United States Commission on Immigration Reform

Testimony of Susan Martin
Executive Director, U.S. Commission on Immigration Reform
Before the U.S. Senate
Committee on Finance
March 27, 1995

On behalf of Professor Barbara Jordan, our Chair, and the Members of the U.S. Commission on Immigration Reform, I want to thank you for the opportunity to testify before you today.

First, let me explain the role of the Commission on Immigration Reform. It is a bipartisan body made up of eight Commissioners appointed by the Congress. Two Commissioners are appointed by the respective leadership of both parties in the House and the Senate, and the Chair is appointed by the President. We are a Congressional Commission. Our mandate from the Congress in the Immigration Act of 1990 charges the Commissioners to make a comprehensive analysis of immigration policy and to make specific recommendations for reform.

In the Commission's first interim report, U.S. Immigration Policy: Restoring Credibility, issued last September, the Commission recommended a comprehensive strategy for controlling illegal immigration. The Commission has been gratified that many of these recommendations have been incorporated in Senator Simpson's bill, S. 269, the Immigrant Control and Financial Responsibility Act of 1995. The Commission's recommendations also have received significant support from the Chairman of the House Subcommittee, Lamar Smith, and the Chair of the House Taskforce on Immigration, Elton Gallegly, as well as from the President in the State of the Union address.

The Commission is pleased that this Committee has taken up the SSI issue with respect to immigrants. Immigrants have become an important percentage of SSI recipients, one which is large and growing.

It would appear that the disproportionate use of benefit programs by the foreign-born is confined largely to Supplemental Security Income program for the aged, blind, and disabled. This is not too surprising when one considers eligibility criteria for the main source of income for the elderly, the social security program. Social security requires beneficiaries or the spouses of beneficiaries to have worked for forty quarters, which is ten years. It is much more likely that native-born Americans as compared with immigrants, will meet the work-quarter requirement. Most, though not all, social security recipients would be income ineligible for SSI. By contrast, needy elderly who do not receive social security generally qualify for SSI.

This is even more apparent when examining the utilization rates for foreign-born by period of entry. Older persons who entered in recent time periods are more likely to be receiving public assistance income than are those who entered while still in their working years. Those who were fifty-five years or older at the time of entry are the least likely to qualify for social security even if they work for a period of time after arrival. Only 4.2 percent of foreign-born persons who immigrated in the 1980s received social security income in 1989, compared to 29 percent of the foreign-born persons who entered before 1980.

The foreign-born utilization of SSI is confirmed by administrative data. SSI program data reveal that approximately 25 percent of elderly SSI recipients are foreign-born. Overall, 10.6 percent of SSI recipients are foreign-born. This proportion has risen steeply since 1982, the first year that statistics were available, when 3.3 percent of SSI recipients were foreign-born. The number of aliens receiving aged benefits increased from 92,00 in 1982 to 373,000 in 1992. The number of blind and disabled aliens increased from 92,000 in 1982 to 228,500 in 1992.

The apparent increase in the proportion of immigrants receiving SSI may be due, in part, to the recent arrival of an increasing number of older immigrants. Nearly 12 percent (416,000) of the foreign-born residents who were sixty years or older in 1990 entered during the 1980s. They had not earned sufficient social security benefits to be self-supporting. The number of immigrants sixty years or older in 1980 who entered during the 1970s was only 262,000, just 7 percent of the sixty years and older foreign-born population. More data needs to be gathered, of course, to determine the extent to which this explains the increase in alien participation in the SSI program.

The intersection of immigration policy and public benefits policy is a complex topic that episodically captures national attention, both among policymakers and the general public. In times of great labor force needs and abundant opportunity, there tends to be little attention to the domestic context of immigration. In times of slow or uncertain growth, restricted budgets, and reduced opportunity, sensitivity to domestic impact is heightened.

Now, with reform efforts underway on several major domestic policies, the effect of immigration-particularly illegal immigration-has been questioned. Immigration policy is viewed as yet another area ripe for reform. In this context, the Commission has examined closely the existing relationship between immigration and public benefit policies and their impact. The primary cause of concern to both the public and to the Commission is the lack of effective enforcement at our borders and the resulting presence of many aliens who have entered illegally. The Commission found that inconsistencies in immigration and benefits policy undermine the credibility of both.

The Commission believes that decisions on benefits eligibility should be consistent with and support the objectives of immigration policy. Legal immigrants enter the United States under U.S. law because their admission is considered to be in the national interest. The Immigration and Nationality Act delineates several categories of admission, most of them defined by the immigrant's connection to a U.S. resident or employers. Even in the category most characterized by humanitarian rather than strict national interest-refugee admissions-priority is given to individuals facing persecution because of their ties to the U.S. government, a U.S. resident, or a U.S. company. The Commission believes that benefits policy should reaffirm that the nation considers legal immigration to be in the national interest. Both the immigrants themselves and the broader society have responsibilities toward ensuring that immigrants are, and continue to be, productive members of our social community who, if they need help, can benefit from the established safety nets.

The Commission recommends against any broad, categorical denial of public benefits to legal immigrants. No federal benefit program currently denies eligibility on the basis of alienage to legal immigrants. In some needs-based public assistance programs, such as SSI, AFDC, and Food Stamps, as a means of enforcing the public charge provision for exclusion and deportation, current law requires that program eligibility workers "deem" sponsor income as available to immigrants in determining financial responsibility.

In other social insurance programs, such as social security and Medicare, an immigrant becomes eligible on the same basis as citizens-through sufficient payroll contributions to the trust funds. There is a five-year residency requirement for enrollment for elderly immigrants who have not contributed sufficiently to the Medicare trust funds.

A considerable amount of public debate has focussed on the issues of eligibility of legal immigrants for public assistance programs. Indeed, during the past year a number of proposals for curtailing immigrant eligibility have been made. While some measures would affect all legal immigrants, others are aimed more specifically at individuals coming into the country for family reunification purposes. The proposals range from making all legal immigrants ineligible for all federal assistance programs until such time as they naturalize, to extending for some federal programs the time period during which a sponsor's income is counted or "deemed" available to determine need.

So what do we do about this? The Commission believes the following principles should guide policy on the benefits eligibility.

The safety net provided by needs-tested programs should be available to those whom we have affirmatively accepted as legal immigrants into our communities. The U.S. admits immigrants on the basis that they will not be a public charge. However, circumstances may arise after an immigrant's entry that create a pressing need for public help-unexpected illness, injuries sustained due to a serious accident, loss of employment, a death in the family. Under such circumstances, legal immigrants should be eligible for public benefits if they meet other eligibility criteria. We are not prepared to remove the safety net from under individuals who, we hope, will become full members of our polity.

A policy to categorically deny legal immigrants access to such safety nets based solely on alienage would lead to gross inequities between very similar individuals and undermine our immigration goals to reunite families and quickly integrate immigrants into American society. For example, while two children in the same family may be equally poor, one may be a legal immigrant and, under proposals to deny benefits to legal immigrants, would be ineligible for assistance, while the other may be a citizen-by virtue of being born after the family arrives in the U.S.-and eligible for assistance.

The inequities for the legal immigrant child grow if eligibility is linked to citizenship, rather than a specified time, since the child may not naturalize, by law, until he or she is eighteen years of age. The only route to citizenship prior to that age is through the naturalization of his or her parent. If there were a categorical denial of eligibility to all legal immigrants and the parent is unable or unwilling to naturalize, the child would suffer the consequences of a parental action that he or she cannot remedy.

Sponsors should be held financially responsible for the immigrants that they bring to this country. In particular, the Commission recommends making affidavits of support signed by sponsors legally binding for a specific period of time and the development of mechanisms to enforce sponsors pledges of financial responsibility.

Affidavits of support are one means to ensure the Consular Officer that the alien will be supported in the United States and will not become a public charge. In accordance with Board of Immigration Appeals [BIA] rulings, the signatory sponsor's ability to provide the promised support must be given due consideration in determining whether to exclude a person as likely to become a public charge. Some courts, however, have held that such affidavits of support impose only a moral-and not a legal-obligation on the signatory sponsor.

Thus, as affidavits are not legally enforceable, assurance that the alien will not become a public charge has relied primarily on the "deeming rules" applied by the statutory requirements that apply to sponsored immigrants in three federal means-tested entitlement programs-AFDC, SSI and Food Stamps. The deeming rules apply only to sponsored immigrants and are not used if a sponsored immigrant becomes blind or disabled after entry into the U.S., if an immigrant's sponsor has died, or if a sponsor's income and resources are depleted unexpectedly after the immigrant's entry. Also, refugees are statutorily exempt from deeming rules since their entry is based on humanitarian considerations rather than on family unity.

In 1993, the sponsor deeming period for SSI was temporarily extended to five years after admission. This change, authorized for a period of two fiscal years, resulted in savings that financed an extension of the Emergency Unemployment Compensation program. This use of immigrant eligibility revisions for budgetary advantage is a precedent that has opened the door to further revisions to immigrant eligibility in the current debate on welfare reform.

This extension of the deeming period for SSI resulted in part from the increased attention to the public charge issue and in part to data showing a rapid increase in SSI utilization by immigrants, many of whom are elderly and sponsored by their families. For example, in 1993, immigrants represented about 12 percent of the total SSI caseload and about 28 percent of the aged caseload, compared to 3 percent and 6 percent, respectively, in 1982. About 25 percent of all immigrants receiving SSI are legal immigrants who are not likely to have sponsors-primarily refugees, but also asylees, parolees, and others. The remaining 75 percent are legal permanent residents who are likely to have sponsors. One-third of these began to receive SSI in the year immediately following the end of the sponsor deeming period.

These data can be interpreted in various ways. Some believe that these elderly immigrants, sponsored by their families, have always intend to apply for SSI benefits as soon as the deeming restrictions are removed. They argue that, at the time of entry, these elderly individuals have no intention of being self-supporting and that their sponsoring relatives have no intention of honoring their sponsorship role beyond the deeming period, creating precisely the situation the public charge provision is supposed to prevent.

On the other hand, no laws have been broken and the data do not imply that there is any specific fraudulent activity occurring. Sponsors and their elderly immigrant relatives are merely following the rules of program eligibility as they have evolved over the years.

The one conclusion that can be unequivocally drawn from the data is that the deeming policies have generally been effective in preventing sponsored immigrants from receiving federal welfare benefits during the deeming period. However, under federal welfare benefit programs, the deeming rules apply even if immigrant sponsors are not actually providing financial support to the immigrant they have sponsored. As the affidavit of support has been judicially interpreted as a document that is not legally binding, there is currently no legal procedure to compel sponsors actually to provide such support. It is possible that a sponsor may refuse to provide financial support to the immigrant but, due to the sponsors income and resources, the immigrant also may be ineligible for federal welfare benefits as a result of the deeming rules. The immigrant, may, however, be eligible for state and local assistance programs as these programs generally do not take into account sponsor's income in determining eligibility for benefits.

There are no data to indicate the prevalence of such sponsor abandonment of immigrants. Some experts argue that such cases are relatively rare, particularly in situations where the sponsor is a close relative of the immigrant, such as a son or daughter of an elderly immigrant. Some states and localities complain, however, that sponsored immigrants utilize their programs while awaiting the end of the deeming period for federal programs. Making the affidavit of support a legally-binding document is necessary to close this loophole in the current sponsor deeming policies.

A legally-enforceable affidavit of support is a necessary complement to deeming policies. Deeming is used not only for immigrants, but for others as well, to ensure that the income and resources of legally-liable individuals are taken into account when determining an applicant's eligibility for benefits. For example, under the SSI program, there are both spouse-to-spouse and parent-to-child deeming policies, in addition to the sponsor-to-alien deeming policy. Making the affidavit legally binding would establish the legal, financial relationship between sponsors and immigrants. Deeming policies would continue to allow benefit programs to take this relationship into account when determining a sponsored immigrant's level of financial need as part of the eligibility determination process. In defining the sponsor's responsibility, special consideration should be give to the issue of medical care.

It is likely that making the affidavit of support legally binding will serve primarily as an effective deterrent to sponsors. There is reason to assume that most citizens and legal permanent residents will voluntarily comply with such a legally-binding affidavit. But to be fully credible, mechanisms must be developed to enforce such a new legal requirement.

Consideration should be given to the particular enforcement mechanisms developed to actually enforce the affidavit, so as to avoid unnecessarily complex and costly new regulations or bureaucracies. Federal, state, and local governments should be allowed to consider the sponsor/immigrant relationship on the same legal basis as current parent/child and spouse/spouse relationships and to hold sponsors to the same standards of financial responsibility with regard to the immigrant as are currently applied to spouses and parents of children. If an immigrant claims that a sponsor is not honoring his or her financial obligation, courts could render judgments of support on behalf of the immigrant and initiative procedures to ensure that support. Also the INS and the Department of State should review their policies to determine if immigration-related sanctions should be applied against sponsors who do not abide by their responsibilities.

Finally, making the affidavit of support legally binding also should provide states the authority to ensure that sponsors do not shift their financial responsibility to state and local public assistance programs. As some courts have determined that states cannot implement the same type of deeming programs for their public assistance programs as the federal government now does for its programs, this is an important protection.

Abuse of the public charge provision should be grounds for deportation. A serious effort should be made to enhance and enforce the public charge provisions in immigration law to ensure that legal immigrants do not require public assistance and to provide clear procedures for deporting individuals who become public charges within five years after entry for reasons that existed prior to entry. In particular, the Commission recommends that deportation apply to sustained use of public benefits.

Specific provisions within U.S. immigration law are designed to ensure that those person seeking admission to this country will contribute to it, not merely take advantage of its resources and the generosity of its people. For example, U.S. immigration law currently bars the entry of those who are likely to be a public charge and contains provision for the deportation of individuals who become public charges within five years-unless they require aid for reasons that developed after entry. Effective enforcement of these provision helps minimize the number of legal immigrants who need or depend on public assistance.

These are the basic Commission recommendations that would apply to a discussion of SSI and immigrants. I will be glad to answer any questions.

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