It is crucial that as many separate individuals and organizations submit comments as possible and that the comments cover as many areas as possible.  What follows is a short, sample letter that individuals and organizations can use as a model to prepare and submit their own comments.  NILC will be writing longer comments to submit at deadline time but we will not be seeking sign-on's to the longer comments. 

The regulations are published at 65 Federal Register 10856 - 10912, and can be found on the web at: http://www.fns.usda.gov/fsp/Regulations/FSPReg.htm.   USDA will accept comments by fax or e-mail.  Public comments must be filed no later than May 1, 2000.

Patrick Waldron, Program Analyst
Certification Policy Branch
Program Development Division
Food and Nutrition Service
U.S. Department of Agriculture
3101 Park Center Drive
Alexandria, VA 22302

FAX # (703) 305-2805

Patrick.Waldron@FNS.USDA.GOV

RE:  Comments on Proposed Rule:  "Food Stamp Program: Noncitizen Eligibility, and Certification Provisions of Pub. L. 104-193, as Amended by Public Laws 104-208, 105-33 and 105-185," 65 Fed. Reg. 10856 (Feb. 29, 2000)

Dear Mr. Waldron:

Thank you for the opportunity to comment on the proposed regulations governing noncitizen eligibility for the Food Stamp Program (FSP).  Our organization has extensive experience working with immigrants and immigrant communities and is deeply committed to encouraging and facilitating the availability of food stamps to low-income immigrants and to their citizen family members.

The 1996 welfare and immigration laws cut the food stamp eligibility of over half a million hungry people in immigrant communities.  The laws also created more indirect but equally devastating chilling effects on participation by immigrants and their family members who remained eligible.  Following welfare reform, another half a million eligible citizen children who live in immigrant FSP households dropped out of the program.

The laws leave the Department of Agriculture (USDA, the Department) with considerable discretion to issue rules that encourage participation by all those who remain eligible.   We urge you to adopt the recommendations set forth below which will help to ensure that goals of the Food Stamp Program to serve all eligible hungry people are met.

Introduction

The proposed rules will have a profound effect on both legal immigrants and their citizen family members.  Since welfare reform, immigrant families have become more hesitant to apply for benefits or have any contact with benefits agencies.  Between 1994 and 1997, the number of citizen children receiving food stamps who live with legal immigrants fell by 41 percent, compared to a 15 percent decline for children living with native-born parents.⁽¹⁾  To reverse this disturbing trend, food stamps agencies must reduce access barriers faced by immigrants.  These include the bureaucratic barriers that are also faced by non-immigrant applicants and beneficiaries; but many immigrant households also are denied and deterred by unfair and overly-harsh income-counting and verification practices, lack of confidentiality and fear of INS reporting, and lack of linguistic access.

In this regard, we support the very positive proposed state option to not count the income of ineligible immigrants in determining the eligibility of the rest of the household.  However, the proposed rules contain some harmful provisions that could exacerbate the steep drop-out rates.  One of the most troubling proposals would count a sponsor's income in determining the benefits of citizens and non-sponsored immigrants who live with a sponsored immigrant, even where the sponsored immigrant is ineligible for food stamps.  This rule would result in denial of benefits to thousands of citizen children and eligible immigrants.  In addition, the proposed rules governing verification of immigration status and the silence of USDA on the importance of linguistic and cultural access would burden immigrant families and lead to further declines in participation by eligible households.

BACKGROUND:  IMMIGRANT ELIGIBILITY FOR FOOD STAMPS

The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA, or "the welfare law") and subsequent amendments brought about severe restrictions on immigrant eligibility for public benefits.  Even after Congress restored eligibility to some immigrants in 1998, almost 600,000 immigrants had lost federal food stamp eligibility.⁽²⁾  Yet the FSP continues to be an important component of the safety net for many legal immigrant families, especially those with citizen children.  At the end of fiscal year 1997, 793,000 noncitizens continued to participate.⁽³⁾

Many citizens in households that contain immigrants also receive food stamps and will be directly affected by immigrant-related restrictions and barriers to access.  About six of every seven families headed by a non-citizen parent—85 percent of such families— are "mixed-status" families that include at least one U.S. citizen, typically a child.⁽⁴⁾  Among all families with children in the United States, nearly one in ten is a "mixed-status" family.  FSP data show a large decline in food stamp participation among children in immigrant families over the last few years even though the overwhelming majority of them have remained eligible for food stamp benefits.⁽⁵⁾  It is imperative that USDA educate and lead states toward FSP policies that do not discriminate against eligible immigrant families.

PROVISIONS RELATED TO FINANCIAL ELIGIBILITY OF IMMIGRANT FAMILIES

The welfare law imposed more stringent requirements related to deeming of sponsor income to immigrants with "new" (Form I-864) Affidavits of Support.⁽⁶⁾  These Affidavits are required for almost all persons who submit family-based applications for immigration on or after December 19, 1997.  In most cases, deeming will render the applicant financially ineligible because the income will be too high to qualify under food stamp income eligibility rules.  Whereas under previous law deeming ended after three years, the welfare law extended the deeming period until the immigrant becomes a U.S. citizen or can claim 40 qualifying quarters of work, which can take 10 years or more to accrue.⁽⁷⁾

1.  Deeming of Sponsor's Income to Non-sponsored Immigrants and Citizen Children (Proposed 7 C.F.R. § 273.11(c)(3)(v)).

When determining the eligibility and benefits of an applicant household, this proposed rule would require food stamp agencies to attribute to the entire household, the income and resources of the sponsor of an immigrant household member who is ineligible for food stamps.  In most instances, implementation of this rule would result in denial of food stamps to the entire household.  Benefits would be denied to eligible immigrants as well as thousands of citizen children who live in households with ineligible, sponsored immigrants.

The proposed rule contradicts a recent guidance issued by the Immigration and Naturalization Service (INS) stating that "The Affidavit of Support places no obligation on a sponsor or joint sponsor to support any U.S. citizen children of the sponsored immigrant."⁽⁸⁾  Federal law does not require this proposed rule and in fact, under current USDA guidance, states have discretion to not count the income of sponsors in determining the benefits of other household members.⁽⁹⁾  We urge USDA to strike this provision from the final rules.

2.  Deeming of a Sponsor's Gross Income with No Deductions (Proposed § 273.4(c)(2)(i)).

USDA is proposing to deem all of a sponsor's gross income without any deductions for a sponsor's other financial obligations. Deductions are essential to estimate the amount of support a sponsor could actually be required to provide to a sponsored immigrant.   For example, monies owed for taxes or court-ordered child support is not available to support the immigrant.  We urge USDA to allow reasonable income deductions, as it does under the current rules,⁽¹⁰⁾ for amounts required by the sponsor for self-support and support of dependents.

3.  Deeming of a Sponsor's Resources with No Deductions (Proposed § 273.4(c)(2)(iii)).

The proposed rule also eliminates any deduction from the sponsor's resources, which is unfair and unrealistic because the sponsor needs some assets for his or her own household.   We urge the Department to continue to allow a resource reduction, and to make that deduction equal to the asset limit for non-elderly households ($2,000), as it is under current rules.

4.  Deeming When Two or More Immigrants Are Sponsored by the Same Person (Proposed § 273.4(c)(2)(iv)).

We applaud the Department's proposal to require states to deem only a pro rata share of the sponsor's income and resources when two or more immigrants are sponsored by the same person.  This is fair because it reflects the reality that the sponsor's income and resources must be shared by all immigrants for whom the sponsor has signed an Affidavit of Support.  However, the proposed rule would add a harmful qualification, requiring that in order to be counted, other sponsored immigrants must also apply for or participate in the FSP.

The qualification to the rule defeats the rule's equitable purpose, since the sponsor's income must be shared among all sponsored immigrants regardless of their relationship to the FSP.  We strongly recommend that USDA provide in the final rules that the sponsor's income and resources be divided by the total number of immigrants that he or she has sponsored, regardless of whether or not those other sponsored immigrants apply for or participate in the Food Stamp Program.

5.  Deeming When the Sponsor and Immigrant Live in Separate Households (Proposed § 273.4(c)(3)).

The proposed rule importantly exempts from deeming immigrants whose sponsors are also FSP beneficiaries, but adds a harmful qualification by providing the exemption only when the sponsored immigrant is part of the sponsor's household.  The rule should retain an exemption from deeming for immigrants whose sponsors who are participating in the food stamp program, whether the sponsors live with the sponsored immigrant or not.

6.  Treatment of Income and Resources of Ineligible Immigrants (Proposed § 273.11(c)(3)(ii)(B)).

The proposed rule includes an important state option that allows states to not count the income of immigrants ineligible under PRWORA in determining the food stamp eligibility and benefits of U.S. citizens and eligible immigrants in the same household.  We strongly support this favorable rule because it maximizes the allotment of food stamps that can be received by immigrant households.

VERIFICATION ISSUES FOR IMMIGRANT FAMILIES

The verification process raises special concerns for immigrant families.   Documents required to establish citizenship or immigration status sometimes can be difficult to obtain.  Routine requests from food stamp offices for immigration status information or social security numbers may raise concerns about what information will be shared with the INS.  Language barriers also may impede understanding of or quick compliance with verification requirements.

For these reasons, verification rules should be crafted in a manner that does not unnecessarily burden participation by immigrant families.  Unfortunately, the proposed rules fail this test.  They create barriers that discourage eligible immigrants and citizen children from applying for food stamps.

7.  Requests for Social Security Numbers and Immigration Status (Proposed §§ 273.2(b)(2)(iii)(C), (D)(1), (D)(3), (c)(1), (f)(1)(iii), (i).

Many children eligible for food stamps live with parents or other household members who are ineligible.  As noted above, thousands of eligible citizen children living in immigrant households have dropped out of the food stamp program since enactment of the 1996 welfare law.  A major barrier to their participation is created by food stamp agency requests for immigration status information or the Social Security numbers (SSNs) of ineligible family members who are not applying for food stamps.

Although agencies need to ask non-applicants for information about income, it is unnecessary and inappropriate to ask non-applicants for information about immigration status or SSNs.  It is harmful because it deters citizens and eligible legal immigrants in mixed-status households from FSP participation.  We urge USDA in the final rules and preamble to direct states to allow applicants to designate specific family members as "non-applicants," before the agency asks for immigration status information or the SSNs of those family members who are applying.

8.  Verification of Alien Status (Proposed § 273.2(f)(1)(iv)).

For the same reasons outlined above regarding the application process, we recommend that the rules require states to clarify that the agency will verify the immigration status only of the eligible immigrants.  In addition, the proposed rules have deleted the following important sentence which should be retained: "[i]f the alien does not wish to contact the INS [for purposes of verifying immigration status], the household should be given the option of withdrawing its application or participating without that member."⁽¹¹⁾

9.  Home Visits (Proposed § 273.2(e)).

Home visits, especially unannounced home visits, create grave concerns in mixed-immigrant-status households.  Some states currently conduct unannounced home visits on a widespread basis, targeting "error-prone" households which disproportionately involve immigrant households because eligibility rules for immigrants are complex and conducive to worker error.  We recommend that the rules minimize home visits as much as possible, and require that all stages of a visit be conducted in a linguistically and culturally appropriate manner.  At a minimum, the rules should require advance notice of home visits, and prohibit home visits where a household has submitted sufficient verification.

10.  Verification of Identity (Proposed § 273.2(f)(1)(i).

Immigrants and naturalized citizens may have difficulty obtaining specific documents such as birth certificates to establish identity, but can provide alternative evidence.   USDA should require states to accept any document that reasonably establishes identity, as is required by current rules but has been deleted from the proposed rules.

11.  Allowing Sufficient Time to Gather Required Documents (Proposed §§ 273.2(f), (h).

The proposed rules greatly weaken rights of applicants under current rules to have sufficient time to submit required documentation, which poses particular problems for immigrants.  Immigrants face technical verification requirements related to immigration status and may need more time to get certain documents from government agencies such as INS or from overseas.  They also may need to surmount language barriers in obtaining documentation quickly.

The result of the proposed changes will certainly be unnecessary denials of immigrant applicants.  We recommend that the rules maintain the current practices.  Under current rules, agencies must give households a full 10 days to provide any specific document (and longer if necessary if the household is cooperating but needs more time), and must reopen a denied application where the remaining information needed to complete the application was submitted within the next 30 days.

LINGUISTIC AND CULTURAL ACCESS ISSUES FOR IMMIGRANTS

Currently almost 14 percent of Americans speak a language other than English at home.⁽¹²⁾   Many recent arrivals such as immigrants from Southeast Asian countries live in linguistically isolated households.  Limited-English proficient (LEP) immigrants face daunting and often insurmountable barriers to accessing quality social services.  The anomaly of declining caseloads at a time of significant and persistent need underscores the importance of ensuring outreach to LEP populations.

The U.S. Supreme Court has found that under Title VI of the Civil Rights Act of 1964, recipients of federal financial assistance such as state food stamp agencies have an affirmative duty to provide LEP persons with a meaningful opportunity to participate in public programs.⁽¹³⁾  It is imperative that USDA clarify and emphasize state responsibilities under Title VI.  We applaud USDA's use of thresholds in triggering minimum standards for written materials to be available in different languages when a language group in the recipient's service population is numerically or proportionately significant.  However, experience has shown that even stronger standards are necessary to ensure participation by LEP individuals in the Food Stamp Program.

12.  Applicability of Title VI to All Languages and All Individuals.

We recommend there be a clear statement in the regulations that the protections and rights to linguistic and cultural access afforded under Title VI apply to all LEP individuals, regardless of the numbers of individuals from a given language group who live in a given service area; also, that access is provided for all languages, regardless of how obscure the language may be.⁽¹⁴⁾ 

13.  Nondiscrimination Compliance.

The regulations should explain that states will violate civil rights laws if they fail to provide linguistically appropriate and accessible services.  With the proposed deletion of training requirements it is even more essential for USDA to provide information in the final rule on implementation of civil rights statutes, including examples of both violations and best practices.  We also recommend that the rules require states to inform households that failure to provide linguistically and culturally appropriate notices and services is grounds for filing a grievance or appeal.

14.  Minimum Standards and Procedures.

We recommend that USDA implement procedures throughout Part 273 for providing linguistic and culturally competent access at all stages of service:  from outreach to enrollment to delivery of services to grievances and appeals.  The Department should strongly recommend these standards and procedures for any LEP individuals, and should require standards for written materials when states have numbers of LEP individuals that meet thresholds.⁽¹⁵⁾

One important minimum standard is a prohibition on states from requiring, suggesting, or encouraging households to use family members or friends as interpreters.  This practice should be used only as a last resort, and in all instances, USDA should prohibit the widespread practice of using minors as interpreters.  In addition, there should also be explicit instructions to provide translated signage and written materials informing households of their right to receive bilingual or interpreter services.

IMMIGRATION STATUS ELIGIBILITY ISSUES

15.  The Seven-Year Eligibility Limit for the Refugee Group (Proposed § 273.4).

The proposed rule recognizes that immigrants in certain statuses grouped with refugees (refugees, asylees, persons granted withholding of removal, Cuban and Haitian Entrants and Amerasians) are eligible for food stamps for seven years from the date the immigrant received the status.  We urge USDA to clarify two important points about their eligibility.  First, they are eligible for seven years even if before the end of the seven years they adjust status to a category of legal permanent resident that is not eligible for food stamps.  Second, reaching the seven-year limit is only a limit on eligibility for these immigrants if they are not otherwise eligible for food stamps.   Some may change to an immigration status that does not have limits on the length of time that they may receive assistance, such as a lawful permanent resident credited with 40 quarters of work.

CONCLUSION

Following enactment of PRWORA in 1996, many immigrant households who needed food stamps and who were eligible for them declined to apply out of fear that participation in the program would lead to deportation or exclusion from the U.S. as a "public charge."  In response, the Administration issued guidance that receipt of food stamps and other non-cash benefits will not count against people when they apply for immigrant visas or for permanent residency.⁽¹⁶⁾  We commend the Administration for its expression of policy that the federal government should eliminate unnecessary barriers to receipt of needed benefits by immigrants.  We urge USDA further the implementation of that policy by ensuring that the food stamp rules eliminate all unnecessary barriers to immigrant access to food stamps.