Since the passage of the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996, it has been United States policy to deny public benefits to many immigrants. This choice allows serious and widespread harm, denying essential benefits to many of those most likely to live in poverty. The restrictions are also inconsistent, as all-or-nothing eligibility distinctions separate similar immigrant categories. For some immigrants, these arbitrary distinctions create extraneous incentives when choosing between forms of immigration status.

PRWORA draws eligibility distinctions primarily based on whether immigrants are “qualified aliens” and whether benefits are “Federal public benefits.” Its two major rules are that nonqualified immigrants usually are ineligible for Federal public benefits and that qualified immigrants are generally eligible for Federal public benefits only after five years.[1] Federal public benefits include forms of direct assistance funded by federal dollars even if ultimately distributed by state agencies.[2] They include such core benefits as SNAP, Medicaid, TANF, and Section 8.[3] Qualified immigrants include, inter alia, Lawful Permanent Residents (LPRs), asylees, and refugees, but exclude groups such as undocumented immigrants and recipients of Temporary Protected Status (TPS) and Deferred Action for Childhood Arrivals (DACA).[4] Numerous exceptions exist; to name a few, Federal public benefits do not include certain in-kind, non-means-tested benefits that are “necessary for the protection of life or safety,” refugees and asylees are exempt from the five-year waiting period applicable to most qualified immigrants, and nonqualified immigrants who are pregnant may be eligible for CHIP or Medicaid if their states choose to grant them eligibility.[5] But in general, the basic PRWORA framework remains the rule, and over ten million immigrants are ineligible for essential public benefits.[6]

These restrictions are a choice to tolerate significant pain and long-term harm for millions of people, as a high-poverty sector of the populace is ineligible for benefits that mitigate poverty’s worst effects. Unchecked childhood poverty has serious long-term consequences. Children who grow up in poverty are much more likely to experience hunger, which can cause behavioral and mental health issues.[7] These children are also more likely to experience teen pregnancy, not graduate from high school, and spend a significant proportion of their adulthood in poverty.[8] Nonqualified immigrants are an especially high-poverty category. The national U.S. poverty rate is around twelve percent, but is twenty percent for undocumented immigrants.[9] Estimated poverty rates for TPS-holders and DACA recipients are also significantly higher than the national average.[10] The decision not to assist these immigrants is cruel. It is a decision to tolerate significant pain and long-term harm and to accept the outcome that the Supreme Court found intolerable in Plyler v. Doe: the creation of a “caste” of neglected immigrants in our society.[11]

The restrictions on public benefit access are also not consistent. All-or-nothing eligibility distinctions separate groups that are not significantly different. While refugees, asylees, and TPS-holders are all permitted to remain in the United States for the basic reason that it is unsafe for them to return to their home country, only TPS-holders are ineligible for basic benefits.[12] The specific requirements of those forms of status differ, but the core purpose of humanitarian protection for those fleeing danger is the same for all three categories.[13] TPS-holders are also not materially less permanent members of our society. Despite the name, “Temporary Protected Status,” conditions that render a country unsafe for return often do not resolve quickly, and the majority of our country’s hundreds of thousands of Honduran and Salvadorean TPS-holders have been here for over twenty years.[14] Other absolute distinctions between similarly situated groups include the differences between DACA recipients and birthright citizen children (both categories lack responsibility for their presence in the U.S.) and between ineligible U and eligible T Visa recipients (human trafficking victims who gain status due to their cooperation with law enforcement are qualified immigrants, but victims of crime who receive status for their cooperation are not).[15] These categorical bars to eligibility cause real pain and long-term harm.

Finally, PRWORA’s poorly constructed distinctions create unnecessary tradeoffs for immigrants who must decide which form of status to apply for. One such tradeoff has faced many of the roughly 80,000 of Afghans evacuated to the U.S. following the American withdrawal in 2021. Their options include asylum, TPS, family-based adjustments for those with family ties, and Special Immigrant Visas (SIV) for some Afghans who worked for the U.S. government. Of course, all Afghans who were evacuated are, in a real sense, refugees—they are here because their home country is no longer safe for them. But given the specificity of the asylum standard, the length of processing times, and the need to find a new status prior to the expiration of the two-year parole on which most Afghans entered, it would be reasonable for many Afghans to opt for alternatives to asylum, such as family-based adjustment, if they can, or even TPS.[16]

Reasonable decisions to pursue other forms of status, however, will have consequences on Afghans’ eligibility for public benefits. Those who choose family adjustment based on the presence of a family member in the U.S. will have to wait five years following their status to receive access to basic public benefits, whereas asylees are exempt from the five-year bar.[17] Others may choose TPS without realizing the lack of accompanying eligibility for certain critical benefits. These restrictions have inserted a pointless additional factor into the practical analysis that Afghan evacuees have had to make in search of a safe, stable existence for their families—or, if they are unaware of the distinction, an unnecessary negative side effect of a reasonable practical choice. The same tradeoff exists for any other immigrant considering applying for asylum status who has close family members in the U.S. Our systems of immigration and public benefits would be more humane and make more sense without it. The same can be said for the rest of the convoluted PRWORA benefit restriction system.

[1] 8 U.S.C. §§ 1611(a), 1613(a) (The term appears partially capitalized as “Federal public benefits” in the statute.).

[2] 8 U.S.C. § 1611(c)(1)(B); Uriostegui v. Ala. Crime Victims Comp. Comm’n, No. 2:10-CV-1265-PWG, 2010 WL 11613802, at *11-*16 (N.D. Ala. Nov. 16, 2010) (holding victim compensation payments administered by a state agency but funded by federal grants were Federal public benefits under PRWORA).

[3] See Overview of Immigrant Eligibility for Federal Programs, Nat’l Immigr. L. Ctr., https://www.nilc.org/issues/economic-support/table_ovrw_fedprogs/ (last updated March 2023).

[4] 8 U.S.C. § 1641; Nat’l Immigr. L. Ctr., supra.

[5] 8 U.S.C. § 1611(b)(1)(D) (the attorney general may specify a list of programs for exemption that meet the three criteria described above); 8 U.S.C. § 1613(b)(1) (“exception for refugees and asylees”); 42 C.F.R. § 457.10 (regulation allowing states to make pregnant mothers and their children eligible for CHIP under the theory that the unborn birthright citizen child is eligible); 42 U.S.C. § 1396b(v)(4)(A) (similar statutory provision for lawfully present nonqualified immigrant pregnant mothers); see also Casey Colleen Lee, Unjust Barriers: Prenatal Care and Undocumented Immigrants, 31 J. Contemp. Health L. & Pol’y 96, 100 (2015).

[6] Pew estimates that 10.5 million unauthorized immigrants, including TPS-holders and DACA recipients, live in the U.S. Abby Budiman, Key findings about U.S. immigrants, Pew Rsch. Ctr., https://www.pewresearch.org/short-reads/2020/08/20/key-findings-about-u-s-immigrants/ (August 20, 2020). Here, I refer to TPS-holders and DACA recipients as separate from undocumented immigrants because they have legal permission to remain in the U.S.

[7] Bryce Covert, We Pay to Keep the Old Out of Poverty. Why Won’t We Do the Same for the Young?, N.Y. Times, https://www.nytimes.com/2022/05/07/opinion/sunday/child-tax-credit-social-security.html?searchResultPosition=13 (May 7, 2022).

[8] Caroline Ratcliffe and Signe Mary McKernan, Childhood Poverty Persistence: Facts and Consequences, The Urb. Inst., Brief 14, https://www.urban.org/sites/default/files/publication/32926/412126-childhood-poverty-persistence-facts-and-consequences.pdf (June 2010).

[9] Poverty in the United States: 2021, U.S. Census Bureau, https://www.census.gov/library/publications/2022/demo/p60-277.html (Sept. 13, 2022); What You Should Know About the US Undocumented and Eligible-to-Naturalize Populations, Ctr. for Migration Stud. of N.Y., https://cmsny.org/undocumented-eligible-to-naturalize-population-democratizing-data-release-080421/ (Aug. 4, 2021).

[10] Robert Warren and Donald Kerwin, A Statistical and Demographic Profile of the US Temporary Protected Status Populations from El Salvador, Honduras, and Haiti, 5 J. Migration and Hum. Sec. 578, 578  (2013) (seventeen percent poverty for Salvadorean TPS-holders and twenty-four percent poverty for Honduran TPS-holders); Catalina Amuedo-Dorantes and Francisca Antman, Can authorization reduce poverty among undocumented immigrants? Evidence from the Deferred Action for Childhood Arrivals program, 147 Economics Letters 1, 2 (2016) (finding that twenty-eight percent of DACA-eligible people lived in impoverished households); see also Second Generation Americans, Pew Rsch. Ctr., 7 (2013) (first-generation immigrants at eighteen percent poverty).

[11] Plyler v. Doe, 457 U.S. 202, 219 (1982).

[12] 8 U.S.C. § 1641 (categories of qualified immigrants); 8 U.S.C. § 1254a (a country may only be designated for TPS if: (A) the Attorney General finds that that there is an ongoing armed conflict within the state and, due to such conflict, requiring the return of aliens who are nationals of that state to that state  . . . would pose a serious threat to their personal safety; (B) the Attorney General finds that- (i) there has been an earthquake, flood, drought, epidemic, or other environmental disaster in the state resulting in a substantial, but temporary, disruption of living conditions in the area affected, (ii) the foreign state is unable, temporarily, to handle adequately the return to the state of aliens who are nationals of the state, and (iii) the foreign state officially has requested designation under this subparagraph; or (C) the Attorney General finds that there exist extraordinary and temporary conditions in the foreign state that prevent aliens who are nationals of the state from returning to the state in safety, unless the Attorney General finds that permitting the aliens to remain temporarily in the United States is contrary to the national interest of the United States.).

[13] TPS-holders may have initially entered without inspection before receiving TPS. However, the subsequent grant of TPS is a grant of legal permission to be in the U.S.

[14] Temporary Protected Status in the United States, Am. Immigr. Council, https://www.americanimmigrationcouncil.org/research/temporary-protected-status-united-states (October 23, 2017).

[15] 8 U.S.C. § 1101(a)(15)(T)-(U) (eligibility for T Visa dependent in part on immigrant’s “compli[ance] with any reasonable request for assistance in the Federal, State, or local investigation or prosecution of acts of trafficking,” and eligibility for U Visa dependent in part on immigrant being “helpful. . . to a Federal, State, or local law enforcement official, to a Federal, State, or local prosecutor, to a Federal or State judge, to the Service, or to other Federal, State, or local authorities investigating or prosecuting [certain] criminal activity” of which they were the victim); 8 U.S.C. § 1641(c)(4) (T Visa benefit eligibility); see also Plyler v. Doe, 457 U.S. 202, 220 (1982) (“[L]egislation directing the onus of a parent’s misconduct against his children does not comport with fundamental conceptions of justice.”).

[16] See Eileen Sullivan, Biden Administration Prepares Sweeping Change to Asylum Process, N.Y. Times https://www.nytimes.com/2022/03/24/us/politics/us-asylum-changes.html (March 24, 2022) (Biden administration attempting to speed up asylum process from current average of five years to six months).

[17] 8 U.S.C. § 1613.