Public Benefits for the Immigrant Community Catholic Charities of the Archdiocese of Milwaukee Legal Services for Immigrants Program TABLE OF CONTENTS

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1 Public Benefits for the Immigrant Community Catholic Charities of the Archdiocese of Milwaukee Legal Services for Immigrants Program TABLE OF CONTENTS The Basic Analysis.. Page 2 Using a Work Permit to Determine Immigration Status Page 3 Using an I-94 Card to Determine Immigration Status.Page 11 Using a Lawful Permanent Resident Card to Determine Class of Admission Page 13 What Public Benefits are Available to Which Immigrants.Page 13 Reasons Some Immigrants are Afraid to Access Public Benefits.Page 18 Naturalization/Citizenship as a Way to Continue Public Benefits.Page 21 The Violence Against Women Act.Page 23 U Non Immigrant Status..Page 25 Special Juvenile Immigrant Status.Page 26 Vocabulary List.Page 27 Acronym List..Page 36 Immigrant Classes of Admission..Page 38 Non Immigrant Classes of Admission Page 41 Immigrant Eligibility Chart Page 43 C a t h o l i c C h a r i t i e s M i l w a u k e e 1

2 IMMIGRATION STATUS AND PUBLIC BENEFITS Immigrants are often leery of applying for any public benefit. There are a number of issues affect immigrants who apply and those issues change depending on someone s immigration status and when someone obtained status. First, we will just outline the bigger issues to keep in mind when applying for public benefits. Then, we will discuss how to determine what, if any immigration status someone might have. Finally, what benefits might be available to someone in that status. At the end of these materials is a vocabulary and acronym list. I. The Basic Thought Flow/Analysis 1. What, if any, immigration status does the patient have? 2. If there is no status: the patient is covered only for prenatal care, emergency are and hospital care. 3. If there is a status, what is that status and what may the client apply for based on that status? II. The Big Issues to Keep in Mind 1. What, if any, is the client s immigration status? Is the client a: A. United States Citizen? B. Lawful Permanent Resident? C. Another lawful status such as student, tourist, employer-based work visa? 2. If the client is a United States citizen, then immigration status will have no effect on the client s ability to receive a public benefit. 3. Is the client a lawful permanent resident? A. If the client is a lawful permanent resident, it is important to know: i. How did the client receive his lawful permanent residence card? (What was his class of admission?) Each lawful permanent resident card states when and how the intending immigrant received a green card. See the C a t h o l i c C h a r i t i e s M i l w a u k e e 2

3 ii. sample lawful permanent resident cards to find where the class of admission and code is listed What date did the client receive lawful permanent residence. See date of admission. See the sample lawful permanent resident cards to see where the code is listed. B. Once you know how and when someone received residence, you can refer to the two benefit eligibility charts: one from the National Immigration Law Center and second from Wisconsin Council on Children and Families. 4. If the client is a lawful permanent resident but ineligible for public benefits, is the client eligible to naturalize (become a United States Citizen)? One barrier to citizenship is the inability to pass the citizenship test. A second is the filing fee. Keep in mind that there may be waivers and exceptions which might help a client overcome these barriers. A. Is the client eligible for a waiver of the English or Civics test? B. Is the client eligible to take the test in his native language? C. Is the client eligible for a for a fee waiver? 5. If the client has no immigration status or is undocumented, is the client eligible to get some immigration status? 6. Will getting a public benefit hurt the client s immigration status or hurt the client s chance of getting an immigration status? III. Does my client have an immigration status and how do I know what that status is? Status is a person s relationship to the United States government. For example, people born in the United States are citizens. Some people are here as students. Others have no status and are commonly referred to as undocumented. In order to determine what public benefits is an option, you must understand what someone s immigration status is. Most people know what their immigration status is. However, if you are unsure, the three easiest places to start looking are employment authorization documents, I-94 cards and lawful permanent resident cards. Below are samples of each. A. Employment Authorization Documents (EADs) Sample Employment Authorization Document: Please see below: C a t h o l i c C h a r i t i e s M i l w a u k e e 3

4 Not everyone is eligible to work lawfully in the United States. Some who are eligible will have employment authorization documents. Some who are eligible will not have employment authorization documents. Some will have employment authorization documents but others will not. On the employment authorization document, EAD, there will appear the work Category. The employment eligible categories are these. (a)(1) (a)(2) An alien who is a lawful permanent resident (with or without conditions pursuant to section 216 of the Act), as evidenced by Form I-551 issued by the Service. An alien admitted to the United States as a lawful temporary resident pursuant to section 245A or 210 of the Act, as evidenced by an employment authorization document issued by the Service; (a)(3) An alien admitted to the United States as a refugee pursuant to section 207 of the Act for the period of time in that status, as evidenced by an employment authorization document issued by the Service; (a)(4) An alien paroled into the United States as a refugee for the period of time in that status, as evidenced by an employment authorization document issued by the Service; (a)(5) An alien granted asylum under section 208 of the Act for the period of time in that status, as evidenced by an employment authorization document, issued by BCIS to the alien. An expiration date on the employment authorization document issued by BCIS reflects only that the document must be renewed, and not that the C a t h o l i c C h a r i t i e s M i l w a u k e e 4

5 (a)(6) (a)(7) (a)(8) (a) (9) (a) (10) (a) (11) (a) (12) (a) (13) (a) (14) bearer's work authorization has expired. Evidence of employment authorization shall be granted in increments not exceeding 5 years for the period of time the alien remains in that status. (Revised 7/30/04; 69 FR ) An alien admitted to the United States as a nonimmigrant fiancé or fiancee pursuant to section 101(a)(15)(K)(i) of the Act, or an alien admitted as a child of such alien, for the period of admission in that status, as evidenced by an employment authorization document issued by the Service; (Revised 8/14/01; 66 FR ) An alien admitted as a parent (N-8) or dependent child (N-9) of an alien granted permanent residence under section 101(a)(27)(I) of the Act, as evidenced by an employment authorization document issued by the Service; An alien admitted to the United States as a citizen of the Federated States of Micronesia (CFA/FSM) or of the Marshall Islands (CFA/MIS) pursuant to agreements between the United States and the former trust territories, as evidenced by an employment authorization document issued by the Service; Any alien admitted as a nonimmigrant spouse pursuant to section 101(a)(15)(K)(ii) of the Act, or an alien admitted as a child of such alien, for the period of admission in that status, as evidenced by an employment authorization document, with an expiration date issued by the Service; (Added 8/14/01; 66 FR ) An alien granted withholding of deportation or removal for the period of time in that status, as evidenced by an employment authorization document issued by the Service; (Revised effective 4/1/97; 62 FR ) An alien who has been granted extended voluntary departure by the Attorney General as a member of a nationality group pursuant to a request by the Secretary of State. Employment is authorized for the period of time in that status as evidenced by an employment authorization document issued by the Service; An alien granted Temporary Protected Status under section 244 of the Act for the period of time in that status, as evidenced by an employment authorization document issued by the Service; (Amended 6/1/01; 66 FR ) (Revised effective 4/1/97; 62 FR ) An alien granted voluntary departure by the Attorney General under the Family Unity Program established by section 301 of the Immigration Act of 1990, as evidenced by an employment authorization document issued by the Service; (Amended 9/7/01; 66 FR ) (Amended 6/1/01; 66 FR ) An alien granted Family Unity benefits under section 1504 of the Legal Immigrant Family Equity (LIFE) Act Amendments, Public Law , and the provisions of 8 CFR part 245a, Subpart C of this chapter, as evidenced by an employment authorization C a t h o l i c C h a r i t i e s M i l w a u k e e 5

6 (a) (15) (a) (16) document issued by the Service; (Amended effective 10/17/07; 72 FR ) (Amended 9/7/01; 66 FR ) (Added 6/1/01; 66 FR ) Any alien in V nonimmigrant status as defined in section 101(a)(15)(V) of the Act and 8 CFR (Amended 7/30/04; 69 FR ) (Added 9/7/01; 66 FR ) An alien authorized to be admitted to or remain in the United States as a nonimmigrant alien victim of a severe form of trafficking in persons under section 101(a)(15)(T)(i) of the Act. Employment authorization granted under this paragraph shall expire upon the expiration of the underlying T-1 nonimmigrant status granted by the Service; (Amended effective 10/17/07; 72 FR ) (Added effective 3/4/02; 67 FR 4784 ) (a) (19) Any alien in U-1 nonimmigrant status, pursuant to 8 CFR , for the period of time in that status, as evidenced by an employment authorization document issued by USCIS to the alien. (Added effective 10/17/07; 72 FR ) (a) (20) (b) (1) (b) (2) (b) (3) (b) (5) (b) (6) (b) (7) (b) (8) Any alien in U-2, U-3, U-4, or U-5 nonimmigrant status, pursuant to 8 CFR , for the period of time in that status, as evidenced by an employment authorization document issued by USCIS to the alien. (Added effective 10/17/07; 72 FR ) A foreign government official (A-1 or A-2), pursuant to 214.2(a) of this chapter. An alien in this status may be employed only by the foreign government entity; An employee of a foreign government official (A-3), pursuant to 214.2(a) of this chapter. An alien in this status may be employed only by the foreign government official; A foreign government official in transit (C-2 or C-3), pursuant to 214.2(c) of this chapter. An alien in this status may be employed only by the foreign government entity; A nonimmigrant treaty trader (E-1) or treaty investor (E-2), pursuant to 214.2(e) of this chapter. An alien in this status may be employed only by the treaty-qualifying company through which the alien attained the status. Employment authorization does not extend to the dependents of the principal treaty trader or treaty investor (also designated "E'1" or "E-2"), other than those specified in paragraph (c)(2) of this section; A nonimmigrant (F-1) student who is in valid nonimmigrant student status A representative of an international organization (G-1, G-2, G-3, or G-4), pursuant to 214.2(g) of this chapter. An alien in this status may be employed only by the foreign government entity or the international organization; A personal employee of an official or representative of an international organization (G-5), pursuant to 214.2(g) of this C a t h o l i c C h a r i t i e s M i l w a u k e e 6

7 (b) (9) (b) (10) chapter. An alien in this status may be employed only by the official or representative of the international organization; A temporary worker or trainee (H-1, H-2A, H-2B, or H-3), pursuant to 214.2(h) of this chapter. An alien in this status may be employed only by the petitioner through whom the status was obtained. An information media representative (I), pursuant to 214.2(i) of this chapter. An alien in this status may be employed only for the sponsoring foreign news agency or bureau. Employment authorization does not extend to the dependents of an information media representative (also designated "I"); (b) (11) (b) (12) (b) (13) An exchange visitor (J-1), pursuant to 214.2(j) of this chapter and 22 CFR part 62. An alien in this status may be employed only by the exchange visitor program sponsor or appropriate designee and within the guidelines of the program approved by the Department of State as set forth in the Form DS-2019, Certificate of Eligibility, issued by the program sponsor; (Revised effective 1/1/03; 67 FR ) An intra-company transferee (L-1), pursuant to 214.2(i) of this chapter. An alien in this status may be employed only by the petitioner through whom the status was obtained; An alien having extraordinary ability in the sciences, arts, education, business, or athletics (O-1), and an accompanying alien (O-2), pursuant to 214.2(o) of this chapter. An alien in this status may be employed only by the petitioner through whom the status was obtained. In the case of a professional O-1 athlete who is traded from one organization to another organization, employment authorization for the player will automatically continue for a period of 30 days after the acquisition by the new organization, within which time the new organization is expected to file a new Form I-129 petition for O nonimmigrant classification. If a new Form I-129 is not fil ed within 30 days, employment authorization will cease. If a new Form I-129 is filed within 30 days, the professional athlete's employment authorization will continue until the petition is adjudicated. If the new petition is denied, employment authorization will cease. (Revised 4/16/97; 62 FR ) (b) (14) An athlete, artist, or entertainer (P-1, P-2, or P-3), pursuant to 214.2(p) of this chapter. An alien in this status may be employed only by the petitioner through whom the status was obtained. In the case of a professional P-1 athlete who is traded from one organization to another organization, employment authorization for the player will automatically continue for a period of 30 days after the acquisition by the new organization, within which time the new C a t h o l i c C h a r i t i e s M i l w a u k e e 7

8 organization is expected to file a new Form I-129 for P-1 nonimmigrant classification. If a new Form I-129 is not filed wi thin 30 days, employment authorization will cease. If a new Form I-129 is filed within 30 days, the professional athlete's employment authorization will continue until the petition is adjudicated. If the new petition is denied, employment authorization will cease; (Revised 4/16/97; 62 FR ) (b) (15) An international cultural exchange visitor (Q-1), according to 214.2(q)(1) of this chapter. An alien may only be employed by the petitioner through whom the status was obtained; (Revised 3/17/00; 65 FR ) (b) (16) An alien having a religious occupation, pursuant to 214.2(r) of this chapter. An alien in this status may be employed only by the religious organization through whom the status was obtained (b) (17) Officers and personnel of the armed services of nations of the North Atlantic Treaty Organization, and representatives, officials, and staff employees of NATO (NATO-1, NATO-2, NATO-3, NATO-4, NATO-5 and NATO-6), pursuant to 214.2(o) of this chapter. An alien in this status may be employed only by NATO; (b) (18) An attendant, servant or personal employee (NATO-7) of an alien admitted as a NATO-1, NATO-2, NATO-3, NATO-4, NATO-5, or NATO-6, pursuant to 214.2(o) of this chapter. An alien admitted under this classification may be employed only by the NATO alien through whom the status was obtained; (b) (19) A nonimmigrant pursuant to section 214(e) of the Act. An alien in this status must be engaged in business activities at a professional level in accordance with the provisions of Chapter 16 of the North American Free Trade Agreement (NAFTA); (Amended effective 1/17/2009; 73 FR (b) (20) A nonimmigrant alien within the class of aliens described in paragraphs (b)(2), (b)(5), (b)(8), (b)(9), (b)(10), (b)(11), (b)(12), (b)(13), (b)(14), (b)(16), and (b)(19) of this section whose status has expired but who has filed a timely application for an extension of such stay pursuant to or of this chapter. These aliens are authorized to continue employment with the same employer for a period not to exceed 240 days beginning on the date of the expiration of the authorized period of stay. Such authorization shall be subject to any conditions and limitations noted on the initial authorization. However, if the district director or service center director adjudicates the application prior to the expiration of this 240 day period and denies the application for extension of stay, the employment aut horization under this paragraph shall automatically terminate upon notification of the denial decision; (Amended effective 11/28/09; 74 FR ) (Amended effective 1/17/2009; 73 FR ) C a t h o l i c C h a r i t i e s M i l w a u k e e 8

9 (b) (21) A nonimmigrant alien within the class of aliens described in 8 CFR 214.2(h)(1)(ii)(C) who filed an application for an extension of stay pursuant to 8 CFR during his or her period of admission. Such alien is authorized to be employed by a new employer that has filed an H-2A petition naming the alien as a beneficiary and requesting an extension of stay for the alien for a period not to exceed 120 days beginning from the Received Date on Form I-797 (Notice of Action) acknowledging receipt of the petition requesting an extension of stay, provided that the employer has enrolled in and is a participant in good standing in the E-Verify program, as determined by USCIS in its discretion. Such authorization will be subject to any conditions and limitations noted on the initial authorization, except as to the employer and place of employment. However, if the District Director or Service Center director adjudicates the application prior to the expiration of this 120-day period and denies the application for extension of stay, the employment authorization under this paragraph (b)(21) shall automatically terminate upon 15 days after the date of the denial decision. The e mployment authorization shall also terminate automatically if the employer fails to remain a participant in good standing in the E-Verify program, as determined by USCIS in its discretion; (Amended effective 11/28/09; 74 FR ) (Added effective 1/17/2009; 73 FR ) (b) (22) Reserved. (Added and reserved effective 11/27/09; 74 FR ) (b) (23) A Commonwealth of the Northern Mariana Islands transitional worker (CW-1) pursuant to 8 CFR 214.2(w). An alien in this status may be employed only in the CNMI during the transition period and only by the petitioner through whom the status was obtained; or (Amended effective 11/28/09; 74 FR ) (Added effective 11/27/09; 74 FR ) (24) An alien who is authorized to be employed in the Commonwealth of the Northern Mariana Islands for a period of up to 2 years following the transition program effective date, under section 6(e)(2) of Public Law , as added by section 702(a) of Public Law Such alien is only authorized to continue in the same employment that he or she had on the transition program effective date as defined in 8 CFR 1.1 until the earlier of the date that is 2 years after the transition program effective date or the date of expiration of the alien's employment authorization, unless the alien had unrestricted employment authorization or was otherwise authorized as of the transition program effective date to change employers, in which case the alien may have such employment privileges as were authorized as of the transition program effective date for up to 2 years. (Added effective 11/28/09; 74 FR ) C a t h o l i c C h a r i t i e s M i l w a u k e e 9

10 (c)(1) (c) (2) (c) (3) (c) (4) (c) (5) (c) (6) (c) (7) (c) (8) (c)(9) (c) (10) (c) (11) (c) (14) (c) (16) An alien spouse or unmarried dependent child; son or daughter of a foreign government official (A-1 or A-2) pursuant to 214.2(a)(2) of this chapter and who presents a fully executed Form I-566 bearing the endorsement of an authorized representative of the Department of State; An alien spouse or unmarried dependent son or daughter of an alien employee of the Coordination Council for North American Affairs (E-1) pursuant to 214.2(e) of this chapter; A nonimmigrant (F-1) student who: An alien spouse or unmarried dependent child; son or daughter of an officer of, representative to, or employee of an international organization (G-1, G-3 or G-4) pursuant to 214.2(g) of this chapter who presents a fully executed Form I-566 bearing the endorsement of an authorized representative of the Department of State; An alien spouse or minor child of an exchange visitor (J-2) pursuant to 214.2(j) of this chapter; A nonimmigrant (M-1) student seeking employment for practical training pursuant to 8 CFR 214.2(m) following completion of studies. A dependent of an alien classified as NATO-1 through NATO-7 pursuant to 214.2(n) of this chapter; An alien who has filed a complete application for asylum or withholding of deportation or removal pursuant to 8 CFR part 208, whose application has been recommended for approval, but who has not yet received a grant of asylum or withholding or deportation or removal; An alien who has filed an application for adjustment of status to lawful permanent resident pursuant to part 245 of this chapter. An alien who has filed an application for suspension of deportation cancellation of removal pursuant to section, or special rule cancellation of removal. An alien paroled into the United States temporarily for emergency reasons or reasons deemed strictly in the public interest pursuant to of this chapter; (Amended 1/4/95; 59 FR 62284) An alien who has been granted deferred action, an act of administrative convenience to the government which gives some cases lower priority, if the alien establishes an economic necessity for employment; Any alien who has filed an application for creation of record of lawful admission for permanent residence pursuant to part 249 of this chapter. (Amended 7/30/04; 69 FR ) C a t h o l i c C h a r i t i e s M i l w a u k e e 10

11 (c)(17) (c) (18) A nonimmigrant visitor for business (B-1) who is a domestic employee An alien against whom a final order of deportation or removal exists and who is released on an order of supervision under the authority contained in section 241(a)(3) of the Act (c) (19) (c) (20) (c) (21) (c) (22) (c) (23) (c) (24) (c) (25) An alien applying for Temporary Protected Status Any alien who has filed a completed legalization application pursuant to section 210 of the Act A principal nonimmigrant witness or informant in S classification, and qualified dependent family members. Any alien who has filed a completed legalization application pursuant to section 245A of the Act (and part 245a of this chapter). An Irish peace process cultural and training program visitor (Q-2), pursuant to section 214.2(q)(15) of this chapter and 22 CFR and 22 CFR part 139. An alien who has filed an application for adjustment pursuant to section 1104 of the LIFE Act, Public Law , and the provisions of 8 CFR part 245a, Subpart B of this chapter. (Amended 7/30/04; 69 FR ) (Added 6/1/01; 66 FR ) An immediate family member of a T-1 victim of a severe form of trafficking in persons designated as a T-2, T-3 or T-4 nonimmigrant pursuant to of this chapter. Aliens in this status shall only be authorized to work for the duration of their T nonimmigrant status. (Added effective 3/4/02; 67 FR 4784 ) B. I-94 Card Please see sample I-94 Card and sample classes of admission: The most common I-94 card is no longer used, but we still see many of them: C a t h o l i c C h a r i t i e s M i l w a u k e e 11

12 The Newer I-94 card: C. Passport Stamp: Please see sample classes of admission D. Lawful Permanent Resident Card: Please see the sample Lawful Permanent Resident cards. The examples will tell you where to look for the class of admission and for the date of admission. C a t h o l i c C h a r i t i e s M i l w a u k e e 12

13 IV Okay, We ve figured out the Immigration Status, Now What Public Benefits Does My Client Get? A. Introduction: Navigating public benefits statutes and regulations for a United States citizen is often irritating and complicated. Couple that complexity with the vagaries of the Immigration and Nationality Act (INA) and any practitioner could come lost in a hyper technical haze. Moreover, once a practitioner wends her way through the appropriate analysis, she has to convince an administrative agency that she is right. Finally, just about the time you have figured this out, the law will change and you ll have to figure it out all over again. C a t h o l i c C h a r i t i e s M i l w a u k e e 13

14 The National Immigration Law Center (NILC) keeps current charts on federal benefits available to immigrant. The charts are updated frequently and it is the best resource for up-to-date information. It is, however, limited to federal benefits. These are some common issues. First, does the immigrant qualify for the public benefit? Second, will accessing that public benefit prejudice the client s ability to obtain an immigration benefit? Third, will accessing the public benefit prejudice the client s existing immigration status? Fourth, will accepting a public benefit have any impact on the Affidavit of Support? We will discuss the Affidavit of Support below. Benefit eligibility often depends on the immigrant s state of residence, class of admission, date of the admission and length of time in the United States. Many public benefits are a mix of federal and state law. Therefore, an immigrant in Illinois may access some benefits that an immigrant in Wisconsin might not. To confuse things further, eligibility often depends on how an immigrant obtained the immigrant visa; some immigrant visas allow the immigrant to access public benefits while other immigrant visas do not allow the immigrant to access public benefits. On top of this, some immigrant visa categories require a waiting period while others allow immediate eligibility but only for a specified period of time. Eligibility, however, is only half the analysis. Practitioners must be cognizant that receiving certain public benefits may prejudice an intending immigrant s ability to become a lawful permanent resident. Worse, receiving some of these benefits could make a lawful permanent resident removable from the United States. The Affidavit of Support is one more component of the overall analysis. Many intending immigrants are required to submit an Affidavit of Support. This affidavit is a three-way contract between the United States government, the intending immigrant and the person who signs the affidavit. The person who signs the affidavit promises to repay the government the full value of any means tested public benefit that the intending immigrant receives during the time that the affidavit is in effect. The person who signs the affidavit also promises to maintain the intending immigrant at 125% of the federal poverty level. The Affidavit of Support applies to most immigrants who receive their immigrant visa through family. It does not apply to those who receive their immigrant visa as refuges, aslyees, or as immigrant victims of crime and domestic violence. It also does not apply to employment based categories. Immigrants may be leery of accessing public benefits for fear of becoming inadmissible, for fear of becoming removable or for fear of the consequences to the person who signed the Affidavit of Support. There is also a deeming element to the Affidavit of Support. In deeming, the income of the person who signed the affidavit is deemed unto the person seeking public benefits. This is important is determining income. There are essentially two questions. First, what public benefits is the immigrant eligible to receive? Second, will receiving that public benefit somehow prejudice the immigrant s immigration status or potential immigration status? C a t h o l i c C h a r i t i e s M i l w a u k e e 14

15 B. Benefit Eligibility: 1. Generally: For purposes of public benefits, all immigrants are divided into two, mutually exclusive categories: qualified aliens and unqualified aliens. 2. The Statutory Framework PRWORA: In 1996, Congress passed and President Clinton signed The Personal Responsibility and Work Opportunity Reconciliation Act of 1996.[1] Among other things, the Act created two categories of aliens: qualified and unqualified. a. PRWORA defines Qualified Aliens as those who are: 1. Lawfully admitted for permanent residence. 2. Granted asylum 3. Admitted as a refugee. 4. Granted withholding of deportation. 5. Granted conditional entry. under INA 203(a)(7), 8 U.S.C.A. 1153(a)(7) or 6. Paroled into the United States for at least one year under INA 212(d)(5)[2], 8 U.S.C.A. 1182(d)(5) 7. VAWA self-petitioner in receipt of a valid Prima Facie letter. 8. Those who have been trafficked into the United States and have protection under the T classification.[3] b. Unqualified alien 1. Everyone else. 3. Generally, "qualified aliens" are ineligible for "Federal means-tested public benefits" for a period of five years after becoming "qualified aliens."[4] Unqualified aliens qualify for almost nothing other than emergency Medicaid. 4. The exceptions: Some qualified immigrants are not subject to the five year waiting period. These immigrants are: a. asylees, b. refugees c. VAWA self petitioners with a prima facie letter. d. Those who have been trafficked into the United States and have protection under the T classification. 5. The text of PRWORA can be found, at See specifically Title IV, Restricting Public Benefits for Aliens which appears at pages 156 through 166. C a t h o l i c C h a r i t i e s M i l w a u k e e 15

16 C. Determining Eligibility for Various Benefits: There are two very good websites for determining eligibility: 1. The Wisconsin Department of Children & Families: a. Discusses BadgeCare Plus, Low-Income Energy Assistance, HUD housing, SSI, W-2, Prenatal Care and Emergency Care. Also, persuasive to administrative agency workers because it is put out by the State. b. See: (Note, this is find on most PCs, but I have a hard time getting it on my Mac. You might have to go in via Google.) 2. The National Immigrant Law Center: Provides up to date articles, verification, deeming, public charge, the affidavit of support, an eligibility chart, statutory references and guide books. There is no charge to access this site and it is an invaluable resource. D. Determining Immigrant/Non Immigrant Status: 1. I-94 Card a. See both sample I-94 card above. 2. Passport Stamp a. See both the hand out on immigrant and non-immigrant classes of admission at the end of these materials 3. Employment Authorization Document a. See the employment authorization codes above.. 4. Lawful Permanent Resident Card (I-551) a. See sample lawful permanent resident cards above. E. Determining Date of Admission: a. I-94 card. Will show both the date of admission and the date that the status expires. b. Passport Stamp. Passports are now always stamped but if there is a stamp it will show the date of admission. c. Employment Authorization Document: This will not show the date of admission into the United States. d. Lawful Permanent Resident Card: This will show the date of admission. Some of the older ones can be complicated to read. It is important to note, however, that simply because the lawful permanent resident card has expired, it does not of necessity mean that residency has expired. Some people simply do not renew cards for a variety of reasons. F. Potential Prejudice to an Immigrant who Receives Public Benefits: 1. Generally: Immigrants who have a lawful immigration status may prejudice that status by receiving public benefits. Those who have no immigration status may prejudice their ability to obtain lawful status if they receive an immigration status. C a t h o l i c C h a r i t i e s M i l w a u k e e 16

17 There are three intertwined problems: being or becoming a public charge; receipt of means tested public benefits and the Affidavit of Support. 2. Public Charge: a. Definition: A public charge is an alien who has become (for deportation purposes) or is likely to become (for admission or adjustment of status purposes) primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance, or institutionalization for long-term care at government expense. [8] b. Those Public Benefits which are a public charge concern and which are a means-tested public benefit are: 1. Temporary Assistance to Needy Families, commonly referred to by the acronym TANF. 2. Medicaid or a related program which pays for the cost of a person's institutionalization for long-term care. 3. SSI 4. SNAP (Food Stamps) c. Those Public Benefits which will not lead to a finding that the immigrant is a public charge: Non-cash benefits and special-purpose cash benefits that are not intended for income maintenance are not subject to public charge consideration. Such benefits include: Medicaid, Children s Health Insurance Program (CHIP), Food Stamps, the Special Supplemental Nutrition Program for Women, Infants and Children (WIC), immunizations, prenatal care, testing and treatment of communicable diseases, emergency medical assistance, emergency disaster relief, Head Start, nutrition programs such as school lunch programs, housing assistance, energy assistance, child care services, foster care and adoption assistance, transportation vouchers, educational assistance, job training programs, and non-cash benefits. d. See the following websites for a good discussion of means-tested public benefits: 97a7.htm Interim Guidance; Federal Means-Tested Public Benefits pdf National Immigration Law Center, Overview of Immigrant Eligibility for Federal Programs By Tanya Broder, Benefits Policy Director, July 2007 Public Benefits United States Department of Housing and Urban Development, Notice to Program Grantees/State and Local Agencies, Subject: Guidance on Definition of "Public Charge" in Immigration Laws. C a t h o l i c C h a r i t i e s M i l w a u k e e 17

18 G. Public Charge as a reason to deny lawful permanent residency. Any intending immigrant who is likely at any time to become a public charge is may not immigrate.[9] Decisions are to be made on a case-by case basis. Factors to be considered are: age, health, family status, assets, resources, financial status, education and skills.[10] The way to get over this problem is to file something called an Affidavit of Support. The Affidavit is a problem because in the affidavit someone promises to repay the government the full value of the public benefit. Intending immigrants H. The Affidavit of Support. 1. Many intending immigrants are presumed to be ineligible to immigrate because the United States government assumes that many immigrants will become a public charge. The intending immigrant overcomes that presumption by filing an affidavit of support. 2. Most family-based immigrants must file the Affidavit of Support.[11] 3. What the Affidavit of Support is: The Affidavit of Support is a three-way contract between the person who signs the affidavit, the intending immigrant and the government. In the affidavit the signer promises to: a. Repay the government the full value of any means-tested public benefit that the intending immigrant receives while the affidavit is in effect. b. Maintain the intending immigrant at 125% of the Federal Poverty Level. 4. Who is exempt from filing the Affidavit of Support?:[12] a. Those who received the immigrant visa pursuant to the Violence Against Women Act and their derivative beneficiaries. b. Those who receive their immigrant visa via Diversity Visa Lottery. c. Those who received the immigrant visa pursuant being granted refugee status. d. Those who received the immigrant visa pursuant to being granted asylee status. e. Those who receive their immigrant visa pursuant to the Cuban Adjustment Act. 5. The Affidavit of Support is in effect until: a. The Lawful Permanent Resident dies. b. The Lawful Permanent Resident abandons lawful permanent resident status. c. The Lawful Permanent Resident is ordered removed and readjusts status. d. Lawful Permanent Resident can be credited with forty quarters as defined by the Social Security Administration. e. The person who signs the Affidavit of Support dies. C a t h o l i c C h a r i t i e s M i l w a u k e e 18

19 I. What is a means-tested public benefit: A means tested public benefit which is any public benefit funded in whole or in part by funds provided by the Federal Government that the Federal agency administering the Federal funds has determined to be a Federal meanstested public benefit under the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Public Law , or a State means-tested public benefit, which is any public benefit for which no Federal funds are provided that a State, State agency, or political subdivision of a State has determined to be a means-tested public benefit. No benefit shall be considered to be a means-tested public benefit if it is a benefit described in sections 401(b), 411(b), 422(b) or 423(d) of Public Law [13] 1. The Social Security Administration and the Department of Health and Human Services Consider these benefits to be means-tested public benefits a. TANF b. Medicaid c. State Child Health Insurance Program. d SNAP, formerly Food Stamps. e. SSI[14] 2 Some things which are not public benefits: a. Head Start b. School Lunch Programs c. Job Training Programs d. Immunization Programs. 3. See: for a very good discussion. J. Special Considerations: K 1. There is no public charge consideration in applying for naturalization. 2. It is rare that a lawful permanent resident would be removed for becoming a public charge. 3. USCIS will not consider public benefits to other family members unless the public benefit is the only means of the family s economic support. 4. Public charge does not apply for refugees/ asylees, special juvenile immigrants, self petitioners under the Violence Against Women Act or those who have been trafficked into the United States. Spanish and English fact sheet are attached to these materials. They can be found on the USCIS website at IV Is Citizenship an Option? Citizenship: The three most common ways to obtain United States Citizenship through acquiring US citizenship at birth,[15] or by deriving citizenship through one of your United State citizen parents or through applying to naturalize in the United States. C a t h o l i c C h a r i t i e s M i l w a u k e e 19

20 This is not meant to be a guidebook on trying to help clients apply for citizenship, rather it is a way to alert you to the possibility that someone might already be a citizen or may be eligible to apply for citizenship. A. Citizenship Acquired at Birth: 1. Those born inside of the United States: 2. Those born outside of the United States to at least one United States citizen parent. The rules for this type of citizenship acquisition have changed often over the years. Remember, however, that this is citizenship acquired on the person s date of birth. Therefore, you must consult the relevant law and statute for the year that the person was born. Too, the rules change depending on whether the person s parents were married to each other and if not married to each other, whether the person is establishing citizenship through a United States citizen mother or father. Each requirement of the statute in effect on the day the person was born must be fulfilled on the date the person was born. Usually the statutes require that the United States citizen parent spent a certain number of years inside of the United States and that at least five years were after a certain age. All this must be true as the date the person was born. B. Derived Citizenship: Children may derive citizenship through a parent s naturalization. The law on derivative citizenship changed dramatically in 2001 with the Child Citizenship Act of Under the old law: a. For the Parents: i. Either both parents had to be United States citizens if both parents were alive and still married to each other, or ii. The surviving parent had to be a United States citizen if one iii. parent had died, or The custodial parent had to be a United States Citizen if the parents were divorced, had to obtain citizenship before the child reached the age of 18. b. For the Child: The child must have been admitted as a lawful permanent resident and reside in the United States in the physical and legal custody of the United States citizen parent (s). 2. Under the new law: Child Citizenship Act of a. For the Parents: Only one parent must be a citizen United States. b. For the Children i. Must be under 18 years of age ii. Must reside permanently in the United States in the legal and physical custody of the United States citizen parent(s) iii. Must have been admitted to the United States as a lawful permanent resident or has been adjusted to this status. C a t h o l i c C h a r i t i e s M i l w a u k e e 20

21 c. The Child Citizen Act is not retroactive. 3. One of the most important uses of the Child Citizenship Act is for those children who have problems in the juvenile justice system. Normally, a person who applies for citizenship must demonstrate good moral character. However, because derivative citizenship occurs by operation of law rather than through any type of petition, the good moral character issue is irrelevant. Therefore, those who have lawful permanent resident juvenile clients who risk being removed due to criminal convictions would be wise to inquire as to the parent s citizenship status. If they are eligible, the parents should naturalize as soon as possible. C. Naturalization: 1. General Requirements:[16] The applicant must be: a. At least 18 years of age, and b. Lawfully admitted as a permanent resident of the United States, and c. Who has a certain amount of time as a lawful permanent resident: i. For most applicants: Five years residency: Someone who has resided continuously within the United States, for a period of at least five years after having been lawfully admitted for permanent residence. ii. Three years residency: Anyone who is married to and living with a United States citizens spouse may apply after three years of being married to and living with a United States citizen spouse, and, d. Physically present in the United States: 2. Physical Presence: a. Those who are married to and living in marital union with United States citizen must be lawful permanent residents for three years before applying for United States citizenship. b. Everyone else must have residency five years (or sixty months) before applying for United States citizenship. c. Half of the above waiting time must be in the United States. So those who are married to and living with a United States spouse (36 months) must have 18 months in the United States. All others (60 months) must at least 30 months within the United States. 3. Reside in the district where applying: someone who has resided for at least three months in a State or Service district having jurisdiction over the applicant's actual place of residence, and in which the alien seeks to file the application, and 4 Someone who has resided continuously within the United States from the date of application for naturalization up to the time of admission to citizenship; C a t h o l i c C h a r i t i e s M i l w a u k e e 21

22 5. Be a person of good moral character, attached to the principles of the Constitution of the United States, and favorably disposed toward the good order and happiness of the United States; and 6. Is not a person described in Section 314 of the Act relating to deserters of the United States Armed Forces or those persons who departed from the United States to evade military service in the United States Armed Forces. C. English and Civics Requirements: 1. Most applicants are required to pass an examination on United States history and civics as well as English. The applicant must answer six of ten history/civics questions correctly and be able to write a short phrase in English. 2. Exceptions: a. Lawful Permanent Residents who have twenty years of residency and fifty years of age may take the citizenship test in their own language. b. Lawful Permanent Residents who have fifteen years of residency and fifty five years of age may take the citizenship test in their own language. c. Lawful Permanent Residents who are sixty five years and have twenty years of residency may receive special considerations. d. Lawful Permanent Residents who have a medical reason why they cannot learn English or United States history and physics, may file a waiver. The waiver must be signed by a licensed psychologist or medical doctor and must contain an appropriate diagnosis. C a t h o l i c C h a r i t i e s M i l w a u k e e 22

23 V. OPTIONS FOR IMMIGRANT VICTIMS OF CRIME AND DOMESTIC VIOLENCE Hospitals and clinics are often the first to see immigrant victims of domestic violence. Many of these victims come from countries where domestic violence is so common and the police are so unhelpful that they never think to ask for help. However, there are three immigration remedies for immigrant victims of crime and domestic violence which might be relevant to your patients. They are: The Violence Against Women Act; U Non Immigrant Status and Special Juvenile Immigrant Status. A. The Violence Against Women Act 1. Background: Congress passed the Violence Against Women Act in 1994 as part of a much larger piece of legislation: The Violent Crime Control and Law Enforcement Act of In 2000, Congress reauthorized the grant provisions of the original VAWA and also addressed some of its flaws and shortcomings. For example, domestic violence victims could now file a petition after divorcing their abuser or after finding out that their marriage was fraudulent. Like the original VAWA, VAWA 2000 was part of a much larger piece of legislation: The Victims of Trafficking and Violence Protection Act of VTVP expanded on the remedies available to victims of domestic violence by creating the U status and the T status. These statuses provide remedies for victims of certain crimes and for victims of severe forms of human trafficking. Although Congress created these U and T in October 2000, there are no regulations in place for the U status. Most recently, Congress revisited VAWA in Again, part of a larger piece of legislation, VAWA 2005 reauthorized grant provisions, included important technical amendments and made this remedy available to certain victims who had been ineligible Basic Requirements: A VAWA self-petitioner is defined as someone who 4 : a. For Spouses of United States Citizens or Lawful Permanent Residents: 1. Is married to, or who reasonably believes that he or she is married to, either a U.S. citizen or LPR He or she entered the marriage in good faith; and 3. During the marriage or relationship, the U.S. citizen or LPR battered or subjected him or her to extreme cruelty, and 4. He or she is a person of good moral character, and 5. He or she has resided with the U.S. citizen or LPR, and 1 Pubic Law Public Law Public Law INA 101(a)(51); 8 U.S.C 1101(a)(51); 8 CFR 204.2(c) 5 See generally INA 204, 8 U.S.C C a t h o l i c C h a r i t i e s M i l w a u k e e 23

24 6. At least one instance of the abuse or extreme cruelty occurred inside of the U.S. b. For children of United States Citizens or Lawful Permanent Residents: LPR parent. 1. He or she is the child of a United States Citizen or Lawful Permanent Resident. 2. He or she is a person of good moral character, and 3. He or she has resided with the U.S. citizen or LPR, and 4. The U.S. citizen or LPR battered or subjected him or her to extreme cruelty, and 5. At least one instance of the abuse or extreme cruelty occurred inside of the U.S. 6. Practice tip: Always consider the possibility that the child may already be a U.S. citizen if he or she meets the requirements for acquired US citizenship. c d VAWA is also available to: 1. Is the spouse or child of someone eligible for the Cuban Adjustment Act and who has been battered or subjected to extreme cruelty inside the U.S. 2. Is the spouse or child of someone who is eligible for benefits under the Haitian Refugee Immigration Fairness Act and who has been battered or subjected to extreme cruelty inside the U.S. 3. Is the spouse or child of someone who qualifies for the Nicaraguan and Central American Relief Act (NACARA) and who has been battered or subjected to extreme cruelty in the U.S. 4. Is the spouse or child of someone who qualifies under section 309 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (Division C of Public Law ) and who has been battered or subjected to extreme cruelty in the U.S. 5. The parents of an abusive US citizen if the US citizen is 21 years of age. Additional Considerations: 1. Those who apply for VAWA but are denied are not put into removal proceedings. This is by custom not by law. There are some exceptions, primarily for those who have outstanding orders of removal and those who have serious criminal history. 2. VAWA is private. The abuser will not know that the selfpetitioner filed the petition. 3. Approved self-petitioners are placed in deferred action status which allows them to apply for employment authorization and by extension a social security number. 4 VAWA allows for derivative beneficiaries. In other words, the victim may include any undocumented children in the petition. C a t h o l i c C h a r i t i e s M i l w a u k e e 24

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