D. ESTABLISHMENT OF A SEPARATE TITLE XX SOCIAL SERVICES ENTITLEMENT FOR PUERTO RICO, GUAM AND THE VIRGIN ISLANDS

Under the Title XX social service program, Puerto Rico, Guam and the Virgin Islands receive an allotment for social services only from amounts that the States and the District of Columbia certify they will not need from the formula allotments for that year. Such a reallotment cannot exceed $15 million for Puerto Rico and $500,000 each for Guam and the Virgin Islands. Most states are near the point of utilizing their full allotment under the Title XX program. Therefore, there will be uncertainty on available funds for reallotment to the territories, with such reallotment not taking place until some time into the fiscal year. The Committee recommended in the Budget Report that legislation be enacted which will replace the current reallotment procedure with a separate $16 million authorization to entitle these jurisdictions to the amounts for which they are now eligible only by reallotment.

The Committee on Ways and Means included in its March 15 report to the House Budget Committee the following items related to the SSI program. The Committee recommended:

1. The extension of the SSI program to Puerto Rico, Guam and the Virgin Islands effective October 1, 1977.

2. The need for Congress to extend the current situation beyond June 30, 1977 regarding the eligibility of SSI recipients for food stamps to prevent from going into effect a very complex procedure for determining eligibility for food stamps, which is generally seen as administratively unworkable.

B. EXTENSION OF SSI TO PUERTO RICO, GUAM, AND THE VIRGIN ISLANDS

U. S. citizens living in Puerto Rico and the territories are not eligible to receive benefits under SSI. Benefits are administered by these jurisdictions under the programs of aid to the aged, blind and disabled which, prior to SSI, authorized matching funds for states programs of assistance to such individuals. Largely because of the ceiling on Federal matching funds, benefits are relatively low and coverage is limited.

A Federal District Court recently decided that the denial of SSI to a citizen of the United States who had traveled from a state where he was a SSI recipient to Puerto Rico was unconstitutional. This decision conceivably could lead to a Supreme Court opinion declaring the denial of SSI benefits to the U. S. citizens living in Puerto Rico, Guam, and the Virgin Islands as unconstitutional.

The House has agreed on two separate occasions to extend SSI to Puerto Rico, Guam and the Virgin Islands: once in the House-passed version of H.R. 1, which established the SSI program, and more recently in the SSI bill (H.R. 8911) passed by the House last year. In both instances, the Senate refused to accept the provision.

The Federal SSI benefit level for residents of Puerto Rico, Guam and the Virgin Islands would be adjusted to relate to the per capita income of each jurisdiction. Under the legislation as it passed the House in 1976 and which was the basis of the cost estimate for this item in the Ways and Means Committee's Budget Report, the Federal SSI benefit levels would be adjusted so that they bear the same ratio to the benefit rates in SSI in the States as the per capia income in each territory bears to that state with the lowest per capita income.

The following compares the current Federal SSI benefit levels in the States and the District of Columbia to the benefit levels that would result from such legislation for Puerto Rico, Guam and the Virgin Islands:

At the present time an adult aged, blind or disabled individual receives $52.00 a month in the Virgin Islands and $21.50 a month in Puerto Rico.

C. LEGISLATION CONCERNING THE ELIGIBILITY OF ALIENS FOR SSI BENEFITS

Description of Bills

The following two bills set a residence requirement which must be met before an alien can receive SSI benefits:

H.R. 5093 provides than an alien may not be paid SSI benefits unless he not only is a permanent resident of the U. S., but has also continuously resided in the U. S. for at least one year.

H.R. 4139 provides that SSI benefits shall be payable to a resident alien only if he has continuously resided in the U. S. for at least five years.

The following bill requires citizenship before a person is eligible for such benefits:

H.R. 4138 provides that SSI benefits shall be payable only to aged, blind or disabled individuals who are both citizens and residents of the United States. These bills represent an effort to deal with recent complaints about aliens who receive SSI benefits within a short time after arrival in the U. S.

Current Statute and Regulations

In order to be eligible for SSI, an individual must be aged (65 years of age or older), blind or disabled (must meet definite criteria of disability). In addition that person must be a resident of the United States and be either a citizen or an "alien lawfully admitted for permanent residence in the United States." 1614 (a) (1) (B) In addition, in order to be eligible to receive such benefits, that individual must reside in the United States for a period of thirty consecutive days (1611(f))

The regulations governing AFDC and medicaid state that an alien must be a permanent resident of the United States and meet the criteria of eligibility. The wording for alien eligibility is the same in all three programs. Eligibility is restricted to a citizen or "an alien lawfully admitted for permanent residence or otherwise permanently residing in the United States under color of law including any alien who is lawfully present in the United States as a result of the application of the provisions of Section 203 (a) (7) or Section 212(d) (5) of the Immigration and Nationality Act." However, the requirement of permanent residence is regulatory not statutory in the AFDC and medicaid programs. The requirement appears in the regulations for the AFDC program at 45 CFR 233.50 (October 1974) and for the medical assistance program at 45 SFR 248.50 (October 1974).

Factors Influencing the Promulgation of Current Regulations

Two factors influenced the promulgation of current regulations: the first was a U.S. Supreme Court decision on June 14, 1971, Graham v Richardson (403 U.S. 265); and the second was the enactment of the Supplemental Security Income program in 1972. The law establishing the program contained a provision allowing resident alien participation in SSI if otherwise determined eligible. The case of Graham v. Richardson addressed itself to State statutes which deny welfare benefits to resident aliens or aliens who had not resided in the United States for a specified number of years. The Supreme Court held that such statutes are violative of the Equal Protection Clause of the Constitution and "encroach upon the exclusive Federal power over the entrance and residence of aliens."

Related Federal Immigration Law and Practices

The Immigration and Nationality Act provides for the denying of admittance of aliens into the United States who: "... in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission, are likely at any time to become public charges . . .

The following is a letter to Congressman John Moss on this matter from the Commissioner of the Immigration and Naturalization Service:

U.S. DEPARTMENT OF JUSTICE,
IMMIGRATION AND NATURALIZATION SERVICE,

Hon. JOHN E. Moss,
House of Representatives,
Washington, D.C.

OFFICE OF THE COMMISSIONER,
Washington, D.C., March 11, 1977.

DEAR MR. Moss: Reference is made to your recent letter with enclosures, including a copy of a newsclipping, concerning affidavits of support for prospective immigrants and the receipt of public assistance by aliens shortly after their arrival in the United States.

Affidavits of support are frequently required by American consuls abroad in conjunction with applications for immigrant visas to establish that the alien applicant is not likely to become a public charge in the United States. Affidavits of support may be given consideration by the consular officer as one form of evidence that the alien will not become a public charge where the alien does not, or will not, have in the United States funds of his own sufficient to provide for his support, or the alien does not have employment which will provide an adequate income.

An affidavit of support requires on the part of the affiant an affirmation of willingness and ability to receive, maintain, and support the alien in question and of readiness and willingness to deposit a bond, if necessary, with this

Service and guarantee that the alien will not become a public charge during his or her stay in the United States. The affiant must establish that he is financially capable of providing the support offered.

Neither the law nor the regulations require affidavits of support to establish that an alien is not likely to become a public charge. No statutory liability attaches to an affidavit of support under the immigration laws. Some State courts have concluded that such an affidavit constitutes only a moral, and not a legal, obligation.

With regard to the newsclipping reference to absence from the United States of permanent residents, an alien lawfully admitted for permanent residence who departs this country may be readmitted to the United States as a returning resident immigrant without the presentation of an immigrant visa, if he is returning to an unrelinquished lawful permanent residence in this country, if he is returning from a temporary absence abroad, and if he is otherwise admissible. It has been both administratively and judicially held that to establish that an absence was temporary, the alien must show that at the time he departed he had a fixed intent to return to the United States within a specific period of time.

Admissibility of a permanent resident alien following an absence can be determined only at the time of application for readmission upon consideration of all the factors involved, including the temporary nature of the absence and whether the alien is returning to an unrelinquished permanent residence in this country. The burden is upon the applicant to establish his admissibility. Permanent resident status implies a permanent residence in the United States; it may not be utilized as a matter of convenience for the purpose of visiting the United States and obtaining benefits to which not otherwise entitled while maintaining a residence abroad.

Insofar as the enclosure to your letter pertains to Supplemental Security Income, that is not a matter within the purview of this Service. In an effort to be of assistance, I have taken the liberty of forwarding a copy of your letter and its enclosures to the Administrator of the Social Security Administration, Department of Health, Education and Welfare, for his consideration and further response to you.

Sincerely,

L. F. CHAPMAN, Jr., Commissioner.

Efforts to Tighten up the Enforceability of Letters of Support

The State Department is now working on a regulation which would make the commitment of the sponsor to support the alien enforceable. Issue of Constitutionality

A recent U. S. Supreme Court decision may be instructive in evaluating the proposed legislation related to SSI for aliens.

In 1976, a new Supreme Court case, Matthews v Diaz (426 U.S. 67) was decided which has great impact on whether aliens can be denied public assistance because of certain factors. The Supreme Court upheld a requirement that aliens must be admitted for permanent residence to the United States and reside here for at least five years before they can qualify for enrollment in part B of the Medicare program.

The court reasoned that such a classification did not violate the due process clause of the fifth amendment. The court stated that Congress has the power to make rules concerning aliens which would be "unacceptable if applied to citizens." In addition "Congress has no duty to provide all aliens with the welfare benefits provided to citizens."

The case distinguishes Graham v Richardson which held that state statutes that deny welfare benefits to resident aliens who do not meet a durational residence requirement violate the Equal Protection Clause of the 14th Amendment and encroach upon the exclusive Federal power over the entrance and residence of aliens.

Matthews v Diaz held that "it is the business of the political branches of the Federal government rather than that of either the states or the Federal judiciary to regulate the conditions of entry and residence of aliens." The equal protection analysis in the Graham case "involves significantly different considerations because it concerns the relationship between aliens and the states rather than between aliens and the Federal government."