Immigrants and Public Benefits

Immigrant Eligibility for Benefits:

Applying for public benefits such as Medicaid, SNAP (food stamps) and cash assistance, like TANF and GA, is often a confusing process. For immigrants, the system is even more complicated. For basic information about immigrant eligibility and common questions and concerns, download our brochure. Immigration law and rules about public benefits work together can be complicated. If you have questions, call our office at (505) 255-2840.

Determining Eligibility

The rules about which immigrants may qualify for which types of benefits are complex. This chart provides a comprehensive view of eligibility, organized by benefit program.

As a general rule:

  • United States Citizens are eligible for all benefits programs.
  • Lawful Permanent Residents (LPRs, or “green card” holders) are eligible for all benefits programs, but for some programs there is 5 year waiting period before they can apply. There is no waiting period for cash assistance (TANF/NM Works or General Assistance), children younger than 18 or adults receiving disability assistance who apply for SNAP, or pregnant women or children applying for Medicaid.
  • “Qualified Immigrants” are eligible for most – but not all – benefits programs. Under federal law, qualified immigrants are refugees, asylees, persons granted withholding of removal, conditional entrants, persons paroled into the U.S. for one year, Cuban/Haitian entrants, certain battered spouses and their children, and certain victims of trafficking.
  • Certain Other Immigrants are eligible for some benefits programs even though they are not “qualified immigrants” under federal law. This group of immigrants includes Iraqi and Afghan immigrants granted special status, certain American Indians born in Canada, and certain Amerasian immigrants.
  • Undocumented Immigrants are not eligible for most programs. However, they are eligible for some public benefits programs. These programs are:
    • WIC (nutritional assistance for pregnant and breastfeeding women and children five years old and younger).
    • EMSA (Emergency Medicaid Services for Aliens)
    • School Breakfast/Lunch Programs; inquire at your child’s school for more information.
    • Summer Meals Programs; call 1-800-EAT-COOL for information about locations.

Mixed Status Households

In “mixed status” households, family members may have a variety of different immigration statuses –citizens, lawful permanent residents (LPRs or “green card” holders), undocumented immigrants, and other types of immigrants often live under one roof. While the eligibility rules for each type of immigration status will be different, it is important to remember that only the immigration status of the person applying for benefits matters.

  • Children are often eligible for benefits even when their parents are not. Citizen, LPR and other immigrant children may be able to get public benefits even if they are living with family members who are undocumented.
  • Undocumented parents, grandparents, and other caretakers can apply for benefits on behalf of eligible family members. Undocumented family members are required to list their names on the application and to provide proof of income, but are not required to provide social security numbers or proof of immigration status.
  • There are safe, easy ways to protect the privacy of undocumented family members in the application process. See the “Fear of Reporting” section of this page for tips on ways to safely apply.

Income Verification

Applicants in non-traditional employment situations (for example, employees who are paid in cash) can sometimes run into problems documenting how much they earn. Or do you need help finding the documents that will help prove you are eligible for benefits? Sometimes applicants find it hard to produce the documents the state says it needs to make an eligibility determination and they need help getting them.

If you need assistance with getting the documentation you need for your public benefits application, use our Request for Assistance form in English or Spanish.

If you don’t have pay stubs or other traditional documentation and you need to prove where you work and how much money you make, use our Sworn Statement in English or Spanish.

If you want to learn more about the ways the Income Support Division is required to help you to prove income, check out our new Income Documentation Factsheet in English or Spanish.

Fear of Reporting

Many immigrants from mixed status households do not apply for benefits because they are afraid that HSD workers will report undocumented family members to immigration authorities. HSD is only permitted to report undocumented immigrants to immigration officials under very limited circumstances.  It is a violation of state law for ISD employees to report applicants to immigration authorities under any other circumstances. State employees should never report undocumented immigrants who apply for Medicaid. In very limited circumstances, state employees are required to report immigrants who are applying for cash assistance, SNAP, SSI, or federal housing benefits, but only if:

  • The person is seeking benefits for themselves (not for family members); and
  • HSD has “knowledge” of the unlawful presence supported through a “finding of fact or conclusion of law” made by the agency as part of a “formal determination that is subject to administrative review”; and
  • DHS has made a determination of unlawful presence, such as a Final Order of Deportation or Removal.

To safely apply while protecting the privacy of undocumented family members (including yourself), follow these rules:

  • Be sure to list all members of the household – whether undocumented or not – on the application.
  • Never provide false social security numbers or other false information. If social security numbers appear on income documents (such as pay stubs) of undocumented family members, black out those numbers before submitting the documents to HSD. Remember that the only thing HSD needs to know about members of the household who are not applying for benefits is their name and income; HSD should not ask about immigration status.
  • Never state to a worker or in writing that someone living in your household is undocumented. Instead, leave spaces blank, write “not applicable,” or tell the worker that the person is “not in an eligible status.”

If you have questions about how to apply for benefits while keeping undocumented household members as safe as possible, please contact us at (505) 255-2840.

Public Charge

“Public charge” is a test by immigration authorities to determine if an immigrant is likely to depend on the government for support in the future. The Trump administration recently expanded the “Public Charge” rule, allowing the government to deny permanent residency (green cards) and visa renewals to lawfully present immigrants who participate in basic need programs like Medicaid, housing assistance, and SNAP food assistance. The rule also adds specific requirements to the public charge test, including income, age, health and English proficiency. The new rule goes into effect October 15, 2019.

For more information please see these handouts in English and Spanish. People concerned about their benefits or immigration status should speak to an immigration attorney about the best route for families to take.

Know Your Rights:

Immigrants who apply for benefits should follow the same rules as anyone else applying. However, there are some special additional considerations for immigrant families. Immigrants can encounter special problems with documenting income, for example. If you experience difficulties applying that cannot be resolved with ISD, please contact the Center for assistance.

Persevere!

If you believe that your application was improperly denied, or if your benefits amount is reduced and you don’t understand why, ask for a fair hearing. HSD makes mistakes and often asking for a hearing is enough to get the Department to review your file and correct the error. Even if the denial or the reduction was lawful, you have a right to an explanation, so don’t give up until you understand why your application was rejected or your benefits were reduced.

For help preparing for your hearing, you can contact attorneys at the Center at (505) 255-2840. Other statewide legal services providers such as New Mexico Legal Aid and Law Access can help you understand what to expect and provide advice or even direct representation through the hearings process. For information about how to request a fair hearing, check out this document.

Our Advocacy on Immigrant Access to Benefits

Thousands of New Mexico residents who qualify for public benefits currently do not access them because they don’t know they are eligible or they experience barriers to enrollment. Based on our conversations with community members and our outreach in the state, we believe that this under-enrollment is disproportionately high among immigrant families. The Center uses a combination of community outreach and education and administrative advocacy to make it easier for eligible immigrants to access benefits. Our current advocacy on immigrant access to benefits includes:

  • Pushing for the adoption of regulations and policies that facilitate the enrollment of eligible immigrants in public benefits programs. Many “mixed status” immigrant families do not apply for benefits for which they are eligible because they are afraid this could put undocumented immigrant family members in danger of deportation. Under federal law, states are only required to report undocumented immigrants under a very narrow set of circumstances. We encourage HSD to issue rules and implement policies that make clear that eligible immigrants can safely apply for benefits without worrying about unintended consequences for undocumented family members.
  • Keeping track of changes in federal law and advocating for parallel changes to state regulations so that state offices are consistently applying federal requirements.
  • Ensuring that applications and renewal forms request only information that is necessary to process immigrant families’ applications. This includes making sure that forms do not request social security numbers or immigration status information for household members who are not requesting benefits for themselves.
  • Encouraging HSD to make its services fully available to immigrant families, no matter what language they read or speak.
  • Monitoring HSD’s current practices to be sure that all offices are complying with current federal and state law on immigrant eligibility for benefits. When an ISD office is incorrectly interpreting the regulations – for example, by imposing waiting periods or asking for documentation when the law does not require it – we work closely with state officials to make sure that the policy is changed and ISD workers are educated on correct policies and procedures.
  • Conducting regular community outreach and trainings to spread the word about immigrant eligibility for benefits and hear stories about barriers to enrollment. This work includes collaborating with legal services providers and other advocates to learn about recurring problems and barriers for immigrants. We use these stories to inform our continuing policy work.

The Center provides training to community groups and advocates to ensure that New Mexican immigrants know their rights and have the tools they need to access the public benefits programs. If you are interested in having the Center give a presentation to your group or organization, please contact Sovereign Hager by phone at (505) 255-2840 or by email at sovereign@nmpovertylaw.org. Please note that we can only arrange trainings for groups of 10 or more people.