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Help with Legal Cases

 

Advocates are extraordinarily knowledgeable about the various civil and criminal court systems many survivors must navigate. Many immigrant survivors, however, must also navigate immigration court, and it is often the case that the more tenuous their immigration status might be, the more involved they must be with the immigration system. This section of the Toolkit includes:

  • Information and practice guidance regarding the more common forms of immigration relief available to immigrant survivors of sexual and domestic violence:

o   VAWA self-petition

o   U-visa

o   Family-based petitions

o   Employment-based visas

o   Asylum

o   Deferred Action for Childhood Arrival program

  • Analysis and practice guidance regarding aggressors’ efforts to raise the survivors’ immigration status in family court, in order to influence the proceedings and deflect attention from their own violence and abuse.
  • An overview of the immigration-specific concepts of work authorization and prosecutorial discretion, particularly as they apply to survivors.

Accessing Resources

 

Advocates are extraordinarily adept when it comes to accessing community and public benefits available to survivors. Many immigrant survivors, however, have restricted access to federal and state/local public benefits, and it is often the case that the more tenuous their immigration status might be, the fewer such public benefits they can access. But there are some available to everybody, regardless of immigration status, and it is important to know what they are and be prepared to advocate for immigrant survivors’ access to them.

 

This section of the Toolkit includes:

·      Practice guidance regarding connecting immigrant survivors to community-based resources and supports

·      Analysis and practice guidance regarding the public benefits system:

o   An overview of the statutory eligibility requirements for immigrant survivors of sexual/domestic violence; and the process and limitations regarding benefits workers’ responsibilities to verify and report applicants’ immigration status-related information.

o   An overview of the federal benefits system, which includes:

§  Federal means-tested public benefits

§  Federal public benefits

§  Services “to protect life and safety” available to all persons, regardless of immigration status

o   An overview of key differences between the federal and state/local benefit systems

o   A review of nonprofit charitable organizations’ abilities (obligations, if they receive federal funding) to provide services to all persons, regardless of immigration status

Prepare for Intake: Practice Guidance

When conducting an intake with a survivor,

it’s generally a good idea to start by introducing yourself, your role, any limits on your ability to maintain confidentiality for the survivor (e.g. your mandatory reporting status), and the purpose and process of the intake meeting.

For example,

“Hi, I’m Cecilia. I’m an advocate here at Casa de Esperanza. I have some questions I would like to ask you about your situation and what support you are looking for. I ask them so that I can understand how we can best help you today. If you don’t want to answer any of the questions, that is fine—you are not required to share anything you don’t want to share. Some of my questions will be about members of your family, and others will be about some details of your relationship.  Everything you tell me today will be completely confidential, which means I will not disclose it to anyone.  [If advocates are mandatory reporters—explain what this means and confirm that the survivor understands]. If you have any questions at any time, please let me know. Are you okay to get started right now?

Make a practice also of

addressing survivors’ potential immigration concerns at the start of your first conversation, regardless of whether or not you know their status.

When you begin that first conversation – intake, assessment, screening, etc. – consider telling everyone that:

  • All abused persons can seek services to help end sexual and domestic violence, regardless of their immigration status. (More broadly, it is recommended that you use this moment to clearly establish that you serve all persons, including those who are LGBTQ, who have a disability, or who have committed a crime.)
  • The support you can provide is free of charge and available now and at any time in the future, regardless of whether or not another incident of abuse occurs.</div>

Information for survivors: Enhance your practice

For survivors who express interest in immigration-specific information and services, let them know:

NOTE: Do not use survivors’ children, family, friends, or other untrained persons as interpreters, as this places survivors’ confidentiality and safety at risk and often inhibits their ability to fully describe and process their experiences and needs.

  • The abuse the survivor has experienced is illegal and because of that, they are eligible for protection under US law.
  • Survivors do not need to disclose their immigration status to access some community services, for example, food banks, Red Cross emergency funds, primary health care services at Federally Qualified Health Centers, police protection, shelter, protection orders, custody, child support, hospitals, emergency medical care, or criminal prosecution of the aggressor. Let survivors know you can help them navigate these services. You may also need to inform survivors regarding:

o   the role of these different systems, as they may have had different experiences in their countries of origin, may not have interacted with these systems in the US, and/or may have been misled by the aggressor, and intersections of these systems with immigration law enforcement.

  • You will ask questions to see if they are eligible for resources under the Violence Against Women Act and other laws that include specific supports for immigrant victims of crime (generally, sexual and domestic violence, and also workplace violence).
  • Some supports are available to immigrant survivors regardless of whether they stay with, leave, or communicate with the aggressor. For example, full-contact orders of protection may greatly enhance safety, and applications to VAWA-related immigration relief can be filed without the aggressor’s knowledge or assistance.

Like many survivors, immigrant survivors may have concerns about whether the aggressor will be arrested or incarcerated. If the aggressors are also immigrants, survivors may carry an additional fear that the aggressors will be federally detained and deported.  Given that sexual and domestic violence are crimes, deportation of immigrant aggressors is a viable risk and, to a survivor, may be a barrier to seeking services and support.[3] Validate survivors’ concerns, help evaluate options that will increase safety as they define it, and, ultimately, respect their decisions. As with all survivors, is as important to continue to offer meaningful support and help to those who choose to stay with or protect the aggressors, as it is to offer support to those who choose to leave.



[1]See page 11.

[2] See page 11.

[3]See, for example, Rodríguez, R., La Voz Juvenil de Caminar Latino, Nunan, J. & Perilla, J. (2013). Participatory action research with Latin@ youth: Exploring immigration and domestic violence. National Latin@ Network for Healthy Families and Communities, Casa de Esperanza.

 

Accessing Resources: Public Benefits

Services provided by nonprofit charitable organizations

 

All immigrant survivors, regardless of immigration status, qualify for services “necessary to protect life or safety,” as well-established under

federal legislation:[1],[2]

  • Personal Responsibility and Work Opportunity Reconciliation Act (the Welfare Reform Act)
  • Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA)
  • Violence Against Women Act (VAWA),
  • Fair Housing Act
  • McKinney Homeless Act
  • Orders of the US Attorney General
  • Guidance issued by federal agencies.

 

Crisis counseling and intervention, violence and abuse prevention, and domestic violence or other criminal activity programs are all designated as “necessary to protect life or safety.” These kinds of programs are also often provided by nonprofit charitable organizations.[3]

 

Nonprofit charitable organizations can legally provide services to all persons, regardless of immigration status.The only instance in which nonprofit charitable organizations are prohibited from providing services defined as “federal public benefits” is when an agency that must meet verification requirements (such as a state government benefits agency) has verified that the individual is not a “qualified immigrant” and presents this finding to the nonprofit charitable organization. This happens when, for example, eligibility for benefits programs is determined by a government agency, but services are provided by nonprofit charitable organizations. This does not mean the nonprofit may not serve the individual, just that the services must be paid for with other funds, such as other local, state, or federal government funds; foundation grants; or grants from religious or corporate institutions or individuals.

 

Furthermore, nonprofit charitable organizations:

  • Are explicitly exempted from immigration status verification requirements in the 1996 welfare and immigration laws, even if they receive federal, state, or local funding; and
  • May not be penalized for not verifying immigration status or for providing federal public benefits to an individual who is not a US citizen or “qualified immigrant.”[4]

 

More broadly, Title VI of the Civil Rights Act prohibits discrimination based on the actual or perceived race, color, or national origin by recipients of federal funds. This also means that individuals cannot be discriminated against based upon their primary language or English proficiency.  Federal agencies also have clarified that practices such as unnecessary inquiries regarding immigration status, which deter access to benefits for eligible individuals in mixed status households, can raise Title VI concerns.

 

Federal civil rights laws include all service providers who receive federal funds. This includes any provider:

 

Federal laws often designate funds to be distributed to nonprofit organizations for the provision of specific services. Many sexual and domestic violence programs, for example, are funded through the Family Violence Prevention and Services Act and the Violence Against Women Act. Similarly, many nonprofit legal services providers are funded through the Legal Services Corporation Act[5] and community health centers are funded through the Public Health Services Act.[6] Providers (including sexual and/or domestic violence programs) that deny services to undocumented immigrants risk violating federal civil rights laws and loss of federal funding.

 

Legal Services Corporation

 

The regulations that govern the Legal Services Corporation (LSC) state that nonprofit legal services providers that receive federal funding via the LSC cannot provide services to most non-citizens, except for:

·      brief service and consultation by telephone, intake, and referral services, all of which they can provide to anyone; and

·      emergency legal assistance, which means they should be able to assist all immigrant survivors to file for and obtain temporary civil orders of protection.

Further representation is not permitted unless the individual can provide documentation of immigration status that qualifies them for representation.

 

There are, however, some exceptions that permit LSC-funded programs to provide services to certain groups of immigrant survivors, regardless of their immigration status. These include spouses, children, or parents of children who have been battered or subject to extreme cruelty; and victims of sexual assault, trafficking, or U-visa qualifying crimes.[7],[8]

 

Access to publicly funded legal services for immigrant survivors” by the National Immigrant Women’s Advocacy Project.

 

Community health centers

 

Community health centers (formally, Federally Qualified Health Centers) fill many gaps for immigrant survivors who are not “qualified immigrants” and cannot otherwise access health care services. Community health centers are local, non-profit, federally-funded, community-owned health care centers that serve all residents regardless of insurance or immigration status, including those who are low income and from medically-underserved communities. Community health centers are tailored to the needs and priorities of their communities, and often provide services in linguistically and culturally relevant settings. These centers provide primary care and preventive services, and can include onsite dental, pharmaceutical, mental health, and substance abuse services. They may also provide case management, transportation, and help in applying for federal public benefits. The Health Resources and Services Administration of the US Department of Health and Human Services houses an online community health center locator.

 

 



[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]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.

[3] See 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), Section D, for definitions of “nonprofit” and “charitable.”

[4] Ibid.

[7] Program letter 06-2, Violence Against Women Act 2006 Amendments from Helaine M. Barnett, President, Legal Services Corporation to all LSC Program Directors (February 21, 2006).

[8] Longville, C. & Orloff, L.E. (2014). Access to publicly funded legal services for battered immigrants (available here). National Immigrant Women’s Advocacy Project, Washington College of Law at American University.

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).

Accessing Resources: Public Benefits

Federal benefits: Services “to protect life and safety”

 

The Welfare Reform Act exempts certain programs from (1) any restrictions on immigrant access and (2) from requirements to verify/report the immigration status of any persons who seek or receive program services. Programs that meet these criteria are required to provide services to all persons without regard to their immigration status:[1]

  • Offer in-kind services, which is the provision of goods or services (e.g., food, clothes, shelter, legal assistance, counseling), not cash payments
  • Provide services at the community level
  • Provide services regardless of an individual’s income or resources
  • Are necessary to protect life or safety

 

The US Attorney General, as authorized by the Welfare Reform Act, has determined that programs necessary “to protect life and safety” include, but are not limited to: 
 
  • Crisis counseling and intervention programs 
  • Services and assistance relating to child protection and adult protective services 
  • Violence and abuse prevention 
  • Services to victims of domestic violence or other criminal activity 
  • Short-term shelter or housing assistance (transitional housing for up to two years) for people who are homeless, victims of domestic violence, and runaway, abused, or abandoned children 
  • Programs to help individuals during periods of adverse weather conditions; 
  • Soup kitchens and community food banks
  • Senior nutrition programs and other nutritional programs for persons requiring special assistance 
  • Medical and public health services necessary to protect life or safety
  • Mental health, disability, or substance abuse assistance necessary to protect life and safety
  • Activities designed to protect the life and safety of workers, children, and youths or community residents 
  • Any other programs, services, or assistance necessary for the protection of life or safety
 

In addition, all persons, regardless of immigration status, may be eligible for the following:

  • Programs funded with federal dollars that are not clearly identified as “federal means-tested public benefits” or “federal public benefits” have no immigration restrictions and are fully open to all persons, regardless of immigration status. All persons may receive the program’s services and support, and no immigration questions should be asked.
  • Programs provided by nonprofit charitable organizations, including those that receive federal funds.  Non-profit organizations that receive federal funds are (1) prohibited from discriminating on the basis of national origin, (2) explicitly exempted from immigration status restrictions in the welfare and immigration laws; and (3) not required to determine, verify or otherwise require proof of immigration status under these laws.

 

Tools & Resources

 

Programs open to immigrant victims and all immigrants without regard to immigration status” by the National Immigrant Women’s Advocacy Project and the State Justice Institute.

 

“HHS-funded programs open to all immigrants” (see pages 482-488) in the manual Empowering Survivors: Legal Rights of Immigrant Victims of Sexual Assaultprovides a complete list of all programs funded by the US Department of Health and Human Services that are available to all people, regardless of immigration status.

 


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

Accessing Resources: Public Benefits

Federal benefits

 

The federal benefits available to immigrant survivors are divided into three types,[1] as described in this section of the Toolkit:

  • Federal means-tested public benefits open to “qualified immigrants” who also meet additional program requirements
  • Federal public benefits open to all “qualified immigrants”
  • Services “necessary to protect life and safety” have been exempted from the laws and regulations that govern public benefits. This means that these programs and services must be available to all persons, regardless of immigration status.

 

Other sections in this Toolkit examine:

 

Tools & Resources

 

“Family court bench card on immigrant crime victim access to public benefits and services” [note that these lists apply to ALL survivors of not only domestic violence but also of sexual violence, child abuse, elder abuse, stalking, and trafficking] (pages 293-298) in the manual Public Benefits Toolkit.

 

 



[1] As governed by these federal welfare laws: PL 104-193 [Personal Responsibility and Work Opportunity Reconciliation Act of 1996] and PL 104-208 [Illegal Immigration Reform and Immigrant Responsibility Act of 1996].

Accessing Resources: Public Benefits

Federal benefits: Federal means-tested public benefits

 

Federal laws governing benefit programs require federal agencies that administer the benefits to:  (1) develop guidance and eligibility requirements for “federal means-tested public benefits” and (2) identify which of their programs belong in that category. Although there is no statutory definition of “federal means-tested public benefits,” the US Departments of Health and Human Services (HHS), Agriculture (USDA), and Housing and Urban Development (HUD), and the Social Security Administration (SSA) use a shared one:

“…Mandatory spending programs in which the eligibility for the program’s benefit, the amount of such benefits, or both, are determined on the basis of income, resources, or financial need of the individual, household, or family unit seeking the benefit.”[1]

 

There are five federal means-tested public benefits programs:

  • Temporary Assistance for Needy Families (TANF) (HHS)
  • Medicaid (HHS)
  • Children’s Health Insurance Program (CHIP) (HHS)
  • Supplemental Nutrition Assistance Program (SNAP)[2] benefits (USDA)
  • Supplemental Security Income (SSI) (SSA)

 

 

 

 

 

 

 

HUD has concluded that none of its programs are federal means-tested public benefits.

 

Federal means-tested public benefits have the most restrictive rules for immigrant survivors. Eligibility varies depending on the program, but generally speaking, only “qualified immigrants” who meet one or more of the following additional requirements can access federal means-tested public benefits:[3]

  • First entry into US before August 22, 1996
  • Complete the “five-year” waiting period (for those who entered the US on or after August 22, 1996)
  • Exempt from or otherwise overcome “sponsor deeming” of income
  • For SSI, become a lawful permanent resident with 40 qualifying quarters of work history in the U.S. or meet one of the other special conditions for immigrants.

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

 

State options

 

There are important exceptions to these rules; for example:

  • Different states may provide:

o   Medicaid or the Children’s Health Insurance program (CHIP) without a waiting period to lawfully residing children and/or pregnant women

o   Prenatal care regardless of the pregnant person’s immigration status under a CHIP program option. 

o   State-funded medical services to some or all immigrants who are ineligible for federal coverage.

See “Medical assistance programs for immigrants in various states” and the “Guide to immigrant eligibility for federal programs [update page]” by the National Immigration Law Center.

  • The Welfare Reform Act gave states the authority toextend state-funded TANF benefits to cover “qualified immigrants” without the five-year waiting period.[4] Doing so can earn the state “maintenance of effort” credit – that is, credit toward the amount of state funds it must spend or match in order to receive the TANF federal grant.

 

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

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

 

See “State and locally funded benefits” for more information.

 

Tools & Resources

 

Overview of Immigrant Eligibility for Federal Programsby the National Immigration Law Center lists the general requirements for federal means-tested public benefits.

 

“Public benefits access for battered immigrant women and children” in Breaking Barriers: A Complete Guide to Legal Rights and Resources for Battered Immigrants[5] provides program-specific eligibility rules for federal means-tested benefits and some federal public benefits.

 

Supplemental Nutrition Assistance Program (SNAP) Pre-screening Eligibility Tool(Cupones para Alimentos: Herramienta de Preevaluación del Cumplimiento con los Requisitos) by the US Department of Agriculture’s Food & Nutrition Service

 

Special Supplemental Nutrition Program for Women, Infants and Children (WIC) screening tool(available as “Programa Especial de Nutrición Suplementaria para Mujeres, Bebés y Niños (WIC) herramienta de preselección,” click on the “Spanish/Español link) by the US Department of Agriculture’s Food & Nutrition Service.[6]

 

 



[1]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.

[2] The Food, Conservation, and Energy Act of 2008 changed the name of the federal Food Stamp Program to the Supplemental Nutrition Assistance Program (SNAP) and of the Food Stamp Act of 1977 to the Food and Nutrition Act of 2008. States retained the flexibility to name their programs but were encouraged to change the name to SNAP or another alternate name.

[3]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.

[4] 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.

[5] See pages 265-271, “Specific rules for some important federal benefit programs” (SSI, SNAP (referred to as “Food Stamps”), TANF (including the Family Violence Option), Medicaid, public housing, education, and nutrition programs).

[6] Also available on this page in Chinese, Korean, Russian, Somali, Vietnamese, Arabic, and Haitian Creole.

Accessing Resources: Public Benefits

Federal benefits

 

The federal benefits available to immigrant survivors are divided into three types,[1] as described in this section of the Toolkit:

  • Federal means-tested public benefits open to “qualified immigrants” who also meet additional program requirements
  • Federal public benefits open to all “qualified immigrants”
  • Services “necessary to protect life and safety” have been exempted from the laws and regulations that govern public benefits. This means that these programs and services must be available to all persons, regardless of immigration status.

 

Other sections in this Toolkit examine:

 

Tools & Resources

 

“Family court bench card on immigrant crime victim access to public benefits and services” [note that these lists apply to ALL survivors of not only domestic violence but also of sexual violence, child abuse, elder abuse, stalking, and trafficking] (pages 293-298) in the manual Public Benefits Toolkit.

 



[1] As governed by these federal welfare laws: PL 104-193 [Personal Responsibility and Work Opportunity Reconciliation Act of 1996] and PL 104-208 [Illegal Immigration Reform and Immigrant Responsibility Act of 1996].

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.