an alien who is lawfully present and was authorized to be employed with respect to wages used to establish his or her Medicare Part A entitlement, is eligible for Medicare benefits. For a definition of "lawfully present aliens", please see 8 CFR 103.12.)
• Medicaid (except assistance for an emergency medical condition)
• Mental Health Clinical Training Grants
• Native Hawaiian Loan Program
• Refugee Cash Assistance
• Refugee Medical Assistance
• Refugee Preventive Health Services Program
• Refugee Social Services Formula Program
• Refugee Social Services Discretionary Program
• Refugee Targeted Assistance Formula Program
• Refugee Targeted Assistance Discretionary Program
• Refugee Unaccompanied Minors Program
• Refugee Voluntary Agency Matching Grant Program
• Repatriation Program
• Residential Energy Assistance Challenge Option (REACH)
• Social Services Block Grant (SSBG)
• State Child Health Insurance Program (CHIP), and
• Temporary Assistance for Needy Families (TANF).

No other programs have been determined to be “federal public benefit” programs.

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IV.  State and Local Programs

States have authority to determine immigrants’ eligibility for state and local programs, with some conditions.  (Sec 411, 412)

A.  Eligibility for state/local public benefits

Undocumented immigrants are not eligible for state/local public benefits unless the state passes a new law after 8/22/96 affirmatively making them eligible.  No legislation is required to retain access to state and local benefits for non­immigrants or aliens paroled into the U.S. for less than 1 year.  (Sec 411(a))

B.  States may restrict eligibility

States may restrict the eligibility of qualified aliens, non­immigrants, and certain parolees.  They may not restrict eligibility for:  refugees, asylees, or aliens whose deportation has been withheld, during their first five years from entry; members of the military, veterans, and their family members; and those who have been credited with 40 qualifying quarters.  (Sec 412)

States may not deny access by any alien to state or local benefits that meet the definition of excepted services described in Sec 411(b).  States can now require an applicant for state or local public benefits to provide proof of eligibility.  (Sec 413)

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V.  Verification of Eligibility for Public Benefits

The Department of Justice published a Notice of Proposed Rule Making on Verification of Eligibility for Public Benefits in the Federal Register on August 4, 1998 (64 FR 41662-41686).  Interim guidance was issued on November 17, 1997, in the Federal Register (62 FR 61344).  States must have a verification system in place 24 months after the final regulations are promulgated for the federal public benefits they administer.  (Sec. 432(b))

Exemption for Nonprofit charitable organizations:

Non­profit charitable organizations are specifically exempt from any of these requirements to determine, verify, or otherwise require proof of alien eligibility or status.  (Sec 432(d)) A state may not require that such organizations verify the citizenship or immigration status of individuals applying for or receiving benefits.

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VI.  Affidavits of Support and Attribution of Income (Deeming)

Prior to the new welfare statute, affidavits of support signed for sponsored immigrants were not legally enforceable and time­limited “deeming” of sponsor income occurred in only three programs:  SSI, Food Stamps, and AFDC.  The new welfare statute requires a legally binding affidavit of support to be executed by a sponsor on behalf of most aliens seeking admission to the U.S., in order to establish that an alien is not excludable as a public charge.  The statute requires sponsor­to­alien deeming procedures under programs providing “Federal means­tested benefits” until the immigrant with the new affidavit becomes a citizen, or has been credited with 40 qualifying quarters of coverage, and permits deeming for any State public benefits.

A.  Affidavit of support

The new affidavit is legally enforceable against the sponsor by the alien and by federal and state governments which provide any means­tested benefits, but not later than 10 years after an alien last receives any such benefit.  The affidavit is enforceable with respect to means­tested benefits until the sponsored alien attains citizenship or accumulates 40 qualifying quarters.

The Affidavit was released by INS on October 20, 1997, as part of an Interim Rule with Request For Comments (62 FR 54346), and was effective December 19, 1997.

B.  Sponsorship Requirements

With some exceptions, sponsors must now have an income of at least 125 percent of federal poverty to sponsor an immigrant (previously 100 percent).  All family­based immigrants, and certain employment­based immigrants, must be “sponsored,” meaning that a family member (and an additional co-sponsor, if necessary) must have signed an affidavit stating that they will provide assistance to maintain the immigrant at an annual income of at least 125 percent of the federal poverty line as long as it is enforceable (see Section A. Affidavit).

C.  Deeming

When determining eligibility for Federal means­tested public benefits (i.e., Medicaid, TANF, SSI, and Food Stamps), the income and resources of the sponsor, who executed a new affidavit of support, and the sponsor’s spouse, shall be “deemed” available to the sponsored immigrant.  (Sec 421) Benefits specifically excluded from the 5-year eligibility ban (Sec 403(c)) are also not subject to deeming and reimbursement by the sponsor.

1. These new deeming rules only apply to immigrants who have executed the new, legally binding affidavits.  The new deeming period extends until citizenship, or until an immigrant has earned the 40 qualifying quarters.  However, most aliens potentially affected by deeming will be barred from eligibility either until citizenship (SSI) or for their first 5 years due to the 5-year ban on receipt of federal means­tested public benefits.
2. Indigent and battered spouse and children exceptions to deeming requirement.  Deeming does not apply for specified periods to certain battered immigrants; furthermore, if an alien would be unable to obtain food and shelter without government assistance, then only the amount of income and resources of the sponsor or the sponsor’s spouse actually provided will be attributed to the sponsored alien for specified periods.  (Sec. 421 (e) and (f))
3. States are authorized to deem for their public benefits.  Some benefits are exempted from the new state deeming authority:  certain emergency medical assistance; emergency disaster assistance; programs comparable to assistance provided under the National School Lunch Act and the Child Nutrition Act; public health assistance for immunizations; testing and treatment of symptoms of communicable diseases; foster care and adoption assistance (if the foster or adoptive parent is a citizen or qualified alien); and other programs as specified by the Attorney General of a state.  (Sec. 422)

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VII.  Other Provisions

A.  Communication between state and local agencies and the INS

No state or local governments may be prohibited from sending to, or receiving from, the INS information regarding the immigration status of an alien in the U.S. (Sec 434)

B.  Reporting of Illegal Immigrants

States in administering their TANF block grants, the Social Security Administration in administering the SSI programs, the Department of Housing and Urban Development, and public housing agencies must report to INS four times a year aliens they know are unlawfully in the U.S.  (Sec 404)

Several Federal Agencies (HHS, SSA, HUD, DoL, and the INS) provided clarifying guidance (65 FR 58301-58303) regarding what constitutes knowledge that an alien is unlawfully in the U.S.  Specifically, “an entity will ‘know’ that an alien is not lawfully present in the United States only when the unlawful presence is a finding of fact or conclusion of law that is made by the entity as part of a formal determination that is subject to administrative review on an alien’s claim for any of the statutorily specified programs.  In addition, that finding or conclusion of unlawful presence must be supported by a determination by the [INS] or the Executive Office of Immigration Review, such as a Final Order of Deportation.”