Alien Eligibility for Public Assistance

CRS Report for Congress
Alien Eligibility for Public Assistance
Joyce C. Vialet, Education and Public Welfare Division
Larry M. Eig, American Law Division
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.

P.L. 105-33, the “Balanced Budget Act of 1997,” included the SSI and Medicaid provisions.1
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

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-to-
alien 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. Food2
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.

P.L. 105-306 continues eligibility for a small group of legal aliens on the SSI rolls as of August2
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.

!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 CategorySSIFood StampsMedicaidTANF
a) Here beforeYes, if on rollsYes, if 65 orYes, for SSI-State option
8/22/96 (P.L.8/22/96 or over by 8/22/96, derivative benefits
104-193subsequentlysubsequentlyor emergency
enactment)disableddisabled, orservices. Otherwise,
while under 18state option.
b) 1st 5 yrs afterNoNoEmergency onlyNo
c) after 5 yrs inNoNoYes, for emergencyState option Otherwise,
state option.
Refugees & Asyleesb
a) 1st 5 yrs afterYesYesYesYes
b) after 5 yrsYes, for 2 moreYes, for 2 moreYes, for 2 moreState option
yearsyearsyears and emergency
services. Otherwise,
state option
Nonimmigrants cNoNoEmergency onlyNo
”Immigrants.” Also known as permanent residents and green card holders. May live here indefinitelya
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
!All aliens upon naturalization;

!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 laws significantly3
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 sponsor-
to-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 of4
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.

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996, enacted as Division3
C of the Omnibus Consolidated Appropriations Act, 1997, and signed into law on September 30,

1996 (P.L. 104-208)

The accompanying regulations were published as an interim rule, effective December 19 with4
a comment period through February 17, 1998 (Fed. Reg., October 20, 1997, pp. 54346-54356).

Sponsor-to-alien deeming applies to new sponsored entrants for “federal means-
tested 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 state-
funded programs. States are also allowed to make their own determinations of means-
tested 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.

Table 2. Alien Eligibility Provisions for Federal Benefits
Under the Welfare and Immigration Laws
“Qualified aliens” “Qualified aliens”
Provisionsregardless of entry dateentering after 8/22/96“Non-qualified aliens”
RestrictedFood Stamps, unless hereFor 5 yrs after entry, Most federal public
Programs8/22/96 and 65, whilefederal public benefitsbenefits (with exceptions
under 18, and/or laterdesignated as means-noted below).
disabled; SSI, unless ontested
rolls 8/22/96 or here then (so far including SSI,
and later disabledMedicaid, TANF, and
food stamps)
At state option:*
Temporary Assistance forThereafter, the
Needy Families, Socialrestrictions in the left
Services Block Grant,column apply.
and Medicaid (other than
emergency services and
Programs“Qualified aliens” hereEmergency medicalEmergency medical
excepted frombefore 8/22/96 are notservices, disaster relief, services, disaster relief,
restrictionsbarred by alienage statuspublic health assistance,public health assistance,
from programs other thancommunity levelcommunity services,
those listed above. services, school lunch,housing assistance
child nutrition, fosterreceived at enactment,
care and adoptionSocial Security and
assistance, Head Start,Medicare benefits for
certain job training,lawful aliens, and school
higher education lunch and breakfast.
elem./sec., and PublicOther child nutrition and
Health Service Actfood distribution
education assistance. programs at state option.
(Does not change law
regarding public
IndividualsRefugees & asylees—7Refugees and asyleesNonimmigrants only for
excepted fromyrs. for SSI, Medicaid,(see left column); contracts or licenses
ineligibilityfood stamps; 5 yrs forimmigrants with 40related to their authorized
TANF; immigrants withSocial Security workemployment, and for
40 Social Security workquarters;** alienbenefits under reciprocal
quarters;** and alienveterans, certain activetreaty agreements.
veterans, certain activeduty personnel, and
duty personnel, andfamilies.
Sponsor-to-New deeming rulesAfter 5 yr bar, forNot applicable.
alien deemingapplicable to qualifieddesignated federal
aliens entering aftermeans-tested programs
12/19/97 and withuntil alien has 40 Social
affidavits complying withSecurity quarters;**
new INA requirements —with exceptions similar
see next 5 yr bar.
*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.