Title IV of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (the “Act”) applies only to non-exempted “federal public benefits” as defined by the Act, rather than to all federally funded programs. (It also applies to certain state and local public benefits, which are not the subject of this Attachment.)
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Attachment 3–Federal Public Benefits
Title IV of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (the “Act”) applies only to non-exempted “federal public benefits” as defined by the Act, rather than to all federally funded programs. (It also applies to certain state and local public benefits, which are not the subject of this Attachment.) Under the Act, benefit providers are only required to verify the immigration status of applicants for benefits that fall within the Act’s definition of “federal public benefits” and are not specifically exempted from the Act’s requirements. (If the program independently requires benefit providers to verify the citizenship, nationality and/or immigration status of an applicant, however, you should continue to comply with such requirements even if the program does not provide a “federal public benefit” covered by the Act.) Set forth below is preliminary guidance on the meaning of “federal public benefit,” as well as a summary of the benefits specifically exempted from the Act’s verification requirements. If you have any questions as to whether a particular program provides a federal public benefit covered by the Act or a benefit that is exempted from the Act’s requirements, you should consult with the federal agency or department that oversees the program.
Federal Public Benefit: A “federal public benefit” is:
a. Any grant, contract, loan, professional license, or commercial license provided by an agency of the United States or by appropriated funds of the United States; or
b. Any retirement, welfare, health, disability, public or assisted housing, post-secondary 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 United States or by appropriated funds of the United States.
Subject to the list of exceptions set forth below, Title IV of the Act precludes all aliens who are not “qualified aliens” from receiving any “federal public benefit.” In determining whether a program provides a “federal public benefit,” you should first consider whether the program provides one of the benefits expressly enumerated in either (a) or (b) above. Under (a), if your program provides a “grant,” “contract,” “loan,” “professional license,” or “commercial license” to an individual, either through a U.S. agency or with U.S. appropriated funds, then you provide a “federal public benefit.” If you do not provide a benefit of the type enumerated in (a), you should then go on to consider whether your program provides a benefit covered by (b).
To fall within (b), the benefit provided by your program must be one of the types of benefits described (“retirement,” “welfare,” “health,” “disability,” “public or assisted housing,” “post-secondary education,” “food assistance,” “unemployment benefit,” or “any other similar benefit”), it must be “provided by an agency of the United States or by appropriated funds of the United States,” and it must be provided to one of the enumerated categories of recipients (an “individual household, or family eligibility unit”). Thus, for example, if you provide an “unemployment benefit” to an “individual, household, or family eligibility unit” using “appropriated funds of the United States,” the definition is satisfied. In contrast, if you provide generally available services such as fire or ambulance services, or do not provide benefits to an “individual, household, or family eligibility unit,” or do not provide benefits through an “agency of the United States” or with “appropriated funds of the United States,” the definition does not apply.
If your program provides payments or assistance to an individual, household or family eligibility unit through a U.S. agency or by U.S. appropriated funds, but the benefits are not expressly enumerated above, you should consider whether the benefits are “similiar” to one of the benefits enumerated in (b). If you believe that the benefit is arguably similar to an enumerated benefit, you should consult with the federal agency or department that oversees your program to confirm that the benefit constitutes a federal public benefit covered by the Act.
Finally, you should consider who is actually receiving the benefits that you provide. Although the Act prohibits certain aliens from receiving non-exempted “federal public benefits,” it does not prohibit governmental or private entities from receiving federal public benefits that they might then use to provide assistance to aliens, so long as the benefit ultimately provided to the non-qualified aliens does not itself constitute a “federal public benefit.” Thus, if a local agency were to receive a “grant” (which is expressly identified as a federal public benefit), but the agency uses it to provide police services, fire protection or crime victim counseling (which are not federal public benefits under the Act’s definition because they are not similar to an enumerated benefit), the prohibition would not apply. Similarly, if you provide a “grant” to a community organization (which is not an “individual, household or family eligibility unit”) that uses the funds to build a library or renovate a park (which are not federal public benefits under the Act’s definition), the prohibition would not apply. In contrast, if the agency uses the “grant” to provide a “federal public benefit”–e.g., a “loan” or “welfare” payment to a poor “individual, household or family eligibility unit”–then the prohibition would apply and non-qualified aliens would be ineligible for such benefits.
Exceptions: The Act’s verification requirements do not apply to all “federal public benefits,” as the Act specifically exempts certain types of benefits. If a program provides “federal public benefits” that fall within one of the following exceptions, the program provider is not required by this Act to, and should not attempt to, verify an applicant’s immigration status, unless otherwise required or authorized to do so by federal law, except to the extent necessary to determine whether the exemption applies:
• Benefits covered by Attorney General Order No. 2049, 61 FR 45985 (1996), or any subsequent order, re: government-funded community programs, services or assistance that are necessary for protection of life or safety;
• Any wages, pensions, annuities, or other earned payments to which an alien is entitled as a result of federal, state, or local government employment, provided that the alien is not residing or present in the United States and provided that the employment was not prohibited under the immigration laws;
• Any veterans benefits to which an alien is entitled, provided that the alien is not residing or present in the United States;
• Any contract, professional license, or commercial license for a nonimmigrant whose visa for entry is related to such employment in the U.S.;
• Any contract, professional license, or commercial license for a citizen of a freely associated state (Palau, the Federated States of Micronesia, and the Marshall Islands), if section 141 of the applicable compact of free association is in effect;
• Any benefits that the U.S. is required to pay under the reciprocal treaty agreements listed in the forthcoming Attorney General Order to a work authorized nonimmigrant or alien lawfully admitted for permanent residence qualified for such benefits;
• Medical assistance under Title XIX of the Social Security Act (or any successor program to such Title) for care and services that are necessary for the treatment of an emergency medical condition (as defined in section 1903(v)(3) of such Act) of the alien involved and that are not related to an organ transplant procedure, if the alien involved otherwise meets the eligibility requirements for medical assistance under the state plan approved under such Title (other than the requirement of the receipt of aid or assistance under Title IV of such Act, SSI benefits under Title XVI of such Act, or a state supplementary payment);
• Short-term, non-cash, in-kind emergency disaster relief;
• Public health assistance (not including any assistance under Title XIX of the Social Security Act) for immunizations with respect to immunizable diseases and for testing and treatment of symptoms of communicable diseases whether or not such symptoms are caused by a communicable disease;
• Programs for housing or community development assistance or financial assistance administered by the Secretary of Housing and Urban Development (“HUD”), any program under Title V of the Housing Act of 1949, or any assistance under section 306C of the Consolidated Farm and Rural Development Act, to the extent that the alien is receiving such a benefit on August 22, 1996;
• Any benefit payable under Title II of the Social Security Act to which entitlement is based on an application filed on or before August 31, 1996, and any benefit covered by Attorney General Order No. 2054, 61 FR 47039 (1996), re: benefits payable under Title II of the Social Security Act to an alien who is lawfully present in the U.S.;
• Any benefit the nonpayment of which would contravene an international agreement described in section 233 of the Social Security Act (an agreement establishing totalization arrangements between the social security system of the U.S. and that of any foreign country which establishes entitlement to and the amount of old-age, survivors, disability, or derivative benefits based on an individual’s coverage under both systems);
• Any benefit the nonpayment of which would be contrary to section 202(t) of the Social Security Act;
• Any benefit under the school lunch program under the National School Lunch Act, 42 U.S.C. 1751 et seq., or the school breakfast program under section 4 of the Child Nutrition Act of 1966, 42 U.S.C. 1773, provided to an individual who is eligible to receive free public education benefits under state or local law;
• Any benefit payable under Title XVIII of the Social Security Act (relating to the Medicare program) to an alien who is lawfully present in the U.S., as determined by the Attorney General, provided that, with respect to the attribution of the alien’s wages for purposes of eligibility for benefits payable under Part A of such program, the alien was authorized to be employed; and
• Any benefit payable under the Railroad Retirement Act of 1974 or the Railroad Unemployment Insurance Act to an alien who is lawfully present in the U.S., as determined by the Attorney General, or to an alien residing outside the U.S.
State Option: Each State may, but is not required to, provide benefits under programs established under the laws listed below to individuals who are not U.S. citizens, U.S. non-citizen nationals or qualified aliens. You should determine whether your State is providing such benefits to all persons, regardless of citizenship, alienage or immigration status, or whether it is providing them only to U.S. citizens, U.S. non-citizen nationals and qualified aliens. If your State is providing such benefits to all persons, you should not verify citizenship or immigration status; if it is limiting such benefits to citizens, non-citizen nationals and qualified aliens, you may want to use the Interim Guidance, in consultation with state and local authorities, to verify citizenship and immigration status.
• Programs (other than the school lunch program and the school breakfast program) under the National School Lunch Act, 42 U.S.C. 1751 et seq., and the Child Nutrition Act of 1966, 42 U.S.C. 1771 et seq.;
• Section 4 of the Agriculture and Consumer Protection Act of 1973, 7 U.S.C. 612c note;
• The Emergency Food Assistance Act of 1983, 7 U.S.C. 7501 et seq.; and
• The food distribution program on Indian reservations established under section 4(b) of the Food Stamp Act of 1977, 7 U.S.C. 2013(b).
Attachment 1- Local INS Office Addresses
Attachment 2 – Nondiscrimination Advisory
Attachment 4 – Interim Guidance Documentary Evidence of Status as a U.S. Non-Citizen National
Attachment 5 – Interim Guidance–Documentary Evidence of Status as A “Qualified Alien” Eligible for Federal Public Benefits
Attachment 6 – Interim Guidance–Documentary Evidence for Excepted Categories of Aliens Eligible for SSI, Food Stamps, TANF, Medicaid, and Programs Funded by a Social Services Block Grant
Attachment 7 – Interim Guidance; Federal Means-Tested Public Benefits