National Housing Law Project Housing Law Bulletin

Several federal agencies have recently defined the term "federal means-tested public benefit" for purposes of determining immigrants' eligibility for various federal programs.¹ That term became significant last year when the Welfare Act² was passed, because that Act made some immigrants ineligible for federal programs that are classified as federal means-tested public benefits. Consistent with Congress' intent, the recent agency definitions of the statutory term restrict the covered programs to a very few. If the Department of Housing and Urban Development defines the term in a similar manner, which it most likely will do, this part of the Welfare Act will have less impact on immigrants' housing rights and on housing providers than might otherwise have been the case.

Background

The Welfare Act contained a number of provisions that affected the eligibility of people who are not citizens for the federal housing programs. In summary, the Act:

• Made immigrants classified as unqualified (those who are not permanent residents or who have not been admitted as refugees or granted asylum or had their deportation withheld), ineligible for most federal housing assistance programs, unless they were already receiving assistance;³
• Made immigrants who are classified as qualified ineligible for federal means-tested public benefits for the first five years after they come to this country. This disqualification applies only to people who enter the country after the welfare law was enacted;⁴
• Made some of those qualified immigrants ineligible for federal means-tested public benefits even after five years, by requiring their sponsors' income to be included when calculating eligibility for such benefits. This deeming requirement does not apply to immigrants who entered the country before the welfare bill was enacted;⁵
• Created an exception to many of the disqualifications for immigrants who have worked in the United States for 40 quarters, but prohibited them from counting any quarter in which they had received a federal means-tested public benefit.⁶

Agency Definitions

Fortunately, so far the agencies have interpreted the statutory term in a fashion that would mean that all federal housing programs are not "federal means tested public benefits." The statute itself has no definition of that term, and thus the agencies were required to define it. Under their definition, a program provides federal means-tested public benefits only if its funding is mandatory, not discretionary. Since the federal housing programs are all funded on a discretionary basis, by annual appropriations, and none are entitlements, they should not qualify as federal means-tested public benefits.

It might seem strange that the agencies interpreted the statute in this fashion, but they were required to do so because of the legislative history of the Act. Originally, the welfare bill contained a definition of federal means-tested public benefits and that definition included housing assistance and many other programs. However, that definition violated a Senate rule, known as the "Byrd Rule," which, in effect, prohibits the Senate from considering matters related to discretionary spending in a Budget Reconciliation Act, which the Welfare Act was. When a point of order was raised during the Senate's consideration of the welfare bill, the definition of federal means-tested public benefits, which had included housing assistance, was deleted from the bill. The comments of the senators indicate that it was stricken because, under the Byrd Rule, matters relating to discretionary appropriations were not relevant and could not be considered.⁷ From that history, the agencies concluded that Congress had specifically decided not to define the term "federal means-tested public benefits" to include benefits provided through discretionary appropriations.

If HUD interprets the term as the other agencies have, qualified non-citizens should not have to wait five years to be eligible for the federal housing programs, nor should their sponsor's income have to be counted in determining their eligibility. In addition, if they do live in public or assisted housing, their doing so should not bar them from counting the work they do while living in that housing for purposes of establishing 40 quarters of work to gain an exemption from the disqualifications from other programs.

1. HHS Notice, Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA); Interpretation of "Federal Means-Tested Public Benefit," 62 Fed. Reg. 45,256 (Aug. 26, 1997); SSA Notice, Personal Responsibility and Work Opportunity Reconciliation Act of 1996: Federal Means-Tested Public Benefits Paid by the Social Security Administration, 62 Fed. Reg. 45,285 (Aug. 26, 1997).
2. Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, 110 Stat. 2105, 104th Cong., 2d Sess. (Aug. 22, 1996) (hereafter Welfare Act). Unless otherwise indicated, section citations refer to this law. For a summary of the wider impact of the Welfare Act on the housing programs themselves and on poor people in general, see New Welfare Law's Effect on Welfare and Housing Programs and Their Recipients, 26 HOUS. L. BULL. 117 (Sept. 1996). See also New Welfare Law's Effect on Immigrants and Their Housing, 26 HOUS. L. BULL. 125 (Sept. 1996); Non-Citizens' Rights to Housing Assistance: The 1996 Statutory Amendments and HUD's Implementing Regulations , 26 HOUS. L. BULL. 170 (Dec. 1996).
3. Section 401(a). The agency definitions of "federal means-tested public benefit" do not affect the eligibility of undocumented people for housing assistance programs, because the statutory section making them ineligible did not use the term "federal means-tested public benefit." Instead it referred only to "Federal public benefit" and explicitly defined that term to include public and assisted housing. § 401(c)(1)(B).
4. Section 403(a).
5. Section 421.
6. Section 402(a)(2)(B)(ii)(II) (SSI and food stamps); § 402(b)(2)(B)(ii)(II) (TANF, Social Services and Medicaid).
7. 142 CONG. REC. S9400 and S9403 (1996).