Selected Issues on Citizenship and Immigration Law: Immigrant Eligibility for Public Benefits Thursday March 17, 2011 1

1. Selected Issues on Citizenship and Immigration Law:Immigrant Eligibility for Public BenefitsThursday March 17, 201110:00 a.m. – 11:30 a.m. EST

2. How to Ask Questions During the Seminar Submit Questions Here Mac PC If you experience technical difficulties please call, 1-800-263-6317 Press 1 for GotoWebinar then 2 for TechSupport

3. Patricia Wonder Instructor, CUNY School of Professional Studies Partner, Johnson Wonder PLLC

4. Our Panel of Presenters Susan Welber, Staff Attorney, Legal Aid Society's Law Reform Unit Barbara Weiner, Senior Attorney, Empire Justice Center

5. www.sps.cuny.edu www.cuny.edu/citizenshipnow

6. Immigration Law Studies Advanced Graduate Certificate Program • Courses • Introduction to Immigration Law • Business Immigration Law • Family-Based Immigration Law • Proceedings in Immigration Court • Naturalization and Citizenship

8. CUNY Citizenship Now! Events The goal of Citizenship Now! events is to help eligible individuals prepare their forms N-400, Application for Naturalization. Most events are held on Saturdays.

9. CUNY Citizenship Now! Immigration Centers CUNY Citizenship Now! centers offer free immigration services to all members of the community- CUNY students and non-students.

10. The Corps consists of volunteers who provide free naturalization application assistance at Citizenship Now! Events in New York City.

11. Volunteer with the CUNY/NYC Citizenship Now! Corps Complete a registration form at www.cuny.edu/citizenshipnow/volunteer

12. Immigration Status and Eligibility for Public Benefits

13. Background: Welfare Reform – August 22, 1996 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. Barbara Weiner

14. Major federally-funded government benefits Supplemental Security Income (“SSI”) Supplemental Nutrition Assistance (“SNAP” or “Food Stamps”) Energy Assistance and Child Care Subsidy Programs Housing Assistance Susan Welber

15. Supplemental Security Income (SSI) 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 Susan Welber

16. Supplemental Nutrition Assistance (SNAP or Food Stamps) 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) Susan Welber

17. Energy Assistance and Childcare Subsidy Programs (Federal) 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 Susan Welber

18. Mixed federal, state and locally-funded benefits 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 Susan Welber

19. Temporary Assistance to Needy Families(TANF)-(in NY, “Family Assistance”) 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 Susan Welber

20. Medical Assistance (2 funding streams: Federal/State/Local and State/Local) 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 Susan Welber

21. State-funded benefits : New York State as an Example 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. Susan Welber

22. State-funded benefits : New York State as an Example 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. Susan Welber

23. Safety Net Assistance (SNA) for Those Ineligible for Family Assistance (FA) 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 Susan Welber

24. Immigrant Eligibility for Federal, State and Locally Funded Programs

25. For Federal Benefits, Immigrants Must Have “Qualified Alien” Status 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) Barbara Weiner

26. Immigrants Must Provide Verification of Status 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 Barbara Weiner

27. For “Means Tested” Federal Benefits, Additional Restrictions Apply 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 Barbara Weiner

28. Federal Means Tested Benefits 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 Barbara Weiner

29. Poll Question Which of the following is a "Qualified Alien" status

30. Immigrant Eligibility Rules in Federal Means Tested Programs

31. Immigrants Eligible for SSI 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. Susan Welber

32. Immigrants Eligible for SNAP/FS 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) Susan Welber

33. Eligibility for FA and Medicaid 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 Susan Welber

34. Non-citizen Eligibility in N.Y. State and Locally Funded Programs Immigrants with federal “Qualified Alien” Status “PRUCOL” Immigrants Barbara Weiner

35. “PRUCOL” Eligibility PRUCOL (“permanently residing under color of law”) is a benefits- not an immigration- related 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.” Barbara Weiner

36. Difference in Definition of PRUCOL Between NYS OTDA and DOH 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 Barbara Weiner

37. OTDA/DOH PRUCOL Classifications 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) Barbara Weiner

38. Undocumented Non-citizens Entry Without Inspection Visa overstays Susan Welber

39. Programs for Which Undocumented Immigrants are Eligible 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 Susan Welber

40. Summary of Eligibility Rules 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. Susan Welber

41. 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?

42. Common Concerns Confidentiality and Reporting Public Charge Sponsorship Issues Barbara Weiner

43. Some Benefit Programs Require Application by the Whole Family. 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. Susan Welber

44. Confidentiality of Benefit Application 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. Susan Welber

45. Concern About Public Charge 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. Susan Welber

46. Sponsor Income Deeming and Liability 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. Susan Welber

47. 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?

48. Advocacy Issues Individual relief through class action lawsuits (MKB) Fair Hearings Administrative Advocacy with OTDA and DOH Susan Welber

49. Resources to Assist with Clients Who are Denied Benefits Because of Status 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 Susan Welber

50. Where to refer NYC and Rest of State Clients with general welfare problems 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. Susan Welber