Can community development programs benefit immigrant populations? Part 2

Community and Economic Development – Blog by UNC School of Government

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Can community development programs benefit immigrant populations? Part 2

By CED Guest Author

Published November 9, 2010

Sejal Zota is the School of Government Immigration Law Specialist.

In my last post, I provided background information on how the federal welfare law may restrict immigrant participation in community development programs. In this post, I will focus on the following questions: Do community development programs provide “federal public benefits?” Do they provide “state or local public benefits?” Unless otherwise exempted, a community development program that qualifies as a “federal public benefit” cannot assist unauthorized immigrants and other groups of nonqualified immigrants.  Such a program may assist “qualified” immigrants.

If assistance is partly or wholly funded by federal funds, such as the Community Development Block Grant (CDBG), the question is, “Is it a ‘federal public benefit?’” The statutory definition of a “federal public benefit” is:

A.  Any grant, contract, loan, professional license, or commercial license provided by a U.S. government agency or by appropriated federal funds; and

B.  Any retirement, welfare, health, disability, public or assisted housing, post-secondary education, food assistance, unemployment benefit, or any other similar benefit for which payments or assistance are provided to an individual, household, or family eligibility unit by a U.S. government agency or by appropriated federal funds.

Do CDBG funds fall into this definition? This definition does not specify which particular programs are covered. A few federal agencies including the Department of Health and Human Services (HHS) have issued a regulatory guidance identifying which of their programs are considered “federal public benefits” under the federal welfare law. The Department of Housing and Urban Development (HUD), however, has not issued a guidance addressing CDBG funds.  

In the absence of a regulatory guidance, the provider should consider whether the program provides one of the benefits expressly listed in the definition above. If the agency provides generally available services such as fire or ambulance services, the definition does not apply. The definition also does not apply to services like fire protection, police services, crime victim counseling, library use and park use because they are not similar to those listed above.

For Part B of the definition, a second consideration is whether the benefit is being provided to an “individual, household, or family eligibility unit.” This term has been interpreted by HHS to refer to benefits that are provided to an individual, household, or family conditioned on specific criteria such as a specified income level. This condition narrows the set of benefits that fall within the broad categories described above. As a result, HHS has concluded that benefits targeted at communities or specific sectors of the population—such as people with a particular physical condition (e.g., disability or disease) or people of a certain age (e.g., youth or elderly)—do not fall within the scope of the term “federal public benefit.” Thus, Maternal and Child Health programs, which provide health services to women and children, are not considered “federal public benefits.” Also, services delivered to a building, such as weatherization for multi-unit buildings, are not considered “federal public benefits.”  

Some programs funded through the CDBG block grant may not qualify as a “federal public benefit,” and therefore do not require verification of immigration status. It depends on the particular program in question. For example, community infrastructure projects, such as water and sewer extension, are probably not considered “federal public benefits.” These projects are not similar to the listed benefits, and they are generally available to all residents in the service area if an area benefit activity. CDBG-funded down payment assistance to an individual household conditioned on income, however, probably qualifies as a “federal public benefit” because it appears to meet the definition. An attorney from the HUD Office of Assisted Housing and Community Development agreed with that interpretation in a conversation with me. In some cases, it may not be clear whether the program provides a “federal public benefit.” For example, HUD has not determined whether housing rehab assistance qualifies as a “federal public benefit”—it is an open question.  For questions about whether a program constitutes a federal public benefit, service providers should consult with the HUD field office or other federal agency that oversees the program.

The welfare law also excepted certain programs from the immigrant-based restrictions. These programs are available to unauthorized immigrants and other nonqualified immigrants. Programs specifically exempt from the restrictions include emergency Medicaid; public health programs for immunizations and the testing and treatment of communicable diseases; short-term, noncash, in-kind emergency disaster relief programs; and school lunches and breakfasts. Also exempted from the restrictions are other in-kind services that are necessary to protect life or safety and that are not based on the recipient’s income. This is an extensive list specified by the U.S. Attorney General. It includes such programs as short-term shelter and housing assistance for the homeless; violence prevention programs; soup kitchens, community food banks and other nutrition programs; medical, public health, and mental health services; and “any other programs, services, and assistance necessary for the protection of life and safety.”

What about community development programs that are funded through state or local funds only? Do they provide a “state or local public benefit?” The definition of that term is nearly identical to that of “federal public benefit,” except that it refers to benefits funded by state or local governments rather than the federal government.  “State or local public benefits” may be provided to only qualified immigrants, persons paroled for less than one year, and nonimmigrants (temporary residents). States and localities may, however, enact laws to extend state and local benefits to unauthorized immigrants. Some of the same exemptions discussed above apply to state and local benefits, including emergency medical assistance, immunizations, and programs designated by the U.S. Attorney General.

Stay tuned for my next post which will discuss issues related to verification and enforcement of the law!