Section 402 - Limited Eligibility of Qualified Aliens for Certain Federal Programs

Eligibility

Q. Does a qualified alien as defined in section 431 of the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), as amended, also have to meet one of the food stamp eligibility criteria in section 402?

A. Hmongs and Highland Laotians and their families and cross-border Indians do not have to be qualified aliens. Other categories of aliens have to meet the special food stamp criteria in section 402 and also be a qualified alien as specified in section 431. It is often easier to first determine if an alien is a qualified alien and then determine if the qualified alien meets one of the food stamp criteria. The criteria for refugees, asylees, Cubans, Haitians, and aliens whose deportation has been withheld are the same under both sections. Amerasians (Section 402) are admitted as permanent resident aliens (Section 431) at the point of entry so they may be eligible. Persons with a military connection are listed in 402 but not 431 so they have to meet one of the criteria in 431, such as being a permanent resident alien, to be eligible. Parolees, conditional entrants, and battered aliens are listed in 431 as qualified aliens, but not in 402 as food stamp eligible, so they also have to meet one of the criteria in 402, such as having a military connection or have been lawfully living in the U. S. on 8/22/96, and have been 65 or older on that date or be under 18 or receiving disability payments. Lawful permanent residents are qualified aliens, but they also have to meet one of the special food stamp criteria, such as having 40 quarters of qualifying work or have been living in the U. S. on 8/22/96 and been 65 or older on that date or are now under 18 or receiving disability payments.

Q. Do the timeframes in Section 403 apply for purposes of food stamp eligibility?

A. No, the timeframes in section 403 do not apply for food stamp purposes because the timeframes in Section 402 are more specific to the Food Stamp Program. Therefore, aliens are not categorically banned from receiving food stamps for the first 5 years after they enter the country. Refugees, asylees, deportees, Cubans, Haitians, and Amerasians may be eligible for food stamps for 7 years. For refugees, the count begin from the date they entered the country. Refugee status is given before the person enters the country. For asylees and deportees, the count begins the date they were granted a particular status. For other aliens, there is no time limit for food stamp eligibility purposes.

Q. If an individual who is admitted as a refugee in 1993 has his status changed to lawfully admitted for permanent residence in 1996, would he still be eligible to participate for 7 years from the date he was admitted as a refugee?

A. Yes.

Q. Section 402(a)(2)(C)(iii) provides that the unmarried dependent child of a veteran or individual on active duty may be eligible. Does this apply to a dependent child over 18?

Policy on the age of the child has not been determined. State agencies may develop their own policy until regulations are issued. NOTE: SSI’s instructions refer to a dependent child as a child under 18 or, if a full-time student, under age 22.

Q. Can an unmarried disabled adult dependent child of a veteran be eligible for food stamps?

A. We will either address this in regulations or allow State agency discretion in this area.

Q. Does a noncitizen who is a veteran or on active military duty have to be a legal permanent resident to be eligible?

A. No, but he or she does have to be a qualified alien in accordance with Section 431.

Q. Is there a specific definition for "honorably discharged" as used in section 402 when referring to veterans?

A. Please refer to Exhibit B to Attachment 6 of the DOJ guidance for further information on this topic.

Q. Are the alien spouse and children of a U.S. citizen who is a veteran or individual on active duty eligible under section 402(a)(2)(C)?

Yes. Section 402(a)(2)(C)(iii) provides that the spouse or unmarried dependent child of an individual described in clause (i) or (ii) of section 402(a)(2)(C) is eligible.

Q. Does Supplemental Security Income (SSI) categorical eligibility mean than an SSI recipient does not have to meet the new noncitizen eligibility requirements?

A. No. The alien provisions in the PRWORA apply notwithstanding any other provision of law. Further, Section 273.2(j)(2)(v) of the regulations provides that no person shall be included as a member in any household which is otherwise categorically eligible if the person is an ineligible alien.

Q. Are there any special provisions for legal noncitizen migrants under the PRWORA?

No, migrants who are not citizens must meet the same noncitizen eligibility requirements as other noncitizens.

Q. The PRWORA made aliens whose deportation was withheld under section 243(h) of the Immigration and Nationality Act (INA) eligible for food stamps. The PRWORA was subsequently amended to include section 241(b)(3). How does this affect the food stamp eligibility provisions?

A. Section 243(h) was renumbered section 241(b)(3), and the two former procedures of deportation and exclusion were consolidated into one procedure called removal. Therefore, noncitizens whose removal was withheld under section 241(b)(3) after April 1, 1997, are eligible on the same basis as noncitizens whose deportation was withheld under section 243(h).

Q. Can the State agency certify a noncitizen who has a letter from INS saying that he has met all the requirements for naturalization except the swearing-in ceremony?

No. To be eligible as a citizen, the noncitizen must have completed all of the requirements for citizenship and have verification of citizen status.

Verification

Q. What codes and documents can be used to verify an alien’s immigration status?

A. States should use the DOJ, INS verification guidelines to determine an alien’s immigration status and what documents are acceptable verification of that status.

Q. Does INS have a list of noncitizen status codes that could be shared with State agencies?

A. The DOJ verification guidelines reference the appropriate codes.

Q. How should State agencies determine that a noncitizen is a battered spouse or child for the purposes of Food Stamp Program eligibility?

A. See exhibit B to attachment 5 of the Department of Justice verification guidance.

Q. Are current methods for verifying noncitizen status adequate or will they be more stringent?

A. Current methods should be adequate for some aliens but overall more information will have to be verified because additional eligibility factors were added. States should follow the DOJ verification guidelines. In addition to alien status per se, 40 quarters of work or a military connection will have to be verified for some aliens.

Q. Are noncitizens entitled to expedited service without verification of their status?

A. Yes. Verification of noncitizen status is not required for expedited service. Section 273.2(i)(4) provides that the applicant’s identity shall be verified and that all reasonable efforts shall be made to verify other eligibility factors within the expedited processing standards. Benefits shall not be delayed beyond 7 days solely because factors other than identity have not been verified.

Q. If SSA reports through the Quarters of Coverage History System (QCHS) that an applicant does not have 40 quarters but the applicant disputes that determination, may the person participate pending SSA’s investigation.

A. Yes, the person may participate up to 6 months pending the results of the investigation.

Q. If the household disputes SSA’s determination, does it have to ask SSA to review the determination or can it provide documentation directly to the State agency showing 40 quarters of coverage? Can the household request a fair hearing?

A. Except for lag quarters, the preferred way of determining the number of qualifying quarters is by having SSA review the case. However, we cannot mandate use of SSA records, and in some cases State agencies will have to evaluate the verification of work history provided by the household and make an eligibility determination. Examples of acceptable verification are provided in 7 CFR 273.2(f)(4) and in the SSA guidance. All State agencies will have to obtain verification from the applicant for the most recent quarters which do not appear in SSA’s records (lag quarters). The household may request a fair hearing if it disagrees with any adverse food stamp action taken on its case.

Q. Does the provision which allows participation up to 6 months pending SSA review apply if the State determines eligibility by obtaining information about the applicant’s work history from the household instead of or in addition to using the QCHS?

A. No. Participation for up to 6 months is allowed to give SSA time to complete an investigation. The normal application processing time frames would apply if the State agency is obtaining verification from the household.

Q. What if a parent or spouse refuses or is unable to sign the consent form for release of quarters of coverage information from records of the Social Security Administration (SSA)?

A. SSA’s computer system cannot be used. In these instances only the pertinent quarters can be disclosed. A form SSA-513 should be used to request this information if the person is living. A copy is attached to SSA’s guidelines for making determinations using SSA’s quarters of coverage history system. The applicant does not have to complete a consent form for a deceased spouse.

Income and Resources of Ineligible Aliens

Q. How should the income and resources of newly ineligible noncitizens be counted in determining the eligibility and benefits of the rest of the household?

A. PRWORA does not address the treatment of income and resources of the newly ineligible noncitizens. We will either address this in regulations or allow State flexibility in this area. In the meantime, States may use their discretion. They may count all, a prorated share or none of the ineligible noncitizen’s income.

Q. Can a State choose to exclude certain types of cash payments and count all or a prorated share of other income of newly ineligible noncitizens?

A. Until regulations are issued, States may use their discretion. In the regulations, we plan to define income as it is defined in the Food Stamp Act .

Q. Does the income of an ineligible noncitizen’s sponsor and sponsor’s spouse have to be determined so that it can be counted in calculating the benefits of the rest of the household?

A. We will either address this in the regulations or allow State flexibility in this area. In the interim, States may use their own discretion.

Quarters

Q. What kind of earnings qualify as a quarter of work?

A. Covered earnings are wages or self-employment income creditable for Social Security benefits. Uncovered earnings are other earnings. Covered earnings qualify. Uncovered earning of Federal civilian employees hired before 1984, earnings of employees of State and local governments, and certain agricultural and domestic earnings qualify. Based on a letter from the Committee on Ways and Means and a DOJ interpretation, it was the intent of Congress that any earnings of a noncitizen for work legally performed in the United States—not just covered earnings—should be used in the quarters of coverage calculation.

Q. What if a noncitizen worked in the U.S. legally but lived in another country during the time the work was performed?

A. If the noncitizen worked legally in work covered by social security and paid social security taxes, the quarters worked would count. It is not necessary for the alien to reside in the U.S. during the period the work occurred if the work is covered by social security. However, quarters worked in another country cannot be counted unless social security taxes are required to be paid on such work.

Q. Whose quarters can be counted?

A. Quarters earned by (1) the alien, (2) a parent while the alien was under 18, and (3) a spouse during their marriage if the marriage continues or the spouse is deceased. Quarters are credited in the case of a common law marriage or if the couple is holding themselves out to the community as husband and wife. An alien of any age can be credited with quarters earned by a parent through the quarter the alien attains age 18, regardless of whether the parent is currently living. Quarters earned by a current spouse and one or more deceased spouses during marriage can be added together and credited.

Q. A noncitizen was certified based on quarters earned by a spouse. Subsequently, the couple divorce. Is the noncitizen now ineligible? Would the noncitizen be considered ineligible at the next recertification or if he or she reapplied after a break in participation?

A. A former spouse’s quarters cannot be credited if the marriage ended, unless by death, before a determination of the alien’s current eligibility is made. In the example given, the noncitizen would become ineligible at time of recertification or if there is a break in participation when the alien reapplies.

Q. In trying to determine whether or not the members of an applicant household have sufficient quarters, should the number of years and quarters reported for each person be added and can the same quarters be credited for all noncitizens? For example, a husband and wife and two minor children, all of whom are immigrants, apply for benefits. They have all been living together in the U.S. for 5 years. The husband and wife each worked 20 quarters.

A. Each spouse can claim the quarters worked by the other spouse and the children can claim the quarters worked by their parents. In the example given, each of the 4 people would have 40 quarters.

Q. Can quarters of coverage earned by minor children be credited to their parents?

A. No. Credits can be claimed only for the work of a spouse or parent.

Q. If a child has no parents in the U.S., can the child qualify based on the quarters of the adult who is assuming parental responsibility for the child?

A. Only quarters earned by a natural, adoptive, or step-parent can be credited to a child.

Q. What quarters earned by an adoptive parent may be included?

A. All quarters earned by an adoptive parent can be credited through the quarter the alien attains age 18 if the adoption occurred before the alien attained age 18. Quarters earned by a biological parent whose parental rights are lost as a result of the adoption of the child by another person are not creditable.

Q. What quarters earned by a step-parent may be included?

A. Quarters earned by a stepparent can be credited from the quarter of the marriage of the stepparent and the natural or adoptive parent through the quarter of attainment of age 18 if the marriage between the stepparent and the natural or adoptive parent occurred before the alien attained age 18 and has not ended by divorce or annulment before the 40 quarter determination is made. Quarters can be credited if the natural or adoptive parent and stepparent are separated but not divorced. Quarters can be credited from both natural or adoptive parents and the stepparent during the time the stepparent is married to the natural or adoptive parent if the marriage between the stepparent and the natural or adoptive parent occurred before the alien attained age 18 and has not ended by divorce or annulment.

Q. Are quarters earned by a parent before a child enters the U.S. counted in determining the eligibility of the child?

A. Yes. All quarters earned prior to the alien’s birth through the quarter the alien attains age 18 can be credited.

Q. A quarter creditable after December 31, 1996 cannot be counted if the noncitizen or the noncitizen’s spouse or parent received any Federal means-tested public benefit during the quarter. What programs qualify as Federal means-tested public benefits?

A. The agency administering the program determines if the program qualifies. As of now, only SSI, Medicaid, and Temporary Assistance for Needy Families have been determined officially to be Federal means-tested public benefits for purposes of this provision. There is a notice in the clearance process that would designate the Food Stamp Program as a Federal means-tested public assistance benefit.

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