Government Benefits

for Non-Citizens

February 2010

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

BENEFITS

a. cash and food: TANF – families

(i) FSS (Family Stabilization Services)

(ii) DWP (Diversionary Work)

(iii) MFIP (MN Family Investment Prog.)

(iv) WB (Work Participation Cash Benes.)

b. cash: adults GA (General Assistance)

c. emergencies EA (Emergency Assistance).

d. non-need-based: UI (Unemployment Insurance)

e. food MFAP (MN Food Assistance Prog.)

f. health care

(i) MA (Medical Assistance)

(ii) GAMC (General Assistance

Medical Care)

(iii) EMA (Emergency MA)

(iv) MinnesotaCare

9. other benefits

10. considerations for mixed-status

households

11. scenarios

1. Welfare reform

enacted August 22, 1996

replaced AFDC (family cash program) with “TANF” block grants to states

imposed lifetime limits on, and work requirements for, family cash assistance

eliminated SSI & food stamp eligibility for many non-citizens

required certain agencies to file reports with Immigration

Post-1996 federal law changes (all good!)

BALANCED BUDGET ACT OF 1997

added 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 ACT

restored food stamp eligibility to certain groups of legal immigrants.

FARM BILL OF 2002

significantly broadened eligibility for food stamps for non-citizens beginning 2003.

SSI EXTENSION FOR ELDERLY AND DISABLED REFUGEES ACT OF 2008

allowed certain humanitarian immigrants an additional 2-3 years of SSI.

2. Definitions

Definitions used to determine eligibility for

FEDERAL benefits.

“QUALIFIED” NON-CITIZENS

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

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

have been granted asylum

have been granted parol

are conditional entrants (granted before 4/1/80)

are “battered immigrants”

have had deportation withheld or removal cancelled

Have been granted a T-Visa

“UNQUALIFIED” NON-CITIZENS

have no documentation

have expired documentation

have applied for suspension of deportation or cancellation of removal

have applications pending for adjustment or asylum

are lawful temporary residents under an amnesty program

are 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 onDecember 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

Status

legal immigrant children under 18 (for

food stamps 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 their 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. (Immigrant can get food and cash, but probably not medical, benefits).

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

Government 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).

Government 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, EA

food programs: food stamps for adults and

for U.S. citizen children; MFAP

health care programs: MA, GAMC,

MinnesotaCare

Deeming does NOT apply to:

o EMA (Emergency Medical Assistance)

o Food stamps for legal immigrant children

Note about deeming and

pregnant women:

Pregnant women otherwise subject to deeming CAN qualify for Emergency Medical Assistance (EMA) for labor and delivery.

Pregnant women otherwise subject to deeming CANNOT get EMA (or state-funded MA) for prenatal or post-partum care.

Beginning 7/1/10, however, pregnant women and children will NOT be subject to sponsor-deeming for MA purposes.

4. “SAVE”Systematic Alien Verification for

Entitlements

o Inter-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 Security

public 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

MDHS issued clarifying bulletins in 1999 and 2002

narrowly interpreting federal reporting requirements.

Bulletins have been codified in state policy manuals.

Agencies must:

report to MDHS rather than to Immigration

not verify status if not relevant to benefit being sought

stop inquiring about status when applicants are unwilling/unable to verify

interpret “knowledge” very narrowly

comply 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, GA

long-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;

AND

meet 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 immigrantsImmigrants arriving after August 22, 1996

Those granted refugee, asylee, or withholdingstatus 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.

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”).

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.

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; OR

are 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 classes

o being on waiting list for such classes

o having application for citizenship on file

o being in process of applying for a waiver of certain test requirements

o 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, GAMC,

MinnesotaCare, state-funded MFIP or MA):

Lawful Temporary Residents

those with Temporary Protected Status (TPS)

applicants for asylum who have employment

authorization

spouses 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 benefits, either.

• U Visa recipients should argue they qualify

for state-funded 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) WB – Work Participation Cash Benefits

MFIP, DWP, FSS & WB 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 WB.

Non-citizen eligibility for

FSS, DWP, MFIP & WB

Most legal non-citizens permanently in the U.S. are eligible for FSS, DWP, MFIP or WB 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 WB. (Eligibility depends on date of arrival in U.S. and immigration category).

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 work plans & ESL

Most 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 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: EA

Emergency Assistance (EA) is a program designed to

prevent destitution by providing cash grants to

resolve crises.

Legal, permanent residents are eligible for EA to

the same extent (and subject to the same

limitations) as U.S. citizens.

EGA and EMSA have been unallotted; grants

under these programs ended 11/1/09.

Sponsor-deeming may preclude eligibility for EA.

d. non-need-based cash:

Unemployment

Unemployment Insurance – “UI”

UI benefits can be paid if the worker was:

• lawfully admitted for permanent residence at the timeof 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 counttoward earnings requirements.

UI benefits are not need-based and therefore are not subject to sponsor-deeming.

e. 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.

f. 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 by:

• being pregnant;

• having minor children/ living in MFIP household

• being under 21;

• being 65 or older; OR

• being certified disabled by State or SSA.

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 is state-funded health care program for those

not categorically eligible for MA who receive GA,

have applied for SSI/SSDI, or are homeless

(until April 1, 2010 – the Governor used a

line-item veto on funding for the program)

• Low-income non-citizens who are lawfully residing in

the U.S. on a permanent basis who do not have

categorical eligibility for MA may qualify for GAMC.

• Sponsor-deeming may preclude eligibility.

• Recipients must take “steps” toward citizenship.

(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, or under 21).

Since the Emergency GAMC (EGAMC) program

was eliminated by the State legislature 7/1/03,

EMA is the only remaining emergency medical

program in Minnesota.

Those not categorically eligible for MA between

ages 22 and 64 have no safety net medical

coverage.

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 conditions

The future is uncertain concerning EMA coverage for chronic medical conditions.

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

o However, a few years ago a federal court in New York ordered health officials to stop allowing EMAcoverage for chemotherapy.

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

EMA and medical coverage

for pregnant womenPregnant women qualify without regard to immigration

status for:

labor & delivery (now paid for by state-funded MArather EMA, effective 7/1/09); AND

pre- & post-natal care for 60 days after birth (paid for by state-funded MA).

Note: Lawful, permanent sponsored immigrants who are low-income will qualify for EMA for labor anddelivery but are not eligible for MA for pre- & post-natal care until 7/1/10.

(iv) MinnesotaCare

MinnesotaCare is a need-based program with higher

income allowances than MA and GAMC.

MinnesotaCare is available to those ineligible for MA

and GAMC 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 & Ling

• 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).

• 10 mos. ago Ling married widower Max, a U.S. citizen

with 6 minor kids, who’s been on MFIP a few years.

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

• 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 $.

• County says Max & his 7 kids (but not Ling or Hua) are

eligible for MA & no one else is eligible for anything

(except Hua, who can get food stamps).

A. Max & Ling quiz

The 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. aftersponsorship. 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: Xiong

• Xiong, 52, came to U.S. as refugee from Laos almost 8 yrs. ago.

• 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.

• 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.

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

• 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: Liliana

• Liliana, 49, came to U.S. from Guatemala in 1970s.

She has no legal status.

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

• Liliana lost her job because she broke her leg badly in

a car accident. She had a cast put on in the ER.

• Liliana got a bill from her ER visit & almost fell & broke

the other leg when she read the amount!

• Liliana would like aid to pay her ER bill. She knows

that MA can be retroactive for up to 3 mos.

• 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

• U.S. citizen Lori’s husband is Aniceto, whose student

visa has expired. Aniceto would like to become LPR.

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

• Lori wants to apply for MFIP, MA & food stamps for

herself & the kids.

• 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 quiz

If Lori applies:

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

2. Lori has nothing to fear on either account. She is a worry-wart.

3. Lori will not be eligible for benefits because Anicetohas no legal status.

4. Lori should apply only for MA & food stampsbecause 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

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

• Sasha recently separated from her U.S. citizen

husband because he was physically abusive. She filed

a VAWA (Violence Against Women Act) petition.

• Sasha just got a notice from Immigration that she has

made a prima facie case for relief under VAWA.

• 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, GAMC, and food stampsbecause 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 (GAMC or MinnesotaCare) and may be eligible for GA, but is not eligible for food benefits.