Executive Amnesty Will
Give Illegal Aliens
Taxpayer Funded
Benefits
November 17, 2014
The full extent of
President Obama’s forthcoming executive amnesty is far greater than is being
reported. In addition to shielding millions of illegal aliens from deportation
and rewarding them with work authorization, the Obama Administration is poised
to give these amnestied illegal aliens taxpayer funded benefits that could end
up costing U.S. citizens billions of dollars.
While the President has
been considering numerous options for his executive amnesty, there are two
methods President Obama is expected to use in order to shield illegal aliens
from deportation: parole and deferred action.
Aliens with parole or
deferred action are eligible for many benefits even though they are still
illegal aliens. This is so despite laws Congress adopted in 1996 to restrict
alien eligibility for benefits programs. For example, in the Personal
Responsibility and Work Opportunity Reconciliation Act (PRWORA), Congress
provided that an alien must be a “qualified alien” to receive “federal public
benefits.” (8 U.S.C. § 1611) It also provided that qualified aliens must wait
five years before they are eligible for any “Federal means-tested public
benefit.” (8 U.S.C. § 1613) However, through a combination of definitions and
exceptions in the statutes and regulations, these limitations often do not
apply to aliens with deferred action or parole.
Below, FAIR has set
forth an explanation of how aliens with parole or deferred action are eligible
for certain major benefits programs. This summary is not intended to cover all
programs. Indeed, depending on a variety of circumstances and details of the
executive action, President Obama may make illegal aliens eligible for even
more benefits.
PAROLE
Parole, otherwise known
as “humanitarian parole,” is authorized by Section 212 of the Immigration and
Nationality Act (INA). Section 212 grants the Executive Branch discretion to
“parole into the United States temporarily under such conditions
as [it] may prescribe only on a case-by-case basis for urgent
humanitarian reasons or significant public benefit any alien applying for
admission to the United States.” (INA § 212(d)(5)(A)(emphasis added)) Although
Congress intended this statute to permit the entry of aliens outside the
U.S. on a temporary and a case-by-case basis – not to permit illegal aliens in
the U.S. to stay permanently – the Clinton Administration, through a legal
memo, determined that it had the authority to grant parole to illegal aliens
residing in the country. (Read the 1998 memo here) “Parole in place,” as it is
now called, has no statutory or regulatory basis. Nevertheless, the
Obama administration has Page 2 FAIR • Executive Amnesty Will Give Illegal
Aliens Taxpayer Funded Benefits
already granted parole in place to illegal aliens and is
expected to expand this practice. (See e.g., FAIR Legislative Update,
Nov. 20, 2013)
Aliens
with parole generally receive work authorization and are eligible for most
benefits under federal law. This is true regardless of whether they have
humanitarian parole or parole in place because the eligibility rules for
benefits programs make no distinction between the two. Indeed, the longer an
alien’s parole, the more benefits he is eligible to receive.
Aliens
Paroled Into the U.S. for Less than a Year
Aliens
paroled into the U.S. for less than a year are eligible for Obamacare—officially
known as the Affordable Care Act (ACA). In the text of the ACA, Congress
expressly limited enrollment in the healthcare exchanges to “lawfully present”
individuals, but did not define the term. (Pub. L. 111-148 and Pub. L. 111-152
(collectively the Affordable Care Act) § 1312(f)(3); 42 U.S.C. § 18032(f)(3))
Subsequent regulations implementing the law define “lawfully present” to
include aliens with parole for less than one year. (45 C.F.R. § 155.20; 26
C.F.R. § 1.36B-1(g); see also Healthcare.gov)
Not
only are aliens with parole for less than one year eligible for Obamacare, they
are immediately eligible. Despite the fact that Obamacare might appear to be a
“federal public benefit,” and thus restricted to “qualified aliens” and the
five-year bar, the Department of Health and Human Services (HHS) has not
included it in the regulatory definition of either “federal public benefit” or
“federal means-tested public benefit.” (See 63 Fed. Reg. 41658 – 41611;
62 Fed. Reg. 45256; see also Health and Human Services Assistant
Secretary for Planning and Evaluation, Summary of Immigrant Eligibility
Restrictions Under Current Law, updated April 28, 2011) Thus, there is no
conflict between the eligibility rules for Obamacare and PRWORA. This means
that aliens may enroll if they are “lawfully present,” and they are not
required to be “qualified aliens” nor wait five years to participate pursuant
to the PRWORA restrictions. (See 8 U.S.C. §§ 1611, 1613)
Aliens
with parole for less than one year are also immediately eligible for unemployment
benefits. Although the unemployment insurance program is administered by
the states, it is based upon the Federal Unemployment Tax Act (FUTA), which
specifically says that aliens paroled into the U.S. for less than one year are
eligible for unemployment benefits provided they otherwise meet the program’s
other requirements. (See 26 U.S.C. § 3304(a)(14)(A)) Moreover, like
Obamacare, unemployment benefits are not considered a “federal public benefit”
or a “federal means-tested public benefit.” (See 63 Fed. Reg. 41658 –
41611; 62 Fed. Reg. 45256; see also Health and Human Services Assistant
Secretary for Planning and Evaluation, Summary of Immigrant Eligibility
Restrictions Under Current Law, updated Apr. 28, 2011) Thus, aliens with
parole for less than one year are not required to be “qualified aliens,” are
not subject to the five-year waiting period, and are immediately eligible for
unemployment benefits.
Aliens
with parole for less than a year are also eligible for retirement benefits
under Social Security, so long as they meet other eligibility
requirements (usually 40 quarters coverage). (See 42 U.S.C. 414) By
statute, Congress exempted retirement benefits under Social Security from the
list of federal public benefits for which an alien must be a “qualified alien”
and wait five Page 3 FAIR • Executive Amnesty Will Give Illegal Aliens Taxpayer
Funded Benefits ——————————————————————————————————————
years for eligibility pursuant to PRWORA. (8 U.S.C. §
1611(b)(2)) Instead the Social Security Act only requires that aliens be “lawfully
present.” (See USC § 1611(b)(2); 42 U.S.C. § 402(y)) The regulation that
defines “lawfully present” for retirement benefits includes aliens paroled into
the U.S. for less than one year. (8 C.F.R. § 103.12(a)(3))
Note
that once an alien receives a Social Security Number, the alien is eligible to
claim the Earned Income Tax Credit (EITC). (See 26 U.S.C. §
32(m); IRS.gov, updated Aug. 26, 2014)
Aliens
with parole for less than a year are also eligible for Medicare.
Medicare Part A (inpatient) benefits are available to aliens who are at least
65 years old and eligible for Social Security retirement (Title II) benefits if
eligibility is based on authorized work history. (42 U.S.C. § 1395c; 8 U.S.C. §
1611(b)(3)) As described above, aliens paroled into the U.S. for less than a
year are eligible for retirement benefits under Social Security. (See 42
U.S.C. § 402(y); 8 U.S.C. § 1611(b)(2); 8 C.F.R. § 103.12(a)(3)) Therefore,
aliens with parole for less than one year who are eligible for Social Security based
on authorized work history are eligible for Medicare Part A. [Note that
depending on prior periods of authorized work, if any, a paroled alien may have
to work additional years with work authorization to claim Medicare benefits.]
In addition, individuals eligible for Medicare part A, including aliens with
parole for less than a year, are also eligible for Medicare Part B (outpatient)
and Part D (prescription drugs). (42 U.S.C. § 1395o; 42 U.S.C. §
1395w-101(a)(3)(A))
Again,
like Social Security, aliens are not required to be a “qualified alien” to
receive Medicare and are not subject to the five-year waiting period, because
Congress by statute exempted Medicare from the list of federal public benefits
for which an alien must be a “qualified alien.” Instead, Congress only required
that the alien be “lawfully present” with sufficient authorized work history.
(8 U.S.C. § 1611(b)(3)).
Aliens
with parole for less than a year, and who are children or pregnant women, are
also eligible for Medicaid and State Children’s Health Insurance Program
(SCHIP) health care benefits in states that have opted to cover them. Under
the Children’s Health Insurance Program Reauthorization Act of 2009 (CHIPRA),
Congress granted the states the option to offer health care benefits to
“lawfully residing” children (under the age of 21) and pregnant women through
Medicaid and SCHIP. (CHIPRA § 214, Pub. L. 111-3) Congress specified that the
states could provide these benefits despite federal laws limiting alien
eligibility for federal public benefits, including the requirement that aliens
must be “qualified aliens” and wait five years to be eligible. (CHIPRA §
214(a)(2))
Aliens
with parole for less than a year will be eligible for these benefits. In 2010,
HHS issued a letter advising states that it would define the term “lawfully
residing” for purposes of CHIPRA § 214 to mean aliens who are lawfully present
and residing in the relevant state. (CMS letter, July 1, 2010) This includes
aliens with deferred action, parole for less than a year, and qualified aliens.
(Id.) Indeed, it was this HHS definition that eventually became the
definition of “lawfully present” for Obamacare. (See 77 Fed. Reg. 52615)
Page 4 FAIR • Executive Amnesty Will Give Illegal Aliens Taxpayer Funded
Benefits ——————————————————————————————————————————————
Paroled Aliens Who Are in the U.S. for More than a Year
Paroled
aliens who are in the U.S. for more than a year become “qualified aliens” under
federal law, putting them on par with legal permanent residents (green card
holders). (8 U.S.C. § 1641(b)(4)) Qualified aliens are eligible for “federal
public benefits,” which by statute is defined as “any retirement, welfare,
health, disability, public or assisted housing, postsecondary education, food
assistance, unemployment benefit, or any other similar benefit….” (8 U.S.C. §
1611(c)(1)(B)) By regulation, HHS has defined “federal public benefits” to
include numerous programs including Medicaid, SCHIP, and Temporary Assistance
for Needy Families (TANF). (63 Fed. Reg. 41658)
As
“qualified aliens,” aliens with parole for more than one year remain eligible
for all of the benefits they were eligible for as aliens paroled for less than
one year. These include Obamacare, unemployment benefits, Social Security,
Medicare, and health coverage for children and pregnant women under state
Medicaid and SCHIP laws. (45 C.F.R. § 152.2; 26 U.S.C. § 3304(a)(14)(A)); see
Department of Labor Policy Interpretation; 8 C.F.R. § 103.12(a)(1); 42
U.S.C. § 1395c; 42 U.S.C. § 1395o; 42 U.S.C. § 1395w-101(a)(3)(A); CMS letter,
July 1, 2010)
Five
years after becoming a “qualified alien,” aliens with parole will also be
eligible for SCHIP and TANF. Both programs fall under the HHS
definitions of “federal public benefits” and “federal means-tested public
benefits.” (See 63 Fed. Reg. 41658 – 41611; 62 Fed. Reg. 45256; see
also Health and Human Services Assistant Secretary for Planning and
Evaluation, Summary of Immigrant Eligibility Restrictions Under Current Law,
updated Apr. 28, 2011) Thus “qualified aliens,” including aliens with parole
for more than one year, are eligible. (See 8 U.S.C. § 1611; 8 U.S.C. §
1641(b)(4)) However, qualified aliens are barred from receiving Federal
“means-tested benefits” for five years after becoming qualified aliens. (8
U.S.C. § 1613(a)) Thus, aliens with parole will become eligible for SCHIP and
TANF after six years: one year to become a “qualified alien” plus the five-year
bar.
DEFERRED
ACTION
U.S.
Citizenship and Immigration Services (USCIS) describes deferred action as “a
discretionary determination to defer a removal action of an individual as an
act of prosecutorial discretion…. An individual who has received deferred
action is authorized by DHS to be present in the United States, and is
therefore considered by DHS to be lawfully present during the period deferred
action is in effect. However, deferred action does not confer lawful status
upon an individual, nor does it excuse any previous or subsequent periods of
unlawful presence.” (USCIS Frequently Asked Questions, updated Oct. 23, 2014)
In addition, aliens with deferred action generally receive work authorization.
(Id.)
Deferred
action, like parole in place, has no statutory basis. (See USCIS
Ombudsman memo, Apr. 6, 2007) Indeed, the concept of deferred action is merely
referenced in federal regulations as a class of aliens who must apply for
work authorization. (8 C.F.R. § 274a.12(c)(14)) Page 5 FAIR • Executive Amnesty
Will Give Illegal Aliens Taxpayer Funded Benefits ————————————————————————————————————————————
Importantly, the decision by the Executive Branch to grant
deferred action is unreviewable by the courts. (Reno v. American Arab
Anti-Discrimination Comm., 525 U.S. 471, 119 S.Ct. 936 (1999))
However,
like paroled aliens, aliens with deferred action are eligible for many benefits
programs. First, aliens with deferred action are eligible for Obamacare,
officially called the Affordable Care Act (ACA). In the ACA, Congress
specifically limited eligibility to aliens who are “lawfully present” in the
U.S., but did not define the term. (Pub. L. 111-148 and Pub. L. 111-152
(collectively the Affordable Care Act) § 1312(f)(3); 42 U.S.C. § 18032(f)(3))
However, by regulation, HHS interpreted “lawfully present” aliens to include
aliens granted deferred action. (45 C.F.R. § 152.2; 45 C.F.R. § 155.20; 26
C.F.R. § 1.36B-1(g); see also Healthcare.gov)
Like
paroled aliens, aliens with deferred action may also immediately enroll in
Obamacare. As described above, HHS has not designated Obamacare as a “federal
public benefit” or “federal means-tested public benefit” by including it in the
regulatory definitions of those terms. (See 8 U.S.C. §§ 1611, 1613; See
63 Fed. Reg. 41658 – 41611; 62 Fed. Reg. 45256; see also Health and
Human Services Assistant Secretary for Planning and Evaluation, Summary of
Immigrant Eligibility Restrictions Under Current Law, updated Apr. 28,
2011) Thus, aliens are not required to be “qualified aliens” nor wait five
years to participate, as would otherwise be required by law to enroll in a
federal benefits program.
Aliens
with deferred action are also immediately eligible for unemployment benefits.
As described above, Section 3304 of FUTA provides that aliens who are “lawfully
present” are eligible for unemployment benefits. (26 U.S.C. § 3304(a)(14)(A))
Department of Labor policy interprets “lawfully present” for purposes of
unemployment eligibility to include aliens with deferred action. (See Department
of Labor Policy Interpretation) Moreover, as described above, unemployment benefits
are not considered a “federal public benefit” or “federal means-tested public
benefit.” (See 63 Fed. Reg. 41658 – 41611; 62 Fed. Reg. 45256; see
also Health and Human Services Assistant Secretary for Planning and
Evaluation, Summary of Immigrant Eligibility Restrictions Under Current Law,
updated Apr. 28, 2011) Therefore, aliens are not required to be “qualified
aliens” to be eligible, not subject to the five-year waiting period, and are
immediately eligible so long as they are lawfully present.
Aliens
with deferred action are eligible for retirement benefits under Social
Security. By statute, an alien is eligible for retirement benefits under
Social Security if he is lawfully present—he is not required to be a “qualified
alien.” (42 U.S.C. § 402(y)) The regulation that defines “lawfully present” for
Title II benefits includes aliens with deferred action. (8 C.F.R. §
103.12(a)(4)(vi)) Because an alien does not have to be a qualified alien to be
eligible for Social Security, the five-year waiting period does not apply. (See
8 U.S.C. § 1613)
Note
once an alien is eligible for Social Security and receives a Social Security
Number, the alien is eligible to claim the Earned Income Tax Credit. (See 26
U.S.C. § 32(m); IRS.gov, updated Aug. 26, 2014)
Aliens
with deferred action are also eligible for Medicare. Under federal law,
Medicare Part A (inpatient) benefits are available to aliens who are at least
65 years old and eligible for Social Page 6 FAIR • Executive Amnesty Will Give
Illegal Aliens Taxpayer Funded Benefits
Security retirement (Title II) benefits based on authorized
work history. (42 U.S.C. § 1395c; 8 U.S.C. § 1611(b)(3)) As described above,
aliens with deferred action are eligible for Social Security. (See 42
U.S.C. § 402(y); 8 U.S.C. § 1611(b)(2); 8 C.F.R. § 103.12(a)(4)(vi)) Therefore,
aliens with deferred action who are eligible for Social Security based on
authorized work history are eligible for Medicare Part A. Additionally, an
individual eligible for Medicare Part A is also eligible for Medicare Part B
(outpatient) and Medicare Part D (prescription drugs). (42 U.S.C. § 1395o; 42
U.S.C. § 1395w-101(a)(3)(A)) Thus, aliens with deferred action who are eligible
for Medicare Part A are also eligible for Medicare Part B and Medicare Part D.
Aliens
are not required to be a “qualified alien” to receive Medicare and are not
subject to the five-year waiting period, because Congress by statute exempted
Medicare from the list of federal public benefits for which an alien must be a
“qualified alien.” Instead, Congress only required that the alien be “lawfully
present” and eligible for Social Security based on authorized work history. (8
U.S.C. § 1611(b)(3))
Aliens
with deferred action, and who are children or pregnant women, are also eligible
for Medicaid and SCHIP health care benefits in states that have opted to
cover them. Under the Children’s Health Insurance Program Reauthorization Act
of 2009 (CHIPRA), Congress granted the states the option to offer health care
benefits to “lawfully residing” children (under the age of 21) and pregnant
women through Medicaid and SCHIP. (CHIPRA § 214, Pub. L. 111-3) Congress
specified that the states could provide these benefits despite federal laws
limiting alien eligibility to federal public benefits, including the
requirement that aliens must be “qualified aliens” and wait five years to be
eligible. (CHIPRA § 214(a)(2))
Aliens
with deferred action will be eligible for these benefits. As described above,
HHS defined the term “lawfully residing” for the purposes of CHIPRA § 214 to
include aliens with deferred action. (CMS letter, July 1, 2010; 8 U.S.C. §
1611)
DEFERRED
ACTION FOR CHILDHOOD ARRIVALS
Although
aliens with deferred action are generally eligible for Obamacare, there is one
notable exception. In 2012, after the creation of Deferred Action for Childhood
Arrivals (DACA), which dramatically expanded the number of individuals
receiving deferred action, the Obama Administration decided to exclude DACA
beneficiaries from eligibility for Obamacare (as well as state-based Medicaid
and SCHIP programs) by issuing a new regulation. Specifically, the regulation
states that aliens “with deferred action under the Department of Homeland
Security’s deferred action for childhood arrivals process, as described in
the Secretary of Homeland Security’s June 15, 2012, memorandum, shall not
be considered to be lawfully present…” for determining eligibility for
Obamacare. (See HHS Letter, Aug. 28, 2012; HHS Letter, July 1, 2010; 77
Fed. Reg. 52614 (2002) (emphasis added); see also FAIR Legislative
Update, Sept. 24, 2012) Page 7 FAIR • Executive Amnesty Will Give Illegal
Aliens Taxpayer Funded Benefits
The wording of the regulatory exception to Obamacare
eligibility is significant. A new deferred action program, or even expansion of
the DACA program, would likely not fall under the exclusion because it will not
meet the requirement “as described in” the Secretary of Homeland
Security’s June 15, 2012 memorandum. Thus, the new grant of deferred action
would make these illegal aliens eligible for all the benefits described above.
Additionally, because DACA beneficiaries are barred from enrolling in Obamacare
by regulation, not legislation, HHS could revoke the eligibility bar at any
time.
CONCLUSION
Through
a maze of statutes and regulations, aliens granted deferred action or parole in
place will be eligible for many public benefits. This is true even though
they are still illegal aliens. To summarize:
Aliens
with parole for less than a year are eligible for Obamacare, Social
Security, EITC, Unemployment, and Medicare (with sufficient authorized work
history). Paroled aliens, whether for less than a year or greater, who are
children and pregnant women are also eligible for health care benefits through
Medicaid and SCHIP in states that have opted to cover them.
Aliens
with parole for more than a year retain their eligibility for Obamacare,
Social Security, EITC, Unemployment, and Medicare. If they are children or
pregnant women, they are also eligible for health care benefits through
Medicaid and SCHIP in states that have opted to cover them. Finally, because
paroled aliens become qualified aliens after a year, paroled aliens become eligible
for all federal public benefits after 6 years, including SCHIP and TANF.
Finally, aliens with deferred action are eligible for
Obamacare, Social Security, EITC, Unemployment, Medicare (with sufficient
authorized work history). If they are children and pregnant women, they are
also eligible for health care benefits through Medicaid and SCHIP in states
that have opted to cover them.
Heritage: Amnestied Illegals Will
Get $9.4T in Benefits; Increase Debt $6.3T'
what is the REAL cost of all that “CHEAP” Mexican labor? Add
it up and then factor in the MEXICAN CRIME TIDAL WAVE and the fact that the
MEXICAN now operate in 2,500 American
cities!
The birthrate among
illegals is more than double that of legal US residents. The Pew Hispanic Center calculates that within
seven years, the children of immigrants, legal and illegal, will account for
one in nine school-age children in the US.
LA RAZA
NANCY PELOSI’S STATE IS NOW A COLONY OF MEXICO. THE STATE HANDS OUT $25 BILLION
IN SOCIAL SERVICES TO ILLEGALS AND HALF THE MURDERS ARE BY MEX GANGS!
FOR PELOSI,
IT’S ALL ABOUT BUILDING THE DEM PARTY BASE WITH LOOTING MEXICANS!
LA RAZA-OCCUPATION and LOOTING in MEXIFORNIA…. shocking!
Californians bear an enormous fiscal
burden as a result of an illegal alien population estimated at almost 3 million
residents. The annual expenditure of state and local tax dollars on services
for that population is $25.3 billion. That total amounts to a yearly burden of
about $2,370 for a household headed by a U.S. citizen.
Until the dishonesty
and tactical bluster cease, California is at serious risk of becoming a Third
World entity, and the longer Democrats are in power, the more businesses will
continue to flee the state, the more wealthy taxpayers will relocate and the
more our standard of living will continue to decline.
Opinion
California
must stem the flow of illegal immigrants
The
state should go after employers who hire them, curb taxpayer-funded benefits,
deploy the National Guard to help the feds at the border and penalize
'sanctuary' cities.
Illegal immigration is another matter entirely. With the state budget in
tatters, millions of residents out of work and a state prison system strained
by massive overcrowding, California simply cannot continue to ignore the strain
that illegal immigration puts on our budget and economy. Illegal aliens cost
taxpayers in our state billions of dollars each year. As economist Philip J. Romero concluded in a 2007 study, "illegal
immigrants impose a 'tax' on legal California residents in the tens of billions
of dollars."
Americans (Legals) have become a
passive society while Mexico loots and occupies.
Here’s what the Democrat Party and
Mexico have done to CA.
CALIFORNIA: MEXICO’S
LOOTED
WELFARE STATE
MEXIFORNIA
WILL THE DEMOCRAT PARTY, THE MEXICAN FASCIST PARTY of LA RAZA
and MEXICO DESTROY CALIFORNIA? ISN’T IT ALREADY A LOOTED WELFARE COLONY OF
MEXICO’S WHERE ALL THE JOBS ALSO GO TO MEXICANS?
Democrat
politicians partner with Mexico and the Mexican Fascist Party of LA RAZA “The
Race” to loot America and then send the tax bills to the American middle-class
whose jobs LA RAZA owns.
MEXICO DIRECTS LA RAZA MEXICANS TO LOOT AMERICA!
WILL MEXICO BANKRUPT MORE CALIFORNIA HOSPITALS?
OR WILL IT BANKRUPT THE STATE ITSELF?