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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. § 1631) gives USDA broad discretion.
Section 421 generally requires deeming in federal means-tested public benefit programs but does
not state how to determine the amount of income or resources to be deemed. Absent explicit
statutory guidance, USDA retains the discretion to determine how to implement deeming. In fact,
in the proposed rule, USDA has already used this discretion in positive ways to limit the amount
of income deemed and the persons subject to deeming. For example, under the proposed rules:
the amount of a sponsor's income that is deemed is reduced by the income exclusions
provided under 7 C.F.R. § 273.9(c) [proposed 7 C.F.R. § 273.4(c)(2)(i)];
the amount of a sponsor's resources that is deemed is reduced by the resource exclusions
provided under 7 C.F.R. § 273.8 [proposed 7 C.F.R. § 273.4(c)(2)(iii)];
deeming does not apply to an immigrant who is a member of his or her sponsor's food
stamp household, meaning that a sponsor who lives with the sponsored immigrant has his
or her income calculated under general food stamp rules which include a number of
deductions from income [proposed 7 C.F.R. § 273.4(c)(3)(i)];
if a sponsored immigrant can show that his or her sponsor sponsors other immigrants, the
income and resources deemed must be divided by the number of sponsored immigrants
that apply for or are participating in the food stamp program [proposed 7 C.F.R.§
273.4(c)(2)(iv)].
Given this considerable discretion, a range of additional options can and should be
considered to further refine PRWORA's general deeming provision. The best option would be to
calculate the amount of a sponsor's income that must be deemed to the sponsored immigrant in a
manner consistent with the current food stamp deeming rules at 7 C.F.R. 273.11(j). Under this
provision, the amount of income deemed is the sponsor's total monthly income as defined in 7
C.F.R. § 273.9(b) with the income exclusions provided under 7 C.F.R. $ 273.9(c) and with the
following deductions as well:
a deduction equal to 20 percent of the sponsor's earned income; and
a deduction in an amount equal to the food stamp program's monthly gross income
eligibility limit for a household equal in size to a household that consists of the
sponsor, the sponsor's spouse, and any dependents the sponsor claims for income
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"ocrText": "PPI Intern1 - feb29fsregs_immig.wpd\nPage 8\nchanges to PRWORA's deeming provision, it is possible that the deeming rule USDA adopts in\nthese regulations will apply for some time. An overly restrictive deeming rule could have the\npractical effect of eliminating food stamp eligibility even for those immigrants who would\notherwise 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 support.\nUnlike the longstanding section 5(i) of the Food Stamp Act (7 U.S.C. $ 2014(i)), which provided\nexplicit guidance on how to determine the income of a sponsor for purposes of deeming under\npre-PRWORA law, section 421 of PRWORA (8 U.S.C. § 1631) gives USDA broad discretion.\nSection 421 generally requires deeming in federal means-tested public benefit programs but does\nnot state how to determine the amount of income or resources to be deemed. Absent explicit\nstatutory guidance, USDA retains the discretion to determine how to implement deeming. In fact,\nin the proposed rule, USDA has already used this discretion in positive ways to limit the amount\nof income deemed and the persons subject to deeming. For example, under the proposed rules:\nthe amount of a sponsor's income that is deemed is reduced by the income exclusions\nprovided under 7 C.F.R. § 273.9(c) [proposed 7 C.F.R. § 273.4(c)(2)(i)];\nthe amount of a sponsor's resources that is deemed is reduced by the resource exclusions\nprovided under 7 C.F.R. § 273.8 [proposed 7 C.F.R. § 273.4(c)(2)(iii)];\ndeeming does not apply to an immigrant who is a member of his or her sponsor's food\nstamp household, meaning that a sponsor who lives with the sponsored immigrant has his\nor her income calculated under general food stamp rules which include a number of\ndeductions from income [proposed 7 C.F.R. § 273.4(c)(3)(i)];\nif a sponsored immigrant can show that his or her sponsor sponsors other immigrants, the\nincome and resources deemed must be divided by the number of sponsored immigrants\nthat apply for or are participating in the food stamp program [proposed 7 C.F.R.§\n273.4(c)(2)(iv)].\nGiven this considerable discretion, a range of additional options can and should be\nconsidered to further refine PRWORA's general deeming provision. The best option would be to\ncalculate the amount of a sponsor's income that must be deemed to the sponsored immigrant in a\nmanner consistent with the current food stamp deeming rules at 7 C.F.R. 273.11(j). Under this\nprovision, the amount of income deemed is the sponsor's total monthly income as defined in 7\nC.F.R. § 273.9(b) with the income exclusions provided under 7 C.F.R. $ 273.9(c) and with the\nfollowing deductions as well:\na deduction equal to 20 percent of the sponsor's earned income; and\na deduction in an amount equal to the food stamp program's monthly gross income\neligibility limit for a household equal in size to a household that consists of the\nsponsor, the sponsor's spouse, and any dependents the sponsor claims for income"
}