advocacy with immigrant survivors toolkit

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Accessing Resources: Public Benefits

State and locally-funded benefits

 

State and local public benefits are those provided by a state or local government agency to an individual, household, or family unit. State or local public benefits may be a grant or loan, a contract, a professional or commercial license, retirement benefits, welfare benefits, health benefits, disability benefits, public or assisted housing, postsecondary education, food assistance, unemployment benefits, or other similar benefits.

 

Although the Welfare Reform Act defines state and federal public benefits similarly, they are not the same – a program can be either a state public benefit or a federal public benefit, but it cannot be both.

 

Some state benefits are funded and administered entirely by the state (or county or locality). General assistance programs, for example, may provide benefits to low-income persons who are not eligible for federal assistance.

 

The Welfare Reform Act gave states the authority to:[1]

  • extend state-funded benefits to cover immigrants who are not otherwise eligible, including undocumented immigrants and “qualified immigrants” subject to the five-year waiting period or
  • limit the state-funded benefits available to certain “qualified immigrants.”

(See “Federal means-tested public benefits” for a description of how states may implement their options.)

 

States may provide state or local public benefits to immigrants who are ineligible for federally-funded services including, for example:[2]

  • State-funded Temporary Assistance for Needy Families (TANF)[3]
  • State-funded medical assistance
  • State-funded medical care through the Children’s Health Insurance Program (CHIP)
  • Prenatal care
  • State-funded food assistance
  • State-funded SSI replacement programs

There is enormous variation amongst the states that have passed this legislation as to the categories of immigrants who can receive various stated-funded benefits, and which state benefits they may access (see “Tools & Resources,” below, for available state-by-state information).

 

On the other hand, some states may 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”).

 

However, certain state and local public benefits were explicitly exempted by the Welfare Reform Act from immigrant eligibility restrictions, and therefore should be accessible to all persons, regardless of immigration status:[4]

 

And the following groups of “qualified immigrants” must be provided, at a minimum, time-limited access (five years) to state-funded public benefits after date of admission:

  • Refugees
  • Asylees
  • Victims of trafficking
  • Cuban and Haitian immigrants
  • Amerasians
  • Individuals granted withholding of deportation under INA Section 243

 

Extending or limiting state and local public benefits to different groups of immigrants is complex, and courts and legislatures have yet to reach a consensus. For example:

  • In order to extend access to state or local public benefits to immigrants who are not lawfully present in the U.S., the Welfare Reform Act requires states to pass an affirmative law after August 22, 1996 providing for their eligibility. This provision raises potential issues under the 10th Amendment of the U.S. Constitution.  
  • Some courts have struck down states’ attempts to deny state-funded benefits to immigrants who are lawfully present in the U.S. as a violation of the state or federal Equal Protection clause.
  • Some states and localities have passed anti-immigrant state laws or local ordinances that attempt to limit provision of state-funded public benefits to immigrants.

 

Conflicting federal and state laws can, in effect, block many immigrant survivors’ access to programs and services they are legally entitled to receive under federal law, placing them at ongoing and increasing risk of abuse.[7] Sexual and/or domestic violence programs in communities under conflicting laws of this type must be prepared to engage in individual, systems, and policy advocacy to provide for immigrant survivors’ access to public benefits.

 

Victims of Crime Act (VOCA) victim compensation funds

 

Although all immigrant survivors can obtain select federal public benefits and, in some states, some state-funded public benefits, many will not qualify for the full range of public benefits they need to build economic security. Other immigrant survivors may not have work authorization, and so are prevented from earning wages necessary to pay for abuse-related expenses. VOCA victim compensation funds are one source of financial assistance available to immigrant survivors that may help bridge the gaps.

 

VOCA victim compensation varies by state, but all programs reimburse victims for crime-related expenses, including:

  • Medical costs
  • Mental health counseling
  • Funeral and burial costs
  • Lost wages
  • Examples of costs covered in some states include legal expenses, housing and utility deposits, emergency expenses, home security or modifications, moving expenses, or lost child support.

 

Most states limit the amount that can be reimbursed in each category and limit total compensation. Most also consider VOCA funds “compensation of last resort,” meaning they will not be provided if the costs can be reimbursed by insurance or other federal- or state-funded benefits.

 

“Compensable” crimes include sexual and domestic violence, child abuse, and any crime where the individual suffers death or personal injury, including assault, battery, murder, kidnapping, or other violent crimes. It is not necessary that the crime be solved or prosecuted, or that the perpetrator is convicted. VOCA does, however, require victim compensation programs to promote victim cooperation with reasonable requests by law enforcement, and that the victim is innocent.

 

VOCA does not exclude any group from eligibility to receive funds, so fund administrators have no duty to ask about immigration status under state or federal law.[8]  Moreover, each state is required to identify gaps in services for “underserved” victims, and can specifically identify people who do not speak English and undocumented immigrants as groups entitled to better services. As a result, most states provide access to VOCA-funded services and crime victim funds to any survivor, regardless of immigration status.

 

However, other VOCA program requirements vary by state, and some are very much at odds with the circumstances of many survivors, such as requirements to report the crime to law enforcement within 72 hours, to cooperate with police and prosecution, or to provide an SSN. These requirements may present barriers to immigrant survivors.

 

At the individual advocacy level, advocates should understand eligibility requirements for state benefits and VOCA victim compensation funds, ensure immigrant survivors can make informed choices about whether or not to access these resources, and support all survivors during application processes.

 

Tools & Resources

 

For information on TANF and SSI replacement, food assistance, and medical assistance programs available in specific states, see the tables on state-funded assistance in the “Guide to immigrant eligibility for federal programs[Update page]” by the National Immigration Law Center. Statutes and regulations are subject to change, however, and so it is recommended that you check your state and local social services agency or legal assistance office for the most current information and more detail.

 

The state-by-state Benefits Mapby the National Immigrant Women’s Advocacy Project (NIWAP) is an interactive tool that lists public benefit programs.

 

For technical assistance on accessing public benefits in your state, contact the National Women’s Immigration Advocacy Project (NIWAP) at info@niwap.org.

 

The US Resource Map of Crime Victim Services & Informationon the Office for Victims of Crime website lists state victim compensation coverage and requirements.



[1] 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.

[2] Ibid.

[3] Some federal public benefits like TANF are distributed by the federal government to individual states. The federal government has established national guidelines and rules that all states must follow (such as the requirement for each state to contribute funds), but beyond those, each state can design its own program. States generally choose between three options in deciding how to run their TANF programs:

  • Lump all federal and state TANF funds together
  • Have one TANF program but with certain participants paid just out of state funds
  • Create a separate state program (like TANF) for some participants, who are not subjected to any of the federal restrictions

[4] PL 104-193 [The Personal Responsibility and Work Opportunity Reconciliation Act of 1996].

[5] Attorney General Order No. 2049-96, Specification of Community Programs Necessary for Protection of Life or Safety Under Welfare Reform Legislation, Federal Register Vol. 61, No. 170 (August 30, 1996).

[6]Attorney General Order No. 2353-2001, Final Specification of Community Programs Necessary for Protection of Life or Safety Under Welfare Reform Legislation, 66 Federal Register 3613, Vol. 66, No. 10 (January 16, 2001).

[7] See “Federal preemption and state action in the immigration and public benefits context” (pages 467-470) in Empowering Survivors: Legal Rights of Immigrant Victims of Sexual Assault for legal analysis and guidance to help navigate conflicting laws specific to the Welfare Reform Act.

[8]Olavarria, C., Baran, A., Orloff, L. & Huang, G. (2013). Access to programs and services that can help battered immigrants. 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. See “Immigrant eligibility for victim compensation and victim assistance” (pp. 232- 233).