Guidance for State Agencies in Implementing Immigrant Provisions

General Requirement:

• The Farm Security and Rural Investment Act of 2002 (Public Law 107-171) restores food stamp eligibility to a legal immigrant who has lived in the United States as a qualified alien for a period of five years or longer. This provision is effective on April 1, 2003.

Required Implementation Date:

• State agencies are required to implement this provision for all affected households beginning April 1, 2003.

Procedures for Applicant Households:

• Waivers for State option to take applications in February 2003 or earlier: We encourage State agencies to begin taking applications as soon as February 1, 2003 for households with members whose eligibility will not start until April 1, 2003 because of the new law. If a State agency chooses this option, FNS will grant automatic waivers of the notice requirements at 7 CFR 273.2(g)(3) so that applications may be pended and processed in March 2003 rather than immediately denied. Households must be provided written notice that their application will not be processed until March 2003. Prior to taking this action, a State agency must notify the appropriate FNS Regional Office.
  
  If a State agency wants to start taking applications prior to February 1, 2003, it will need to submit a waiver request to the appropriate Regional Office specifying when it will start taking applications and work with the Regional Office on a plan for handling changes that occur between the time of application and the effective date of the new law. State agencies are reminded of regulations at 7 CFR 273.12(a)(3) which provide that change reporting households do not have to report changes occurring between the time of interview and the approval notice until the household is certified. You may want to accept the application and schedule the interview at a time closer to the implementation date.
  
  Regardless of when a State agency begins taking applications under this option, pended applications must be processed no later than March 31, 2003 so that eligible households receive a full month’s benefit beginning on April 1, 2003. Applications for households in which some of the members are eligible on April 1, 2003 and other members are eligible prior to that time must have applications processed according to regular processing timeframes. State agencies may then simply add the members who are eligible on April 1, 2003.
  
• Requirements for applications taken in March 2003: Beginning March 1, 2003, State agencies must follow the procedure for anticipated changes at 7 CFR 273.10(a)(3) for processing households with members affected by the change. Using this process, State agencies would determine eligibility and benefit amount for households with ineligible members using the same application for March and April 2003. Eligibility and benefit amount for March would be determined using the rules as they exist in March 2003. The new rules would be applied to appropriate household members to determine eligibility and benefit amount for April 2003. State agencies must timely process all applications under regular processing timeframes.

Procedures for Recipient Households:

• We strongly encourage State agencies to provide a written notice to households as soon as possible informing them of the changes in the law regarding food stamp eligibility. If the State agency is able to identify households that are affected by the change (i.e., households with ineligible members), it could simply limit the notice to only those households; otherwise, it should notify all households.
• We encourage State agencies to conduct case record reviews to identify affected households.
• As households are currently recertified, the State agency should pre-screen the household for possible eligibility in April 2003 and inform the household of its potential entitlement.
• Prior to April 1, 2003, the State agency may begin collecting information on members whose eligibility will begin on April 1, 2003. Action to add the new member may be pended until April 1, 2003.
• As households are recertified beginning in March 2003, State agencies should begin processing changes for affected households and make the change effective on April 1, 2003.
• Except under monthly reporting systems, households are not required to report a change in a member’s immigration status during certification periods. If, however, a change in status is reported, the State agency is required to act on the change under regular processing requirements.

Eligibility Criteria for the Five-Year Requirement

Basic Eligibility

• What is the five-year requirement?
  
  The Farm Security and Rural Investment Act of 2002 (Public Law 107-171), commonly referred to as the 2002 Farm Bill, restores food stamp eligibility to a legal immigrant who has lived in the United States as a qualified alien for a period of five years or longer.
  
  
• When does the five-year requirement go into effect?
  
  Qualified aliens meeting the five-year requirement and other program requirements can begin receiving food stamps on April 1, 2003.
  
  
• Who is a qualified alien?
  
  A qualified alien means an alien who at the time the alien applies for or receives food stamps is in one of the following categories as determined by the Immigration and Naturalization Service (INS):
  
  
  • Lawfully admitted for permanent residence (LPR) in the United States (holders of green cards). This category also includes “Amerasian immigrants” as defined under section 584 of the Foreign Operations, Export Financing and Related Programs Appropriations Act of 1988;
  • Granted asylum under section 208 of the Immigration and Nationality Act (INA);
  • Refugee admitted to the United States under section 207 of the INA (the Trafficking Victims Protection Act of 2002 (Public Law 106-386) requires victims of a severe form of trafficking to be treated as refugees for food stamp purposes);
  • Paroled into the United States under section 212(d)(5) of the INA for at least one year;
  • Deportation is being withheld under section 243(h) of the INA as in effect before 4/1/97, or removal is withheld under section 241(b)(3) of the INA;
  • Granted conditional entry under section 203(a)(7) of the INA as in effect before 4/1/80;
  • Cuban or Haitian entrant under section 501(e) of the Refugee Education Assistance Act of 1980; or
  • Under certain circumstances, a battered spouse, battered child or parent or child or a battered person with a petition pending under 204(a)(1)(A) or (B) or 244(a)(3) of the INA.
    
    
• Who determines if an immigrant is in a qualified status?
  
  The INS has sole responsibility for determining the status of immigrants.
  
  
• When does the five-year waiting period begin?
  
  The five-year waiting period begins on the date the immigrant obtains status as a qualified alien through the INS. While it is possible for some refugees to have obtained a qualified alien status prior to entering the United States, these individuals are eligible upon entering the country without the five-year wait based on their refugee status.
  
  
• If qualified status is granted retroactively, does the retroactive time count toward the five-year requirement?
  
  Yes. In certain situations, the INS may grant an alien qualified status retroactively. For example, an alien may enter the country on January 1, 1996 but the INS does not complete its paperwork until a year later on January 1, 1997. At that time, the INS grants the alien status as an asylee beginning on the alien’s date of entry on January 1, 1996. In this case, qualified alien status begins on January 1, 1996 rather than January 1, 1997.
  
  
• If a qualified alien is in an exempt category (e.g., asylee or refugee) and later adjusts to LPR status, does the qualified alien have to meet the five-year requirement?
  
  No. Asylees, refugees, Amerasians, Cuban/Haitian entrants, trafficking victims and aliens whose deportation was being withheld are eligible for food stamp benefits during the first seven years they are admitted or granted status in one of these exempt categories regardless of later adjustment. An example of this is an immigrant who was initially granted asylum in January 2001 and then adjusted to LPR status in January 2002. Even though this immigrant has not been in a qualified alien status for five years on April 1, 2003 when the new law is effective, the qualified alien is eligible during the first seven years as an asylee. In addition, qualified aliens who are in one of the exempt categories for five years have automatically met the five-year requirement.
  
  When an LPR has adjusted to LPR status from another category, the green card will sometimes show the date of the most recent adjustment of status rather than the date of the previous status was granted. To obtain a history of an immigrant’s status from the INS, State agencies will have to specifically ask for the information on INS’ Form G-845-Supplement.
  
  
• If an immigrant has been in the United States in an undocumented status and later obtains status as a qualified alien, is the qualified alien automatically barred from receiving food stamps because of the undocumented status?
  
  No. So long as the immigrant has been in status as a qualified alien for five years, the immigrant meets the five-year requirement.

Deeming

• What is deeming?
  
  The income and resources of an immigrant’s sponsor (and the sponsor’s spouse) who has signed a legally binding affidavit of support are required to be counted as belonging to the immigrant (or deemed), regardless of actual availability, when determining the immigrant’s eligibility and benefit amount for food stamps.
  
  
• Which immigrants are subject to deeming requirements?
  
  Most immigrants who enter the U.S. must have a sponsor – someone who signs an affidavit promising to provide enough financial support to maintain the immigrant at or above 125 percent of the Federal poverty line (or 100 percent for active duty military). The deeming requirements apply only to immigrants whose sponsor has signed a legally binding affidavit of support (known as 213A affidavits—Form I-864 or I-864A) on or after December 19, 1997. Prior to this time, affidavits of support were not legally binding meaning the sponsor could not be legally compelled to support the immigrant.
  
  
• Which immigrants are exempt from deeming requirements?
  
  The following groups are not subject to deeming rules:
  
  
  • Immigrant whose sponsor has not signed a legally binding affidavit of support discussed in the preceding question.
  • Immigrants without sponsors. In general, legal immigrants who enter the country under provisions of immigration law other than the family-sponsored categories do not have sponsors that incur a liability when the immigrant obtains means-tested benefits. Included in this group are refugees and asylees.
  • Indigent Exception: If the alien’s own income and any assistance provided by the sponsor or any other individuals is not enough for the alien to obtain food and shelter without the program, the amount of the income and resources attributed to the alien cannot exceed the actual amount provided for a 12-month period. The State agency must notify the Attorney General if such determinations are made. Final rules published by FNS on November 21, 2000 (65 FR 70143) clarified that an immigrant is considered “indigent” if the sum of the immigrant’s household’s own income and any cash or in-kind assistance provided by the sponsor or others is less than 130 percent of the poverty income line. Each indigence determination is effective for 12 months and may be renewed for additional 12-month periods.
  • Battered Spouse or Child Exception: Deeming also does not apply during any 12-month period if the alien is a battered spouse, battered child or parent, or child of a battered person providing the battered alien lives in a separate household from the person responsible for the battery. The exemption can be extended beyond the 12-month period if the alien demonstrates that the battery is recognized in a court or administrative order and if the agency administering the benefits determines that the battery has a substantial connection to the need for benefits.
  • Sponsor in same food stamp household: If the sponsor lives in the same household as the alien, deeming does not apply because the sponsor’s income and resources are already counted. There is, however, no deeming exemption if the sponsor receives food stamps in another household.
  • Ineligible Member: If the sponsored alien is ineligible for food stamps because of immigration status (i.e., is not a qualified alien or a refugee or asylee during the 7-year eligibility period), the sponsor’s income is not deemed to other eligible members of the immigrant’s household.
    
    
• How long does deeming last?
  
  Deeming or attribution of the sponsor’s income and resources to the alien lasts until the alien becomes a naturalized citizen or can be credited with 40 qualifying quarters of work or the sponsor dies.
  
  
• How much of the sponsor’s resources are deemed to the alien?
  
  Under current regulations, all but $1,500 of the amount of resources (as defined according to regular food stamp rules) of the sponsor and the sponsor’s spouse are deemed to the sponsored alien.
  
  
• How much of the sponsor’s income is deemed to the alien?
  
  Under current regulations, the amount of the sponsor’s income attributed to the sponsored alien is the total monthly earned and unearned income of the sponsor and sponsor’s spouse reduced by 20 percent of their earned income and by the Food Stamp Program’s gross income eligibility limit for a household equal in size to the sponsor’s household -- sponsor, sponsor’s spouse if living with the sponsor, and any other person who is a dependent or receives support from the sponsor or sponsor’s spouse. If the sponsor signs an affidavit of support for more than one immigrant, the sponsor’s income is pro-rated among the sponsored immigrants. Income is defined according to regular food stamp rules.
  

Quality Control Procedures

• Application of the 120-day variance exclusion period:
  
  
  • Variances resulting from the misapplication of the five-year requirement will be excluded for a period of 120 days, in accordance with regulations at 7 CFR 275.12(d)(2)(vii), beginning on the required implementation date of April 1, 2003 providing the State agency implements the change on April 1, 2003.
  • If implementation occurs after April 1, 2003, the variance exclusion period will begin on the date of implementation and continue through July 29, 2003, the end of the variance exclusion period.
  • Regardless of when the State agency implements the five-year requirement, the variance exclusion period ends on July 29, 2003.
  • Reviewers will exclude all variances resulting from the misapplication of the five-year provision (such as eligibility of an immigrant based on the new requirement and any associated deeming of sponsor income) processed within the exclusion period. The exclusion of these variances will continue until such time as the case is certified or recertified after July 29, 2003, or a change in the eligibility or status of an immigrant is reported after July 29, 2003.
  • Variances resulting from failure to act on reported changes not related to the five-year requirement will be included in the error determination process.
  • Although variances related to the application of the five-year requirement are excluded during the hold-harmless period, the State agency must fully restore any benefits the household is entitled to receive as appropriate.
    
    
• State agency only required to act on known changes of immigrant eligibility until the household is recertified.
  
  
  • For ongoing participating households subject to change reporting rules, the State agency is not required to apply the five-year provision until the household is recertified on or after April 1, 2003, unless the State agency is notified of a change in an immigrant’s status or potential eligibility.
  • If the State agency fails to act timely on new information related to the five-year provision reported prior to or during the variance exclusion period, the variance will be excluded until the expiration of the variance exclusion period.
  • If the State agency fails to act timely on new information related to the five-year provision reported after the variance exclusion period, the variance will be included.
    
    
• Variances resulting from the use of INS data.
  
  
  • Variances resulting from the use of information provided by any Federal agency are excluded in accordance with regulations at 7 CFR 275.12(d)(2)(v) providing the State agency has correctly processed the information. In addition, regulations at 7 CFR 275.12(d)(2)(vi) provide variance exclusions for incorrect or delayed information from INS’ Systematic Alien Verification for Entitlements (SAVE) program.

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