advocacy with immigrant survivors toolkit

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Accessing Resources: Public benefits

Eligibility requirements

 

Federal public benefits law distinguishes between three kinds of immigrants:

  • “Qualified immigrants” who entered the US before August 22, 1996
  • “Qualified immigrants” who entered the US on or after August 22, 1996
  • Immigrants who are not “qualified immigrants”

 

Immigrant survivors who meet certain conditions are a category of “qualified immigrant.” In this section, we will look at who is a “qualified immigrant,” and pay particular attention to who is a “qualified immigrant” survivor.

 

Who is a “qualified immigrant?”

 

The Personal Responsibility and Work Opportunity Reconciliation Act of 1996[1] (the Welfare Reform Act) and, later, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996[2] (IIRAIRA) broadened access to public benefits to some immigrants who have been battered or subject to extreme cruelty.

“Qualified immigrants”[3] are those who are eligible to apply for public benefits and include:[4]

  • Lawful permanent residents
  • Persons granted conditional entry
  • Refugees
  • Asylees
  • Persons granted withholding of deportation or withholding of removal
  • Persons paroled into the US for a year or more
  • Cuban or Haitian  entrants
  • Victims of trafficking who have filed for and received prima facie determination, or have been awarded a T-visa[5]
  • Spouses, children, or parents of children who have been battered or subject to extreme cruelty by a US citizen (USC) or lawful permanent resident (LPR) spouse, parent, or other member of their household with the USC/LPR spouse or parent’s consent. These applicants must also have a pending or approved VAWA-specific immigration case or an approved family-based petition filed by the spouse or parent.

Note that U-visa applicants and recipients are not considered “qualified immigrants.”

 

The definition of “battered or subjected to extreme cruelty” includes but is not limited to:[6]

 

Being the victim of any act or threatened act of violence, including forceful detention, which results or threatens to result in physical or mental injury. Psychological or sexual abuse or exploitation, including rape, molestation, incest (if the victim is a minor), or forced prostitution shall be considered acts of violence. Other abusive actions may also be acts of violence under certain circumstances, including acts that in and of themselves may not initially appear violent but that are a part of the overall pattern of violence.

 

This definition is broader than that of many state domestic violence statutes in that it includes emotional abuse; it may be necessary, therefore, for advocates to educate state benefits agency staff about this more inclusive definition.

 

In order for a survivor to be recognized as a “qualified immigrant,” (1) their spouse or parent must be a USC or LPR, and (2) the aggressor must be the spouse, parent, or member of the spouse’s or parent’s family living in the same household as the immigrant survivor.

 

A “member of the spouse’s or parent’s family” is defined as:[7]

 

  • Any person related by blood, marriage, or adoption to the spouse or parent of the immigrant survivor.
  • Any person having a relationship to the spouse or parent of the immigrant survivor that is covered by the civil or criminal domestic violence statutes of the state or Indian country where the immigrant survivor resides.
  • Any person having a relationship to the spouse or parent of the immigrant survivor that is covered by the civil or criminal domestic violence statutes of the state or Indian country in which the immigrant survivor received a protection order.

 

“Qualified immigrant” status requirements for immigrant survivors

 

The US Attorney General issued additional guidance to determine if an immigrant survivor is a “qualified immigrant” for benefits purposes.[8]

  • The US Citizenship and Immigration Services (USCIS) or immigration judge:

o   Has approved a VAWA self-petition or family-based visa petition (filed by the abusive spouse or parent), OR

o   Has found that the survivor’s application for VAWA-specific immigration relief  sets forth a prima facie case; OR

o   Has granted cancellation of removal, OR

o   Has granted suspension of deportation, AND

 

  • The immigrant or immigrant’s child has been battered or subjected to extreme cruelty in the US by a USC or LPR spouse or parent, or by a member of the spouse’s or parent’s family living in the same household (the spouse or parent consented/acquiesced to the battery or cruelty and, in the case of a child, the immigrant did not actively participate); AND
  • There is a substantial connection between the abuse and the need for the public benefit sought; AND
  • The immigrant survivor or child no longer resides in the same household as the aggressor.

 

Proof of status as a “qualified immigrant” survivor

 

Immigrant survivor applicants for public benefits will need to establish that they meet the above criteria in order to be considered a “qualified immigrant:”

 

1.     “Qualified immigrant” survivors must provide with their applications for benefits a copy of the approval notice or notice of prima facie determination from USCIS or an immigration judge for their VAWA-specific immigration relief or family-based visa.

  • If they are applying under a family-based visa, they must also provide proof of the battery or extreme cruelty (e.g., order of protection, police report, photographs, medical records, declarations from others or their own credible testimony) having taken place in the US.
  • If they are applying under a VAWA-specific form of immigration relief, they are not required to provide evidence of abuse beyond their immigration case approval or prima facie determination letter. This is because in order to have received either one, the immigration authorities have already determined battery or extreme cruelty and the benefits agency should not re-adjudicate this issue.

 

 

2.     The “qualified immigrant” survivor’s benefits application must establish that there is a “substantial connection” between the abuse and the need for the public benefit.

Circumstances that indicate “substantial connection” include, but are not limited to, needs or events such as the following:[9]

 

  • To become self-sufficient after separation from the aggressor
  • To escape the aggressor or aggressor’s community
  • To ensure the safety of the survivor, or the survivor’s child or parent
  • To compensate for the loss of financial support after separation from the aggressor
  • The loss of a job or reduced earnings because of the abuse
  • The need to leave a job for safety reasons
  • The loss of a home after separation
  • Legal proceedings related to the abuse (child custody, divorce, etc.)
  • Fear of the aggressor jeopardizes the survivor’s ability to care for their children
  • Medical attention, mental health counseling, or disability
  • Nutritional risk or need resulting from the abuse or following separation
  • Medical care for a pregnancy resulting from the relationship with the aggressor, the abuse, or aggressor’s sexual assault
  • To replace medical coverage or health care services lost after separation

 

Although technically an immigrant survivor is not a “qualified immigrant” until they live separately from the aggressor, many immigrant survivors need the safety net of benefits before they do so. Consequently, the US Attorney General has stated that benefits workers should complete the eligibility determination process and approve the immigrant survivor for benefits before the survivor separates from the aggressor.[10]

 

3.     States have addressed this in two ways: Some determine eligibility and award benefits immediately, then require that immigrant survivors return within a month to show that they no longer live with the aggressor. Others determine eligibility and inform approved immigrant survivors they will receive benefits as soon as they no longer live with the aggressor. Evidence of separation includes but is not limited to:[11]

  • Orders of protection removing the aggressor from the survivor’s home
  • Orders of protection ordering the aggressor to stay away from the survivor’s home
  • Letters from the landlord, family, friends, neighbors, or victim advocates stating the aggressor no longer lives at the survivor’s home address
  • Affidavits from survivors stating the aggressor no longer lives with them
  • New lease agreement proving the survivor does not live with the aggressor
  • Utility bills proving the survivor does not live in the aggressor’s home

 

Advocacy notes

 

  • The definition of “qualified immigrant” is restrictive in its inclusion of survivors of sexual violence, in that it recognizes only sexual violence within the contexts of some forms of family violence (where the aggressor is a USC or LPR spouse or parent of the immigrant survivor, or a relative of the spouse or parent who lives in the same household) and trafficking. Advocates working with survivors of sexual violence at the hands of someone else (e.g., a non-spouse partner, an acquaintance, or an employer) should be aware that the survivors:

o   In the event of sexual violence in the workplace, may merit other forms of legal support based on the employers’ potential violations of trafficking and civil rights laws.

o   May be eligible for other classes of public benefits:

§  Benefits that have been explicitly exempted from eligibility requirements because they are necessary to protect life and safety;

§  State-level benefits established by state legislatures and funded by state (not federal) dollars to offer protections to more categories of immigrants; or

§  Benefits and services provided by charitable nonprofit organizations.

 

  • The definition of “qualified immigrant” is also restrictive because it requires an immigrant survivor to separate from the aggressor. This is clearly not appropriate for some survivors, and so they may not qualify for some public benefits. But they are still eligible for others:

o   Benefits that have been explicitly exempted from eligibility requirements such as those necessary to protect life and safety,

o   State-level benefits established by state legislatures and funded by state (not federal) dollars to offer protections to more categories of immigrants.

o   Benefits and services provided by charitable nonprofit organizations

 

  • An application for immigration relief is a prerequisite for an immigrant survivor to become a “qualified immigrant.” Evidence of eligibility and filing for certain forms of immigration relief helps in safety planning in that it can protect an immigrant survivor from immigration law enforcement detention and removal (deportation) and increase access to public benefits.

 

  • Families that include children and parents of different citizenship and immigration status are often called “mixed status” families. Children born in the US may be eligible for public benefits, regardless of whether they were born to citizens, lawful permanent residents, or undocumented immigrants. Immigrant survivors who are not “qualified immigrants” themselves may apply for benefits on behalf of their US citizen or eligible immigrant children.

 

Once immigrant survivors are considered “qualified” immigrants, they may have access to a wider array of services and benefits. Some programs, however, impose additional requirements  that can determine whether an individual is eligible, such as:

  • A waiting period based on an individual’s date of entry into the US or the date they obtained “qualified” status
  • Sponsor deeming rules
  • Work history requirements

See “Additional eligibility requirements & Practice issues” for more information.

 

Tools & Resources

 

The following tools, available in the manual Public Benefits Toolkit present an overview of benefits available, organized by the form of immigration relief accessed:

  • Trafficking victim benefits eligibility process (see pages 132-137).
  • U-visa victim benefits eligibility process (see pages 141-144).
  • VAWA public benefits eligibility process: VAWA self-petitioners, VAWA cancellation of removal, and VAWA suspension of deportation (see pages 148-156).

 

“Immigration status: Work authorization, public benefits, and ability to sponsor children,” also in the manual Public Benefits Toolkit, provides an overview of when individuals with different forms of immigration status receive work authorization, are considered “lawfully present,”[12] are considered “qualified immigrants,” and become eligible for federal public benefits and federal means-tested public benefits.[13]

 

“Evidence list for battered immigrant women seeking public benefits” in the manual Public Benefits Toolkit.[14]

 

 



[2] PL 104-208, Title V, Sec. 501.

[3] Although the term used in the Welfare Reform Act is “qualified alien,” we use the term “qualified immigrant.”

[5] Sec. 211 of the Trafficking Victims Protection Reauthorization Act of 2008 amended Sec. 431(c) of the Welfare Reform Act by recognizing victims of trafficking as qualified immigrants.

[6] Interim Guidance on Verification of Citizenship, Qualified Alien Status and Eligibility under Title IV of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Attorney General Order No. 2129-97, Federal Register Vol. 62, No. 221 (November 17, 1997). This definition mirrors that of regulations that govern VAWA-specific immigration relief (see Self-Petitioning for Certain Battered or Abused Spouses and Children, Federal Register Vol. 61, No. 59 (March 26, 1996)).

[7] Ibid.

[8] Olavarria, C., Baran, A., Orloff, L. & Huang, G. (2013). Public benefits access for battered immigrant women and children. In K. Sullivan & L. Orloff (Eds.) Breaking Barriers: A Complete Guide to Legal Rights and Resources for Battered Immigrants. National Immigrant Women’s Advocacy Project, Washington College of Law at American University, and Legal Momentum.

[10] Ibid.

[11] Ibid.

[12] See also “Documents typically used by lawfully present immigrants” (available here) by the National Immigration Law Center.

[13] See pages 311-321.

[14] See pages 160-163.