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A second argument in support of this position is that PRWORA is silent on
whether a sponsored alien made ineligible by PRWORA must be treated as a food
stamp household member and whether a sponsor's income and resources must be
counted in determining the eligibility of citizens and food stamp-eligible non-sponsored
immigrants who reside with a sponsored immigrant. Although section 402 of PRWORA
makes most adult immigrants ineligible for the food stamp program, it does not specify
whether they must be treated as food stamp household members. In the absence of
clear direction in the legislation, USDA has discretion to define PRWORA-ineligible
immigrants as "non-household members" under 7 C.F.R. § 273.1(b) and to exclude a
sponsor's income and resources so that citizen children residing with sponsored-
immigrant parents can receive food stamps.
B.
Deeming of a Sponsor's Gross Income with No Deductions
Another troubling provision (proposed 7 C.F.R. § 273.4(c)(2)(i)) proposes to
deem all of a sponsor's gross income, except for the food stamp income exclusions
provided under 7 C.F.R. § 273.9(c)¹⁴, to a sponsored immigrant without any deductions
to reflect more accurately the amount of support a sponsor could actually be required to
provide to a sponsored immigrant. The proposed rule does not follow existing food
stamp deeming rules (7 C.F.R. § 273.11(j)), which allow a 20 percent deduction from
the sponsor's earned income and also provide for a deduction from the sponsor's
income of an amount equal to the food stamp program's monthly gross income
eligibility limit for a household of the same size as the sponsor's household.
These provisions of the proposed rules deserve substantial attention and
comment for two reasons. First, if the final rules retain the proposal discussed above to
count a sponsor's income in determining benefits for non-sponsored household
members, the rules that set out how to calculate the amount of a sponsor's income that
is deemed will be extremely important and will affect a large number of immigrant
households. Second, even if the final rules do not count a sponsor's income in
determining the benefits of non-sponsored household members, the provisions in the
rule that address the calculation of a sponsor's income, while having less immediate
importance, 15 will have great significance in the future if any further food stamp
restorations are enacted by Congress. Since restorations in the near-future may not
include changes to PRWORA's deeming provision, it is possible that the deeming rule
USDA adopts in these regulations will apply for some time. An overly restrictive
deeming rule could have the practical effect of eliminating food stamp eligibility even
for those immigrants who would otherwise benefit from future restorations.
USDA has discretion to adopt a deeming rule that better reflects the amount of a
sponsor's income that could lawfully be made available to the sponsored immigrant for
support. Unlike the longstanding section 5(i) of the Food Stamp Act (7 U.S.C. §
2014(i)), which provided explicit guidance on how to determine the income of a sponsor
for purposes of deeming under pre-PRWORA law, section 421 of PRWORA (8 U.S.C. $
7
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"ocrText": "PPI Intern1 feb29fsregs_immig.doc\nPage 7\nA second argument in support of this position is that PRWORA is silent on\nwhether a sponsored alien made ineligible by PRWORA must be treated as a food\nstamp household member and whether a sponsor's income and resources must be\ncounted in determining the eligibility of citizens and food stamp-eligible non-sponsored\nimmigrants who reside with a sponsored immigrant. Although section 402 of PRWORA\nmakes most adult immigrants ineligible for the food stamp program, it does not specify\nwhether they must be treated as food stamp household members. In the absence of\nclear direction in the legislation, USDA has discretion to define PRWORA-ineligible\nimmigrants as \"non-household members\" under 7 C.F.R. § 273.1(b) and to exclude a\nsponsor's income and resources so that citizen children residing with sponsored-\nimmigrant parents can receive food stamps.\nB.\nDeeming of a Sponsor's Gross Income with No Deductions\nAnother troubling provision (proposed 7 C.F.R. § 273.4(c)(2)(i)) proposes to\ndeem all of a sponsor's gross income, except for the food stamp income exclusions\nprovided under 7 C.F.R. § 273.9(c)¹⁴, to a sponsored immigrant without any deductions\nto reflect more accurately the amount of support a sponsor could actually be required to\nprovide to a sponsored immigrant. The proposed rule does not follow existing food\nstamp deeming rules (7 C.F.R. § 273.11(j)), which allow a 20 percent deduction from\nthe sponsor's earned income and also provide for a deduction from the sponsor's\nincome of an amount equal to the food stamp program's monthly gross income\neligibility limit for a household of the same size as the sponsor's household.\nThese provisions of the proposed rules deserve substantial attention and\ncomment for two reasons. First, if the final rules retain the proposal discussed above to\ncount a sponsor's income in determining benefits for non-sponsored household\nmembers, the rules that set out how to calculate the amount of a sponsor's income that\nis deemed will be extremely important and will affect a large number of immigrant\nhouseholds. Second, even if the final rules do not count a sponsor's income in\ndetermining the benefits of non-sponsored household members, the provisions in the\nrule that address the calculation of a sponsor's income, while having less immediate\nimportance, 15 will have great significance in the future if any further food stamp\nrestorations are enacted by Congress. Since restorations in the near-future may not\ninclude changes to PRWORA's deeming provision, it is possible that the deeming rule\nUSDA adopts in these regulations will apply for some time. An overly restrictive\ndeeming rule could have the practical effect of eliminating food stamp eligibility even\nfor those immigrants who would otherwise benefit from future restorations.\nUSDA has discretion to adopt a deeming rule that better reflects the amount of a\nsponsor's income that could lawfully be made available to the sponsored immigrant for\nsupport. Unlike the longstanding section 5(i) of the Food Stamp Act (7 U.S.C. §\n2014(i)), which provided explicit guidance on how to determine the income of a sponsor\nfor purposes of deeming under pre-PRWORA law, section 421 of PRWORA (8 U.S.C. $\n7"
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