advocacy with immigrant survivors toolkit

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Accessing Resources: Public Benefits

 Verification and reporting of immigrant status

 

Verification of eligibility and “qualified immigrant” status

Benefits workers must follow the four-step process developed by the Attorney General for screening for benefits eligibility.[1] It is intended to establish a fair, non-discriminatory, and least-invasive means of granting benefits to “qualified immigrants” and to child applicants without regard to their parent’s immigration status.

 

1.     Determine if the program provides a “federal means-tested public benefit” or a “federal public benefit” as defined in the Welfare Reform Act. These classes of public benefits are subject to immigration verification requirements.

 

2.     Determine who is the applicant (i.e., the person who will actually be receiving benefits) and if the applicant is otherwise eligible for benefits under general program requirements, such as income and state residency.

 

3.     Verify the applicant’s status as a US citizen, US non-citizen national,[2] or qualified immigrant.[3] If a person is submitting an application on behalf of a child, citizenship/immigration status verification must only be undertaken for the child (or person who will actually be receiving the benefits).

 

If they have not already done so, at this point benefits workers should screen for domestic violence.[4] 

Verifying “qualified immigrant” status for a survivor is its own four-part process.[5] 

 

a)    Obtain evidence of a prima facie determination or approval of a VAWA-specific immigration case, issued by US Citizenship or Immigration Services (USCIS) or an immigration judge.

 

b)   In the case of family-based petitioners, obtain evidence of a history of battery or extreme cruelty. (This determination will have been made by USCIS or an immigration judge in a VAWA-specific immigration case and must not be decided again by the benefits worker.)

 

c)    Determine whether a “substantial connection” exists between the abuse and the need for public benefits.[6]

 

d)   Determine that the applicant no longer resides in the same household as the aggressor. Benefits workers should be aware that some applicants may live with the aggressor during the application process, because they may not have the resources to establish a separate household without the public benefits. The Attorney General guidelines permit benefits workers to approve survivors’ applications for benefits before their separation from the aggressor, and provide evidence of living separately after it happens in order to begin receiving benefits.[7]

 

See “Eligibility requirements” for information about what constitutes proof of each of these distinct points.

 

4.     Verify the applicant’s eligibility for benefits. This step is specific to any additional program eligibility requirementsfor “qualified immigrants,” for example, establishing date of entry into the US.

 

The steps are to be followed in the order given. This means:

  • If a benefits worker determines in the initial step that the benefit sought is not a “federal means-tested public benefit” or a “federal public benefit,” then the applicant may receive the assistance if they qualify and no inquiries into immigration status are to be made.
  • If the benefit sought is a “federal means-tested public benefit” or a “federal public benefit,” the benefits worker must determine if the applicant – without yet taking into account immigration issues – otherwise qualifies for the benefit.

o   If yes, the benefits worker then determines immigrant status eligibility.

o   If no, the benefits worker informs the applicant they do not qualify and does not ask any questions about immigration status.

 

“Qualified immigrant” status must then be verified with the USCIS as part of the benefits application process for persons who are not US citizens or non-citizen nationals. Generally, benefits workers can make this inquiry through the USCIS Systematic Alien Verification for Entitlements (SAVE) program; however, survivors’ “qualified immigrant” status cannot be verified through SAVE, it must be verified by contacting the USCIS Vermont Service Center.

 

See “Applications for benefits on behalf of children who qualify” for additional information on limits to inquiries about TANF, SNAP, Medicaid and CHIP applicants’ immigration status.

 

Reporting under the Welfare Reform Act and IIRAIRA

 

Section 404 of the Welfare Reform Act mandates “government agencies to report any person known to be unlawfully present,” but only with respect to Temporary Assistance to Needy Families (TANF), Supplemental Security Income (SSI), public housing, and Supplemental Nutrition Assistance Program (SNAP) benefits.

 

Federal agencies have issued helpful guidance clarifying the limits of this requirement.[8][9]  For example, it applies only to individuals seeking the enumerated benefits for themselves - not to individuals applying on behalf of their children or other family members. Benefits workers are strictly limited to reporting applicants who are known to be unlawfully in the US. This means that benefits workers are limited to reporting to the USCIS only individuals against whom there is a final order of removal (deportation) based on a formal determination by USCIS, subject to administrative review and supported by a determination by the Department of Homeland Security (DHS) or the Department of Justice. A response to a SAVE inquiry is not sufficient to meet the knowledge requirement.   Agencies should be reminded that:

  • Even if an immigrant is not a “qualified immigrant” or is otherwise ineligible for a specific benefit, the immigrant may still be lawfully present in the US. It is vital that benefits workers report only those seeking the enumerated benefits for themselves (not for family members) and only if they meet the specific criteria described above..
  • There may be many options for immigration relief available to different immigrants; for example, survivors who believe they are undocumented may qualify for VAWA-specific immigration relief.
  • Reporting immigrants, especially when done inappropriately, takes time and resources from both the benefits agency’s primary work (helping people) and of immigration law enforcement.
  • Reporting inappropriately opens the benefits agency to violating anti-discrimination laws.
  • Overzealous and inappropriate reporting will deter many eligible immigrants from applying for needed benefits, and keep survivors and/or their children from accessing safety and security.

 

There is no such reporting requirement in health care programs.  DHS has also clarified that information provided by applicants for health coverage will not be used for immigration enforcement purposes.[10]  Similarly, information provided to the SAVE system may be used only to verify an applicant’s eligibility for benefits and cannot be used for immigration enforcement purposes unless a criminal violation is involved.[11]

 

Section 434 of the Welfare Reform Act and Section 634 of Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) forbid government agencies from restricting certain communications between government employees and USCIS. However, the laws do not impose reporting requirements, are not intended to undermine privacy and non-discrimination rights, and “should not be interpreted as carte blanche to report anyone [who may be] undocumented” to USCIS.[12]

 

Role of the advocate

  • Work with community partners to understand eligibility requirements and application procedures for public benefits.
  • Most states have a “joint application form” for federal, state, and other benefits to eliminate duplication and help ensure that applicants receive all the benefits to which they are entitled. Applicants may apply for individual benefits independent of others, or any combination of benefits for which they qualify. Assist survivors to collect the necessary documentation and prepare an application specific to the benefits for which they are eligible.
  • Accompany individual survivors to file applications for benefits. If an immigrant survivor is applying for benefits for their child(ren), help ensure the benefits worker only asks immigration status questions of the person(s) on whose behalf the benefits will be provided. (See also “Applications for benefits on behalf of children who qualify” for information about applications designed for family/household units. In these cases there are often provisions for “child-only” applications, designating “non-applicants,” or other measures to ensure immigration status inquiries are only made of the person(s) who will actually receive benefits.)


[2] Non-citizen nationals are persons born in American Samoa, former citizens of the former Trust Territory of the Pacific Islands (now the Commonwealth of the Northern Mariana Islands) who have elected to be non-citizen nationals rather than US citizens, and certain children of non-citizen nationals born abroad.

[3] The process by which benefits agencies verify immigration status is in “Subpart B – Declaration of applicant and examination of documents” of the Verification of Eligibility for Public Benefits, Attorney General Order No. 2170-98, Federal Register, Vol. 63, No. 149 (August 4, 1998).

[4] See “Universal screening” (pages 109-111) the manual Facilitating access to TANF for battered immigrants for sample protocol.

[8] Social Security Administration, Department of Health and Human Services, Department of Labor, Department of Housing and Urban Development, Department of Justice, Immigration and Naturalization Service. Responsibility of certain entities to notify the Immigration and Naturalization Service of any alien who the entity “knows” is not lawfully present in the United States. Federal Register, Vol. 65, No. 189 (September 28, 2000).

[9] See also US Department of Agriculture (June 2011). Supplemental Nutrition Assistance Program Guidance on Non-Citizen Eligibility (pp. 48-49).

[10]U.S. Immigration and Customs Enforcement (25 October 2013). Clarification of existing practices related to certain health care information.

[11]Pub. L. 99–603, title I, § 121(c)(1),Nov. 6, 1986, 100 Stat. 3391, codified at 42 USC §1320b-7 note.

[12]Orloff, L.E., Zarnow, L. & Cornwall, Y. (n.d.). Facilitating access to TANF for battered immigrants: A pilot training program for TANF eligibility workers. Washington, DC: Legal Momentum.