October 2023

Overview of Immigrant Eligibility for
Federal Programs
By Tanya Broder and Gabrielle Lessard
The major federal public benefits programs have long excluded some non–U.S. citizens from eligibility forassistance. Programs such as the Supplemental Nutrition Assistance Program (SNAP, formerly known as the
Food Stamp Program), nonemergency Medicaid, Supplemental Security Income (SSI), and Temporary
Assistance for Needy Families (TANF) and its precursor, Aid to Families with Dependent Children (AFDC),
were largely unavailable to undocumented immigrants and people in the United States on temporary visas.
However, the 1996 federal welfare and immigration laws introduced an unprecedented era ofrestrictionism.1 Prior to the enactment of these laws, lawful permanent residents of the U.S.
generally were eligible for assistance in a manner similar to U.S. citizens. Once the laws were

Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (hereinafter “welfare law”), Pub.
L. No. 104– 193, 110 Stat. 2105 (Aug. 22, 1996); and Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 (hereinafter “IIRIRA”), enacted as Division C of the Defense Department Appropriations Act,
1997, Pub. L. No. 104–208, 110 Stat. 3008 (Sept. 30, 1996).
1This article, “Overview of Immigrant Eligibility for Federal Programs,” is periodically updated as new developments
warrant. The edition published immediately prior to this October 2023 edition was dated March 2023.

implemented, most lawfully residing immigrants were barred from receiving assistance underthe major federal benefits programs for five years or longer.
Even where eligibility for immigrants was preserved by the 1996 laws or restored bysubsequent legislation, many immigrant families hesitate to enroll in critical health care, jobtraining, nutrition, and cash assistance programs due to fear and confusion caused by the laws’
complexity and other intimidating factors. As a result, the participation of immigrants in publicbenefits programs decreased sharply after passage of the 1996 laws, causing severe hardshipfor many low-income immigrant families who lacked the support available to other low-income
families.2
Efforts to address the chilling effects and confusion have continued since that time. The Trumpadministration’s exclusionary policies compounded the problem, making it even more difficult
to ensure that eligible immigrants and their family members would secure services.
This article focuses on eligibility and other rules governing immigrants’ access to federal publicbenefits programs. Many states have attempted to fill some of the gaps in noncitizen coverage
resulting from the 1996 laws, either by electing federal options to cover more eligible
noncitizens or by spending state funds to cover at least some of the immigrants who are
ineligible for federally funded services.
In determining an immigrant’s eligibility for benefits, it is necessary to understand the federal
rules as well as the rules of the state in which an immigrant resides. Updates on federal andstate rules are available on NILC’s website.3

Immigrant Eligibility Restrictions
Categories of Immigrants: “Qualified” and “Not Qualified”
The 1996 welfare law created two categories of immigrants for benefits eligibility purposes:“qualified” and “not qualified.” Contrary to what these names suggest, the law excluded many
people in both groups from eligibility for many benefits, with a few exceptions. The “qualified”
immigrant category includes:
 lawful permanent residents, or LPRs (people with green cards)
 refugees, people granted asylum or withholding of deportation/removal, andconditional entrants
 people granted parole by the U.S. Department of Homeland Security (DHS) for a periodof at least one year Cuban and Haitian entrants4

Michael Fix and Jeffrey Passel, The Scope and Impact of Welfare Reform’s Immigrant Provisions(Discussion Paper No. 02-03) (The Urban Institute, Jan. 2002),
www.urban.org/research/publication/scope-and-impact-welfare-reforms-immigrant-provisions.
2

3

Guide to Immigrant Eligibility for Federal Programs update page, www.nilc.org/updatepage/.

The Cuban and Haitian entrant benefit eligibility category includes Cuban and Haitian nationals with arange of current and past immigration statuses listed at 45 C.F.R. § 401.2. See also U.S. Department of42

 certain abused immigrants, their children, and/or their parents 5
 certain survivors of trafficking 6
 individuals residing in the U.S. pursuant to a Compact of Free Association (COFA) (forMedicaid purposes only)7
All other immigrants, including undocumented immigrants, as well as many people who arelawfully present in the U.S., are considered “not qualified.”8
In the years since the initial definition became law, there have been a few expansions of accessto benefits. In 2000, Congress established a new category of noncitizens — survivors of
trafficking — who are eligible for federal public benefits to the same extent as refugees,
regardless of whether they have a qualified immigrant status.9 In 2003, Congress clarified that

Health and Human Services, Office of Refugee Resettlement Fact Sheet on Cuban and Haitian entrants at
https://www.acf.hhs.gov/sites/default/files/documents/orr/orr_fact_sheet_cuban_haitian_entrant.pdf;
To be considered a “qualified” immigrant under the battered spouse or child category, the immigrant
must have an approved visa petition filed by a spouse or parent, a self-petition under the Violence Against
Women Act (VAWA) that has been approved or sets forth a prima facie case for relief, or an approved
application for cancellation of removal under VAWA. The spouse or child must have been battered or
subjected to extreme cruelty in the U.S. by a family member with whom the immigrant resided, or theimmigrant’s parent or child must have been subjected to such treatment. The immigrant must also
demonstrate a “substantial connection” between the domestic violence and the need for the benefit beingsought. And the battered immigrant, parent, or child must not be living with the abuser. While many
people who have U visas have survived domestic violence, they are not considered qualified batteredimmigrants under this definition.
5

Survivors of trafficking and their derivative beneficiaries who obtain a T visa or whose application for a T
visa sets forth a prima facie case are considered “qualified” immigrants. This group was added to thedefinition of “qualified” by the William Wilberforce Trafficking Victims Protection Reauthorization Act of2008, Pub. L. 110–457, § 211 (Dec. 23, 2008).
6

7

8 U.S.C. § 1641(b)(8).

Throughout the remainder of this article, qualified will be understood to have this particular meaning, as
will not-qualified; they will not be enclosed in quotation marks.
8

Before 1996, some of these immigrants were served by benefit programs under an eligibility category
called “permanently residing in the U.S. under color of law” (PRUCOL). PRUCOL is not an immigration
status, but a benefit eligibility category that has been interpreted differently depending on the benefit
program and the region. Generally, it means that the U.S. Department of Homeland Security (DHS) is awareof a person’s presence in the U.S. but has no plans to deport or remove them from the country. A few
states, including California and New York, continue to provide services to immigrants meeting thisdefinition, using state or local funds.
The Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106–386, § 107 (Oct. 28, 2000).
Federal agencies are required to provide benefits and services to individuals who have been subjected toa “severe form of trafficking in persons” to the same extent as refugees, without regard to theirimmigration status. To receive these benefits, the survivor must be either under 18 years of age or certified
by the U.S. Department of Health and Human Services (HHS) as willing to assist in the investigation andprosecution of severe forms of trafficking in persons. In the certification, HHS confirms that the person
either (a) has made a bona fide application for a T visa that has not been denied, or (b) is a person whose
continued presence in the U.S. is being ensured by the attorney general in order to prosecute traffickers inpersons.
93

“derivative beneficiaries” listed on trafficking survivors’ visa applications (spouses and childrenof adult trafficking survivors; spouses, children, parents, and minor siblings of child survivors)
also may secure federal benefits.10 By 2009, Iraqis and Afghans granted Special Immigrant visas
similarly became eligible for benefits to the same extent as refugees.11 In 2021, Congress
extended the same benefits eligibility to certain Afghans paroled into the U.S.12 In 2022,
Congress made certain Ukrainians who were paroled into the U.S. eligible for benefits to thesame extent as refugees.13 And in 2020, Congress declared that, for Medicaid purposes only,
citizens of Micronesia, Marshall Islands, and Palau who reside in the U.S. pursuant to a Compact
of Free Association (COFA migrants) would be considered “qualified” immigrants.14

Federal Public Benefits Generally Denied to “Not Qualified” Immigrants
With some important exceptions detailed below, the law prohibits not-qualified immigrants
from enrolling in most “federal public benefit programs.”15 Federal public benefits include avariety of safety-net services paid for by federal funds.16 But the welfare law’s definition does
not specify which programs are covered by the term, leaving that clarification to each federal

10

Trafficking Victims Protection Reauthorization Act of 2003, Pub. L. No. 108–193, § 4(a)(2) (Dec. 19, 2003).

Iraqis and Afghans granted Special Immigrant visas (SIV) under the Refugee Crisis in Iraq Act of 2007
§ 1244(g) (subtitle C of title XII of division A of Public Law 110-181; 122 Stat. 398) or the Afghan Allies
Protection Act of 2009 § 602(b)(8) (title VI of division F of Public Law 111- 8; 123 Stat. 809) are eligible forbenefits to the same extent as refugees. Department of Defense Appropriations Act, 2010, Pub. L. No. 111118, § 8120 (Dec. 19, 2009). Afghans granted special immigrant parole (who have applied for SIV) areconsidered covered under this act and are also eligible for benefits to the same extent as refugees.
“Afghan Special Immigrant Parolee and Lawful Permanent Resident Status” (USCIS, Aug. 12, 2021),
https://www.uscis.gov/save/whats-new/afghan-special-immigrant-parolee-and-lawful-permanentresident-status.
11

Extending Government Funding and Delivering Emergency Assistance Act, Pub. L. 117-43 (Sept. 30, 2021)
as amended by the Continuing Appropriations and Ukraine Supplemental Appropriations Act, Pub. L. 117180 § 149 (Sept. 30, 2022), and by the Consolidated Appropriations Act, 2023, Pub. L. 117-328 § 1501 (Dec.
29, 2022). Afghans granted humanitarian parole between July 31, 2021, and September 30, 2023 — andtheir spouses and children, and parents or guardians of unaccompanied children granted parole after
September 30, 2022 — also are eligible for federal benefits to the same extent as refugees. Eligibility forthis group continues until March 31, 2023, or the end of their parole term, whichever is later.
12

Additional Ukraine Supplemental Appropriations Act, 2022, H.R. 7691 (May 21, 2022). Ukrainians paroled
into the U.S. between February 24, 2022, and September 30, 2023 – and their spouses and children, andparents, guardians or primary caregivers of unaccompanied children paroled into the U.S. after September
30, 2023 – are eligible for federal benefits to the same extent as refugees. (There is an exception for an
initial resettlement program). Eligibility for this group continues until their parole is terminated.
13

14

Consolidated Appropriations Act, 2021, Pub. L. 116-260, § 208(c) (Dec. 27, 2020).

15

Welfare law § 401 (8 U.S.C. § 1611).

“Federal public benefit” is described in the 1996 federal welfare law as (a) any grant, contract, loan,
professional license, or commercial license provided by an agency of the U.S. or by appropriated funds of
the U.S., and (b) 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 an agency of the U.S. or
appropriated funds of the U.S.
16

4

benefit–granting agency. In 1998, the U.S. Department of Health and Human Services (HHS)
published a notice clarifying which of its programs fall under the definition.17 The list of 31 HHS
programs includes Medicaid, the Children’s Health Insurance Program (CHIP), TANF, Foster
Care, Adoption Assistance, the Child Care and Development Fund, and the Low-Income Home
Energy Assistance Program. Any new programs must be designated as federal public benefits
in order to trigger the associated eligibility restrictions and, until they are designated as such,should remain open to broader groups of immigrants.
The HHS notice clarifies that not every benefit or service provided within these programs is afederal public benefit. For example, in some cases not all of a program’s benefits or services
are provided to an individual or household; they may extend, instead, to a community of people— as in a community clinic or the weatherization of an entire apartment building.18
The welfare law also attempted to force states to pass additional laws, after August 22, 1996, if
they choose to provide state public benefits to certain immigrants.19 Such micromanagement ofstate affairs by the federal government is potentially unconstitutional under the TenthAmendment.20

Exceptions to the Restrictions
The law includes important exceptions for certain types of services. Regardless of theirimmigration status, not-qualified immigrants are eligible for emergency Medicaid21 if they areotherwise eligible for their state’s Medicaid program.22 The law does not restrict access topublic health programs that provide immunizations and/or treatment of communicable disease
symptoms (whether or not those symptoms are caused by such a disease). School breakfast
and lunch programs remain open to all children regardless of immigration status, and every

HHS, Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA),“Interpretation of ‘Federal Public Benefit,’” 63 Fed. Reg. 41658–61 (Aug. 4, 1998). The HHS notice clarifies
that not every benefit or service provided within these programs is a federal public benefit.
17

HHS, Division of Energy Assistance, Office of Community Services, Memorandum from Janet M. Fox,
Director, to Low Income Home Energy Assistance Program (LIHEAP) Grantees and Other Interested
Parties, re. Revision-Guidance on the Interpretation of “Federal Public Benefits” Under the Welfare Reform
Law (June 15, 1999).
18

19

Welfare law § 411 (8 U.S.C. § 1621).

See, e.g., Matter of Application of Cesar Adrian Vargas for Admission to the Bar of the State of New York(2015 NY Slip Op 04657; decided on June 3, 2015, Appellate Division, Second Department Per Curiam)(holding that the requirement under 8 U.S.C. § 1621(d) that states must pass legislation in order to opt out of
the federal prohibition on issuing professional licenses — in this case, admission to the New York State bar— to undocumented immigrants infringes on New York State’s 10th amendment rights).
20

Emergency Medicaid covers the treatment of an emergency medical condition, which is defined as “amedical condition (including emergency labor and delivery) manifesting itself by acute symptoms ofsufficient severity (including severe pain) such that the absence of immediate medical attention could
reasonably be expected to result in: (A) placing the patient’s health in serious jeopardy, (B) serious
impairment to bodily functions: or (C) serious dysfunction of any bodily organ or part.” 42 U.S.C. § 1396b(v).
21

22

Welfare law § 401(b)(1)(A) (8 U.S.C. § 1611(b)(1)(A)).

5state has opted to provide access to the Special Supplemental Nutrition Program for Women,
Infants, and Children (WIC).23
Short-term noncash emergency disaster assistance remains available without regard to
immigration status. Also exempt from the restrictions are other in-kind services necessary toprotect life or safety, as long as no individual or household income qualification is required. In
2001, the U.S. attorney general published a final order specifying the types of benefits that meetthese criteria. The attorney general’s list includes child and adult protective services; programs
addressing weather emergencies and homelessness; shelters, soup kitchens, and meals-onwheels; medical, public health, and mental health services necessary to protect life or safety;
disability or substance abuse services necessary to protect life or safety; and programs toprotect the life or safety of workers, children and youths, or community residents.24

Verification Rules
When a federal agency designates a program as a federal public benefit foreclosed to notqualified immigrants, the law requires the state or local agency to verify the immigration andcitizenship status of all program applicants. However, many federal agencies have not specified
which of their programs provide federal public benefits. Until they do, state and local agencies
that administer the programs are not obligated to verify the immigration status of people who
apply for them.
And under an important exception contained in the 1996 immigration law, nonprofit charitableorganizations are not required to “determine, verify, or otherwise require proof of eligibility of
any applicant for such benefits.” This exception relates specifically to the immigrant benefits
restrictions in the 1996 welfare and immigration laws.25

Eligibility for Major Federal Benefit Programs
Congress restricted eligibility even for many qualified immigrants by distinguishing between
those who entered the U.S. before or “on or after” the date the law was enacted, August 22,
1996. The law barred most immigrants who entered the U.S. on or after that date from “federal
means-tested public benefits” during the five years after they secure qualified immigrant
status.26 This waiting period is often referred to as the five-year bar. Federal agencies clarified
that the “federal means-tested public benefits” are Medicaid (except for emergency services),
CHIP, TANF, SNAP, and SSI.27

23

Welfare law § 742 (8 U.S.C. § 1615).

U.S. Dept. of Justice (DOJ), “Final Specification of Community Programs Necessary for Protection of Lifeor Safety under Welfare Reform Legislation,” A.G. Order No. 2353– 2001, 66 Fed. Reg. 3613–16 (Jan. 16,
2001).
24

25

IIRIRA § 508 (8 U.S.C. § 1642(d)).

26

Welfare law § 403 (8 U.S.C. § 1613).

HHS, Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA),“Interpretation of ‘Federal Means-Tested Public Benefit,’” 62 Fed. Reg. 45256 (Aug. 26, 1997); U.S. Dept. ofAgriculture (USDA), “Federal Means Tested Public Benefits,” 63 Fed. Reg. 36653 (July 7, 1998). The CHIP
27

6

TANF, Medicaid, and CHIP
States can receive federal funding for TANF, Medicaid, and CHIP to serve qualified immigrants
who have completed the federal five-year bar.28 Refugees, people granted asylum or
withholding of deportation/removal, Cuban/Haitian entrants, certain Amerasian immigrants,29
Iraqi and Afghan Special Immigrants, and survivors of trafficking are exempt from the five-year
bar, as are qualified immigrants who are veterans or active-duty military and their spouses andchildren. In addition, children who receive federal foster care and COFA migrants are exempt
from the five-year bar in the Medicaid program.
Over half of the states have used state funds to provide TANF, Medicaid, and/or CHIP toimmigrants who are subject to the five-year bar on federally funded services, or to a broader
group of immigrants.30 A growing number of states and counties provide health coverage tochildren, young adults, or pregnant persons regardless of their immigration status. Several
states offer or will offer health coverage to older adults regardless of their immigration status.
And five states (California, Colorado, Minnesota, Oregon, Washington) and the District ofColumbia offer or will offer public or private health coverage with state subsidies to allotherwise eligible immigrants regardless of their immigration status.
Where federal matching funds are available, forty-four states have chosen to cover immigrantchildren and/or pregnant people, or to provide prenatal care regardless of immigration status. 31

program, created after the passage of the 1996 welfare law, was later designated as a federal meanstested public benefit program. See Health Care Financing Administration, “The Administration’s Response
to Questions about the State Child Health Insurance Program,” Question 19(a) (Sept. 11, 1997).
States were also given an option to provide or deny federal TANF and Medicaid to most qualified
immigrants who were in the U.S. before Aug. 22, 1996, and to those who enter the U.S. on or after that date,once they have completed the federal five-year bar. Welfare law § 402 (8 U.S.C. § 1612). Only one state,
Wyoming, denies Medicaid to immigrants who were in the country when the welfare law passed.
Colorado’s proposed termination of Medicaid to these immigrants was reversed by the state legislature in2005 and never took effect. In addition to Wyoming, six states (Mississippi, Montana, North Dakota, South
Carolina, South Dakota, and Texas) require lawful permanent residents who complete the five-year bar tohave credit for 40 quarters of work history in the U.S. in order to qualify for Medicaid. Montana, South
Carolina, and Texas, however, provide health coverage to lawfully residing children, while South Carolina
and Wyoming cover lawfully residing pregnant persons regardless of their date of entry into the U.S. Fivestates (Indiana, Mississippi, Ohio, South Carolina, and Texas) fail to provide TANF to all qualified immigrants
who complete the federal five-year waiting period. For more detail, see NILC’s “Table: Overview of
Immigrant eligibility for Federal Programs,” endnotes 5-7, at www.nilc.org/table_ovrw_fedprogs/.
28

For purposes of the exemptions described in this article, the term Amerasians applies only to individuals
granted lawful permanent residence under a special statute enacted in 1988 for Vietnamese Amerasians.
See § 584 of the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1988 (ascontained in § 101(c) of Public Law 100-202 and amended by the 9th proviso under Migration and Refugee
Assistance in Title II of the Foreign Operations, Export Financing, and Related Programs Appropriations
Act, 1989, Public Law 100-461, as amended).
29

See Guide to Immigrant Eligibility for Federal Programs, 4th ed. (National Immigration Law Center, 2002),
and updated tables at www.nilc.org/updatepage/.
30

See Medical Assistance Programs for Immigrants in Various States (National Immigration Law Center) at
https://www.nilc.org/issues/health-care/medical-assistance-various-states/.
31

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In 2009, states were granted an option to provide federally funded Medicaid and CHIP to“lawfully residing” children and/or pregnant persons regardless of their date of entry into the
U.S.32 As of October 2023, thirty-eight states33 plus the District of Columbia have opted to takeadvantage of this federal funding for immigrant health care coverage, which became available
on April 1, 2009.
Twenty-three states use or will use federal funds to provide prenatal care regardless of
immigration status, under an option enabling states to provide prenatal services through CHIP.
Under this option, the pregnant person’s fetus is technically the recipient of CHIP-funded
services. This approach potentially limits the scope of services available to the pregnant person
to those directly related to the fetus’s health. 34 However, several states have used another
CHIP option or state funds to provide 12 months of post-partum care, regardless of status.
The District of Columbia, New Jersey, New York, and Vermont use state or local funds toprovide prenatal care regardless of the pregnant person’s immigration status.
While the federal health care reform law, known as the Affordable Care Act (ACA),35 did notalter immigrant eligibility for Medicaid or CHIP, it provided new pathways for lawfully present
immigrants to obtain health insurance. Coverage purchased in the ACA’s health insurance
marketplaces is available to most lawfully present noncitizens.36 A “special rule” allows
immigrants with incomes under 100 percent of the federal poverty level to obtain subsidized
marketplace coverage if their immigration status makes them ineligible for Medicaid.37

Section 214 of the Children’s Health Insurance Program Reauthorization Act of 2009 (CHIPRA) (H.R.2),
Public Law 111-3 (Feb. 4, 2009).
32

In 2023, Georgia and Michigan (included in the 38) allocated funding to cover lawfully residing children
and pregnant people; the coverage will become available once administrative changes have been made.
33

Postpartum care is not covered by these federal funds unless a state normally pays for this care as partof a bundled payment or global fee method. HHS Letter to State Health Officials (Nov. 12, 2002). See also
Medical Assistance Programs for Immigrants in Various States (National Immigration Law Center, October2022), www.nilc.org/medical-assistance-various-states/. However, some states have used the CHIP
program’s Health Services Initiative funding to offer 12 months of post-partum care regardless of theperson’s immigration status. See, e.g. CMS letter to California Department of Health Care Services (Sept. 14,2021), www.dhcs.ca.gov/formsandpubs/laws/Documents/CHIP-SPA-21-0032-Approval.pdf.
34

Pub. Law No. 111-148, as amended by the Health Care and Education Act of 2010, Pub. Law No. 111-152.
For more information about immigrant eligibility for coverage under the Affordable Care Act, see
Immigrants and the Affordable Care Act (ACA) (NILC, Jan. 2014), www.nilc.org/immigrantshcr/.
35

HHS initially excluded persons granted Deferred Action for Childhood Arrivals (DACA) from its lawfulpresence definition. 45 C.F.R. § 152.2 (8). In April 2023, HHS proposed to include DACA recipients in its
lawful presence definition for purposes of the ACA and the option to cover children and pregnant people
in Medicaid and CHIP; the proposed rule also clarifies eligibility for certain other lawfully present
individuals. 88 Fed. Reg. 25313 (April 26, 2023). For more information on the ACA, see NILC’s fact sheets at
www.nilc.org/acafacts/.
36

37

45 CFR § 155.305(f)(2).

8

SNAP
Although the 1996 law severely restricted immigrant eligibility for the Supplemental Nutrition
Assistance Program (SNAP, formerly known as the Food Stamp Program), subsequent
legislation restored access for many immigrants. Qualified immigrant children, refugees, people
granted asylum or withholding of deportation/removal, Cuban/Haitian entrants, certain
Amerasian immigrants, Iraqi and Afghan Special Immigrants, survivors of trafficking, qualified
immigrant veterans, active duty military and their spouses and children, lawful permanent
residents with credit for 40 quarters of work history, certain Native Americans, lawfully residing
Hmong and Laotian tribe members, and immigrants receiving disability-related assistance are
eligible regardless of their date of entry into the U.S.38 Qualified immigrant seniors who wereborn before August 22, 1931, may be eligible if they were lawfully residing in the U.S. on August22, 1996. Other qualified immigrant adults, however, must wait until they have been in qualified
status for five years before they can secure critical nutrition assistance.
Five states — California, Illinois, Maine, Minnesota, and Washington — provide state-funded
nutrition assistance to some of the immigrants who are ineligible for the federal SNAP
program.39

SSI
Congress imposed its harshest restrictions on immigrant seniors and immigrants withdisabilities who seek assistance under the SSI program.40 Although advocacy efforts in the twoyears following the welfare law’s passage achieved a partial restoration of these benefits,
significant gaps in eligibility remain. For example, SSI continues to exclude not-qualified
immigrants who were not receiving the benefits on August 22, 1996, as well as most qualified
immigrants who entered the country after the welfare law passed and seniors without
disabilities who were in the U.S. before that date.41“Humanitarian” immigrants (including refugees, people granted asylum or withholding ofdeportation/removal, Amerasian immigrants, Cuban and Haitian entrants, Iraqi and AfghanSpecial Immigrants, and survivors of trafficking) can receive SSI, but only during the first sevenyears after having obtained the relevant status. The main rationale for the seven-year time limit
was that it was intended to provide a sufficient opportunity for humanitarian immigrant seniors
and those with disabilities to naturalize and retain their eligibility for SSI as U.S. citizens.
However, a combination of factors, including immigration backlogs, processing delays, former
statutory caps on the number of asylees who can adjust their immigration status, language

The disability-related programs (for the purpose of “immigrants receiving disability-related assistance”)
include SSI, Social Security disability, state disability or retirement pension, railroad retirement disability,
veteran’s disability, disability-based Medicaid, and disability-related General Assistance, if the disability
determination uses criteria as stringent as those used for SSI.
38

39

See NILC’s updated tables on state-funded services at www.nilc.org/updatepage/.

40

Welfare law § 402(a) (8 U.S.C. § 1612(a)).

Most new entrants cannot receive SSI until they become citizens or secure credit for 40 quarters of work
history (including work performed by a spouse during marriage, persons “holding out to the community”
as spouses, and by parents before the immigrant was 18 years old).
41

9

barriers, and other obstacles, made it impossible for many of these individuals to naturalize
within seven years. Although Congress enacted an extension of eligibility for refugees who
faced a loss of benefits due to the seven-year time limit in 2008, that extension expired in
2011.42 Subsequent attempts to reauthorize the extension were unsuccessful, and the exclusionfrom SSI of thousands of seniors and people with disabilities continues.
Six states — California, Hawaii, Illinois, Maine, New Hampshire, and Washington — provide cash
assistance to certain immigrant seniors and people with disabilities who are ineligible for SSI;
some others provide much smaller general assistance grants to these immigrants.

The Impact of Sponsorship on Eligibility
Under the 1996 welfare and immigration laws, family members and some employers eligible tofile a petition to help a person immigrate must become financial sponsors of the immigrant bysigning a contract with the government called an “affidavit of support.” Under the enforceable
affidavit (Form I-864), the sponsor promises to support the immigrant and to repay certain
benefits that the immigrant may use.
Immigrants whose sponsors sign an enforceable affidavit of support are subject to additional
eligibility restrictions. When an agency is determining a lawful permanent resident’s financial
eligibility for TANF, SNAP, SSI, nonemergency Medicaid, or CHIP,43 the law in some cases
requires the agency to “deem” the income of the immigrant’s sponsor or the sponsor’s spouse
to be available to the immigrant. The sponsor’s income and resources are added to theimmigrant’s, which often disqualifies the immigrant as over-income for the program. The 1996
laws imposed deeming rules in certain programs until the immigrant becomes a citizen or
secures credit for 40 quarters (approximately 10 years) of work history in the U.S.
Domestic violence survivors and immigrants who would go hungry or homeless without
assistance (“indigent” immigrants) are exempt from sponsor deeming for at least 12 months.44
Some programs apply additional exemptions from the sponsor-deeming rules.45 The U.S.
Department of Agriculture (USDA) has issued helpful guidance on the indigence exemption andother deeming and liability issues.46

42

The SSI Extension for Elderly and Disabled Refugees Act, Pub. Law. 110-328 (Sept. 30, 2008).

43

Welfare law § 421 (8 U.S.C. § 1631).

44

IIRIRA § 552 (8 U.S.C. § 1631(e) and (f)).

Children, for example, are exempt from deeming in the Supplemental Nutrition Assistance Program. In
states that choose to provide Medicaid and CHIP to lawfully residing children and pregnant persons,regardless of their date of entry, deeming and other sponsor-related barriers do not apply to these groups.
45

7 C.F.R. § 274.3(c). See also Supplemental Nutrition Assistance Program: Guidance on Non-Citizen Eligibility(USDA, June 2011), https://fns-prod.azureedge.net/snap/eligibility/non-citizen-eligibility. See also
Deeming of Sponsor’s Income and Resources to a Non-Citizen (HHS, TANF-ACF-PI-2003–03, Apr. 17, 2003),
https://www.acf.hhs.gov/ofa/policy-guidance/tanf-acf-pi-2003-03-deeming-sponsors-income-andresources-non-citizen. Federal agencies (HHS and USDA) posted additional guidance pursuant to the
Trump administration’s May 23, 2019, memorandum on enforcing the responsibilities of sponsors.
46

10Beyond Eligibility: Overview of Barriers That Impede Access to
Benefits for Immigrants
Confusion about Eligibility
Confusion about eligibility rules is widespread in both immigrant communities and benefit
agencies. The confusion stems from the complex interaction of the immigration and welfare
laws, differences in eligibility criteria for various state and federal programs, and a lack ofadequate training on the rules as clarified by federal agencies. Consequently, many eligible
immigrants have assumed that they should not seek services, and eligibility workers haveturned away eligible immigrants mistakenly.

Fear of Being Considered a Public Charge
The immigration laws allow officials to deny a noncitizen’s application for lawful permanent
residence or entry into the U.S. if the authorities determine that the person is “likely to become apublic charge.”47 In deciding whether an immigrant is likely to become a public charge,
immigration or consular officials review the “totality of the circumstances,” including theperson’s health, age, income and resources, education and skills, family circumstances, and theaffidavit of support. Under the current DHS regulations and longstanding policy, officials may
consider the receipt of only two types of public benefits in a public charge assessment:•

Public cash assistance for income maintenance, and•Long-term institutionalization at government expense. 48

During the period immediately after the 1996 welfare and immigration laws passed, themisapplication of the public charge ground of inadmissibility contributed significantly to thechilling effect on immigrants’ access to services. The 1996 immigration law (IIRIRA) codified thefactors traditionally considered by courts in a public charge determination, without altering its
interpretation. The use of programs such as Medicaid or SNAP had never weighed heavily indetermining whether individuals were inadmissible under the public charge ground. Confusionand fear about these rules, however, became widespread.49 Immigrants’ rights advocates,
health care providers, and state and local governments organized to persuade federal
agencies to clarify the limits of the rules. In 1999, the Immigration and Naturalization Service(INS, whose functions were later assumed by the Department of Homeland Security, or DHS)

President Biden rescinded this memorandum on February 2, 2021, directing agencies to review all actions
taken in accordance with the Trump memorandum.
47

INA § 212(a)(4).

48

8 CFR § 212.21.

Claudia Schlosberg and Dinah Wiley, The Impact of INS Public Charge Determinations on Immigrant
Access to Health Care (National Health Law Program and NILC, May 22, 1998),
https://www.oregonadvocates.org/geo/search/download.67362.
49

11

issued helpful guidance and a proposed regulation on the public charge doctrine.50 The
guidance clarified that receipt of health care and other noncash benefits will not jeopardize theimmigration status of recipients or their family members by putting them at risk of being
considered a public charge.51
The Trump administration attempted to alter this policy dramatically by issuing rules that madeit much more difficult for low- and middle-income families to immigrate, and that profoundly
exacerbated the chilling effect on access to services. Multiple courts found that the rules werelikely unlawful. The Biden administration dismissed the appeals of these decisions, allowed anorder vacating the DHS rule to take effect, and formally withdrew the prior administration’s DHS
public charge rule.
On September 9, 2022, US Citizenship and Immigration Services (USCIS) published a final rule
addressing the public charge inadmissibility ground.52 The new rule became effective on
December 23, 2022. The Department of State (DOS) is applying a similar policy to applications
that are processed abroad.53 DOS has indicated that it plans to issue proposed public charge
rules, which are likely to conform with the new USCIS rule.54 The final USCIS public charge ruleis largely consistent with the 1999 Field Guidance and includes some helpful clarifications.55
USCIS has revised its forms to reflect the new rules and may make further revisions, or issue
more guidance, in response to feedback from advocates and practitioners.
Despite the restoration of longstanding public charge policy, widespread confusion andconcern about the public charge rules remains, deterring many eligible immigrants and their
US citizen family members from seeking critical services.56

DOJ, “Field Guidance on Deportability and Inadmissibility on Public Charge Grounds,” 64 Fed. Reg.
28689–93 (May 26, 1999); see also DOJ, “Inadmissibility and Deportability on Public Charge Grounds,” 64Fed. Reg. 28676–88 (May 26, 1999); U.S. Dept. of State, INA 212(A)(4) Public Charge: Policy Guidance, 9 FAM
40.41.
50

The use of all health care programs, except for long-term institutionalization (e.g., Medicaid payment for
nursing home care), was declared to be irrelevant to public charge determinations. Programs providing
cash assistance for income maintenance purposes are the only other programs that are relevant in the
public charge determination. The determination is based on the “totality of a person’s circumstances,” andtherefore even the past use of cash assistance can be weighed against other favorable factors, such as aperson’s current income or skills or the contract signed by a sponsor promising to support the intending
immigrant.
51

52

87 Fed. Reg. 55472 (Sept. 9, 2022).

9 FAM 302.8 (U) PUBLIC CHARGE - INA 212(A)(4) (state.gov), at
https://fam.state.gov/FAM/09FAM/09FAM030208.html.
53

54

88 Fed. Reg. 60574 (Sept. 5, 2023)(restoring 22 C.F.R, § 40.41, effective October 5, 2023).

See Public Charge: What Advocates Need to Know (Protecting Immigrant Families and NILC,
September 2022), https://pifcoalition.org/resource/public-charge-what-advocates-need-to-know.
55

See, e.g., Research Documents Harm of Public Charge Policy During the COVID-19 Pandemic (Protecting
Immigrant Families, Aug. 2021), https://pifcoalition.org/wp-content/uploads/2022/05/Documentingthe-Harm-2021.pdf; Immigrant Families Poll Finds Persistent Chilling Effect (Protecting Immigrant Families,
Dec. 2021), https://pifcoalition.org/resource/immigrant-families-poll-finds-persistent-chilling-effect. See
56

12Requirement of Affidavits of Support
The 1996 laws enacted rules that make it more difficult to immigrate to the U.S. to reunite withfamily members. As noted above, since December 19, 1997 relatives (and some employers)
who sponsor an immigrant have been required to meet strict income requirements and to sign
a long-term contract, or affidavit of support (USCIS Form I-864), promising to maintain theimmigrant at 125 percent of the federal poverty level and to repay certain means-tested publicbenefits the immigrant may receive.57
The specific federal benefits for which sponsors may be liable have been defined to be TANF,
SSI, SNAP, nonemergency Medicaid, and CHIP. Affidavit of support regulations issued in 2006
make clear that states are not obligated to seek reimbursement from sponsors. The regulations
prohibit states from collecting reimbursement for any services used before the state issues apublic notification that the services are considered means-tested public benefits for whichsponsors will be liable.58
Most states have not designated which programs would give rise to sponsor liability, and, forvarious reasons, agencies generally have not attempted to seek reimbursement from sponsors.
However, the specter of making their sponsors liable financially has deterred eligible
immigrants from applying for critical services.

Language Access
Many immigrants face significant linguistic and cultural barriers to obtaining benefits. As of2022, approximately 22 percent of the U.S. population (5 years of age and older) spoke alanguage other than English at home.59 Although 97 percent of long-term immigrants to the
U.S. eventually learn to speak English well,60 many are in the process of learning the language,
and around 8 percent of people living in the U.S. speak English less than very well.61 Thesealso “One in Four Adults in Mixed-Status Families Did Not Participate in Safety Net Programs in 2022
Because of Green Card Concerns (Urban Institute, Aug. 17, 2023), at
https://www.urban.org/research/publication/one-four-adults-mixed-status-families-did-notparticipate-safety-net-programs; Health and Health Care Experiences of Immigrants: The 2023 KFF/LA
Times Survey of Immigrants (Sept. 17, 2023) at https://www.kff.org/racial-equity-and-health-policy/issuebrief/health-and-health-care-experiences-of-immigrants-the-2023-kff-la-times-survey-of-immigrants/.
57

Welfare law § 423, amended by IIRIRA § 551 (8 U.S.C. § 1183a).

U.S. Dept. of Homeland Security, “Affidavits of Support on Behalf of Immigrants,” 71 Fed. Reg. 35732,
35742–43 (June 21, 2006). On May 23, 2019, the Trump administration issued a memorandum on enforcing
the responsibilities of sponsors. President Biden rescinded the memorandum through an executive orderissued on February 2, 2021, directing agencies to review all actions taken in accordance with the Trump
memorandum.
58

59

Selected Social Characteristics in the United States (American Community Survey table, 2022).

James P. Smith and Barry Edmonston, eds., The New Americans: Economic, Demographic, and Fiscal
Effects of Immigration (Washington, DC: National Academy Press, 1997),
www.nap.edu/catalog.php?record_id=5779#toc, p. 377.
60

61

American Community Survey, supra note 59.

13

limited–English proficient (LEP) residents cannot effectively apply for benefits or meaningfullycommunicate with a health care provider without language assistance.
Title VI of the Civil Rights Act of 1964 and its implementing regulations prohibit recipients offederal funding from discriminating on the basis of national origin, which has been interpreted
to prohibit discrimination based on language. Benefit agencies, health care providers, and otherentities that receive federal financial assistance are required to take “reasonable steps” toassure that people who are LEP have “meaningful access” to federally funded programs, but
compliance with this law varies widely, and language access remains a challenge.62
Section 1557 of the Affordable Care Act prohibits discrimination on the basis of race, color,
national origin, sex, age, or disability in health programs or activities that receive federal fundingor are administered by an executive agency, as well as any entity established under Title I of
the ACA, which created the health insurance marketplaces such as HealthCare.gov.63
Regulations finalized in 2020 rolled back aspects of section 1557’s implementation, as provided
in 2016 regulations, including narrowing the scope of its coverage and some specific provisions
related to language access. In August 2022, the Biden administration proposed new regulations
that would strengthen section 1557’s non-discrimination requirements.64 As of the date of thispublication, final regulations have not been published.

Verification
Rules that require benefit agencies to verify applicants’ immigration or citizenship status havebeen misinterpreted by some agencies, leading them to demand immigration documents orSocial Security numbers (SSNs) in situations when applicants are not required to submit suchinformation.
In 1997, the U.S. Department of Justice (DOJ), the department primarily responsible for
implementing and enforcing immigration laws prior to the creation of DHS in 2002, issued
interim guidance for federal benefit providers to use in verifying immigration status.65 The
guidance, which remains in effect, directs benefit agencies already using the Systematic Alien

See the federal interagency language access website, www.lep.gov, for a variety of materials, including
guidance from the U.S. Dept. of Justice and federal benefit agencies.
62

63

42 U.S.C. § 18116.

87 Fed. Reg. 47824 (Aug. 4, 2022), https://www.govinfo.gov/content/pkg/FR-2022-08-04/pdf/202216217.pdf.
64

DOJ, “Interim Guidance on Verification of Citizenship, Qualified Alien Status and Eligibility Under Title IVof the Personal Responsibility and Work Opportunity Reconciliation Act of 1996,” 62 Fed. Reg. 61344–416(Nov. 17, 1997). In Aug. 1998, the agency issued proposed regulations that draw heavily on the interim
guidance and the Systematic Alien Verification for Entitlements (SAVE) program. See DOJ, “Verification of
Eligibility for Public Benefits,” 63 Fed. Reg. 41662–86 (Aug. 4, 1998). Final regulations have not been issued.
Once the regulations become final, states have two years to implement a conforming system for thefederal programs they administer.
65

14

Verification for Entitlements (SAVE) process to continue to do so.66 Previously, the use of SAVEin the SNAP program was an option that could be exercised by each state, but the 2014 FarmBill mandated that SAVE be used in SNAP nationwide.67
However, important protections for immigrants who are subject to verification remain in place.
Applicants for major benefits are guaranteed a “reasonable opportunity” to provide requested
immigration documents, including, in some cases, receipts confirming that the person has
applied for replacement of lost documents. In the federal programs that are required by law to
use SAVE, applicants who declare that they have a satisfactory status and who provide
documents within the reasonable opportunity period should remain eligible for assistance
while verification of their status is pending. And information submitted to the SAVE system may
not be used for civil immigration enforcement purposes.
The 1997 DOJ guidance recommends that agencies make decisions about financial and othereligibility factors before asking an applicant for information about their immigration status.

Questions on Application Forms
Federal agencies have worked to reduce the chilling effect of immigration status–related
questions on benefit applications. In 2000, HHS and USDA issued a “Tri-Agency Guidance”
document, recommending that states delete from benefit applications questions that are
unnecessary and that may chill participation by immigrant families.68 The guidance confirmsthat only the immigration status of the applicant for benefits is relevant. It encourages states toallow family or household members who are not seeking benefits to be designated as
nonapplicants early in the application process. Similarly, under Medicaid, TANF, and SNAP, only
the applicant must provide a Social Security number. In 2011, the USDA issued a memo
instructing states to apply these principles in their online application procedures.69 These
principles are also codified in Medicaid and CHIP regulations, and in the Affordable Care Act.70

SAVE is used to help state benefits agencies verify eligibility for several major benefits programs. See 42
U.S.C.§ 1320b-7. DHS verifies an applicant’s immigration status by tapping numerous databases and/or
through a manual search of its records. This information is used only to verify eligibility for benefits andmay not be used for civil immigration enforcement purposes. See the Immigration Reform and Control Act
of 1986, 99 Pub. L. 603, § 121 (Nov. 6, 1986); DOJ, “Verification of Eligibility for Public Benefits,” 63 Fed. Reg.
41662, 41672, and 41684 (Aug. 4, 1998). See also The Systematic Alien Verification for Entitlements (SAVE)
Program: A Fact Sheet (American Immigration Council, Dec. 15, 2011),
https://www.americanimmigrationcouncil.org/research/systematic-alien-verification-entitlements-saveprogram-fact-sheet.
66

67

113 Pub. L. 79, § 4015 (Feb. 7, 2014).

Letter and accompanying materials from HHS and USDA to State Health and Welfare Officials: “Policy
Guidance Regarding Inquiries into Citizenship, Immigration Status and Social Security Numbers in State
Applications for Medicaid, State Children’s Health Insurance Program (SCHIP), Temporary Assistance for
Needy Families (TANF), and Food Stamp Benefits” (Sept. 21, 2000).
68

Conforming to the Tri-Agency Guidance through Online Applications (USDA, Feb. 2011),
www.fns.usda.gov/sites/default/files/Tri-Agency_Guidance_Memo-021811.pdf.
69

70

42 C.F.R. § 435,907(e) (Medicaid); 42 C.F.R. § 457.320 (CHIP); 42 U.S.C. §18081(g)(ACA).

15

SSNs are not required for people seeking only emergency Medicaid.71

Reporting to the Department of Homeland Security
Another common source of fear in immigrant communities stems from a 1996 provision that
requires benefits-administering agencies to report to DHS people who the agencies know are
not lawfully present in the U.S. This requirement is, in fact, quite narrow in scope.72 It applies
only to three programs: SSI, certain federal housing programs, and TANF.73
In 2000, federal agencies outlined the limited circumstances under which the reporting
requirement is triggered.74 Only people who are seeking benefits for themselves (not relatives
or household members applying on their behalf) are subject to the reporting requirement.
Agencies are not required to report such applicants unless there has been a formal
determination, subject to administrative review, on a claim for SSI, public housing, or TANF. The
conclusion that the person is unlawfully present also must be supported by a determination by
the immigration authorities, “such as a Final Order of Deportation.”75 Findings that do not meetthese criteria (e.g., a DHS response to a SAVE computer inquiry indicating an immigrant’s status,
an oral or written admission by an applicant, or suspicions of agency workers) are insufficient totrigger the reporting requirement. Agencies are not required to submit reports to DHS unlessthey have knowledge that meets the above requirements. Finally, the guidance stresses thatagencies are not required to make immigration status determinations that are not necessary toconfirm eligibility for benefits.
There is no federal reporting requirement in health programs. To address the concerns ofeligible citizens and immigrants in mixed–immigration status households, the DHS issued amemo in 2013 confirming that information submitted by applicants or family members seeking

The Medicaid rules also require that agencies assist eligible applicants in obtaining an SSN, may notdelay or deny benefits pending issuance of the SSN, and provide exceptions for individuals who are
ineligible for an SSN or who have well-established religious objections to obtaining one. 42 C.F.R. §435.910(e), (f), and (h).
71

72

Welfare law § 404, amended by BBA §§ 5564 and 5581(a) (42 U.S.C. §§ 608(g), 611a, 1383(e), 1437y).

Id. See also H.R. Rep. 104–725, 104th Cong. 2d Sess. 382 (July 30, 1996). The Food Stamp Program (nowcalled the Supplemental Nutrition Assistance Program, or SNAP) had a reporting requirement that
preexisted the 1996 law.
73

Social Security Administration, HHS, U.S. Dept. of Labor, U.S. Dept. of Housing and Urban Development,
and DOJ – Immigration and Naturalization Service, “Responsibility of Certain Entities to Notify the
Immigration and Naturalization Service of Any Alien Who the Entity ‘Knows’ Is Not Lawfully Present in the
United States,” 65 Fed. Reg. 58301 (Sep. 28, 2000). USDA similarly has clarified that “State agencies must
conform to the reporting requirements of the Interagency Notice.” See Supplemental Nutrition Assistance
Program: Guidance on Non-Citizen Eligibility (USDA, June 2011),
https://www.fns.usda.gov/snap/eligibility/non-citizen-eligibility, pp. 48-52. See also 7 C.F.R. § 273.4(b)(1).
74

75

Id.

16

Medicaid, CHIP, or health care coverage under the Affordable Care Act would not be used for
civil immigration enforcement purposes.76

Looking Ahead
The 1996 welfare law produced sharp decreases in public benefits participation by immigrants.
Proponents of welfare “reform” saw that fact as evidence of the law’s success, noting that a
reduction of welfare use, particularly among immigrants, was precisely what the legislation
intended. The wisdom of these restrictions increasingly has been called into question, including
the unfairness of excluding immigrants from programs that are supported by their taxes.
During the COVID-19 pandemic, many states and localities recognized that they could notprotect the health and safety of their residents unless everyone in the community had accessto health care, safe working conditions, and economic support. Numerous jurisdictions offeredshort-term disaster assistance, stimulus payments, or other relief to individuals who were
excluded from federal economic impact payments and unemployment insurance programs.
Some offered tax credits or basic income to a subset of residents regardless of theirimmigration status. These efforts, while helpful, were not sufficient to meet the need or toaddress the longstanding racial disparities in access to care, support, and opportunities.
Understanding that our lives, health, and economic security are interconnected, several states
are expanding access to health care for immigrants and are exploring new strategies for
ensuring that all community members can thrive.

Clarification of Existing Practices Related to Certain Health Care Information (DHS, Oct. 25, 2013),
www.ice.gov/doclib/ero-outreach/pdf/ice-aca-memo.pdf.
7617