8 USC 1612 - Limited eligibility of qualified aliens for certain Federal programs

United States Code

USC most recently checked for updates: Jun 03, 2023

§ 1611. Aliens who are not qualified aliens ineligible for Federal public benefits

§ 1613. Five-year limited eligibility of qualified aliens for Federal means-tested public benefit

U.S. Code
Notes

§ 1612.

Limited eligibility of qualified aliens for certain Federal programs

(a)

Limited eligibility for specified Federal programs

(1)

In general

Notwithstanding any other provision of law and except as provided in paragraph (2), an alien who is a qualified alien (as defined in section 1641 of this title) is not eligible for any specified Federal program (as defined in paragraph (3)).

(2)

Exceptions

(A)

Time-limited exception for refugees and asylees

With respect to the specified Federal programs described in paragraph (3), paragraph (1) shall not apply to an alien until 7 years after the date—

(i)

an alien is admitted to the United States as a refugee under section 207 of the Immigration and Nationality Act [8 U.S.C. 1157];

(ii)

an alien is granted asylum under section 208 of such Act [8 U.S.C. 1158];

(iii)

an alien’s deportation is withheld under section 243(h) of such Act [8 U.S.C. 1253] (as in effect immediately before the effective date of section 307 of division C of Public Law 104–208) or section 241(b)(3) of such Act [8 U.S.C. 1231(b)(3)] (as amended by section 305(a) of division C of Public Law 104–208);

(iv)

an alien is granted status as a Cuban and Haitian entrant (as defined in section 501(e) of the Refugee Education Assistance Act of 1980); or

(v)

an alien is admitted to the United States as an Amerasian immigrant pursuant to section 584 of the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1988 (as contained in section 101(e) 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).

(B)

Certain permanent resident aliens

Paragraph (1) shall not apply to an alien who—

(i)

is lawfully admitted to the United States for permanent residence under the Immigration and Nationality Act [8 U.S.C. 1101 et seq.]; and

(ii)

(I)

has worked 40 qualifying quarters of coverage as defined under title II of the Social Security Act [42 U.S.C. 401 et seq.] or can be credited with such qualifying quarters as provided under section 1645 of this title, and (II) in the case of any such qualifying quarter creditable for any period beginning after December 31, 1996, did not receive any Federal means-tested public benefit (as provided under section 1613 of this title) during any such period.

(C)

Veteran and active duty exception

Paragraph (1) shall not apply to an alien who is lawfully residing in any State and is—

(i)

a veteran (as defined in section 101, 1101, or 1301, or as described in section 107 of title 38) with a discharge characterized as an honorable discharge and not on account of alienage and who fulfills the minimum active-duty service requirements of section 5303A(d) of title 38,

(ii)

on active duty (other than active duty for training) in the Armed Forces of the United States, or

(iii)

the spouse or unmarried dependent child of an individual described in clause (i) or (ii) or the unremarried surviving spouse of an individual described in clause (i) or (ii) who is deceased if the marriage fulfills the requirements of section 1304 of title 38.

(D)

Transition for aliens currently receiving benefits

(i)

SSI

(I)

In general

With respect to the specified Federal program described in paragraph (3)(A), during the period beginning on August 22, 1996, and ending on September 30, 1998, the Commissioner of Social Security shall redetermine the eligibility of any individual who is receiving benefits under such program as of August 22, 1996, and whose eligibility for such benefits may terminate by reason of the provisions of this subsection.

(II)

Redetermination criteria

With respect to any redetermination under subclause (I), the Commissioner of Social Security shall apply the eligibility criteria for new applicants for benefits under such program.

(III)

Grandfather provision

The provisions of this subsection and the redetermination under subclause (I), shall only apply with respect to the benefits of an individual described in subclause (I) for months beginning on or after September 30, 1998.

(IV)

Notice

Not later than March 31, 1997, the Commissioner of Social Security shall notify an individual described in subclause (I) of the provisions of this clause.

(ii)

Food stamps

(I)

In general

With respect to the specified Federal program described in paragraph (3)(B), ineligibility under paragraph (1) shall not apply until April 1, 1997, to an alien who received benefits under such program on August 22, 1996, unless such alien is determined to be ineligible to receive such benefits under the Food Stamp Act of 1977 1

 See References in Text note below.

[7 U.S.C. 2011 et seq.]. The State agency shall recertify the eligibility of all such aliens during the period beginning April 1, 1997, and ending August 22, 1997.

(II)

Recertification criteria

With respect to any recertification under subclause (I), the State agency shall apply the eligibility criteria for applicants for benefits under such program.

(III)

Grandfather provision

The provisions of this subsection and the recertification under subclause (I) shall only apply with respect to the eligibility of an alien for a program for months beginning on or after the date of recertification, if on August 22, 1996, the alien is lawfully residing in any State and is receiving benefits under such program on August 22, 1996.

(E)

Aliens receiving SSI on August 22, 1996

With respect to eligibility for benefits for the program defined in paragraph (3)(A) (relating to the supplemental security income program), paragraph (1) shall not apply to an alien who is lawfully residing in the United States and who was receiving such benefits on August 22, 1996.

(F)

Disabled aliens lawfully residing in the United States on August 22, 1996

With respect to eligibility for benefits for the specified Federal programs described in paragraph (3), paragraph (1) shall not apply to an alien who—

(i)

in the case of the specified Federal program described in paragraph (3)(A)—

(I)

was lawfully residing in the United States on August 22, 1996; and

(II)

is blind or disabled (as defined in paragraph (2) or (3) of section 1614(a) of the Social Security Act (42 U.S.C. 1382c(a))); and

(ii)

in the case of the specified Federal program described in paragraph (3)(B), is receiving benefits or assistance for blindness or disability (within the meaning of section 3(j) of the Food Stamp Act of 1977 ¹ (7 U.S.C. 2012(r))).2

 So in original. Probably should be “2012(j))).”.

(G)

With respect to eligibility for benefits for the specified Federal programs described in paragraph (3), section 1611(a) of this title and paragraph (1) shall not apply to any individual—

(i)

who is an American Indian born in Canada to whom the provisions of section 289 of the Immigration and Nationality Act (8 U.S.C. 1359) apply; or

(ii)

who is a member of an Indian tribe (as defined in section 5304(e) of title 25).

(H)

SSI exception for certain recipients on the basis of very old applications

With respect to eligibility for benefits for the program defined in paragraph (3)(A) (relating to the supplemental security income program), paragraph (1) shall not apply to any individual—

(i)

who is receiving benefits under such program for months after July 1996 on the basis of an application filed before January 1, 1979; and

(ii)

with respect to whom the Commissioner of Social Security lacks clear and convincing evidence that such individual is an alien ineligible for such benefits as a result of the application of this section.

(I)

Food stamp exception for certain elderly individuals

With respect to eligibility for benefits for the specified Federal program described in paragraph (3)(B), paragraph (1) shall not apply to any individual who on August 22, 1996—

(i)

was lawfully residing in the United States; and

(ii)

was 65 years of age or older.

(J)

Food stamp exception for certain children

With respect to eligibility for benefits for the specified Federal program described in paragraph (3)(B), paragraph (1) shall not apply to any individual who is under 18 years of age.

(K)

Food stamp exception for certain Hmong and Highland Laotians

With respect to eligibility for benefits for the specified Federal program described in paragraph (3)(B), paragraph (1) shall not apply to—

(i)

any individual who—

(I)

is lawfully residing in the United States; and

(II)

was a member of a Hmong or Highland Laotian tribe at the time that the tribe rendered assistance to United States personnel by taking part in a military or rescue operation during the Vietnam era (as defined in section 101 of title 38);

(ii)

the spouse, or an unmarried dependent child, of such an individual; or

(iii)

the unremarried surviving spouse of such an individual who is deceased.

(L)

Food stamp exception for certain qualified aliens

With respect to eligibility for benefits for the specified Federal program described in paragraph (3)(B), paragraph (1) shall not apply to any qualified alien who has resided in the United States with a status within the meaning of the term “qualified alien” for a period of 5 years or more beginning on the date of the alien’s entry into the United States.

(M)

SSI extensions through fiscal year 2011

(i)

Two-year extension for certain aliens and victims of trafficking

(I)

In general

Subject to clause (ii), with respect to eligibility for benefits under subparagraph (A) for the specified Federal program described in paragraph (3)(A) of qualified aliens (as defined in section 1641(b) of this title) and victims of trafficking in persons (as defined in section 7105(b)(1)(C) of title 22 or as granted status under section 101(a)(15)(T)(ii) of the Immigration and Nationality Act [8 U.S.C. 1101(a)(15)(T)(ii)]), the 7-year period described in subparagraph (A) shall be deemed to be a 9-year period during fiscal years 2009 through 2011 in the case of such a qualified alien or victim of trafficking who furnishes to the Commissioner of Social Security the declaration required under subclause (IV) (if applicable) and is described in subclause (III).

(II)

Aliens and victims whose benefits ceased in prior fiscal years

Subject to clause (ii), beginning on September 30, 2008, any qualified alien (as defined in section 1641(b) of this title) or victim of trafficking in persons (as defined in section 7105(b)(1)(C) of title 22 or as granted status under section 101(a)(15)(T)(ii) of the Immigration and Nationality Act [8 U.S.C. 1101(a)(15)(T)(ii)]) rendered ineligible for the specified Federal program described in paragraph (3)(A) during the period beginning on August 22, 1996, and ending on September 30, 2008, solely by reason of the termination of the 7-year period described in subparagraph (A) shall be eligible for such program for an additional 2-year period in accordance with this clause, if such qualified alien or victim of trafficking meets all other eligibility factors under title XVI of the Social Security Act [42 U.S.C. 1381 et seq.], furnishes to the Commissioner of Social Security the declaration required under subclause (IV) (if applicable), and is described in subclause (III).

(III)

Aliens and victims described

For purposes of subclauses (I) and (II), a qualified alien or victim of trafficking described in this subclause is an alien or victim who—

(aa)

has been a lawful permanent resident for less than 6 years and such status has not been abandoned, rescinded under section 246 of the Immigration and Nationality Act [8 U.S.C. 1256], or terminated through removal proceedings under section 240 of the Immigration and Nationality Act [8 U.S.C. 1229a], and the Commissioner of Social Security has verified such status, through procedures established in consultation with the Secretary of Homeland Security;

(bb)

has filed an application, within 4 years from the date the alien or victim began receiving supplemental security income benefits, to become a lawful permanent resident with the Secretary of Homeland Security, and the Commissioner of Social Security has verified, through procedures established in consultation with such Secretary, that such application is pending;

(cc)

has been granted the status of Cuban and Haitian entrant, as defined in section 501(e) of the Refugee Education Assistance Act of 1980 (Public Law 96–422), for purposes of the specified Federal program described in paragraph (3)(A);

(dd)

has had his or her deportation withheld by the Secretary of Homeland Security under section 243(h) of the Immigration and Nationality Act [8 U.S.C. 1253] (as in effect immediately before the effective date of section 307 of division C of Public Law 104–208), or whose removal is withheld under section 241(b)(3) of such Act [8 U.S.C. 1231(b)(3)];

(ee)

has not attained age 18; or

(ff)

has attained age 70.

(IV)

Declaration required

(aa)

In general

For purposes of subclauses (I) and (II), the declaration required under this subclause of a qualified alien or victim of trafficking described in either such subclause is a declaration under penalty of perjury stating that the alien or victim has made a good faith effort to pursue United States citizenship, as determined by the Secretary of Homeland Security. The Commissioner of Social Security shall develop criteria as needed, in consultation with the Secretary of Homeland Security, for consideration of such declarations.

(bb)

Exception for children

A qualified alien or victim of trafficking described in subclause (I) or (II) who has not attained age 18 shall not be required to furnish to the Commissioner of Social Security a declaration described in item (aa) as a condition of being eligible for the specified Federal program described in paragraph (3)(A) for an additional 2-year period in accordance with this clause.

(V)

Payment of benefits to aliens whose benefits ceased in prior fiscal years

Benefits paid to a qualified alien or victim described in subclause (II) shall be paid prospectively over the duration of the qualified alien’s or victim’s renewed eligibility.

(ii)

Special rule in case of pending or approved naturalization application

With respect to eligibility for benefits for the specified program described in paragraph (3)(A), paragraph (1) shall not apply during fiscal years 2009 through 2011 to an alien described in one of clauses (i) through (v) of subparagraph (A) or a victim of trafficking in persons (as defined in section 7105(b)(1)(C) of title 22 or as granted status under section 101(a)(15)(T)(ii) of the Immigration and Nationality Act [8 U.S.C. 1101(a)(15)(T)(ii)]), if such alien or victim (including any such alien or victim rendered ineligible for the specified Federal program described in paragraph (3)(A) during the period beginning on August 22, 1996, and ending on September 30, 2008, solely by reason of the termination of the 7-year period described in subparagraph (A)) has filed an application for naturalization that is pending before the Secretary of Homeland Security or a United States district court based on section 336(b) of the Immigration and Nationality Act [8 U.S.C. 1447(b)], or has been approved for naturalization but not yet sworn in as a United States citizen, and the Commissioner of Social Security has verified, through procedures established in consultation with the Secretary of Homeland Security, that such application is pending or has been approved.

(3)

“Specified Federal program” defined

For purposes of this chapter, the term “specified Federal program” means any of the following:

(A)

SSI

The supplemental security income program under title XVI of the Social Security Act [42 U.S.C. 1381 et seq.], including supplementary payments pursuant to an agreement for Federal administration under section 1616(a) of the Social Security Act [42 U.S.C. 1382e(a)] and payments pursuant to an agreement entered into under section 212(b) of Public Law 93–66.

(B)

Food stamps

The food stamp program as defined in section 3(l) of the Food Stamp Act of 1977.¹

(b)

Limited eligibility for designated Federal programs

(1)

In general

Notwithstanding any other provision of law and except as provided in section 1613 of this title and paragraph (2), a State is authorized to determine the eligibility of an alien who is a qualified alien (as defined in section 1641 of this title) for any designated Federal program (as defined in paragraph (3)).

(2)

Exceptions

Qualified aliens under this paragraph shall be eligible for any designated Federal program.

(A)

Time-limited exception for refugees and asylees

(i)

Medicaid

With respect to the designated Federal program described in paragraph (3)(C), paragraph (1) shall not apply to an alien until 7 years after the date—

(I)

an alien is admitted to the United States as a refugee under section 207 of the Immigration and Nationality Act [8 U.S.C. 1157];

(II)

an alien is granted asylum under section 208 of such Act [8 U.S.C. 1158];

(III)

(IV)

an alien is granted status as a Cuban and Haitian entrant (as defined in section 501(e) of the Refugee Education Assistance Act of 1980); or

(V)

an alien 3

 So in original. Probably should be “alien is”.

admitted to the United States as an Amerasian immigrant as described in subsection (a)(2)(A)(i)(V) ¹ until 5 years after the date of such alien’s entry into the United States.

(ii)

Other designated Federal programs

With respect to the designated Federal programs under paragraph (3) (other than subparagraph (C)), paragraph (1) shall not apply to an alien until 5 years after the date—

(I)

an alien is admitted to the United States as a refugee under section 207 of the Immigration and Nationality Act [8 U.S.C. 1157];

(II)

an alien is granted asylum under section 208 of such Act [8 U.S.C. 1158];

(III)

(IV)

an alien is granted status as a Cuban and Haitian entrant (as defined in section 501(e) of the Refugee Education Assistance Act of 1980); or

(V)

an alien ³ admitted to the United States as an Amerasian immigrant as described in subsection (a)(2)(A)(i)(V) ¹ until 5 years after the date of such alien’s entry into the United States.

(B)

Certain permanent resident aliens

An alien who—

(i)

is lawfully admitted to the United States for permanent residence under the Immigration and Nationality Act [8 U.S.C. 1101 et seq.]; and

(ii)

(I)

(C)

Veteran and active duty exception

An alien who is lawfully residing in any State and is—

(i)

(ii)

on active duty (other than active duty for training) in the Armed Forces of the United States, or

(iii)

(D)

Transition for those currently receiving benefits

An alien who on August 22, 1996, is lawfully residing in any State and is receiving benefits under such program on August 22, 1996, shall continue to be eligible to receive such benefits until January 1, 1997.

(E)

Medicaid exception for certain Indians

With respect to eligibility for benefits for the program defined in paragraph (3)(C) (relating to the medicaid program), section 1611(a) of this title and paragraph (1) shall not apply to any individual described in subsection (a)(2)(G).

(F)

Medicaid exception for aliens receiving SSI

An alien who is receiving benefits under the program defined in subsection (a)(3)(A) (relating to the supplemental security income program) shall be eligible for medical assistance under a State plan under title XIX of the Social Security Act (42 U.S.C. 1396 et seq.) under the same terms and conditions that apply to other recipients of benefits under the program defined in such subsection.

(G)

Medicaid exception for citizens of freely associated states

With respect to eligibility for benefits for the designated Federal program defined in paragraph (3)(C) (relating to the Medicaid program), paragraph (1) shall not apply to any individual who lawfully resides in 1 of the 50 States or the District of Columbia in accordance with the Compacts of Free Association between the Government of the United States and the Governments of the Federated States of Micronesia, the Republic of the Marshall Islands, and the Republic of Palau and shall not apply, at the option of the Governor of Puerto Rico, the Virgin Islands, Guam, the Northern Mariana Islands, or American Samoa as communicated to the Secretary of Health and Human Services in writing, to any individual who lawfully resides in the respective territory in accordance with such Compacts.

(3)

“Designated Federal program” defined

For purposes of this chapter, the term “designated Federal program” means any of the following:

(A)

Temporary assistance for needy families

(B)

Social services block grant

The program of block grants to States for social services under title XX of the Social Security Act [42 U.S.C. 1397 et seq.].

(C)

Medicaid

A State plan approved under title XIX of the Social Security Act [42 U.S.C. 1396 et seq.], other than medical assistance described in section 1611(b)(1)(A) of this title.

(Pub. L. 104–193, title IV, § 402, Aug. 22, 1996, 110 Stat. 2262; Pub. L. 104–208, div. C, title V, § 510, Sept. 30, 1996, 110 Stat. 3009–673; Pub. L. 105–18, title II, § 6005(a), June 12, 1997, 111 Stat. 191; Pub. L. 105–33, title V, §§ 5301–5302(b), 5303(a), (b), 5304, 5305(b), 5306(a), (b), 5562, 5563, Aug. 5, 1997, 111 Stat. 597, 598, 600–602, 638; Pub. L. 105–185, title V, §§ 503–508, June 23, 1998, 112 Stat. 578, 579; Pub. L. 107–171, title IV, § 4401(a), (b)(1), (c)(1), May 13, 2002, 116 Stat. 333; Pub. L. 110–234, title IV, § 4115(c)(2)(D), May 22, 2008, 122 Stat. 1110; Pub. L. 110–246, § 4(a), title IV, § 4115(c)(2)(D), June 18, 2008, 122 Stat. 1664, 1871; Pub. L. 110–328, § 2, Sept. 30, 2008, 122 Stat. 3567; Pub. L. 116–260, div. CC, title II, § 208(a), Dec. 27, 2020, 134 Stat. 2985.)

cite as: 8 USC 1612