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D. FOOD STAMP ACT OF 1977
Section 6(f) of the Food Stamp Act of 1977 (7 U.S.C. 2015(f)) denies eligibility for food stamps to an individual unless the individual is “either (A) a citizen or (B) an alien lawfully admitted for permanent residence as an immigrant ..., excluding, among others, alien visitors, tourists, diplomats, and students who enter the United States temporarily with no intention of abandoning their residence in a foreign country; or (C) an alien who ... is deemed to be lawfully admitted for permanent residence (under the registry provisions of section 249 of the INA (8 U.S.C. 1259)); or (D) an alien who has qualified [as a refugee or asylee); or (E) an alien who is lawfully present in the United States as a result of an exercise of the Attorney General's parole authority); or (F) an alien within the United States as to whom the Attorney General has withheld deportation pursuant to section 243 of the Immigration and Nationality Act (8 U.S.C. 1253(h)). No aliens other than the ones specifically described in clauses (B) through (F) of this subsection shall be eligible to participate in the food stamp program as a member of any household. The income (less a pro rata share) and financial resources of the individual rendered ineligible to participate in the food stamp program under this subsection shall be considered in determining the eligibility and the value of the allotment of the household of which such individual is a member.” Section 5(i) of the Act (7 U.S.C. 2014(i)) provides that a portion of a sponsor's income and resources will be deemed to be available to an alien for purposes of determining eligibility for and the amount of food stamp assistance. In addition, section 11(e)17) of the Act (7 U.S.C. 2020(d)(17)), requires that States participating in the food stamp program must provide for "immediate reporting to the Immigration and Naturalization Service by the State agency of a determination by personnel responsible for the certification or recertification of households that any member of a household is ineligible to receive food stamps because that member is present in the United States in violation of the Immigration and Nationality Act.” Food stamp eligibility is subject to verification of immigration status under the "SAVE” program (see section 1137(d) of the Social Security Act, shown in appendix II.B.2.) and section 11(e)(19) of the Food Stamp Act of 1977, 7 U.S.C. 2020(e)(19); funding for 100 percent of the costs of implementing and operating the SAVE program under the food stamp program is contained in section 16(j) of the Food Stamp Act of 1977 (7 U.S.C. 20256)). For special eligibility provisions relating to legalized aliens and certain special agricultural replenishment workers, see sections 210A(d)(6) and 245A(h)(1)(A)(iii) of the INA.
E. FEDERAL EMPLOYMENT
1. Civil SERVICE EMPLOYMENT.—Under the authority of section 3301 of title 5, United States Code, the President has, by Executive Order (5 C.F.R. 7.4), required that an individual be a citizen or national of the United States to take the examination for or be appointed to the competitive service; the order permits the Office of Personnel Management, in order to promote efficiency of the service in specific cases or for temporary appointments, to authorize appointment of aliens.
2. LIMITATIONS IN APPROPRIATIONS ACTS.–Virtually every fiscal year Congress enacts a general provision (shown at 5 U.S.C. 3101 note) that prohibits the use of any appropriation to pay compensation to an officer or employee of the United States whose post of duty is in the continental United States unless the officer or employee is a citizen or among certain specified groups of aliens. The most recent version of this restriction is section 607 of the Treasury, Postal Service, and General Government Appropriations Act, 1992 (Public Law 102-141, 105 Stat. 868), which provides as follows:
Sec. 607. Unless otherwise specified during the current fiscal year no part of any appropriation contained in this or any other Act shall be used to pay the compensation of any officer or employee of the Government of the United States (including any agency the majority of the stock of which is owned by the Government of the United States) whose post of duty is in the continental United States unless such person (1) is a citizen of the United States, (2) is a person in the service of the United States on the date of enactment of this Act, who, being eligible for citizenship, has filed a declaration of intention to become a citizen of the United States prior to such date and is actually residing in the United States, (3) is a person who owes allegiance to the United States, (4) is an alien from Cuba, Poland, South Vietnam, or the Baltic countries lawfully admitted to the United States for permanent residence, (5) South Vietnamese, Cambodian and Laotian refugees paroled in the United States after January 1, 1975, or (6) nationals of the People's Republic of China protected by Executive Order Number 12711 of April 11, 1990: Provided, That for the purpose of this section, an affidavit signed by any such person shall be considered prima facie evidence that the requirements of this section with respect to his or her status have been complied with: Provided further, That any person making a false affidavit shall be guilty of a felony, and, upon conviction, shall be fined no more than $4,000 or imprisoned for not more than one year, or both: Provided further, That the above penal clause shall be in addition to, and not in substitution for any other provisions of existing law: Provided further, That any payment made to any officer or employee contrary to the provisions of this section shall be recoverable in action by the Federal Government. This section shall not apply to citizens of Ireland, Israel, the Republic of the Philippines or to nationals of those countries allied with the United States in the current defense effort, or to temporary employment of translators, or to temporary employment in the field service (not to exceed sixty days) as a result of emergencies.
3. FOREIGN SERVICE AND PEACE CORPS.-Aliens cannot serve as members of the Peace Corps or Foreign Service (22 U.S.C. 2504(a), 3941(a)).
4. CENSUS.-Section 22 of title 13, United States Code, requires all permanent employees and officers of the Census Bureau to be United States citizens.
5. SPECIFIC STATUTORY AUTHORITY.—Some provisions of law specifically permit aliens to be paid or employed in certain positions. Of these, some are conditioned, at least in part, on the unavailability of citizens, including provisions on hiring for technical or scientific work for the Navy (10 U.S.C. 7473), filling the up to 15 positions in the Library of Congress made exempt from appropriations act restrictions (2 U.S.C. 169 (premised on the unavailability of persons qualifying under appropriations act restrictions)), hiring for scientific or technical work for the Smithsonian Institution (20 U.S.C. 46a), hiring translators (22 U.S.C. 1474(1)), and hiring language instructors, linguists, and other training specialists for Foreign Service training (22 U.S.C. 4024(a)(4)(B)).
Others provisions do not premise employing aliens on the unavailability of citizens, including provisions on hiring scientists, experts technicians or other professionals in military research and development (10 U.S.C. 1584), reimbursing the State Department for hiring alien employees for the Library of Congress (2 U.S.C. 143a), hiring with respect to the international activities of the State Department not otherwise provided for (22 U.S.C. 2672(b)(1)), hiring special consultants to the Public Health Service (42 U.S.C. 209(h)), and hiring by NASA (42 U.S.C. 2473(c)(10).
F. HOUSING ASSISTANCE PROGRAMS
Section 214 of the Housing and Community Development Act of 1980 (42 U.S.C. 1436a(a)) states that assistance under the United States Housing Act of 1937 (assisted public housing and “section 8” housing), sections 235 (home ownership for lower income families) and 236 (rental and cooperative housing for lower income families) of the National Housing Act, and section 101 of the Housing and Urban Development Act of 1965 (rent supplements for lower income families) is not available to an alien unless the alien (1) is a lawfully admitted permanent resident, (2) has qualified for permanent residency under the registry provision of section 249 of the INA, (3) is a refugee or asylee, (4) has been admitted under the Attorney General's parole authority, (5) has had deportation withheld under section 243(h) of INA on the basis of prospective persecution, or (6) has been admitted for temporary or permanent residency under the legalization provisions of section 245A of the INA.
G. LEGAL SERVICES PROGRAM
By reference to earlier appropriations Acts, section 607 of the Departments or Commerce, Justice, and State and the Judiciary Appropriations Act, FY 1992 (Pub. L. 102-140) prohibits the expenditure of any funds appropriated for the Legal Services Corporation for the purpose of providing legal services to or on behalf of any alien who is not (1) a lawfully admitted permanent resident alien, (2) the spouse, parent, or unmarried child under 21 of a U.S. citizen with an application for adjustment to permanent residency pending, or (3) an asylee, refugee (including a conditional entrant under former section 203(a)(7) of the INA), or alien whose deportation has been withheld under section 243(h) of the INA on grounds of prospective persecution.
H. EDUCATIONAL ASSISTANCE PROGRAMS
1. ELEMENTARY AND SECONDARY EDUCATION.-There is no restriction under either the Education Consolidation and Improvement Act of 1981 or the Elementary and Secondary Education Act of 1965 relating to citizenship of students who are otherwise served by educational agencies.
2. HIGHER EDUCATION.-Section 484(aX5) of the Higher Education Act (20 U.S.C. 1091(h)) restricts eligibility for assistance under title IV of the Act to (1) citizens, (2) nationals, (3) permanent residents of Guam, the Northern Marianas, or the Trust Territory of the Pacific Islands, and (4) permanent residents of the United States here for other than a temporary purpose and able to provide evidence from INS of an intent to become a permanent resident. This last category would appear to comprehend, among other aliens, lawfully admitted permanent residents, asylees, refugees (including conditional entrants under former section 203(a)(7) of the INA), pa, rolees, and aliens legalized under the provisions of IRCA. The five major title IV programs are Pell Grants, College Work-Study, Stafford (Guaranteed) Student Loans, Perkins (National Direct) Student Loans, and Supplemental Educational Opportunity Grants. Eligibility for grants, loans, and work assistance under title IV of the Higher Education Act of 1965 is subject to verification of immigration status under section 484(h) of such Act (20 U.S.C. 1091(h)); funding for 100 percent of the costs of implementing and operating the SAVE program under such title is contained in section 489(a) of such Act (20 U.S.C. 1096(a)).
I. UNEMPLOYMENT COMPENSATION PROGRAM State laws implementing the unemployment compensation program must restrict the payment of compensation to aliens to those aliens who were lawfully admitted for permanent residence when employed, were lawfully present for the purpose of engaging in the employment on which unemployment (FUTA) taxes were paid, or were residing permanently in the United States under color of law when employed (section 3304(a)(14)(A) of the Internal Revenue Code of 1986). State case law at times has interpreted “permanently residing under color of law” more broadly for unemployment compensation purposes than that term has been interpreted by Federal courts for purposes of AFDC. Also, nonimmigrants are eligible for compensation under the second eligibility test if they were authorized to work and their jobs were subject to unemployment taxes. However, the wages of certain nonimmigrants specifically are exempt from unemployment taxes, including students and exchange visitors (F, J, or M visa holders) who are performing work to carry out the purposes of their nonimmigrant classifications and H-2A agricultural workers with respect to work performed prior to 1993 (sections 3306(c)(1)(B) and 3306(c)(19) of the Code). Unemployment compensation eligibility is subject to verification of immigration status under the “SAVE” program (see section 1137(d) of the Social Security Act, shown in Appendix II.B.2); funding for 100 percent of the costs of implementing and operating the SAVE program under unemployment compensation is contained in section 302(a) of the Social Security Act (42 U.S.C. 502(a)).
J. INCOME Tax TREATMENT OF ALIENS
1. GENERAL RULE.—Resident aliens (as defined for tax purposes) generally are taxed under the Internal Revenue Code of 1986 on their worldwide income (as are citizens). Nonresident aliens generally are taxed on their income from sources within the United States, with special rates applying to nonbusiness income (section 871 of the Code). The Internal Revenue Code considers an alien to be a resident if the alien either is a lawful permanent resident alien under the INA or has a substantial presence in the United States (section 7701(b) of the Code). 2. EXCEPTIONS.—
:-There a numerous exceptions to the general rule. For example, the taxability or rate of taxation of the United States income of nonresident aliens may be affected under one of the many tax treaties to which the United States is a party. Also, an alien employed in the United States by a foreign country or international organization also may be exempt from taxation on income from that employment either under treaty or pursuant to reciprocal practice. Resident aliens, along with nonresidents, are exempt from taxation of scholarships and grants paid by a foreign source.
3. REQUIRED FILING OF RETURNS.-Section 6851(d)(1) of the Internal Revenue Code of 1986 provides that “[s]ubject to such exceptions as may, by regulation, be prescribed by the Secretary (of the Treasury] ... (1) (n]o alien shall depart from the United States unless he first procures from the Secretary a certificate that he has complied with all obligations imposed upon him by the income tax laws.” In addition, section 6039E of the Code requires each alien who applies to be an immigrant to include, with the application, the alien's taxpayer identification number and information on recent tax filings.
K. LICENSE RESTRICTIONS
1. ATOMIC ENERGY ACT OF 1954.-Under sections 103d. and 104d. of the Act (42 U.S.C. 2133(d), 2134(d)), aliens cannot hold licenses for the commercial, medical, or industrial use of nuclear material.
2. U.S. VESSELS.—Only U.S. citizens may serve as masters, chief engineers, or officers in charge of a deck watch or engineering watch on U.S. documented vessels (46 U.S.C. 8103(a)). Additionally, there are mandatory citizenship percentages for the crews of documented vessels. Subject to exceptions and waivers, all unlicensed seamen on a documented vessels must be citizens or permanent resident aliens, the maximum number of permanent residents being capped at 25 percent (46 U.S.C. 8103(b)). Separate provisions require that all unlicensed seamen on fishing, fish processing, or fish tender vessels be U.S. citizens, aliens lawfully admitted for permanent residents, or aliens allowed to be employed under the INA (46 U.S.C. 8103(i)), the maximum number of seamen not either citizens or permanent residents being capped at 25 percent. The citizenship levels for vessels benefiting from a construction or operating differential subsidy are 100 percent on departure for nonpassenger vessels and 90 percent on departure for passenger vessels (46 U.S.C. 8103(c), (d)).
3. BROADCAST AND COMMON CARRIER LICENSES.—Section 310(b) of the Communications Act of 1934 (47 U.S.C. 310(b)) prohibits the issuance of broadcast, common carrier, or aeronautical fixed or en route radio station licenses to aliens and section 303(1)(1) of the Act (47 U.S.C. 303(1)(1)) generally limits operator's licenses to persons eligible to work in the United States. Separate provisions (47 U.S.C. 303(1)(3), 310(c)) permit allowing aliens licensed abroad as amateur radio operators to operate in the United States the amateur radio stations licensed by their governments.
4. AIRLINE PILOTS.—Under section 602(b) of the Federal Aviation Act of 1958 (49 U.S.C. App. 1422(b)), the Secretary of Transportation has the discretionary authority to prohibit or restrict the issuance to aliens of airline transport pilot licenses.
5. CUSTOMS BROKERS.—Aliens may not be licensed as customs brokers (19 U.S.C. 1641(b)).
1. JURY DUTY.-Aliens may not serve on Federal juries (28 U.S.C. 1865(b)(1).
2. FEDERAL PRIVACY ACT.-Under section 552a(a)(2) of title 5, United States Code, only citizens and lawful permanent resident aliens are entitled to rights under the Privacy Act.
3. POLITICAL CONTRIBUTIONS.—Aliens not lawfully admitted for permanent residence are prohibited from making contributions to U.S. political campaigns (section 319 of the Federal Elections Campaign Act of 1971, 2 U.S.C. 44le).
4. PUBLIC WORKS PROJECT GRANTS.—Grants for certain local public works projects are conditioned on the applying State or local government certifying that no contract will be granted to a contractor who will employ illegal aliens on the project (42 U.S.C. 6705(e (2)).
5. MILITARY AVIATION CONTRACTS.-Absent the consent of the Secretary of the appropriate military department, an alien employee of a contractor furnishing or constructing aircraft, aircraft parts, or aeronautical accessories may not have access to plans or specifications for the contracted items or participate in trials under the contract (10 U.S.C. 2279).
6. RELATIONSHIP WITH PUBLIC HEALTH SERVICE.—The Public Health Service Act provides in sections 322, 325, and 2602 (42 U.S.C. 249, 252, 300aaa-1) for cooperative arrangements between the Public Health Service and the Immigration and Naturalization Service in the use of their hospitals and in the medical inspection of aliens within and outside the United States.
7. CITIZENSHIP DAY (SEPTEMBER 17TH).-September 17th of each year is designated as "Citizenship Day" under the first section of the Act of Feb. 29, 1952 (36 U.S.C. 153), with a Presidential proclamation and appropriate ceremonies in schools, churches, and other suitable places.
M. BRACERO PROGRAM (EXPIRED DECEMBER 31, 1964) [HISTORICAL NOTE.—The so-called "Bracero” program derived from agricultural exchange programs operated under Executive agreements between the United States and Mexico before and during World War II. In Public Law 78 (Act of July 12, 1951), Congress amended the Agricultural Act of 1949 by adding a new title V; this provided a statutory basis for the importation of agricultural workers from Mexico. This title was first intended to apply to employment only up to December 31, 1953, but was extended several times by Congress until it expired on December 31, 1964. This title, previously codified as subchapter IV of chapter 35A of title 7, United States Code, is shown below. For further information on this and other temporary worker programs, see “Temporary Worker Programs: Background and Issues”, Senate Judiciary Committee Print (February 1980).]
TITLE V-AGRICULTURAL WORKERS Sec. 501. For the purpose of assisting in such production of agricultural commodities and products as the Secretary of Agriculture deems necessary, by supplying agricultural workers from the Republic of Mexico (pursuant to arrangements between the United States and the Republic of Mexico or after every practicable effort has been made by the United States to negotiate and reach agreement on such arrangements), the Secretary of Labor is authorized
(1) to recruit such workers (including any such workers who have resided in the United States for the preceding five years, or who are temporarily in the United States under legal entry);
(2) to establish and operate reception centers at or near the places of actual entry of such workers into the continental United States for the purpose of receiving and housing such workers while arrangements are being made for their employment in, or departure from, the continental United States;
(3) to provide transportation for such workers from recruitment centers outside the continental United States to such reception centers and transportation from such reception centers to such recruitment centers after termination of employment;
(4) to provide such workers with such subsistence, emergency medical care, and burial expenses (not exceeding $150 burial expenses in any one case) as may be or become necessary during transportation authorized by paragraph (3) and while such workers are at reception centers;
(5) to assist such workers and employers in negotiating contracts for agricultural employment (such workers being free to accept or decline agricultural employment with any eligible employer and to choose the type of agricultural employment they desire, and eligible employers being free to offer agricultural employment to any workers of their choice not under contract to other employers);
(6) to guarantee the performance by employers of provisions of such contracts relating to the payment of wages or the furnishing of transportation. SEC. 502. No workers shall be made available under this title to any employer unless such employer enters into an agreement with the United States
(1) to indemnify the United States against loss by reason of its guaranty of such employer's contracts;
(2) to reimburse the United States for essential expenses incurred by it under this title, except salaries and expenses of personnel engaged in compliance activities, in amounts not to exceed $15 per worker; and
(3) to pay to the United States, in any case in which a worker is not returned to the reception center in accordance with the contract entered into under section 501(5), an amount determined by the Secretary of Labor to be equivalent to the normal cost to the employer of returning other workers from the place of employment to such reception center, less any portion thereof required to be paid by other employers: Provided, however, that if the employer can establish to the satisfaction of the Secretary of Labor that the employer has provided or paid to the worker the cost of return transportation and subsistence from the place of employment to the appropriate reception center, the Secretary under such regulations as he may prescribe may relieve the employer of his obligation
to the United States under this subsection. SEC. 503. No workers recruited under this title shall be available for employment in any area unless the Secretary of Labor has determined and certified that (1) sufficient domestic workers who are able, willing, and qualified are not available at the