Selected Issues on Citizenship and Immigration Law:
Immigrant Eligibility for
Public Benefits
Thursday March 17, 2011
10:00 a.m. – 11:30 a.m. EST
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Patricia Wonder
Instructor,
CUNY School of Professional Studies
Partner, Johnson Wonder PLLC
Our Panel of Presenters
Barbara Weiner,
Susan Welber,
Empire Justice Center
Legal Aid Society's
Law Reform Unit
Senior Attorney,
Staff Attorney,
www.cuny.edu/citizenshipnow
www.sps.cuny.edu
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Immigration Status and Eligibility
for Public Benefits
Background: Welfare Reform – August 22, 1996
Barbara Weiner
•
Personal Responsibility and Work
Opportunity Reconciliation Act
enacted by Congress.
•
Restricted access to federal public
benefit programs to only certain
categories of legal immigrants.
•
Made it harder for poor immigrants
by limiting access to means-tested
federal benefits even more than for
other benefits.
•
Gave the states the power to limit
eligibility for state benefit programs.
Major federally-funded government benefits
Susan Welber
• Supplemental Security Income (“SSI”)
• Supplemental Nutrition Assistance
(“SNAP” or “Food Stamps”)
• Energy Assistance and Child Care Subsidy
Programs
• Housing Assistance
Supplemental Security Income (SSI)
Susan Welber
• Federally funded (NY state supplement)
• Administered by Social Security
Administration (SSA)
• Monthly cash assistance to elderly (65 and
over), blind and disabled with little or no
income (needs based)
• Disabled – severe impairment or combination
of impairments – unable to work
Supplemental Nutrition Assistance
(SNAP or Food Stamps)
Susan Welber
• Federally funded and under jurisdiction of
USDA
• Administered by the local social services
districts
• Supervised by the state’s Office of
Temporary and Disability Assistance (OTDA)
• Monthly grant for purchase of food
• Financial eligibility: households with gross
income at 130% of federal poverty level
(200% if elderly or disabled or if household
has daycare expenses)
Energy Assistance and
Childcare Subsidy Programs (Federal)
Susan Welber
• Home Energy Assistance Program (HEAP)
– federally funded and
– administered by local social services district
• Childcare subsidies
– federally funded
– Administered by local districts (ACS in NYC)
– Under supervision of NYS Office of Family and
Children’s Services
Mixed federal, state and locally-funded benefits
Susan Welber
• Both the TANF and Medicaid programs are
funded by federal and state governments.
• In some states, for example New York,
local government also shares in the costs of
these two programs.
• Although the state shares in the cost of the
programs, they must be administered in
accordance with federal law, including
immigrant eligibility rules
Temporary Assistance to Needy Families
(TANF)-(in NY, “Family Assistance”)
Susan Welber
• Funded by federal, state and local government
and comes under HHS jurisdiction
• Administered by local social services district
under supervision of OTDA
• Provides monthly cash assistance
• Lifetime limit of 60 months
• Household income cannot exceed FPL
Medical Assistance (2 funding streams:
Federal/State/Local and State/Local)
Susan Welber
• Federal and/or state and locally funded
• Federally funded program is under the
jurisdiction of HHS but is operated by
state
• Medical assistance includes Medicaid,
Family Health Plus, Child Health Plus
• Programs administered by local social
services district
State-funded benefits :
New York State as an Example
Susan Welber
• States have often stepped in to provide
assistance to groups that the federal
government has historically not covered,
namely single, non-disabled adults and
childless couples.
• New York is one of these states and provides
both cash assistance and medical assistance
to these two groups as well as, after welfare
reform, to lawfully residing immigrants that
Congress excluded and to families that have
reached their five year limit.
State-funded benefits :
New York State as an Example
Susan Welber
• New York’s provision of assistance is
required by a provision in its State
Constitution, adopted during the Depression,
which directs the State to provide “aid and
care” to the “needy.”
• New York’s two benefit programs for the
poor are called “Safety Net Assistance”
(“SNA”) and State-funded Medicaid.
Safety Net Assistance (SNA) for Those Ineligible
for Family Assistance (FA)
Susan Welber
• State and county/NYC funded
• Administered by local social services
districts under the supervision of OTDA
• Monthly income assistance to single and
childless adults, to families who have
reached 5 year federal limit for Family
Assistance and to lawfully residing
immigrants barred by federal rules from
access to the FA program
Immigrant Eligibility for Federal, State and
Locally Funded Programs
For Federal Benefits, Immigrants Must Have
“Qualified Alien” Status
Barbara Weiner
• Humanitarian based immigrants:
–
–
–
–
–
Refugees, asylees
Granted withholding of deportation/removal
Amerasians
Cuban/Haitian Entrants
Victims of Trafficking
• Lawful Permanent Residents (LPR)
• Granted parole for a period of at least one
year
• Battered spouse and children of USC/LPR
(8 U.S.C. §§ 1611, 1641)
Immigrants Must Provide Verification of Status
Barbara Weiner
• Lawful Permanent Resident (LPR): green
card or temporary stamp in passport
• Humanitarian Immigrants: refugee
documents, court order granting asylum,
employment authorization cards or green
cards with certain codes
• Visa or I-94 Arrival/Departure Record
• USCIS I-797 Notice of Action
For “Means Tested” Federal Benefits, Additional
Restrictions Apply
Barbara Weiner
• Five year bar for most immigrants, other
than humanitarian based immigrants,
arriving after 8/22/1996 (8 U.S.C.§1613)
• For immigrants who are sponsored by family:
– Sponsor income “deeming” to determine
financial eligibility for benefits.
– Sponsor liability until sponsored immigrant:
• Becomes a citizen or
• Alone or in combination a spouse can be
credited with a 10 year work history
Federal Means Tested Benefits
Barbara Weiner
• Supplemental Security Income (SSI)
• Supplemental Nutrition Assistance Program
(SNAP/Food Stamps)
• Temporary Assistance to Needy Families
(TANF)
• Federal Medicaid, SCHIP
8 U.S.C. § 1612
Poll Question
Which of the following is a
"Qualified Alien" status
Immigrant Eligibility Rules in Federal
Means Tested Programs
Immigrants Eligible for SSI
Susan Welber
• Lawfully residing immigrants who were
receiving SSI on 8/22/1996;
• Disabled immigrants with a qualified alien
status who were lawfully residing in the
U.S. on 8/22/1996;
• Humanitarian based immigrants arriving
after 8/22/1996, but only for a time limited
period after entry;
• LPRs who can be credited with 40 work
quarters and have been in a qualified alien
status for 5 years; and
• Cross border Native Americans and armed
service connected immigrants.
Immigrants Eligible for SNAP/FS
Susan Welber
Similar to SSI but more expansive in that:
• There is no time limit for humanitarian based
immigrants;
• There is no 5 year bar for
– LPRs with 40 work quarters
– Children with a qualified alien status who
are under the age of 18 (and no deeming
of sponsor income)
– Immigrants who are receiving a disability
based benefit
• Hmong/Highland Laotians are also eligible.
(8 U.S.C. § 1612)
Eligibility for FA and Medicaid
Susan Welber
• State and local districts share in funding but
federal rules apply
• Must be immigrant with “qualified alien”
status
• No five year bar if humanitarian immigrant,
40 QQ LPR or resided in U.S. on 8/22/1996
(no matter the status)
• Post 8/22/1996 may be subject to deeming
and sponsor liability
Non-citizen Eligibility in N.Y. State and Locally
Funded Programs
Barbara Weiner
• Immigrants with federal
“Qualified Alien” Status
• “PRUCOL” Immigrants
“PRUCOL” Eligibility
Barbara Weiner
• PRUCOL (“permanently residing under color
of law”) is a benefits- not an immigrationrelated classification.
• It is defined by the particular benefit
program and, since 1996, is no longer a
classification used by federal programs.
• In NY, it provides access to cash assistance
and Medicaid to those
non-citizens who are:
– known by immigration to be here and to
whom immigration has given permission to
stay or
– For Medicaid only, in whose continued
residence immigration can be said to be
“acquiescing.”
Difference in Definition of PRUCOL Between NYS
OTDA and DOH
Barbara Weiner
• Unlike DOH, OTDA in its definition of
PRUCOL does not acknowledge
“acquiescence” concept
• With the exception of battered
immigrants defined by federal law as
“qualified aliens”, OTDA does not classify
anyone just in the process of applying for
an immigration benefit as PRUCOL
OTDA/DOH PRUCOL Classifications
Barbara Weiner
• Deferred Action
• Order of Supervision
• Granted Cancellation of Removal
• Grant of Parole of less than 1 year
• K3, K4 and V visas
• U and S visa
• “Registry aliens”
(GIS 07 TA/DC001)
Undocumented Non-citizens
Susan Welber
• Entry Without Inspection
• Visa overstays
Programs for Which Undocumented Immigrants
are Eligible
Susan Welber
• Emergency Medicaid (program only for
undocumented immigrants)
• CHIP – children’s medical assistance
• Medicaid for Pregnant Women and Teens
• ADAP – drug assistance program for people
with AIDs/HIV
• WIC – nutrition program for pregnant
mothers and children under 5
• School Breakfast and Lunch
• Child and adult protective services
Summary of Eligibility Rules
Susan Welber
• MEDICAID: immigrants with “qualified alien”
status, PRUCOL immigrants, including those
with an application for an immigration
benefit pending, undocumented pregnant
women and undocumented children.
• CASH ASSISTANCE: Immigrants with
“qualified alien” status and PRUCOL (more
limited than Medicaid).
• SNAP/FOOD Stamps: Immigrants with
“qualified alien” status – non-disabled adults
have 5 year wait.
• SSI: Post August 22, 1996, refugees/asylees
for limited time, LPRs with 40 quarters and
armed service connected immigrants.
Poll Question
Matt was granted asylum on March 16, 2008. On
September 18, 2010 he adjusted to LPR status. His
status has not changed since September 18, 2010.
He is not disabled and he is 25 years old.
Is Matt eligible for Food Stamps?
Common Concerns
Barbara Weiner
• Confidentiality and
Reporting
• Public Charge
• Sponsorship Issues
Some Benefit Programs Require Application by
the Whole Family.
Susan Welber
• Means tested benefit programs like food
stamps and welfare require the “household”
to apply.
• Many households with ineligible immigrants
also have members who are citizens or
eligible immigrants.
• Benefits agencies must not use application
procedures that “chill” the access of eligible
household members.
Confidentiality of Benefit Application
Susan Welber
• The general rule with respect to applications for
FS, Welfare, Medicaid, SSI and other benefit
programs is that information gathered in
connection with the process is private and
confidential.
• Although welfare reform imposed a requirement
that not lawfully residing immigrants be reported
to immigration, that requirement has been very
narrowly interpreted.
• As a result, welfare departments are authorized
only to report immigrants to immigration who
have orders of deportation and are applying for
benefits for themselves, not just for other,
eligible, household members.
• In NY, HRA or local social services districts are
only supposed to send the names to OTDA and
should never contact immigration directly except
to verify documents.
Concern About Public Charge
Susan Welber
• Someone who is found to be a public charge may not
be able to adjust status to permanent residence.
• So if a person gets certain benefits before they have a
green card, they may have problems
• The only kind of benefits that create a risk of public
charge are cash assistance benefits (welfare and long
term care in an institution)
• There is no reason to be concerned about using any
benefit when applying for citizenship.
• Mainly applies to family based immigrants.
Sponsor Income Deeming and Liability
Susan Welber
• Since December of 1997, sponsors of family
based immigrants must sign an enforceable
affidavit of support.
• Sponsor is told that he or she has a duty to
support the family member they have sponsored
and that they may be liable to repay any means
tested benefits provided to immigrant.
• Deeming and sponsor liability only applies to
means tested benefits.
• In spite of deeming rules, if a sponsored
immigrant would go without shelter or food, only
income actually received from the sponsor can
be counted.
• Sponsors could be asked to repay means tested
benefits by local welfare departments but in fact,
there have been no cases that we are aware of
where a welfare department has done that.
Poll Question
Maria has LPR status. She recently lost her job. Her sponsor is
employed but is not helping her. She wants to know the risk
of her being found a public charge if she gets welfare, Food
Stamps and Medicaid.
Which of the following would be the right advice to give her?
Advocacy Issues
Susan Welber
• Individual relief through
class action lawsuits (MKB)
• Fair Hearings
• Administrative Advocacy
with OTDA and DOH
Resources to Assist with Clients Who are Denied
Benefits Because of Status
Susan Welber
• If a client is being denied benefits by an HRA Job
Center and is in one of the following immigration
categories:
• PRUCOL (under the SDOH or OTDA
definition)
• LPR for less than 5 years
• Battered Qualified Alien,
contact Susan Welber at the Legal Aid Society,
(212) 577-3320. She may be able to help,
including via relief available through the M.K.B. v.
Eggleston lawsuit.
• For questions involving clients in areas outside of
NYC, contact Barbara Weiner at
(518) 462-6831
Where to refer NYC and Rest of State Clients with
general welfare problems
Susan Welber
• New York City:
– Call the Legal Aid Society, Civil Practice:
• Brooklyn: (718) 722-3100
• Bronx: (718) 991-4600
• Harlem: (212) 426-300
• Lower Manhattan: (212) 577-3300
• Queens: (718) 286-2450
• Staten Island: (347) 422-5333
– Visit Project Fair, located at 14 Boerum Place,
Brooklyn, NY between noon and 3 p.m. Mon-Fri.
• In areas outside of NYC, contact the local legal services
program.
Questions and Answers
Q&A: Our Panel of Presenters
Patricia Wonder
Instructor,
CUNY School of
Professional Studies and
Partner, Johnson Wonder
PLLC
Barbara Weiner,
Susan Welber,
Empire Justice Center
Legal Aid Society's
Law Reform Unit
Senior Attorney,
Staff Attorney,
Recorded Web Seminar
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Acknowledgements
• Paul Russo
• Allan Wernick
• Kelley Kawano
• A. Sofia Carreño
• Antonia Levy
• David Sturniolo
Director of Online Programs
CUNY School of Professional Studies
Instructional Technology Fellow
CUNY School of Professional Studies
Instructional Technology Fellow
CUNY School of Professional Studies
Director
CUNY Citizenship Now!
Communications Coordinator
CUNY Citizenship Now!
Communications Assistant
CUNY Citizenship Now!
• Gabriel Espinal
Communications Assistant
CUNY Citizenship Now!
For further questions regarding the information
presented during this webinar please contact
Patricia Wonder
patriciawonder@johnsonwonder.com