8 U.S.C. § 1631 — Federal attribution of sponsor’s income

Page 575 TITLE 8—ALIENS AND NATIONALITY § 1631 Act of 1996, Pub. L. 104–193, see section 5308 of Pub. L. 105–33, set out as a note under section 1612 of this title. Amendment by sections 5562, 5563, and 5581(b)(3) of Pub. L. 105–33 effective as if included in the enactment of title IV of the Personal Responsibility and Work Op- portunity Reconciliation Act of 1996, Pub. L. 104–193, see section 5582 of Pub. L. 105–33, set out as a note under section 1367 of this title. § 1623. Limitation on eligibility for preferential treatment of aliens not lawfully present on basis of residence for higher education bene- fits (a) In general Notwithstanding any other provision of law, an alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a State (or a political sub- division) for any postsecondary education ben- efit unless a citizen or national of the United States is eligible for such a benefit (in no less an amount, duration, and scope) without regard to whether the citizen or national is such a resi- dent. (b) Effective date This section shall apply to benefits provided on or after July 1, 1998. (Pub. L. 104–208, div. C, title V, § 505, Sept. 30, 1996, 110 Stat. 3009–672.) Editorial Notes CODIFICATION Section was enacted as part of the Illegal Immigra- tion Reform and Immigrant Responsibility Act of 1996, and as part of the Omnibus Consolidated Appropria- tions Act, 1997, and not as part of title IV of the Per- sonal Responsibility and Work Opportunity Reconcili- ation Act of 1996 which comprises this chapter. § 1624. Authority of States and political subdivi- sions of States to limit assistance to aliens and to distinguish among classes of aliens in providing general cash public assistance (a) In general Subject to subsection (b) and notwithstanding any other provision of law, a State or political subdivision of a State is authorized to prohibit or otherwise limit or restrict the eligibility of aliens or classes of aliens for programs of gen- eral cash public assistance furnished under the law of the State or a political subdivision of a State. (b) Limitation The authority provided for under subsection (a) may be exercised only to the extent that any prohibitions, limitations, or restrictions im- posed by a State or political subdivision of a State are not more restrictive than the prohibi- tions, limitations, or restrictions imposed under comparable Federal programs. For purposes of this section, attribution to an alien of a spon- sor’s income and resources (as described in sec- tion 1631 of this title) for purposes of deter- mining eligibility for, and the amount of, bene- fits shall be considered less restrictive than a prohibition of eligibility for such benefits. (Pub. L. 104–208, div. C, title V, § 553, Sept. 30, 1996, 110 Stat. 3009–681.) Editorial Notes CODIFICATION Section was enacted as part of the Illegal Immigra- tion Reform and Immigrant Responsibility Act of 1996, and as part of the Omnibus Consolidated Appropria- tions Act, 1997, and not as part of title IV of the Per- sonal Responsibility and Work Opportunity Reconcili- ation Act of 1996 which comprises this chapter. § 1625. Authorization for verification of eligibility for State and local public benefits A State or political subdivision of a State is authorized to require an applicant for State and local public benefits (as defined in section 1621(c) of this title) to provide proof of eligi- bility. (Pub. L. 104–193, title IV, § 413, as added Pub. L. 105–33, title V, § 5307(a), Aug. 5, 1997, 111 Stat. 602.) Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective, except as otherwise provided, as if included in the enactment of title IV of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. 104–193, see section 5308 of Pub. L. 105–33, set out as an Effective Date of 1997 Amendment note under section 1612 of this title. SUBCHAPTER III—ATTRIBUTION OF INCOME AND AFFIDAVITS OF SUPPORT § 1631. Federal attribution of sponsor’s income and resources to alien (a) In general Notwithstanding any other provision of law, in determining the eligibility and the amount of benefits of an alien for any Federal means-test- ed public benefits program (as provided under section 1613 of this title), the income and re- sources of the alien shall be deemed to include the following: (1) The income and resources of any person who executed an affidavit of support pursuant to section 213A of the Immigration and Na- tionality Act [8 U.S.C. 1183a] (as added by sec- tion 423 and as amended by section 551(a) of the Illegal Immigration Reform and Immi- grant Responsibility Act of 1996) on behalf of such alien. (2) The income and resources of the spouse (if any) of the person. (b) Duration of attribution period Subsection (a) shall apply with respect to an alien until such time as the alien— (1) achieves United States citizenship through naturalization pursuant to chapter 2 of title III of the Immigration and Nationality Act [8 U.S.C. 1421 et seq.]; or (2)(A) has worked 40 qualifying quarters of coverage as defined under title II of the Social Security Act [42 U.S.C. 401 et seq.] or can be credited with such qualifying quarters as pro- vided under section 1645 of this title, and (B) in the case of any such qualifying quarter cred- itable for any period beginning after December 31, 1996, did not receive any Federal means- tested public benefit (as provided under sec- tion 1613 of this title) during any such period. Page 576 TITLE 8—ALIENS AND NATIONALITY § 1631 1 See References in Text note below. (c) Review of income and resources of alien upon reapplication Whenever an alien is required to reapply for benefits under any Federal means-tested public benefits program, the applicable agency shall re- view the income and resources attributed to the alien under subsection (a). (d) Application (1) If on August 22, 1996, a Federal means-test- ed public benefits program attributes a spon- sor’s income and resources to an alien in deter- mining the alien’s eligibility and the amount of benefits for an alien, this section shall apply to any such determination beginning on the day after August 22, 1996. (2) If on August 22, 1996, a Federal means-test- ed public benefits program does not attribute a sponsor’s income and resources to an alien in de- termining the alien’s eligibility and the amount of benefits for an alien, this section shall apply to any such determination beginning 180 days after August 22, 1996. (3) This section shall not apply to assistance or benefits under the Food Stamp Act of 1977 1 (7 U.S.C. 2011 et seq.) to the extent that a qualified alien is eligible under section 1612(a)(2)(J) of this title. (e) Indigence exception (1) In general For an alien for whom an affidavit of sup- port under section 213A of the Immigration and Nationality Act [8 U.S.C. 1183a] has been executed, if a determination described in para- graph (2) is made, the amount of income and resources of the sponsor or the sponsor’s spouse which shall be attributed to the spon- sored alien shall not exceed the amount actu- ally provided for a period beginning on the date of such determination and ending 12 months after such date. (2) Determination described A determination described in this paragraph is a determination by an agency that a spon- sored alien would, in the absence of the assist- ance provided by the agency, be unable to ob- tain food and shelter, taking into account the alien’s own income, plus any cash, food, hous- ing, or other assistance provided by other indi- viduals, including the sponsor. The agency shall notify the Attorney General of each such determination, including the names of the sponsor and the sponsored alien involved. (f) Special rule for battered spouse and child (1) In general Subject to paragraph (2) and notwith- standing any other provision of this section, subsection (a) shall not apply to benefits— (A) during a 12 month period if the alien demonstrates that (i) the alien has been bat- tered or subjected to extreme cruelty in the United States by a spouse or a parent, or by a member of the spouse or parent’s family residing in the same household as the alien and the spouse or parent consented to or ac- quiesced to such battery or cruelty, (ii) the alien’s child has been battered or subjected to extreme cruelty in the United States by the spouse or parent of the alien (without the active participation of the alien in the battery or cruelty), or by a member of the spouse’s or parent’s family residing in the same household as the alien when the spouse or parent consented or acquiesced to and the alien did not actively participate in such battery or cruelty, or (iii) the alien is a child whose parent (who resides in the same household as the alien child) has been bat- tered or subjected to extreme cruelty in the United States by that parent’s spouse, or by a member of the spouse’s family residing in the same household as the parent and the spouse consented to, or acquiesced in, such battery or cruelty, and the battery or cru- elty described in clause (i), (ii), or (iii) (in the opinion of the agency providing such public benefits, which opinion is not subject to review by any court) has a substantial connection to the need for the public bene- fits applied for; and (B) after a 12 month period (regarding the batterer’s income and resources only) if the alien demonstrates that such battery or cru- elty under subparagraph (A) has been recog- nized in an order of a judge or administra- tive law judge or a prior determination of the Immigration and Naturalization Service, and that such battery or cruelty (in the opinion of the agency providing such public benefits, which opinion is not subject to re- view by any court) has a substantial connec- tion to the need for the benefits. (2) Limitation The exception under paragraph (1) shall not apply to benefits for an alien during any pe- riod in which the individual responsible for such battery or cruelty resides in the same household or family eligibility unit as the in- dividual who was subjected to such battery or cruelty. (Pub. L. 104–193, title IV, § 421, Aug. 22, 1996, 110 Stat. 2270; Pub. L. 104–208, div. C, title V, §§ 551(b)(1), 552, Sept. 30, 1996, 110 Stat. 3009–679, 3009–680; Pub. L. 105–33, title V, § 5571(d), Aug. 5, 1997, 111 Stat. 641; Pub. L. 107–171, title IV, § 4401(b)(2)(B), May 13, 2002, 116 Stat. 333.) Editorial Notes REFERENCES IN TEXT Section 213A of the Immigration and Nationality Act (as added by section 423 and as amended by section 551(a) of the Illegal Immigration Reform and Immi- grant Responsibility Act of 1996), referred to in subsec. (a)(1), is section 1183a of this title as added by section 423 of Pub. L. 104–193 and amended by section 551(a) of div. C of Pub. L. 104–208. The Immigration and Nationality Act, referred to in subsec. (b)(1), is act June 27, 1952, ch. 477, 66 Stat. 163. Chapter 2 of title III of the Act is classified generally to part II (§ 1421 et seq.) of subchapter III of chapter 12 of this title. For complete classification of this Act to the Code, see Short Title note set out under section 1101 of this title and Tables. The Social Security Act, referred to in subsec. (b)(2)(A), is act Aug. 14, 1935, ch. 531, 49 Stat. 620. Title II of the Act is classified generally to subchapter II (§ 401 et seq.) of chapter 7 of Title 42, The Public Health Page 577 TITLE 8—ALIENS AND NATIONALITY § 1632 and Welfare. For complete classification of this Act to the Code, see section 1305 of Title 42 and Tables. The Food Stamp Act of 1977, referred to in subsec. (d)(3), subsequently renamed the Food and Nutrition Act of 2008, is Pub. L. 88–525, Aug. 31, 1964, 78 Stat. 703, which is classified generally to chapter 51 (§ 2011 et seq.) of Title 7, Agriculture. For complete classification of this Act to the Code, see Short Title note set out under section 2011 of Title 7 and Tables. AMENDMENTS 2002—Subsec. (d)(3). Pub. L. 107–171 added par. (3). 1997—Subsec. (f)(1)(A). Pub. L. 105–33 struck out ‘‘or’’ before ‘‘(ii) the alien’s child’’ and substituted ‘‘or (iii) the alien is a child whose parent (who resides in the same household as the alien child) has been battered or subjected to extreme cruelty in the United States by that parent’s spouse, or by a member of the spouse’s family residing in the same household as the parent and the spouse consented to, or acquiesced in, such bat- tery or cruelty, and the battery or cruelty described in clause (i), (ii), or (iii)’’ for ‘‘and the battery or cruelty described in clause (i) or (ii)’’. 1996—Subsec. (a)(1). Pub. L. 104–208, § 551(b)(1), in- serted ‘‘and as amended by section 551(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996’’ after ‘‘section 423’’. Subsecs. (e), (f). Pub. L. 104–208, § 552, added subsecs. (e) and (f). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2002 AMENDMENT Amendment by Pub. L. 107–171 effective Oct. 1, 2003, see section 4401(b)(3) of Pub. L. 107–171, set out as a note under section 2014 of Title 7, Agriculture. EFFECTIVE DATE OF 1997 AMENDMENT Amendment by Pub. L. 105–33 effective as if included in the enactment of title IV of the Personal Responsi- bility and Work Opportunity Reconciliation Act of 1996, Pub. L. 104–193, see section 5582 of Pub. L. 105–33, set out as a note under section 1367 of this title. EFFECTIVE DATE OF 1996 AMENDMENT Amendment by section 551(b)(1) of Pub. L. 104–208 ap- plicable to affidavits of support executed on or after a date specified by the Attorney General, which date shall be not earlier than 60 days, and not later than 90 days after the date the Attorney General formulates the form for such affidavits, see section 551(c) of Pub. L. 104–208, set out as an Effective Date of 1996 Amend- ment; Promulgation of Form note under section 1183a of this title. ABOLITION OF IMMIGRATION AND NATURALIZATION SERVICE AND TRANSFER OF FUNCTIONS For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under section 1551 of this title. § 1632. Authority for States to provide for attri- bution of sponsors income and resources to the alien with respect to State programs (a) Optional application to State programs Except as provided in subsection (b), in deter- mining the eligibility and the amount of bene- fits of an alien for any State public benefits, the State or political subdivision that offers the benefits is authorized to provide that the in- come and resources of the alien shall be deemed to include— (1) the income and resources of any indi- vidual who executed an affidavit of support pursuant to section 1183a of this title (as added by section 423 and as amended by section 551(a) of the Illegal Immigration Reform and Immi- grant Responsibility Act of 1996) on behalf of such alien, and (2) the income and resources of the spouse (if any) of the individual. (b) Exceptions Subsection (a) shall not apply with respect to the following State public benefits: (1) Assistance described in section 1621(b)(1) of this title. (2) Short-term, non-cash, in-kind emergency disaster relief. (3) Programs comparable to assistance or benefits under the Richard B. Russell National School Lunch Act [42 U.S.C. 1751 et seq.]. (4) Programs comparable to assistance or benefits under the Child Nutrition Act of 1966 [42 U.S.C. 1771 et seq.]. (5) Public health assistance for immuniza- tions with respect to immunizable diseases and for testing and treatment of symptoms of communicable diseases whether or not such symptoms are caused by a communicable dis- ease. (6) Payments for foster care and adoption as- sistance. (7) Programs, services, or assistance (such as soup kitchens, crisis counseling and interven- tion, and short-term shelter) specified by the Attorney General of a State, after consulta- tion with appropriate agencies and depart- ments, which (A) deliver in-kind services at the community level, including through public or private nonprofit agencies; (B) do not condi- tion the provision of assistance, the amount of assistance provided, or the cost of assistance provided on the individual recipient’s income or resources; and (C) are necessary for the pro- tection of life or safety. (Pub. L. 104–193, title IV, § 422, Aug. 22, 1996, 110 Stat. 2271; Pub. L. 104–208, div. C, title V, § 551(b)(1), Sept. 30, 1996, 110 Stat. 3009–679; Pub. L. 105–33, title V, § 5581(b)(2), Aug. 5, 1997, 111 Stat. 643; Pub. L. 106–78, title VII, § 752(b)(6), Oct. 22, 1999, 113 Stat. 1169.) Editorial Notes REFERENCES IN TEXT Section 1183a of this title (as added by section 423 and as amended by section 551(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996), re- ferred to in subsec. (a)(1), is section 1183a of this title as added by section 423 of Pub. L. 104–193 and amended by section 551(a) of div. C of Pub. L. 104–208. The Richard B. Russell National School Lunch Act, referred to in subsec. (b)(3), is act June 4, 1946, ch. 281, 60 Stat. 230, which is classified generally to chapter 13 (§ 1751 et seq.) of Title 42, The Public Health and Wel- fare. For complete classification of this Act to the Code, see Short Title note set out under section 1751 of Title 42 and Tables. The Child Nutrition Act of 1966, referred to in subsec. (b)(4), is Pub. L. 89–642, Oct. 11, 1966, 80 Stat. 885, which is classified generally to chapter 13A (§ 1771 et seq.) of Title 42. For complete classification of this Act to the Code, see Short Title note set out under section 1771 of Title 42 and Tables. AMENDMENTS 1999—Subsec. (b)(3). Pub. L. 106–78 substituted ‘‘Rich- ard B. Russell National School Lunch Act’’ for ‘‘Na- tional School Lunch Act’’.