Government Benefitsfor Non-Citizens

February 2011

Laura Melnick

SMRLS

651-222-5863

laura.melnick@smrls.org

Government Benefits for Non-Citizens

1. Welfare reform

2. Definitions

3. Sponsor-deeming

4. “SAVE”

5. Reporting to Immigration

6. Public charge considerations

7. FEDERAL BENEFITS:

a. SSI

b. food stamps

8. STATE and FEDERAL/STATE BENEFITSa. cash and food: TANF – families

(i) FSS (Family Stabilization Services) (ii) DWP (Diversionary Work) (iii) MFIP (MN Family Investment Prog.) (iv) WBP (Work Participation Cash Benes.)

b. cash: adults GA (General Assistance) c. cash: MSA (Minnesota Supplemental Assistance)

d. emergencies: EA (Emergency Assistance), EGA (Emergency GA), EMSA (Emergency MSA).

e. non-need-based: UI (Unemployment Insurance) f. food MFAP (MN Food Assistance Prog.)

g. health care

(i) MA (Medical Assistance)(ii) GAMC (General Assistance

Medical Care)(iii) EMA (Emergency MA(iv) MinnesotaCare

9. other benefits10.considerations for mixed-status

households11. scenarios

1. Welfare reform

enacted August 22, 1996replaced AFDC (family cash program)

with “TANF” block grants to statesimposed lifetime limits on, and work

requirements for, family cash assistanceeliminated SSI & food stamp eligibility

for many non-citizensrequired certain agencies to file reports

with Immigration

Post-1996 federal law changes (all good!)

BALANCED BUDGET ACT OF 1997added groups of non-citizens eligible for SSI based on disability; extended 5-year window of benefits for refugees & asylees to 7 years.

1998 AGRICULTURAL RESEARCH ACTrestored food stamp eligibility to certain groups of legal immigrants.

FARM BILL OF 2002significantly broadened eligibility for food stamps for non-citizens beginning 2003.

SSI EXTENSION FOR ELDERLY AND DISABLED REFUGEES ACT OF 2008allowed certain humanitarian immigrants an additional 2-3 years of SSI.

2. DefinitionsDefinitions used to determine

eligibility for FEDERAL benefits.

“QUALIFIED” NON-CITIZENS

lawfully admitted for permanent residence under the Immigration & Nationality Act (INA)

“refugees,” including Haitian, Cuban, and Amerasian immigrants

granted asylum granted parol conditional entrants (granted before 4/1/80) “battered immigrants” deportation withheld or removal cancelled granted a T-Visa

“UNQUALIFIED” NON-CITIZENS

have no documentation have expired documentationhave applied for suspension of deportation

or cancellation of removalhave applications pending for adjustment or

asylumare lawful temporary residents under an

amnesty programare non-immigrants (with temporary

protected status; or student, visitor, or temporary worker visas)

“BATTERED IMMIGRANTS”Immigrants who meet definition can qualify for range

of federal and state-funded government benefits but must wait 5 years for food stamps or SSI:

o Applicant must have been battered or subjected to extreme cruelty in U.S. by U.S. citizen or LPR parent, spouse, or relative who resided in same household as victim, AND

o applicant must no longer live with abuser, AND

o applicant’s need for benefits must be “substantially

connected” to abuse, AND

applicant must either:

• be the spouse or child of a U.S. citizen AND have petitioned for adjustment of status under the Violence against Women Act (VAWA); OR

• be the spouse or child of a U.S. citizen OR LPR AND have petitioned for cancellation of removal under the Immigration and Nationality Act (INA).

3. Sponsor-deeming

attribution of income from sponsor to immigrant

can make certain immigrants COMPLETELY INELIGIBLE for almost all types of public assistance!

1996 welfare reform law required sponsor-deeming.

Deeming pursuant to 1996 law change began on December 19, 1997 with creation of “Affidavit of Support” forms (form I-864).

Deeming applies only to family-based immigrants (immigrants arriving through petition from family member).

Deeming does NOT apply to:

refugees asylees diversity visa (visa lottery) recipients immigrants with Temporary Protected Statuslegal immigrant children under 18 (for food

stamps and MA only)pregnant women (MA only)

How deeming works

• Generally, 100% of income & assets of sponsor AND sponsor’s spouse are considered fully available to immigrant. (For food stamps, deeming is a little less harsh).

• Sponsor’s family size & fixed debts are irrelevant.• Burden of proving sponsor has little income is on

immigrant applying for public assistance.• Income and assets are deemed until: immigrant

becomes U.S. citizen, works 10 years at Social Security-covered work; or dies; OR sponsor permanently leaves U.S. or dies.

• Divorce from sponsor has no effect on deeming.

• Whether deeming will affect people other than sponsored immigrant will vary depending on type of assistance program.

• For example, in TANF programs, deference is given to states to define assistance unit, affecting the reach of deeming.

• In Minnesota, where all siblings, half-siblings, and their parents must be included in same MFIP assistance unit, MFIP deeming may have a fairly broad reach: income attributed 100% to immigrant may then be attributed to immigrant’s spouse, child, etc.

Exceptions to deeming2 exceptions allow immigrants subject to deeming to get benefits without regard

to sponsors’ income and assets:

A. Indigence exception:

Sponsor-deeming will NOT apply if welfare agency determines that immigrant will go hungry or become homeless without benefit.

Govt. can provide benefits for up to 12 months, with 12-month renewal available.

Govt. can sue sponsor for benefits provided to immigrant. (Immigrant can sue sponsor, too).

B. Battered spouse/child exception

Sponsor-deeming will NOT apply for 12 months if immigrant or child has been battered or subjected to extreme cruelty by spouse or parent, or by a relative of spouse or parent residing in same household. Full range of state-funded benefits is available.

Immigrant cannot have participated in abuse of child. After 12 months, exemption will end unless battery

was perpetrated by sponsor AND has been recognized in a court order (such as an Order for Protection).

Govt. can sue sponsor for benefits provided to immigrant. (Again, immigrant can also sue).

Benefits to which deeming applies

Deeming applies to:cash programs: SSI, MSA, GA, MFIP, EAfood programs: food stamps for adults and

for U.S. citizen children; MFAPhealth care programs: MA, MinnesotaCare

Deeming does NOT apply to:

o EMA (Emergency Medical Assistance)

o MA for pregnant women and children

o Food stamps for legal immigrant children

Special 3-year deeming for MFIP

• There is a special 3-year deeming provision in state law for MFIP only.

• This deeming applies to immigrants who came through means other than a relative petition (such as a diversity visa).

• It does not apply to refugees or asylees.

• Deeming under this program takes into account the sponsor’s family size and support obligations.

4. “SAVE”Systematic Alien

Verification for Entitlements

o Inter-agency governmental information-sharing program

o Used to verify immigration status for public assistance and public housing

o NOT used for reporting immigration status (or lack thereof) to Immigration

5. Reporting to Immigrationrequirement stems from 1996 welfare reform law

WHO IS REQUIRED TO REPORT?

Only:

agencies receiving “TANF” funds (in Minnesota, that means county agencies administering MFIP family cash benefits)

Social Securitypublic housing agencies contracting with

HUD

WHAT MUST BE REPORTED?

names, addresses, and other “identifying information”

ON

anyone the worker “knows” is unlawfully in the U.S.

Reporting in Minnesota

protocols require that agencies:

report to MDHS rather than to Immigrationnot verify status if not relevant to benefit

being soughtstop inquiring about status when applicants

are unwilling/unable to verifyinterpret “knowledge” very narrowlycomply strictly with data privacy laws

6. Public charge considerations Receiving/having dependents receive certain public

benefits may affect ability to adjust to LPR status. Benefits subject to public charge considerations are:

cash benefits: MFIP, DWP, SSI, MSA, GAlong-term medical care (nursing home care)

Benefits not considered include health care, WIC, public health services, housing and energy assistance, & other non-cash & special-purpose cash benefits not intended for income maintenance.

Receipt of food stamps should not be a factor for public charge determinations.

BENEFITS!

7. Federal benefits:

a. Supplemental Security Income (SSI)

Social Security administers 2 types of disability benefits:

SSI, for low-income, low-asset individuals. Recipients must be too disabled to work or age 65 or older.

SSDI, for people too disabled to work who meet earnings requirements by having paid into system via FICA wage deductions.

To qualify for SSI, non- citizen applicants must:

be defined as “qualified” non-citizens under federal law;

ANDmeet certain residency requirements.

SSI residency issues:A. immigrants here before welfare reform

non-citizens who were Lawful Permanent Residents (LPRs) in the U.S. before August 22, 1996:

if on SSI on 8/22/96, they can keep getting SSI for as long as they remain elderly or disabled.

if not on SSI on 8/26/96, they can get SSI now if they are:

• “qualified” non-citizens AND• disabled.

They cannot get SSI based on age (over 65).

B. Immigrants arriving after welfare reform

For non-citizens who came to the U.S. after August 22, 1996, or who adjusted status to LPR after that date:

“unqualified” non-citizens cannot get SSI. Interestingly, most “qualified” non-citizens

also cannot get SSI.

There are 3 exceptions.

Exceptions to ban on SSI for newer legal immigrants

Immigrants arriving after August 22, 1996

1) Those granted refugee, asylee, or withholding status can get SSI for 7 years after grant of status.

Certain humanitarian immigrants may get additional 2-3 years of SSI after their 7 years of benefits.

2) U.S. veterans & active-duty members of U.S. armed forces, & their spouses and minor children, can get SSI without time limits.

Hmong soldiers who fought with the CIA in the Vietnam War are not considered “U.S. veterans.”

3) Non-citizens who have worked at least 40 work quarters (10 years) can get SSI without time limits.

Note about “40 work quarters” exception:

o Only work where FICA taxes have been deducted from pay counts toward the 40-quarter requirement.

o Quarters can be attributed from spouse to spouse and from parent to minor child. Minor children can carry parents’ quarters with them into adulthood.

o Any quarters worked after December 31, 1996 in which federal “need-based” benefits (AFDC, MFIP, food stamps, SSI, MA) were received by the household do not count as quarters.

Sponsor-deeming and Social Security

o Because SSI is a need-based program, sponsor-deeming may preclude eligibility.

o Because SSDI is not need-based, sponsor-deeming does not apply.

b. food stamps

Except when sponsor-deeming applies, the following non-citizens can get food stamps:

Legal non-citizens can get food stamps 5 years after getting permanent legal status.

This provision is known as the “5-year bar” on receiving federal benefits.

Other eligibility categories for food stamps:

Immigrants eligible for food stamps without having to wait 5 years:

refugees, asylees, & those granted withholding of deportation

U.S. veterans & active-duty members of U.S. armed forces (& their spouses and unmarried dependents)

elderly immigrants who were “lawfully residing” in U.S. & age 65 or older as of August 22, 1996

legal immigrants certified disabled by State or SSA legal immigrants under age 18 Hmong & Highland Laotian immigrants

8. State benefits requirement for all state funded

benefits: “steps” toward citizenship

Most recipients of state-funded assistance (including state-funded MFIP and GA) must take “steps” toward obtaining citizenship.

Immigrants don’t have to take such steps if they:

have legally resided in U.S. fewer than 4 years;are age 70 or older; ORare living in a nursing home, group home, or

similar type of facility.

“Steps” toward citizenship

Recipients of state-funded assistance required to take “steps” toward citizenship

can meet the requirements by:

o taking citizenship, literacy, or ESL classeso being on waiting list for such classeso having application for citizenship on fileo being in process of applying for a waiver of

certain test requirementso having failed citizenship test at least twice

due to inability to understand the rights and responsibilities of citizenship.

“Lawfully residing people”Certain people here on a non-permanent basis

who are not eligible for federal benefits may qualify for state-funded benefits (GA, MFAP, MinnesotaCare,state-funded MFIP or MA):

Lawful Temporary Residents those with Temporary Protected Status (TPS)applicants for asylum who have employment

authorizationspouses or children of U.S. citizens with

approved visa petition or pending application for adjustment to LPR.

Crime Victims: U Visas

• Crime victims who are recipients of “U” Visas are not eligible for federally-funded benefits.

• They are not specifically eligible for state-funded cash or food benefits, either, but they are eligible for health care.

• U Visa recipients should argue they qualify for state-funded cash and food benefits as “lawfully residing people” under state policy manual.

Victims of Trafficking: T Visas

o Victims of trafficking who have “T” visas may be eligible for both federal and state-funded benefits to the extent that refugees are eligible.

o To qualify, T visa holders must get certification from the Office of Refugee Resettlement (ORR).

a. cash & food: TANF(i) FSS – Family Support Services

(ii) DWP – Diversionary Work Program(iii) MFIP – Minnesota Family Investment Prog.(iv) WBP – Work Participation Cash Benefits

MFIP, DWP, FSS & WBP are TANF (temporary assistance for needy families) programs that have replaced AFDC.

They provide cash assistance to families with minor children. Cash grants for MFIP, DWP & FSS are very low: $437 for a household of 2, $532 for 3, $621 for 4, $697 for 5, etc.

Adults without minor children are not eligible for FSS, DWP, MFIP or WBP.

Non-citizen eligibility for FSS, DWP, MFIP & WBP

Most legal non-citizens permanently in the U.S. are eligible for FSS, DWP, MFIP or WBP if they meet the other criteria, whether “qualified” or “unqualified” under federal law.

Certain non-citizens can only get state-funded FSS, DWP, MFIP or WBP. (Eligibility depends on date of arrival in U.S. and immigration category, due to 5-year bar).

Since 1/1/08, newly arrived immigrants (here < 1 year) are exempt from DWP.

Recipients of state-funded benefits must take “steps” toward citizenship.

Sponsor-deeming may preclude eligibility.

MFIP & DWP work plans & ESLMost MFIP recipients have to work, unless exempted.

o Counties may allow non-English speakers to include ESL in their job search & work plans if spoken language proficiency level is low enough, based on standardized testing.

o MFIP recipients may fulfill only half of work participation requirements through attendance at ESL classes, unless they’re taking intensive functional work literacy.

o MFIP & DWP recipients may include ESL in their work plans for a total of only 24 months (out of 60).

b. cash: General Assistance (GA)

GA is a state-funded program for low-income, low-asset individuals not living with minor children.

GA pays only $203 per month for an individual and $260 for a married couple.

Legal immigrants residing in the U.S. permanently (or with a pending application for adjustment) may get GA if they meet other eligibility criteria.

If under 70 and here at least 4 years, they must take steps toward citizenship.

Sponsor-deeming may preclude eligibility.

c. Cash: Minnesota Supplemental Assistance (MSA)

MSA is a state supplement for recipients of SSI or people who would receive SSI but for excess income.

MSA serves to ameliorate the effects of high housing costs.

SSI recipients living in “shared households” are usually ineligible for MSA.

The average MSA supplement is $81.Non-citizen recipients must take “steps” toward

citizenship, and sponsor-deeming may preclude eligibility.

d. cash: EA, EGA, EMSA

Emergency Assistance (EA), Emergency GA (EGA) and Emergency MSA (EMSA) are programs

designed to prevent destitution by providing cash grants to resolve crises.

Legal, permanent residents are eligible for EA, EGA, and EMSA to the same extent (and subject to the same limitations) as U.S. citizens.

Sponsor-deeming may preclude eligibility, but applicants may qualify for the indigence exception.

e. non-need-based cash: Unemployment

Unemployment Insurance – “UI”UI benefits can be paid if the worker was:• lawfully admitted for permanent residence at the time

of the employment;• lawfully present for purposes of the employment;

OR• permanently residing in the U.S. under color of law at

the time of the employment.Work done before gaining legal status does not count

toward earnings requirements.UI benefits are not need-based and therefore are not

subject to sponsor-deeming.

f. Food

MFAP – Minnesota Food Assistance Program

Legal, permanent non-citizens not on MFIP who have been here fewer than 5 years (& therefore may not be eligible for food stamps) may qualify for food benefits through MFAP.

MFAP benefits are available only to those age 50 and older.

The MFAP program follows federal food stamp regulations.

MFAP recipients may be subject to sponsor-deeming.

g. health care(i) Medical Assistance (MA)

MA is available to immigrants who: are low-income and low-asset; are permanently and legally in the U.S.; AND meet the categorical requirements, meaning they are:

• pregnant;• living with minor children or in an MFIP household;• under 21; • 65 or older; • certified disabled by State or SSA; OR• (eff. 3/1/11) over 21, without kids, and living at or

below 75% FPG.

Sponsor-deeming may preclude eligibility.

MA exception for torture survivors

Those otherwise ineligible for MA can get coverage if they are receiving “care and rehabilitation” services from a non-profit center established to serve victims of torture.

Those receiving such services do NOT have to meet MA guidelines in terms of:

o categorical eligibility;

o income and asset restrictions; OR

o immigration requirements.

(ii) General Assistance Medical Care (GAMC)

GAMC will be extinct on 3/1/11. Yay!

(iii) Emergency Medical Assistance (EMA)

EMA is a basic safety net health care program.

EMA can provide health care services to “medically needy” people who are undocumented, who have lapsed documentation, or who otherwise would be ineligible due to sponsor-deeming.

EMA covers acute and chronic medical conditions.

EMA does NOT cover organ transplants or “related procedures.”

EMA is available only to those categorically eligible for MA (i.e., living in a household with minor children, pregnant, elderly, certified disabled, under 21, or [eff. 3/1/11] 21 or older and living at or below 75% FPG).

EMA is for “Emergency Medical Services”:

required after the sudden onset of a medical condition manifested by acute symptoms of such severity that

the absence of immediate medical attention reasonably could be expected to result in:

o Placement of the patient’s health in serious jeopardy;

o Serious impairment to bodily functions; OR

o Serious dysfunction of any bodily organ or part.

EMA for chronic conditionsThe future is uncertain concerning EMA

coverage for chronic medical conditions.

o So far, Minnesota has interpreted the “sudden onset” language liberally to cover chronic health conditions.

o In 2007, a federal court in New York ordered health officials to stop allowing EMA coverage for chemotherapy because it was not for an “acute” condition.

o The New York ruling may affect EMA applicants and recipients here at some point in the future.

Medical coverage for pregnant women

Pregnant women qualify without regard to immigration status for:

labor & delivery ANDpre- & post-natal care for 60 days after birth

Both are paid for with state-funded MA, and no longer with EMA.

(iv) MinnesotaCare

MinnesotaCare is a need-based program with higher income allowances than MA.

MinnesotaCare is available to those ineligible for MA due to categorical or income restrictions.

MinnesotaCare is available to those who meet income guidelines AND: are “qualified” non-citizens OR are otherwise residing lawfully in the U.S. on a

permanent basis. Sponsor-deeming may preclude eligibility.

9. Other benefits

Some benefits are available without regard to immigration status, including:

• WIC (Women, Infants & Children) benefits• school breakfast & lunch benefits• benefits through Head Start• K-12 free public education• public health immunizations & testing• soup kitchens, short-term shelter, etc.• child care assistance for U.S. citizen children

10. Considerations for mixed-status households

To avoid getting reported to Immigration, those without proper documentation should be advised to:

Tell agency they are not eligible for benefits for themselves due to immigration status.

Tell agency they are applying only for eligible household member.

Not provide details about their status to agency. Not provide Social Security number (unless

necessary for income verification). Verify earned income, from whatever source. Verify pregnancy if seeking health coverage.

SCENARIOS

A. sponsor-deeming: Max & Lingo Ling came to U.S. from China with daughter Hua (now 8) 6

yrs. ago. Ling was sponsored by her wealthy mom & stepdad in CA (with whom she’s no longer in contact).

o 10 mos. ago Ling married widower Max, a U.S. citizen with 6 minor kids, who’s been on MFIP a few years.

o Max & Ling had a baby boy, Cong, 5 mos. ago.

o County just notified Max that he & entire blended family are no longer eligible for MFIP & have not been eligible since the marriage. County says Max owes $.

o County says Max & all the kids (but not Ling) are eligible for MA & no one else is eligible for anything (except Hua, who can get food stamps).

A. Max & Ling quizThe County:

1. is wrong re Max, because he is U.S. citizen & sponsor income can’t be attributed to him.

2. is wrong re Cong, since he was born in U.S. after sponsorship. Ling’s mother can’t be held financially responsible for after-born children.

3. is wrong re Max’s 6 older kids, since County can’t deem income from Ling to U.S. citizen kids to whom she’s not biologically related.

4. is wrong re Hua’s eligibility for food stamps – she’s not even a citizen.

5. is right, darn it!

B. SSI: Xiongo Xiong, 52, came to U.S. as refugee from Laos almost 8 yrs. ago.

o She doesn’t speak English. She suffered trauma in her youth & can’t work. Xiong started getting SSI (& state supplemental MSA) because of her Post-Traumatic Stress disorder (PTSD) a couple yrs. ago.

o Xiong’s SSI & MSA ended less than a year ago because of 7-year rule. She has been living on $203 per mo. in GA benefits & lost her apartment.

o Xiong is quite isolated. County is making her take ESL classes for GA purposes, but she has not taken steps to naturalize.

o Xiong heard she might qualify for additional SSI benefits based on the 2008 law change.

B. Xiong quiz

Xiong:

1. should ask SSA to reinstate her SSI benefits based on 2008 law change.

2. should file new application for SSI.

3. should move to Iowa, as she’ll automatically get SSI in that state.

4. is not eligible for extended SSI. She should apply for subsidized housing, start taking citizenship classes, and file an application for citizenship.

C. health care: Lilianao Liliana, 49, came to U.S. from Guatemala in 1970s. She has no

legal status.

o Liliana’s youngest child just turned 18 & quit school.

o Liliana lost her job because she broke her leg badly in a car accident. She had a cast put on in the ER.

o Liliana got a bill from her ER visit & almost fell & broke the other leg when she read the amount!

o Liliana would like aid to pay her ER bill. She knows that MA can be retroactive for up to 3 mos.

o Liliana also needs ongoing health coverage. Doctors say that due to severity of fracture, she will need physical therapy & must be off work at least 6 mos.

C. Liliana quiz

Liliana:

1. is eligible for Emergency MA (EMA) because the absence of ongoing medical attention to her leg could result in serious dysfunction of that bodily part.

2. is eligible for regular MA because she will be laid up and unable to work for at least half a year.

3. is not eligible for any health care coverage.

D. Reporting & public charge: Lori & Aniceto

o U.S. citizen Lori’s husband is Aniceto, whose student visa has expired. Aniceto would like to become LPR.

o Lori & Aniceto have 2 minor children born in U.S.

o Lori wants to apply for MFIP, MA & food stamps for herself & the kids.

o Lori worries that 1) County will report Aniceto’s lapsed status to Immigration AND 2) getting benefits will endanger Aniceto’s chances of adjusting to LPR status.

D. Lori & Aniceto quizIf Lori applies:

1. She should worry. County will have to report Aniceto to Immigration & he could face deportation (removal).

2. She is being a worry-wart and has nothing to fear.

3. She will not be eligible for benefits because Aniceto has no legal status.

4. She hould apply only for MA & food stamps because getting MFIP for herself & kids could jeopardize Aniceto’s ability to adjust his status.

5. Aniceto will be forced to wear scarlet “A” (for “Alien,” although due to embarrassment he will tell everyone it stands for “Aniceto”).

E. Battered immigrants: Sasha

o Sasha, age 36, is here without immigration papers.

o Sasha recently separated from her U.S. citizen husband because he was physically abusive. She filed a VAWA (Violence Against Women Act) petition.

o Sasha just got a notice from Immigration that she has made a prima facie case for relief under VAWA.

o Sasha has no money or food & is thinking about applying for public assistance.

E. Sasha quiz

Sasha:

1. is not eligible for any public assistance because she is undocumented.

2. is eligible for GA, health care, and food stamps because she is a battered immigrant.

3. will not be eligible for any benefits until she gets final approval of her VAWA petition.

4. is eligible for health care and may be eligible for GA, but is not eligible for food benefits.