Receiving free or reduced school breakfasts or lunches would not render immigrant children ineligible for green cards or other immigration benefits, despite changes to longstanding guidance on the public charge of inadmissibility published by the Department of Homeland Security (DHS).
The Immigration and Nationality Act prohibits approval of visa and green card applications for anyone who is deemed likely to become a “public charge” based on several factors including age, health, family status, assets, resources, financial status, education, and skills. Historically the “public charge” ground of inadmissibility was applied to those who were deemed likely to become “primarily dependent” on a designated list of state and federal programs which were primarily cash-based assistance programs based on income level.
On August 14, 2019, DHS published in the Federal Register a Final Rule that changes this interpretation (without changing the underlying law), by stating that immigrants could be denied immigration benefits if they access certain public benefits for any 12 month period within any 36 month period.
The Rule also added the following public benefits to the list of those that could render immigrants ineligible for immigration benefits to include: non-emergency Medicaid; Supplemental Nutrition and Assistance Program (SNAP, formerly food stamps); Section 8 Housing Choice Voucher Program; Section 8 Project-Based Rental Assistance; and Public Housing.
In New York state, the children of any households that receive SNAP and TANF automatically receive reduced or free school meals based on receipt of those benefits; however, even those not on SNAP or TANF may qualify by filling out a separate application. Because immigrants now may not access SNAP without potentially rendering themselves ineligible for immigration benefits, there may be considerable confusion in immigrant communities about whether children otherwise eligible for free or reduced school meals may still access those benefits, which are also federally funded.
The DHS Final Rule does not mention the separate federally funded programs for school breakfasts and school lunches, even though they are tied to receipt of SNAP and TANF.
Thus receipt of free or reduced school breakfasts or lunches would not render immigrant children ineligible for green cards or other immigration benefits. In light of the potential for confusion surrounding this issue, and although they are not required to provide such notification, school districts may wish to inform parents that their otherwise eligible children may continue to receive these benefits without jeopardizing their children’s or their own immigration status.
Review the DHS Final Rule in the Federal Register.
This alert does not purport to be a substitute for advice of counsel on specific matters.
Harris Beach has offices throughout New York State, including Albany, Buffalo, Ithaca, Melville, New York City, Rochester, Saratoga Springs, Syracuse, Uniondale and White Plains, as well as New Haven, Connecticut and Newark, New Jersey.