State Restrictions on Public Benefits An Analysis of Mississippi s SB 2231 (2012)

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1 State Restrictions on Public Benefits An Analysis of Mississippi s SB 2231 (2012) Many states are considering bills that restrict access to public benefits based on the ability to document citizenship and/or lawful presence in the United States. Mississippi s Senate Bill 2231 (SB 2231), introduced January 23, 2012 by Senator Chris McDaniel (District 42), is one such bill. If enacted, this bill would go into effect July 1, SB 2231 provides that (with certain exceptions) any person who applies for a public benefit will have lawful presence verified by the state agency. The applicant must execute an affidavit attesting to either: (1) that he is a U.S. citizen OR (2) that he is a qualified alien under the federal Immigration and Nationality Act and is lawfully present in the United States. Any applicant who provides the latter affidavit will have his eligibility for the benefit verified by use of the Systematic Alien Verification of Entitlement (SAVE) program. SAVE is a federal electronic verification system run by U.S. Citizenship and Immigration Services (USCIS). While we at CLINIC are not experts in public benefits, we are happy to provide some general observations about the bill. Background In 1996, Congress passed the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). Together, these are the primary federal laws that determine noncitizens eligibility for federal public benefits. 1 PRWORA prevents unlawfully present immigrants (and even many lawfully present immigrants) from receiving federal public benefits. Thus, undocumented immigrants are not eligible for the major federal public welfare programs (non-emergency Medicaid, Temporary Assistance to Needy Families, Supplemental Security Income, Supplemental Nutritional Assistance Program (Food Stamps), and Children s Health Insurance Program). PRWORA also dictates that those immigrants who are not eligible for federal public benefits are automatically ineligible for state and local public benefits unless and until a state passes legislation to expand their coverage. 2 While states are required to verify the eligibility of applicants for federal public benefits, states are permitted (but not required) to verify the eligibility of applicants for state and local public benefits. 3 SB Tanya Broder and Jonathan Blazer, Overview of Immigrant Eligibility for Federal Programs, National Immigration Law Center (October 2011): U.S.C. 1621(a), (d). 3 8 U.S.C

2 Section 1. This section lays out the intent of the bill. It relates the Legislature s (completely unsupported) finding that illegal immigration is encouraged when public agencies within this state provide public benefits without verifying immigration status. The Legislature also finds that other measures are necessary to ensure the integrity of various governmental programs and services. Section 2(1). Any person age 14 or over who applies for federal or state and local public benefits will have their lawful presence verified by the state agency or political subdivision (this means a city or county) that administers the benefit. The bill takes its definitions of federal public benefits and state and local public benefits directly from PRWORA ( 1611 and 1621, respectively). Section 2(3). Certain benefits are exempted from this verification requirement; these also track PRWORA, which permits certain listed benefits to be provided to everyone regardless of immigration status (these benefits are enumerated in this section). SB 2231 adds one additional exemption, however, that is not mentioned in PRWORA and it is unclear to what exactly it refers: SB 2231 Section 2(3)(a) states that verification shall not be required For any purpose for which lawful presence in the United States is not restricted by law, ordinance, or regulation. Section 2(4). Verification shall be done in the following way. The applicant must execute an affidavit attesting that either: (1) he is a U.S. citizen OR (2) he is a qualified alien under the federal Immigration and Nationality Act and is lawfully present in the United States. Section 2(5). Any applicant who provides the latter affidavit (of "qualified alien" status) will have his eligibility for the benefit verified by use of the Systematic Alien Verification of Entitlement (SAVE) program. SAVE is a federal electronic verification system run by U.S. Citizenship and Immigration Services (USCIS). Anyone who provides an affidavit that he is a U.S. citizen, by contrast, will not have to provide any further documentation or go through any additional verification. Importantly, the affidavit of qualified alien status may be presumed to be proof of lawful presence until an answer comes back from SAVE. Section 2(6). This section punishes knowingly and willfully making false representations in the above affidavits. If an affidavit constitutes a false claim to U.S citizenship, the benefits agency (or political subdivision) must file a complaint with the local U.S. Attorney s office. Section 2(7). State benefits agencies (and political subdivisions) may adopt variations to these requirements that demonstrably improve the reliability of the verification process or that permit the agency to deal with individual circumstances of hardship faced by lawful residents. Section 2(8). This section generally states that it is unlawful for any state agency (or political subdivision) to provide a state, local or federal benefit in violation of this section. Section 2(9). Any benefits administering agency must annually report on compliance to the state s Attorney General, and the Attorney General shall in turn report any errors to the U.S. Department of

3 Homeland Security. The Attorney General must also monitor the SAVE program and report on any errors and delays caused by the program. Section 3. This act goes into effect July 1, Concerns with SB SB 2231 will be particularly hard on children. First, SB 2231 exempts from its verification requirements only those children up to the age of 13. The state should be protecting the health and welfare of very poor child regardless of immigration status. It does not serve our communities to let any child suffer. Second, SB 2231 will have the effect of denying many eligible U.S. citizen children critical public benefits to which they are entitled under federal law. Documentation and verification requirements like those included in SB 2231 can have the effect of chilling access to public benefits by a much wider population than lawmakers intend, harming many lawfully present individuals and even citizens, especially those in the thousands of mixed-status families present in Mississippi. In Mississippi in 2009, 85.4% of children with immigrant parents were U.S. citizens. In that year, 89.7% of children in Asian families in Mississippi were U.S. citizens, as were 89.5% of children in Latino families. 4 Noncitizens who have U.S. citizen children are frequently deterred from applying for public benefits due to misunderstanding, fear, and caseworkers inadequate training on immigration issues. 2. Benefits restrictions bills like SB 2231 are a solution in search of a problem. Contrary to the findings suggested in Section 1 of SB 2231, states that wish to pass benefits restrictions bills like SB 2231 will be taking on significant costs in order to combat what they view as a serious problem -- the use of taxpayer funds to support public benefits to undocumented immigrants. This assertion is based on stereotype, not fact. Immigrants who are not lawfully present already are not eligible for the major federal public welfare programs (non-emergency Medicaid, Temporary Assistance to Needy Families, Supplemental Security Income, Supplemental Nutritional Assistance Program (Food Stamps), and Children s Health Insurance Program). Moreover, eligible noncitizens rely on federal public benefits far less often than do native-born Americans. 5 For example, for the means-tested federal Food Stamps (or SNAP) program, 55% of eligible children in mixed-status families use the program while 86% of eligible children use it nationally. 6 Even the strict citizenship documentation requirements that federal law put in place for Medicaid in 2005 (which are more onerous than the verification requirements of SB 2231) netted states only uncertain benefits and savings, according to the Government Accountability Office. 7 Finally, unauthorized immigrants have exceptionally high work 4 Immigration Policy Center, New Americans in Mississippi (January 2012) 5 Daniel T. Griswold, Immigration and the Welfare State, Cato Journal Vol. 32, No. 1 (Winter 2012): U.S. Department of Agriculture, Supplemental Nutrition Assistance Program Guidance on Non-Citizen Eligibility (June 2011). 7 U.S. Government Accountability Office, Medicaid: States Reported that Citizenship Documentation Requirement Resulted in Enrollment Declines for Eligible Citizens and Posed Administrative Burdens (June 2007) [ GAO Medicaid Report ]

4 force participation rates (94% for unauthorized immigrant males), 8 which undercuts the stereotype that immigrants come to the U.S. simply to access welfare benefits. 3. SAVE has problems that should be identified and considered before (not after) passing this bill. If an immigrant signs an affidavit attesting to his or her lawful presence in the U.S., SB 2231 requires that the state benefits agency run that immigrant's information through the federal SAVE system to determine eligibility for the benefit. SB 2231 also requires the Attorney General to monitor the SAVE program s operation in Mississippi and to report any errors or delays. But the errors and delays of the system, as well as the administrative costs associated with implementing the system, should be considered before passing this bill. State refugee coordinators and advocates who work with the SAVE system regularly have highlighted the inaccuracies in the data that is fed into the SAVE system as well as the delays in verification for certain vulnerable groups, particularly refugees and their derivative beneficiaries. No systematic data has been collected to evaluate the error rate in the SAVE system. 9 As a preliminary matter, SB 2231 commits the error of conflating lawful presence and PRWORA eligibility far fewer immigrants are eligible for benefits under PRWORA than are lawfully present in the U.S. Second, it misunderstands what information the SAVE system actually provides. The SAVE system does not tell a benefits agency whether someone is lawfully or unlawfully present. It only confirms the accuracy of immigration information given by an applicant to a benefits agency so that the benefits agency may then make a fully-informed determination as to whether that individual is eligible for that benefit. 10 Immigrant eligibility determinations are complicated. State benefits agency personnelcan not be properly trained in the intracies of immigration law; there is a concern that eligible immigrants will be denied benefits. Moreover, SB 2231 does not allow for the reality that final verification through the SAVE system can take a significant amount of time. The SAVE system has three separate verification levels, each of which could take weeks and together, the process could take months. If an applicant cannot be confirmed through the first SAVE level, the state benefits agent will put the applicant's information in the system again and request a second level of verification. The same is true for the third level. SB 2231 does not indicate whether a state benefits agency is required to rely on an affidavit of eligibility through all three levels of SAVE verification, or if the presumption of lawful presence only lasts until the agency receives its first non-confirmation ; see also Tanya Broder, State and Local Policies on Immigrant Access to Services: Promoting Integration or Isolation? National Immigration Law Center (May 2007): Griswold, Immigration and the Welfare State, at 161 (citing 2006 research by the Pew Hispanic Center). 9 The SAVE Program: Verification, Immigrants, and Public Benefits, U.S. Citizenship and Immigration Services Ombudsman Conference (2011), 10 Immigration Policy Center, The Systematic Alien Verification for Entitlements (SAVE) Program: A Fact Sheet (December 15, 2011) 11 Immigration Policy Center, The Systematic Alien Verification for Entitlements (SAVE) Program: A Fact Sheet (December 15, 2011)

5 This document was prepared in February 2012 by CLINIC s State & Local Advocacy Attorney Karen Siciliano Lucas. This document provided for informational purposes only and is not intended as legal advice. For questions, please contact Karen at klucas@cliniclegal.org or (202)

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