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Non-Citizens Exploit Welfare Cap Loophole

It was 9:00 AM on the first day of the advertisement's run, and already the telephone at my law practice was ringing nonstop.

The ad had been placed in a local Russian language daily. Over a depiction of the globe, an arrow originated in the former Soviet Union and pointed to Manhattan. The ad had been timed to coincide with implementation of the Welfare Reform Act of 1996, and urged Russian immigrants to apply for citizenship. By noon that day, the office's waiting room had 30 people in it.

Citizenship is more important than it has ever been, if you are a new immigrant and mean to hold on to your welfare benefits. A five-year lifetime cap on certain forms of public assistance is approaching, and depending on the type of public assistance you are receiving, citizenship is the only thing that might keep those checks coming.

Even while Americans who have spent their lifetimes paying taxes are forced to debate the cost of prescription drugs and the continued viability of Social Security and Medicare, most are unaware that even after recent federal entitlement reforms, non-citizens remain eligible to receive certain forms of welfare. The Personal Responsibility and Work Opportunity Reconciliation Act of 1996, also called the Welfare Act, divides non-citizens into three categories, two of which are eligible for public assistance and one that is not.

Under the law, non-citizens who have worked for 10 years and those who have applied for or have been granted asylum are eligible for federal public benefits. These benefits include unemployment, public housing assistance and even college tuition grants. In some circumstances, these benefits are available to individuals who have never paid a dime in federal payroll taxes.

Statistics maintained by the government show that in the 13 years before 1995, there was a 500 percent increase in the number of non-citizen recipients of SSI, what we normally refer to as the welfare check. That is only a small part of the full spectrum of public assistance available to non-citizens. By 1996, non-citizens, though less than 6 percent of America's population, received more than 50 percent of cash payments made by the SSI program. In taxpayer terms, that was $8 billion a year. Congress estimated the changes would cause one million legal immigrants to be cut off from the food stamp program alone.

Ludmilla, who'd not made an appointment but was the first person in the office's waiting room that morning, was a case in point. She immigrated to the United States when she was around 45 years old, as the Soviet Union fell apart and loosened its restrictions on emigration. She entered the U.S. with an asylum claim, and though she was not granted asylum, she was successful in obtaining an agreement from the INS that it would, in her case, indefinitely defer exercise of its own power to deport.

Prior to the Welfare Act, Ludmilla was treated just as any other person lawfully in the U.S., and had for years regularly received checks from the government. She'd never learned a word of English, but knew that with the change in the law, the filing of a citizenship application would solve her problem.

If you believe that non-citizens, as a group, turn to the government for help less often than citizens, you're wrong. Though no recent exhaustive study has been done, a 1997 study based on census statistics showed, for example, that 9 percent of non-citizens used cash welfare and 10.8 percent used food stamps, while citizens had usage rates of 6.7 percent and 6.8 percent, respectively, in the same categories.

Refugees (those who have been granted asylum) had substantially higher usage rates of cash welfare, food stamps and Medicaid than non-citizens in general, the study showed. That study also showed that nearly 25 percent of refugees used welfare, compared to the 9 percent figure for all non-citizens.

If those people likely to become public charges have been inadmissible for nearly 100 years, how is that non-citizens whose lifetime welfare benefits are running out see citizenship as a solution to their problems? Because by directive of the Clinton administration, reliance on nearly every form of public assistance no longer causes a non-citizen to be a public charge. A non-citizen can be utterly dependent on Medicaid, food stamps and even public housing, and as long as he is not accepting a check from the government, all that is irrelevant to his application for citizenship.

Under the most recent INS guidelines, even the receipt of a check every two weeks is irrelevant to eligibility for citizenship. Ludmilla should not have been so concerned after all.

Matt Hayes began practicing immigration law shortly after graduating from Pace University School of Law in 1994, representing new immigrants in civil and criminal matters. He recently left the New York City law practice he founded in 1997 for the "more normal life" of insurance defense, and is author of The New Immigration Law and Practice, a textbook to be pubished by West Legal Publications in October, 2003.

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