Person present in the US who are eligible for immigrant visas and are not ineligible under legislation may apply for lawful permanent residence under section 245 of the Immigration and Nationality Act. The immigrant must make an application for such status and must be eligible to receive an immigrant visa or one must be immediately available to them on filing an application. The specific eligibility requirements and procedures are further described by section 245.1 of Title 8 of the Code of Federal Regulations.

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Person present in the US who are eligible for immigrant visas and are not ineligible under legislation may apply for lawful permanent residence under section 245 of the Immigration and Nationality Act. The immigrant must make an application for such status and must be eligible to receive an immigrant visa or one must be immediately available to them on filing an application. The specific eligibility requirements and procedures are further described by section 245.1 of Title 8 of the Code of Federal Regulations. Section 245.1 (b) and (c) lists the categories of immigrants who are ineligible to apply for permanent residents status. Ineligible persons include: those that arrived in the US in transit without a valid visa; those who were not admitted to the US following the inspection by an immigration officer; an immigrant who was not authorised to work in the US before applying for an adjustment of their status unless they are an 'immediate relative' of a US citizen (8.8 - Family Reunion). The section also covers ‘special immigrants’, which includes medical graduates, or those eligible under the Immigration Nursing Relief Act as healthcare workers.

In relation to welfare support for immigrants the Personal Responsibility Act, section 400, makes a number of statements of national policy on welfare and immigration. It states that it is the policy of the US that immigrants within the borders should not depend on public resources to meet their needs, but rather ‘rely on their own capabilities and the resources of their families, their sponsors, and private organizations’ and that the availability of public benefits should not constitute an incentive for immigration to the United States. However the provision recognises that migrant were nevertheless applying for and receiving public benefits from Federal, State, and local governments. It further states that the enactment of new rules for eligibility and sponsorship agreements in order to ensure that aliens be self-reliant in accordance with national immigration policy, and the removal of incentives for illegal immigration provided by the availability of public benefits are compelling government interests.

Provisions of the Act restrict the availability of public benefits to certain specified immigrants. Public benefits are defined by section 401(c) and include: any grant, contract, loan or professional license; any retirement, welfare, health, disability, public or assisted housing, postsecondary education, food assistance, unemployment benefit; or any other similar benefit for which payments or assistance are provided to an individual, household, or family eligibility unit by an agency of the United States. Immigrants who are not ‘qualified aliens’ are not entitled to these benefits. ‘Qualified aliens’ under section 431(b) include migrants: lawfully admitted for permanent residence under the Immigration and Nationality Act, those granted asylum under the Act and refugees admitted to the United States under the Act. Under section 402 qualified aliens are also restricted from receiving benefits such as supplemental security income and food stamps. However under section 402(a)2 refugees only become subject to these restrictions in the Act after five years from when they were admitted to the United States as a refugee under the Immigration and Nationality Act; or five years from when they were granted asylum under the Act.

Benefits which are not restricted by the above provisions of the Act are listed in section 401(b), they include: medical assistance necessary for the treatment of an emergency medical condition; short-term, non-cash, in-kind emergency disaster relief; and public health assistance for immunizations with respect to immunizable diseases and for testing and treatment of symptoms of communicable diseases.

Migrants are entitled to free basic education and this also includes irregular migrants. In the case of Plyer v Doe in the Supreme Court it was established that the equal protection clause of the Constitution, which provides that no State shall "deny to any person within its jurisdiction the equal protection of the laws”, precludes the denial of education by law to migrants not legally admitted into the country. The Supreme Court also found that there were no national policies perceived that might justify the State in denying the children involved an elementary education.

Analysis provided by: Anisa Niaz LLM (Public Law), United Kingdom.

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