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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.

 

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.

 

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.

 

Accessing Resources: Public benefits

 

In recognition of the economic hardship that is often imposed by sexual and domestic violence, the federal government has lifted many of the restrictions on immigrant survivors’ access to public benefits.

 

The federal laws that govern public benefits specify that programs and services “necessary to protect life and safety” must be available to everyone, regardless of immigration status. Sexual and domestic violence programs are recognized as “necessary to protect life and safety,” and therefore should serve any immigrant survivor.

 

Moreover, nonprofit charitable[1] organizations have no obligation under these laws to either inquire about the immigration status of persons who seek services,[2] or report this kind of information to immigration authorities.

 

Enhance your practice

 

1. Understand whether or not an immigrant survivor you are working with is eligible for public benefits.

 

There are certain eligibility requirements and advocacy considerations that apply to immigrant survivors who seek access to public benefits available in your state and community. And while advocates should not need to double as public benefits workers, gaining knowledge on immigrant survivors’ eligibility for public benefits is important. It gives advocates a clearer understanding of immigrants’ options, so that they can advocate for the full range of benefits for which survivors may qualify. For example, understanding the technical aspects of who is a “qualified immigrant” can help connect survivors with school social workers and housing advocacy organizations whose work includes linking people with public benefits and services.

 

When working with immigrant survivors who need access to public benefits, advocates must consider these issues:[3],[4]

·      What is the survivor’s immigration status?

·      What are the survivor’s options for immigration relief?

·      Who perpetrated the violence?

·      How long has the survivor been in the US?

·      The state/community in which they reside.

·      Does the survivor have children who are eligible for benefits, even those for which the survivor does not qualify?

·      Can the survivor apply for benefits for themselves and their children without risking being reported to immigration authorities?

See “Prepare for intake” for additional practice guidance.

 

2. Accompany immigrant survivors when they apply for public benefits. As an advocate,

·      You can provide invaluable support and insight to navigating a complex system.

·      You are well-positioned to identify and intervene in instances where immigrant survivors are denied services and benefits to which they are entitled (including language access services; recognition and respect of their rights to confidentiality, privacy, and nondiscrimination, that permit full access to the application procedures; etc.), and inappropriate reports to immigration law enforcement.

·      Your institutional power permits you to do necessary individual advocacy, and also systems and policy advocacy that can help establish safety and security for all immigrant survivors of sexual and domestic violence.

 

3. Remember that federally-funded services designated as “necessary to protect life or safety” and services provided by nonprofit charitable organizations are available to all immigrants. These services can be critical to many immigrant survivors who do not qualify for certain public benefits, including those who are undocumented and those who choose to live with the aggressor.

 

4. Remember that only the federal government regulates immigration; and that state courts and immigration court are mutually exclusive.  

 

In order to qualify for benefits, applicants may need to establish that they are state residents. State residency determination is not the same as immigration status determination. For example:

·      Undocumented immigrants can establish that they are state residents for purposes of securing benefits such as emergency Medicaid or the Special Supplemental Nutrition Program for Women, Infants and Children (WIC) program.

·      But for a small group of immigrants - those who are present in the US on certain non-immigrant visas (visitors, students, or other temporary visas), who are required to maintain residence abroad – it is important to ensure that declaring state residency will not affect their current immigration status, their ability to adjust their immigration status, or their ability to re-enter the US temporarily sometime in the future. Any survivor who has questions about whether declaring state residency could affect their immigration status on one of these types of visas should consult with an immigration attorney.

In all cases, however, state benefit agencies are not in a position to advise applicants about their immigration situation.

 

5. Ensure that immigrant survivors are aware that if their life circumstances change – their immigration status changes or they have a child, for example – their abilities to access benefits may also change. Therefore, it remains critical that advocates assure immigrant survivors that sexual and domestic violence program services are always available, now and in the future, regardless of whether or not another incident of abuse occurs.

 

This section of the Toolkit provides information, resources, and practice guidance on the following subjects to help you navigate public benefits systems and assist immigrant survivors to utilize them:

·      Immigrant-specific eligibility requirements for public benefits

·      Verification and reporting process benefits workers must use to determine eligibility

·      The different classes of public benefits, which include:

o   federal means-tested public benefits;

o   federal public benefits;

o   state public benefits;

o   services necessary to protect life and safety; and

·      Services provided by nonprofit organizations that receive federal funds



[1] 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, 62 Federal Register 61,334 (November 17, 1997), Section D, for definitions of “nonprofit” and “charitable.”

[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] 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.

Accessing Resources: Connecting survivors to community-based resources and support

 

Every survivor brings great strengths, skills and creativity to meeting their everyday needs, even if those strengths and skills are not all obvious at the time that advocates first come in contact with survivors. When advocates try to get a picture of survivors’ networks, key resources, and opportunities to seek or receive additional support, they can help acknowledge and build upon survivors’ strengths and resilience.

 

For many immigrant survivors, community-based supports can be more helpful than systems-based supports for domestic violence. And many immigrant survivors may not qualify for public benefits and traditional “safety-net” types of resources, so thoroughly exploring informal networks and resources is key to being able to create reasonable and helpful goals and plans.

 

Connect survivors to community-based resources: Practice basics

 

The following steps can serve as a guide:

·      Support the participant to identify a few reasonable, practical goals that will be the focus of your work together.Consider how tone and body language can influence this type of conversation with a survivor who may be in crisis, experiencing the effects of trauma, or worried about retaining shelter or other services. These kinds of conversations, if not done sensitively, can feel like orders and/or judgment. For example, a survivor might identify “safety” as a goal. Ask the survivor what “safety” means, in order to (1) understand the things, relationships, actions, etc. that will enhance survivor safety, and (2) help identify current and additional resources that will be useful. Remember to let the survivor know why you are asking these questions, and try to engage the survivor in a conversation – give feedback, offer ideas, etc. – rather than an interview. Some questions you might ask could include, “How will you know that you are safer?” or “What does “safety” look or feel like to you?”

·      Explore existing resources or supports that the survivor already uses to enhance safety.Be creative in asking questions that help the survivor identify people, things, knowledge, etc. that are just part of a daily routine or have become habits. For example, a survivor’s mother and neighbor know that domestic violence is an issue in the family and the children know to call 911 for help.

·      Identify new resources or new ways to use familiar resources that help the survivor move toward their established goals.Advocates’ knowledge of additional resources, survivor rights, and legal remedies will be helpful, of course, but it is also important for advocates to explore how existing resources and opportunities may be more fully utilized. For example, the program could provide a survivor with a 911 cell phone, the survivor can store a copy of essential documents and cash in case of emergency with their mother, and the survivor can join a community group to meet neighbors at the new apartment.

 

 

The Goals, Strengths, and Resources Map  can be used as a guide to conversations with immigrant survivors about their strengths and resources, what they would like to accomplish while they participate in your program, and what additional resources or strategies would be helpful in reaching their goals. Using the examples above –

 

Sample Goals, Strengths, and Resources Map

 

Survivor Goals Existing Supports/Resources

New or Enhanced

Supports or Resources

Impact or Outcomes*

 
What do you want to accomplish or change while we are working together? Who do you call for help on this now? Who has helped you in the past? What resources or supports do you already use for this issue? What would help you get closer to this goal? What is different today than when we started working together on this goal?
1: Safety
  • Mom
  • Neighbor
  • Kids know 911
  • Order of Protection
  • Safety plan for mom and kids
  • Join community group to meet new neighbors
  • Kids have supervised visitation with their dad
Has 911 cell phone and updated safety plan
2: Housing Good rental history
  • Submit 3 rental applications
  • Apply for public benefits

New apartment with friend who shares rent payments

Public benefits for kids ($300/month)

3: Health
  • Exercise regularly
  • Doctor knows about domesti violence
  • Meet with faith leader for counseling
  • Kids in afternoon playgroup
  • Document injuries
Connection with church
4: Job/Employment
  • Makes and sells tamales
  • Brothers owns a restaurant
  • Good relationship with past manager

 

Developed business cards for tamales

 

* This column can be used for assessing or documenting progress toward a specific goal; or for recording impact and outcomes for advocates who want to use this tool for those purposes as well.

 

Connect survivors to community-based resources: Enhance your practice

 

With the survivor, think broadly about the resources available throughout the community, especially those that are not usually designated to address violence and abuse, and whether they are useful and accessible to the survivor. For example:

·      Immigrant communities’ stores, markets, and places of worship can be very helpful resources for survivors. Often these locations will post rooms for rent, employment opportunities, or resources that are culturally or linguistically appropriate. If the survivor frequents any specific store, agency or organization, there may be additional supports available there.

·      Some organizations and community resources are open to everyone. Food banks, for example often have fewer restrictions on who they can serve, and many of them are connected to other resources as well.

·      Families with school-age children often can access additional resources through a school social worker.

 

Some traditional resources might not be accessible or safe for immigrant survivors. Follow the survivor’s lead in order to assess if these resources require additional safety planning, or if alternatives will need to be developed. Some scenarios might include:

·      Some survivors will not want to seek support from culturally-specific resources because of a small or tightly-knit community.

·      Legal resources or law enforcement are not ideal options for survivors from families with mixed immigration status or whose partners have unresolved immigration status.

 

Economic security can be especially challenging for immigrant survivors, for reasons ranging from limited English proficiency to licensure (e.g., nursing) in country of origin that is not recognized in the US. Again, with the survivor, think broadly about the survivor’s skills, experience, and options, for example:

·      Many immigrant families utilize creative income-patching strategies to bring additional resources into the household. Ask survivors if they have any skills or talents that they could use to earn extra money (cooking, caring for children, cleaning, home/car repair, teaching/tutoring, cutting hair, sewing, etc.) Sometimes, these talents can turn into a career path. Be mindful, however, that US immigration law requires that immigrants receive permission to work (work authorization).

·      Think about whether there are opportunities for sharing or trading resources. For example, ask survivors if there is someone they could share an apartment with, or if there is someone else with children who can trade child care to enable the survivor to work, run errands, or apply for jobs or housing.

 

It is vitally important also that we expand our thinking beyond the bare necessities. Survivors deserve more than the bare minimum, and advocates can often elevate survivor resilience by connecting them with resources that build happiness, reduce stress, increase creativity and build social bonds.

 

Help with Legal Cases: Aggressor raises the survivor’s immigration status in family court

 

Many immigrant survivors fear aggressors using the survivors’ immigration status against them in family court and, as a consequence, causing survivors to lose or be separated from their children. These are well-founded fears, as aggressors often use child custody cases as a platform through which to maintain control over survivors and shift the focus away from their own violent acts.[1]

 

However, immigrant survivors are often undocumented for reasons directly related to the abuse, because aggressors refuse to file immigration papers for survivors or cause revocation of the survivors’ immigration status. For example,

  • The survivor is eligible for a spouse visa based on their marriage to a US citizen or to someone who holds a work visa, but the aggressor-spouse files for a more restrictive tourist or fiancé(e) visa for the survivor, instead.
  • The survivor is married to a US citizen or lawful permanent resident aggressor, who has filed a family-based petition in order for the survivor to enter the US. The aggressor then refuses to file the paperwork necessary to change the survivor’s status to that of a legal permanent resident.[2] In this situation, the aggressor uses their control over the survivor’s immigration status to revoke both the survivor’s legal immigration status and the authorization to work legally in the U.S.

 

A survivor’s immigration status should not be considered relevant in custody, orders of protection, divorce, legal separation, child support, visitation, domestic violence, child abuse, or other family law proceedings. If it were rendered relevant in these processes, immigrant survivors with less documentation would not seek protection for themselves or their children for fear of deportation and/or separation from their children, and aggressors would not be prosecuted for their uses of violence. However, aggressors frequently use their control of survivors’ immigration status as a tactic of abuse; and use threats of deportation to keep survivors from calling the police, seeking an order of protection, or talking to anyone about the abuse.

 

Immigrant survivor in family court: Enhance your practice

 

In court, the attorney and/or advocate should seek to establish that sexual and domestic violence has clear relevance to family court proceedings, and court outcomes can enhance safety and security of survivors and their child(ren).

 

The attorney and/or advocate should be very vigilant about monitoring aggressor attempts to reference survivors’ immigration status in family court, or anywhere outside the context of immigration court. These references signal ongoing abuse and attempts to deflect attention from the aggressor’s own behavior.

 

1.     Educate the court about the dynamics of immigration-related power and control, and the specific risks to immigrant survivors’ safety and security.

 

2.     When aggressors try to use a survivor’s lack of legal immigration status in family court proceedings, immediate and longer-term attorney and/or advocate responses should include:

  • Objection as to relevance. Consider having an immigration expert explain this to the court.
  • When children are involved, the survivor’s immigration status is irrelevant to decisions in the best interests of the child(ren).[3] The Uniform Marriage and Divorce Act states a child’s “best interest” includes:

o   The wishes of the child’s parent(s) as to the child’s custody

o   The wishes of the child as to their custodian

o   The interaction and interrelationship of the child with their parent(s), sibling(s), and any other person who may significantly affect the child’s best interest

o   The child’s adjustment to home, school, and community

o   The mental and physical health of all individuals concerned.

Most states also require that courts consider domestic violence when determining the best interest of a child. The American Bar Association has taken the position that any history of domestic violence must be considered a primary factor in the best interest standard.

  • Determine the survivor’s eligibility for immigration relief.

 

3.     When aggressors try to argue that survivors without legal immigration status are a “flight risk,” advocates and/or attorneys should urge the court to require proof that flight is imminent and seek evidence regarding:

  • The survivor’s connections to the US
  • The survivor’s plans to leave
  • Whether the survivor has acquired the means to carry out a plan to leave, such as by purchasing airline tickets

Advocates should assist survivors to gather and present evidence to the court that demonstrates little or no risk of flight.

 

4.     When aggressors try to argue that the survivor is at imminent risk of removal (deportation), advocates and/or attorneys should:

  • Respond that lack of legal immigration status does not mean deportation is imminent. Consider having an immigration expert explain this to the court.
  • Seek expert testimony on the likelihood of removal in the survivor’s case.
  • Educate the court that many immigrant survivors of domestic violence have options for immigration relief (VAWA or U-visa), based specifically on their victimization.

 

Advocates and attorneys should collaborate on judicial education (pre-court) and briefing (in trial court) strategies that best represent the interests of immigrant survivors and their children. Develop a strong “court packet” (resource materials that can be used as evidence, for briefings, and for training) that includes information on sexual/domestic violence against immigrants and VAWA-specific and U-visa immigration relief.[4] In addition to informing the court about the issues and laws, consider educating the court about how these laws enhance justice, safety, and security for survivors. For example:

  • One of the purposes of VAWA was to correct immigration laws that reinforced abuse of immigrant victims by placing their ability to gain permanent legal immigration status under the complete control of the aggressor. VAWA-specific immigration relief alleviates this problem by giving immigrant survivors some measure of control over their own and their children’s immigration status.
  • Similarly, under VAWA Confidentiality, immigration enforcement against the survivor cannot be based solely on information from the aggressor, including that which the aggressor is attempting to introduce in family court.

 

 

 



[1]Orloff, L., Noche, J., Olavarria, C., Martinez-McIntosh, L., Rose, J. & Baran, A. (2013). Countering abusers’ attempts to raise immigration status of the victim in custody cases. 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]“Adjustment of status” is the process by which an individual’s immigration status is changed from nonimmigrant (i.e., someone who is present in the US on a time-limited visa) to lawful permanent status. For individuals who entered the US on a family-based visa (filed by a US citizen or lawful permanent resident spouse or parent), the instructions for adjustment of status require that the applicant provide proof of the US citizen or lawful permanent resident spouse’s or parent’s own immigration status and proof of the qualifying relationship (spouse or parent).

[3]See also “Countering allegations that immigrant victims are likely to flee the jurisdiction with the children if granted custody” (pages 357-360) in Breaking Barriers: A Complete Guide to Legal Rights and Resources for Battered Immigrants.

[4]See, for example, “Immigration status and family court jurisdiction” (pages 451-466) in Breaking Barriers: A Complete Guide to Legal Rights and Resources for Battered Immigrantsfor an overview of statutory and case law that supports access to family court for immigrant survivors.