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Immigrant Policy

Q&A on Immigrant Benefits

• Food stamps: Most noncitizens lost eligibility for Food Stamp benefits under the 1996 welfare reform law. In 1998, benefits were restored for disabled immigrants, immigrants over 65 years of age, and immigrant children under 18.
• SSI: Recipients as of 8/22/96 may retain SSI/Medicaid benefits. Residents as of 8/22/96 who become disabled are eligible for SSI. (Ineligible: residents as of 8/22/96 who reach 65, but are not disabled; and new immigrants, arriving after 8/22/96.)
• New immigrants are barred from federal means-tested benefits (TANF, Medicaid, SSI, Food Stamps, and CHIP) for 5 years.
• After the 5-year bar, new immigrants that have sponsors must include their sponsors' income when applying for federal means-tested benefits, known as deeming, until the immigrant attains citizenship or 10 years of work.
• States have the option to determine immigrants' eligibility for TANF, Medicaid and SSBG for those resident as of 8/22/96 (for new immigrants, after the 5-year bar).
• States have the option to provide or bar state funded programs to current residents and newly-arriving immigrants. State- and local-funded programs may deem for new immigrants when the new enforceable affidavits of support become effective on December 19, 1997.
• Undocumented immigrants are ineligible for federal, state, and local public benefits.
• All state and local agencies must verify that immigrant applicants for public benefits are "qualified aliens" and eligible for such benefit. HHS must define "federal public benefit" and INS must issue verification procedures. States must comply with federal regulations within two years.

Q. When do legal immigrants lose SSI benefits?

The FY1998 budget reconciliation law, enacted August 5, 1997, restored SSI to those who were receiving benefits as of 8/22/96; and permits those who were lawfully residing in the U.S. as of 8/22/96, who become disabled in the future, to be eligible for SSI. (Immigrants residing in the U.S. as of 8/22/96 who become 65 years of age, but are not disabled, are not eligible for benefits.) The SSI exemption for refugees, asylees, and those whose deportation is withheld has been extended from five to seven years. SSI and Medicaid benefits are also retained for those recipients who applied before 1979 (when SSA first began asking for proof of immigration status.)

1. Refugees, asylees, and those whose deportation is withheld for their first seven years in the U.S. (Cubans, Haitians, and Amerasians are now included in this exemption);
2. Veterans, those on active duty, and their spouses and unmarried dependent children.
3. Immigrants who have worked in the U.S. for 40 quarters. The immigrant's spouse and minor children can be credited with qualifying work quarters. (To count as a "qualifying quarter" after December 31, 1996, the individual must not receive any public benefits during the quarter.)
4. PRUCOL immigrants in the U.S. and receiving SSI on August 22, 1996 who would have lost their benefits on October 1, 1998.

Q. When do legal immigrants lose Food Stamp benefits?

Effective 8/22/97, most legal immigrants lost their food stamp benefits. New arrivals are ineligible until they attain citizenship or 40 quarters of qualifying work. In 1998, benefits were restored to immigrant children, elderly, and disabled effective 11/1/98.

1. Refugees, asylees, and those whose deportation is withheld for their first seven years in the U.S. (Cuban and Haitian Entrants, and Amerasians are now included in this exemption);
2. Veterans, those on active duty, and their spouses and unmarried dependent children;
3. Immigrants who have worked in the U.S. for 10 years. The immigrant's spouse and minor children can be credited with qualifying work quarters (To count as a "qualifying quarter" after December 31, 1996, the individual must not receive any public benefits during the quarter.);
4. Elderly immigrants residing in the U.S. who were 65 or older as of August 22, 1996;
5. Immigrants residing in the U.S. as of August 22, 1996 who meet the Food Stamp program's definition of disabled, regardless of when they become disabled;
6. Immigrant children under age 18 who were in the U.S. as of August 22, 1996;
7. Hmong and highland Lao tribe members who assisted the U.S. armed forces during the Vietnam War, their spouses, dependent children, and unremarried widow(er)s of those deceased; and
8. Certain Native Americans born in Canada or Mexico who are entitled under treaty law to reside in the U.S.
9. States can also provide state-funded food stamps to immigrants made ineligible by the federal welfare law. The federal FY1997 emergency supplemental appropriations law made it possible for states to purchase food stamps from the federal government. They must pay USDA the value of the benefits plus other costs such as printing and shipping.

Q. When does the 5-year bar on federal means-tested benefits take effect?

The 5-year bar is prospective. Only new immigrants (arriving on or after 8/22/96) are affected.

1. refugees, asylees, those granted withholding of deportation, Cuban and Haitian Entrants, and Amerasians; and,
2. veterans, active duty military, their spouses and dependents.

1. emergency medical assistance;
2. emergency disaster relief;
3. national school lunch benefits
4. child nutrition act benefits (including WIC)
5. public health assistance (not including Medicaid) for immunizations, testing and treatment of symptoms of communicable diseases;
6. foster care and adoption assistance (foster/adoptive parent must be qualified alien);
7. programs specified by the Attorney General;
8. higher education;
9. means-tested programs under Elementary and Secondary Education Act;
10. Head Start; and,
11. Job Training Partnership Act.

Q. What is a "federal means-tested program?"

"Federal means-tested program" has been defined as a program that requires federal mandatory spending and is means-tested. These programs are TANF, Medicaid, SSI, Food Stamps, and CHIP. (See the Federal Register notice published by USDA and SSA on 8/26/97.)

Q. What about school meals?

School lunch and school breakfast are available to all immigrants regardless of status; states may provide certain other nutrition programs to undocumented immigrants.

Q. Explain deeming.

Deeming means that the income and resources of the sponsor and his/her spouse count as the immigrant's income in determining program eligibility . Previously, deeming applied only to AFDC, SSI and Food Stamps. Deeming now applies to TANF, SSI, Food Stamps, and Medicaid until the sponsored immigrant naturalizes or has worked for 10 years. An immigrant needs a sponsor to enter the U.S. if the State Department or the INS determines that the immigrant may become a "public charge," dependent on public assistance. Sponsors must now be citizens, nationals, or lawful permanent residents; 18 years or over; resident of the 50 states or D.C., and the petitioner for admission of the immigrant. The immigration bill requires sponsors to have an income 125% of the federal poverty level, and to maintain the immigrant at that level. Active duty personnel must have an income of 100% of federal poverty to be a sponsor.

Q. How many immigrants have sponsors?

Family immigrants are often, but not always, sponsored. The 1996 immigration reform law requires new family-related immigrants to produce affidavits of support from their sponsor(s); as of December 19, 1997, these affidavits are now legally enforceable. Refugees are not sponsored immigrants. Employment-based immigrants are generally not sponsored.

Q. When do the new deeming rules take effect?

Deeming under the state option to deem for state programs will probably be available in the fall of 1997. Deeming for federal programs begins August 22, 2001. Deeming for all federal and state means-tested programs applies only to the newly executed affidavits of support, and thus does not affect immigrants currently living in the U.S. (However, new immigrants are subject first to the 5-year bar on federal benefits. Then deeming applies for federal benefits until citizenship or 10 years work). The INS must issue regulations and allow a 60-day comment period. The new forms must go into effect 60-90 days after regs are issued. States have the option to deem for state-funded programs except for emergency health, disaster, school lunch/child nutrition, immunizations and testing/treatment of symptoms of communicable diseases, foster care/adoption assistance, A.G. discretion programs (programs that are in-kind, not conditioned on income, and necessary for the protection of life or safety, such as soup kitchens, child protection, and short-term shelter).

Note: Veterans/active duty military are not exempted from deeming as they are from the SSI and Food Stamps bar, the 5-year bar, and the AFDC, Medicaid, SSBG state option. The immigration bill added an exception to deeming for battered spouses/children (if substantially connected to need for benefits) and for indigence (to avoid hunger or homelessness).

Q. What is the eligibility for immigrants under AFDC (now Temporary Assistance for Needy Families, or TANF), Medicaid and SSBG (Social Services Block Grant)?

The legislation offers states the authority to determine the eligibility of "qualified" immigrants for these 3 programs. Effective 1/1/97, states may choose to provide, deny, deem, or otherwise limit these programs for current immigrant residents. Immigrants arriving after 8/22/96 are subject first to the 5 year bar on federal means-tested benefits. After the 5-year bar, states have the option to bar until citizenship. Legislative intent is unclear whether states can waive deeming after 5 years for TANF, Medicaid and SSBG.

1. refugees, asylees, and those whose deportation is withheld, Cuban and Haitian Entrants, and Amerasians (only for their first five years in the U.S. for TANF & SSBG, and 7 years for Medicaid);.
2. Veterans, those on active duty, and their spouses and unmarried dependent children.
3. Immigrants who have worked in the U.S. for 10 years.

Q. What are some of the legal challenges regarding state authority to deny benefits to aliens?

Equal Protection. The offer by the federal government to grant states the authority to discriminate against aliens is constitutionally suspect at both federal and state levels. The 1971 U.S. Supreme Court decision in Graham v. Richardson ruled that state welfare benefits cannot be denied to immigrants under the Fourteenth Amendment (which prohibits a state from denying equal protection to any person within its jurisdiction). At the state level, in the 1987 decision El Souri v. Department of Social Services, the Michigan State Supreme Court ruled that Michigan could not impose a deeming requirement on legal immigrants because it was an infringement upon a suspect classification: lawful alienage.

Obligations to the Poor: State constitutions and statutes may also require public assistance be provided to any needy residents.

Q. If current recipients receive Medicaid by virtue of SSI, do they lose categorical eligibility for Medicaid when the SSI bar goes into effect?

No. Because SSI eligibility automatically qualified immigrants for Medicaid, the loss of SSI benefits was expected to terminate Medicaid benefits for legal immigrants. The budget reconciliation act maintains Medicaid benefits for those who receive SSI.

Q. Do states have to deem current immigrant residents for Medicaid?

States may not deem immigrants residing in the U.S. as of 8/22/96. Deeming applies only to the new affidavits of support, effective fall 1997.

Q. Can Medicaid funds be used for immunizations, testing and treatment of communicable disease?

No, only non-Medicaid funds can be used for "non-qualified" aliens and for new arrivals subject to the 5-year bar.

States are given the authority to determine eligibility for state public benefits of qualified aliens, nonimmigrants, or those paroled into the U.S. for less than one year.

1. Qualified aliens shall be eligible for state public benefits
2. Refugees, asylees, and those whose deportation is withheld, Cuban and Haitian Entrants, and Amerasians for their first 5 years in the U.S.
3. Veterans, those on active duty, and their spouses and unmarried dependent children.
4. Immigrants who have worked in the U.S. for 10 years.

States and localities are given the authority to apply deeming for state and local programs (new immigrants with new affidavits of support only.) Exceptions for: assistance for health care items and services necessary for treatment of an emergency medical condition (not organ transplants), emergency disaster relief, programs comparable to School Lunch Act; programs comparable to Child Nutrition Act; public health assistance for immunizations and testing/treatment of symptoms of communicable diseases; payments for foster care/adoption assistance; A.G. discretion programs. The definition of state public benefit was dropped from the bill. It is unclear who defines state public benefit.

Q. Who is eligible for public benefits?

Only "qualified aliens" (lawful permanent residents, refugees, asylees, those paroled into the U.S. for more than one year, those whose deportation has been withheld, Cuban and Haitian Entrants, and conditional entrants before 1980) are eligible for federal public benefits. The immigration reform bill added battered spouses and children to the definition of qualified aliens, if there is a substantial connection to the abuse and the need for benefits. The budget reconciliation bill extended SSI for PRUCOL recipients of SSI until 9/30/98. Only "qualified aliens," nonimmigrants, or those paroled into the U.S. for less than one year in the U.S. are eligible for state or local public benefits. HHS will need to issue a definition of federal public benefits.

Undocumented immigrants are ineligible for most public benefits. States may provide benefits to ineligible immigrants only by enacting state law affirmatively providing eligibility after enactment of the federal welfare reform law (8/22/96). 

This Q&A incorporates benefits' changes in the 1996 welfare reform law (P.L. 104-193, signed 8/22/96); the immigration reform law (P.L. 104-208, signed 9/30/96); the FY97 supplemental appropriations bill (P.L. 105-18, signed 6/12/97); the FY98 budget reconciliation law (P.L. 105-33, signed 8/5/97); the Agriculture Research, Extension, and Education Reform Act (signed 6/23/98); and the Noncitizen Benefit Clarification (P.L. 105-306, signed 10/28/98).