advocacy with immigrant survivors toolkit

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Accessing Resources: Public benefits

Additional eligibility requirements & Practice issues

 

Date of entry into the US and “five-year waiting period”

 

Immigrants who are or become “qualified immigrants” and entered the US before August 22, 1996, are generally eligible for the same public benefits available to US citizens.

 

Immigrants who are or become “qualified immigrants” but entered the US on or after August 22, 1996 are generally prohibited from receiving “federal means-tested public benefits” - Temporary Assistance for Needy Families (TANF), Medicaid, Children’s Health Insurance Program (CHIP), and Supplemental Nutrition Assistance Program (SNAP) benefits - for the first five years after obtaining “qualified immigrant” status.[1]

 

A few groups are exempt from the five-year waiting period:

  • Refugees
  • Asylees
  • Victims of trafficking
  • Amerasians
  • Cubans/Haitian entrants
  • Iraqi and Afghan special immigrants
  • Immigrants granted withholding of deportation or withholding of removal
  • Veterans and immigrants on active military duty, their spouses (and surviving spouses, if they have not remarried), and dependent children

 

This means these groups of “qualified immigrants” may be eligible for federal means-tested public benefits without a waiting period, regardless of their date of entry into the US. 

 

Supplemental Security Income (SSI), however, is more restrictive.  These groups can receive SSI only during the seven year period after receiving the relevant immigration status:

  • Refugees
  • Asylees
  • Victims of trafficking
  • Cuban/Haitian entrants
  • Amerasians
  • Immigrants granted withholding of deportation (removal)
  • Iraqi and Afghan special immigrants

 

Optional state bar

 

A few states deny TANF and/or Medicaid to certain “qualified immigrants,” even if they complete the five year waiting period. In the states that choose to do so, the following groups are exempt from this restriction:

  • Refugees
  • Asylees
  • Victims of trafficking
  • Amerasians
  • Cubans/Haitian entrants
  • Iraqi and Afghan special immigrants
  • Immigrants granted withholding of deportation
  • Veterans and immigrants on active military duty, their spouses (and surviving spouses, if they have not remarried), and dependent children
  • Lawful permanent residents who meet a 40 work-quarter (10 years) requirement

Note that TANF laws and regulations include special provisions for “qualified immigrant” survivors (see “TANF Family Violence Option”).

 

See “State and locally-funded benefits” for a discussion of state options.

 

Sponsor deeming

 

“Sponsor deeming” rules may affect income eligibility for   some public benefits. Under immigration law, certain immigrants must have a US citizen or lawful permanent resident “sponsor” in order to receive lawful permanent residence:[2]

  • Family-based immigrant petitioners
  • Employment-based immigrant petitions where the immigrant is coming to work for a relative or a business where a relative owns 5% or more of the employing entity.

 

The family member must sign and file an affidavit of support with US Citizenship and Immigration Services (USCIS) that states the family member will “sponsor” the immigrant, which means to be financially responsible for the immigrant. Sponsor deeming rules in some public benefit programs assume that immigrant applicants have full access to the income and resources of their sponsors.

 

Sponsor deeming rules render many immigrants with sponsors ineligible for benefits. “Qualified immigrant” survivors, however, are exempt from sponsor deeming requirements.[3]

 

In addition, some family- or employment-based (as described above) immigrants are not required to file affidavits of support (i.e., they do not need sponsors):

  • Immigrant survivors who have applied for VAWA-specific immigration relief.[4]
  • Immigrants who have earned or can be credited with 40 qualifying work-quarters.[5]

 

Also, some family- or employment-based (as described above) immigrants who have a sponsor may be exempted from the sponsor-deeming requirements when filing for public benefits.[6]

  • Immigrants with family-based visas may be exempted from the sponsor deeming requirements:

o   If the affidavit of support was filed before December 17, 1997 or was filed after that date but is a Form I-134 affidavit of support (these are not legally enforceable) or

o   If they are survivors whose aggressor is their spouse or parent, or related to their spouse or parent and residing in the same household. This exemption is for a 12 month period but can be extended (with regard to theiraggressor’s income only) if the abuse has been recognized by a court, administrative law judge or the USCIS. To qualify for this exemption, the survivor cannot be living with the aggressor, and must show a substantial connection between the abuse and the need for the federal benefit.

  • Indigent immigrants determined by the benefits provider to “be unable [without assistance] to obtain food and shelter, taking into account the alien’s own income plus any cash, food, housing, or other assistance provided by other individuals, including the sponsor.” This exemption is valid for one year and may be renewable for additional one-year periods.

 

40 work-quarters

 

Lawful permanent residents who meet a 40 work-quarter (10 years) requirement may be eligible for some benefits without a waiting period. A qualifying work-quarter is:

  • a three-month period
  • with enough income earned to qualify as a Social Security quarter
  • during which the worker did not receive federal means-tested public benefits (this last point applies to work quarters counted after 1996).

The Social Security Administration (SSA) determines the required amount of income for a qualifying quarter (this amount changes every year, based on inflation).

 

A “qualified immigrant” may accrue 40 work-quarters before ten years by getting credit for quarters earned by a spouse or parent. A child applicant may count work done by a parent prior to the child applicant’s 18th birthday, and a married or widowed immigrant may count any work done by the spouse during the marriage. Divorced immigrants, however, cannot count work done by their spouses during the marriage.

 

A qualifying work-quarter is calculated based on how much a person earns over a calendar year. For example, if the SSA determines that during a calendar year a qualifying quarter is credited for every $830 earned, a “qualified immigrant” who worked four months that year and earned $1700 will be credited with two qualifying quarters during that year, if the person did not receive federal means-tested public benefits during those four months.

 

Most employment is valid for the purpose of counting qualifying quarters, including work performed when the immigrant was undocumented, did not have federal work authorization, and/or when no income taxes were withheld from earnings. The earnings, however, must be recorded by the SSA.  It is much easier to get an accurate record of work completed if the individual has a Social Security number (SSN) (see below), which is used to report an individual’s wages to the government.

 

See “Public benefits access for battered immigrant women and children” in the manual Breaking Barriers: A Complete Guide to Legal Rights and Resources for Battered Immigrantsfor tips on calculating qualifying quarters.[7]

 

PRUCOL

 

“Persons who are permanently residing in the US under color of law,” or PRUCOL, is not an immigration status, it is a benefits eligibility category used in some states.[8]  PRUCOL generally means that the Department of Homeland Security is aware of a person’s presence in the US and does not intend to remove (deport) the person. PRUCOL has been interpreted differently by different states and sometimes by different benefits programs within the same state. PRUCOL may include persons in the following groups:

  • Who have filed VAWA, T-visa, or U-visa immigration cases
  • With an approved immediate relative visa petition
  • Who filed for adjustment to legal permanent resident status
  • Who have been granted deferred action
  • Who have been granted family unity
  • Who have been granted a stay of removal (deportation)
  • Who have lived in the US continuously since before January 1, 1972

 

Advocates should find out whether any benefits programs in their communities use PRUCOL as an eligibility category, and if so, which categories of immigrants the program(s) consider to be PRUCOL, and what the documentation requirements might be.

 

Social Security numbers (SSN)

 

The Social Security Administration (SSA) issues two types of SSNs: work-authorized and non-work.

 

All federal means-tested public benefits - Temporary Assistance for Needy Families (TANF), Medicaid (except emergency Medicaid), Children’s Health Insurance Program (CHIP), Supplemental Nutrition Assistance Program (SNAP), and Supplemental Security Income (SSI) - require applicants to provide an SSN. In general, if an applicant does not have an SSN, the state agency must assist the individual in applying for one by providing a letter explaining why it is needed[9] and other documentation assistance.

 

Many resources are available without an SSN, for example:

  • SSNs are not necessary to register for school or apply for school lunch programs.[10] The school lunch application may ask for an SSN but cannot require it as a condition of eligibility.
  • Many private companies, such as banks and credit companies, may ask for SSNs for identification purposes, but they generally are not required (if requested, many organizations will accept another form of identification).
  • Although SSNs are required for the major public housing programs, if one individual in a household opts not to declare an eligible immigration status, they do not need to provide an SSN. The rent will be prorated based on the number of eligible persons in the household.

 

Work-authorized SSN

 

Only individuals who are US citizens or are immigrants with work authorization may receive a work-authorized SSN.

 

Immigrant survivors with approved VAWA self-petitions are eligible to apply for and receive work authorization[11] and, once received, they may apply for a work-authorized SSN.

 

In order to receive a work-authorized SSN, the applicant must prove:[12]

  • Age (documentation includes birth certificate, religious or hospital record of birth, or passport)
  • Identity (documentation includes driver’s license; passport; identity card; US Citizenship and Immigration Services document; school, medical, or marriage record)
  • US citizenship or work-authorized immigrant status and, for some immigrants, an employment authorization document

 

Non-work SSN

 

Non-work SSNs may be required for immigrant survivors without work authorization to apply for public benefits.[13] In order to receive a non-work SSN, the applicant must prove:[14]

  • Age (documentation includes birth certificate, religious or hospital record of birth, or passport), and
  • Identity (documentation includes driver’s license; passport; identity card; US Citizenship and Immigration Services document; school, medical, or marriage record), and
  • Legal requirement for SSN as a condition for receiving the federally-funded benefits or service, or
  • State government requirement for SSN to administer a state benefit program.

 

Immigrants without work authorization who are entitled to the following public benefits are eligible to apply for a non-work SSN:[15]

  • Temporary Assistance to Needy Families (TANF)
  • Old-Age, Survivors, and Disability Insurance (OASDI) (Title II benefits under the Social Security Act, commonly known as Social Security or retirement benefits[16])
  • Medicaid (except emergency Medicaid)
  • Children’s Health Insurance Program (CHIP)
  • Medicare benefits for end-stage kidney disease patients
  • Supplemental Nutrition Assistance Program (SNAP)

 

The SSA will not issue replacement non-work SSN cards. If the card is lost, stolen, or destroyed, the advocate or the immigrant survivor will need to contact the SSA each time evidence of the SSN is needed for an allowed purpose, and provide the name and phone number of the benefits worker, court clerk, or third-party agency that needs to know the survivor’s SSN. The SSA will contact them directly and notify them of the survivor’s SSN.[17]

 

SSNs for US-born children

 

The SSA automatically assigns an SSN to children at birth, regardless of whether the parent(s) has a valid SSN. If immigrant survivors are pregnant, they should be informed that their child can and should be assigned an SSN, regardless of whether the survivors have one. Advocates should be familiar with commonly-used birth options in their communities (e.g., hospitals, home births) and the processes and requirements for filing birth certificates, so they may advise survivors to speak to the person filing the birth certificate about obtaining an SSN card for their child.

 

Role of the advocate

 

  • Advocates should assist immigrant survivors to gather the documents needed to file for a work-authorized or non-work SSN. Advocates should accompany immigrant survivors to the Social Security Administration (SSA) offices when they apply, because SSA caseworkers may not fully understand the avenues through which an immigrant survivor may be applying for an SSN, especially regarding eligibility under VAWA (see above).[18]
  • Section 7 of the Privacy Act of 1974 generally prohibits states and benefits workers from denying benefits to individuals who refuse to disclose their SSN, unless it is required by federal statute.[19] The Tax Reform Act of 1976, however, exempts state agencies from Section 7 of the Privacy Act when SSNs are used “in the administration of any tax, general public assistance, driver’s license, or motor vehicle registration law within its jurisdiction.”[20],[21] Know your state’s laws and procedures for collecting taxes and accessing these resources.
  • States and benefits workers risk violating the Privacy Act if they require an applicant’s family members (i.e., persons who are not applying for benefits themselves) to disclose their SSNs as a condition for approving an applicant’s eligibility.[22] Although there is no prohibition against requesting the SSN of non-applicants, states that do so are required to inform the non-applicant if disclosure is voluntary or mandatory and what use will be made of the SSN, or information about the lack of am SSN.[23] Know your state’s benefits agencies’ policies and procedures regarding collecting SSNs of non-applicants.

Tools & Resources

 

See the following in the manual Public Benefits Toolkit:

·      “Evidence list for battered immigrant women seeking Social Security numbers”[24]

·      “Evidence list for an undocumented immigrant and/or child to obtain Social Security numbers”[25]

 

The SSA Program Operations Manual Systemgoverns the issuance of work-authorized and non-work SSNs (see, for example, RM 10210.010 Evidence policy for an original or new SSNfor the general requirements and related policy).



[1]Center on Budget and Policy Priorities (February 27, 2014). Introduction to the Supplemental Security Income (SSI) Program. 

[2] Interoffice Memorandum on Consolidation of Policy Regarding USCIS Form I-864, Affidavit of Support (AFM Update AD06-20) from Michael Aytes, Acting Director for Domestic Operations of US Citizenship and Immigration Services to Regional, Service Center, District, and National Benefits Center Directors (June 27, 2006).

[3]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.

[4] Interoffice Memorandum on Consolidation of Policy Regarding USCIS Form I-864, Affidavit of Support (AFM Update AD06-20) from Michael Aytes, Acting Director for Domestic Operations of US Citizenship and Immigration Services to Regional, Service Center, District, and National Benefits Center Directors (June 27, 2006).

[5] US Department of Health and Human Services, Administration for Children & Families, Office of Family Assistance (April 17, 2003). TANF-ACF-PI-2003-03 (Deeming of sponsor’s income and resources to a non-citizen).

[6] Ibid.

[7] See pages 254-255 (“Quick tips”).

[8] Fata, S., Orloff, L.E. & Drew, M. (2013). Access to programs and services that can help victims of sexual assault and domestic violence. In L. Orloff (Ed.), Empowering Survivors: Legal Rights of Immigrant Victims of Sexual Assault. National Immigrant Women’s Advocacy Project, Washington College of Law at American University, and Legal Momentum.

[9] US Department of Health and Human Services (August 22, 2012). Access to HHS-funded services for immigrant survivors of domestic violence.

[10] Social Security Administration (August 2013). Social Security numbers for noncitizens.

[11] US Citizenship and Immigration Services (January 3, 2014). Battered spouse, children & parents.

[12] Olavarria, C., Baran, A., Orloff, L. & Huang, G. (2013). Public benefits access for battered immigrant women and children. In Breaking Barriers: A Complete Guide to Legal Rights and Resources for Battered Immigrants.

[13] Social Security Administration (July 31, 2014). RM 10211.600 Requests for an SSN from an alien without work authorization.

[14]Olavarria, C., Baran, A., Orloff, L. & Huang, G. (2013). Public benefits access for battered immigrant women and children. In Breaking Barriers: A Complete Guide to Legal Rights and Resources for Battered Immigrants.

[15] Social Security Administration (July 31, 2014). RM 102111.610 Valid reasons to assign an SSN for nonwork purposes.

[17]Olavarria, C., Baran, A., Orloff, L. & Huang, G. (2013). Public benefits access for battered immigrant women and children. In Breaking Barriers: A Complete Guide to Legal Rights and Resources for Battered Immigrants.

[18] Ibid.

[19] Ibid.

[20] 42 USC Sec. 405 (c)(2)(C)(i)

[21] US Department of Justice, Office of Privacy and Civil Liberties (June 17, 2014). Overview of the Privacy Act of 1974.

[22] Olavarria, C., Baran, A., Orloff, L. & Huang, G. (2013). Public benefits access for battered immigrant women and children. In Breaking Barriers: A Complete Guide to Legal Rights and Resources for Battered Immigrants.

[23] Ibid.

[24] See pages 164-166.

[25] See pages 709-712.