GOVERNMENT BENEFITS FOR NON-CITIZENSMARCH 2014

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1. Welfare Reform 2

2. Definitions: → “qualified” and “unqualified” non-citizen 3

→ “battered immigrant” 4

3. Sponsor-Deeming 4

4. “SAVE” 7

5. Reporting to Immigration 7

6. Public Charge Considerations 8

7. Five-Year Bar 9

8. Federal Benefits: 9

a. SSI (for low-income people who are disabled or elderly) 9

b. “SNAP” (Food Stamps) 10

9. State and Federal/State Benefits: 11

a. CASH AND FOOD: TANF Programs (for families) 12

i. Family Stabilization Services (FSS) 13

ii. Diversionary Work Program (DWP) 13

iii. MFIP 13

iv. Work Participation Cash Benefits (WB) 13

b. CASH: General Assistance (GA) (for single or married adults without minor children) 14

c. CASH: Minnesota Supplemental Assistance (MSA) 14

d. CASH: Emergency Assistance (EA) and Emergency General Assistance (EGA) 14

e. CASH, non-need based: UI (Unemployment Insurance) 14

f. FOOD, stand-alone: Minnesota Food Assistance Program (MFAP) 15

g. HEALTH CARE: 15

i. Medical Assistance (MA) 15

ii. Emergency MA (federally-funded) 16

iii. MinnesotaCare 18

10. Other Benefits 19

11. Considerations for Mixed- Status Households 19

1. WELFARE REFORM

1996 Changes:

PRWORA

Enacted August 22, 1996. PERSONAL RESPONSIBILITY AND WORK OPPORTUNITY RECONCILIATION ACT OF 1996, P.L. 104-193.

Replaced AFDC with “TANF” block grants to states. “TEMPORARY ASSISTANCE FOR NEEDY FAMILIES,” PRWORA, Title I (42 U.S.C. §§ 601 et seq.; 42 U.S.C. § 603(a)).

Imposed lifetime limits on, and work requirements for family cash assistance. 42 U.S.C. §§ 602(a), 607, 608(a)(7).

Eliminated SSI and Food Stamp eligibility for many non-citizens. 8 U.S.C. §§ 1611, 1612.

Required certain agencies to file reports with Immigration. 42 U.S.C. §§ 611a, 1383(e)(9), 1437y; 8 U.S.C. § 1644. See also ILLEGAL IMMIGRATION REFORM AND IMMIGRANT RESPONSIBILITY ACT OF 1996, IIRIRA, P.L. 104-208 (9/30/96), 8 U.S.C. § 1373.

Post-PRWORA Federal Law Changes:

Immigration Reform Act 1996; Balanced Budget Act 1997; Agriculture Bill 1998; Farm Bill 2002; SSI Extension 2008

The ILLEGAL IMMIGRATION REFORM AND IMMIGRANT RESPONSIBILITY ACT OF 1996 (supra) amended the definition of “Qualified Alien” (see p. 3) to include a battered non-citizen.

The BALANCED BUDGET ACT OF 1997 added groups of non-citizens eligible for SSI based on Disability and extended the window of SSI benefit eligibility for refugees and asylees from 5 to 7 years. P.L. 105-33 8/5/97; 8 U.S.C. §§ 1612, 1613.

The 1998 AGRICULTURAL RESEARCH ACT restored Food Stamp eligibility to certain groups of legal immigrants and extended the period of Food Stamp eligibility for refugees and asylees from 5 to 7 years. P.L. 105-185, AGRICULTURAL RESEARCH, EXTENSION, AND EDUCATION REFORM ACT OF 1998, 6/23/98, effective 11/1/98.

The FARM BILL OF 2002 significantly broadened eligibility for Food Stamps for non-citizens beginning 2003. P.L. 107-171, FARM SECURITY AND RURAL INVESTMENT ACT OF 2002, 5/13/02, Title IV, Subtitle D, § 4401, “PARTIAL RESTORATION OF BENEFITS TO LEGAL IMMIGRANTS.” Effective dates were 4/1/03 and 10/1/03.

A 2008 law change extended SSI benefits for certain elderly and disabled non-citizens, effective October 1, 2008. SSI EXTENSION FOR ELDERLY AND DISABLED REFUGEES ACT, P.L. 110-328 (9/30/08).

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2. DEFINITIONS

“Qualified” Non-Citizens Are Those Who Have Been:

o lawfully admitted for permanent residence under the Immigration & Nationality Act (INA). 8 U.S.C. § 1641 (b)(1), ref. to 8 U.S.C. §§ 1101 et seq.

o granted “refugee” status (including Haitian, Cuban, and Amerasian immigrants). 8 U.S.C. § 1641(b)(3), ref. to 8 U.S.C. §§ 1157, 1641(b)(7), 1613(b)(1)(D), 1612(a)(2)(A)(iv), & 1612(a)(2)(A)(v).

o granted asylum. 8 U.S.C. § 1641(b)(2), ref. to 8 U.S.C. § 1158.

o paroled into the U.S. for at least a year. 8 U.S.C. § 1641(b)(4), ref. to 8 U.S.C. § 1182(d)(5).

o granted conditional entry before 4/1/80. 8 U.S.C. § 1641(b)(6), ref. to 8 U.S.C. § 1153(a)(7).

o granted withholding of deportation/cancellation of removal. 8 U.S.C. § 1641(b)(5), ref. to 8 U.S.C. §§ 1253 (as in effect before 4/1/97) & 1231(b)(3) (as amended by § 305(a) of P.L. 104-208, Div. C).

o granted a T-Visa (victim of severe trafficking). 8 U.S.C. § 1641(c)(4), ref. to 8 U.S.C. § 1101(a)(15)(T).

o given the status of “battered immigrants (see below).

“Unqualified” Non-Citizens

“Unqualified” non-citizens are all other non-citizens, including non-citizens who:

× have no documentation,

× have expired documentation,

× came to the U.S. with a “fiancé (“K” or “K-1”) visa,

× 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 [TPS], or student, visitor, or temporary worker visas). NOTE: U-Visa recipients are defined as “non-immigrants” under federal law, or

× have been granted Deferred Action for Childhood Arrivals (DACA).

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“Battered Immigrants”

To qualify for benefits, the applicants must have been battered or subjected to extreme cruelty in the U.S. by a U.S. citizen or Lawful Permanent Resident (LPR) parent, spouse, or relative who resided in the same household as the victim, AND

they must no longer live with the abuser, AND

the need for benefits must be “substantially connected” to the abuse.

AND

Applicants 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.

8 U.S.C. §§ 1641(c), 1101(a)(15)(U), 1154(a)(1)(A)(iii) or (iv), 1229b(b)(2); 62 FR 65285 (12/11/97); 62 FR 60769 (11/13/97); and 62 FR 39874 (7/24/97). The inclusion of battered non-citizens as “qualified noncitizens” for state-funded MFIP benefits is found at MINN. STAT. § 256J.08, Subd. 73(8) and (9).

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3. SPONSOR-DEEMING

(Attribution of income from sponsor to immigrant)

1996 welfare reform law required sponsor-deeming. PRWORA, P.L. 104-193, Title IV, Subtitle C, “ATTRIBUTION OF INCOME AND AFFIDAVITS OF SUPPORT,” §§ 421-423 (1996); 8 U.S.C. § 1183a. See also 8 U.S.C. §§ 1631(a)(1) & (2), (b); 1632(a); 8 C.F.R. § 213a.2; MINN. STAT. §§ 256J.37, Subd. 2; 256D.05, Subd. 8(a); 256B.06, Subd. 5; and 256L.04, Subd. 10a.

Deeming pursuant to 1996 law change began on 12/19/97 when new “Affidavit of Support” forms (form I-864) began being used. The U.S. Department of Health & Human Services (HHS) issued program instructions on deeming in 2003: “DEEMING OF A SPONSOR’S INCOME AND RESOURCES TO A NON-CITIZEN,” TANF-ACF-PI-2003-03, 4/17/03, at www.acf.hhs.gov (search for TANF-ACF-PI-2003-03). The document provides guidance in a question-and-answer format.

Deeming applies only to family-based immigrants (immigrants arriving through a petition from a family member, the most common method of immigrating to the U.S.), and to employment based immigrants coming to work for a relative. 8 U.S.C. § 1183a.

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Deeming Does Not Apply To:

refugees. asylees people paroled for at least a year. Cuban/Haitian entrants. diversity visa (visa lottery) recipients. MA for pregnant women & children. children under 18 for SNAP.** People with Temporary Protected Status MinnesotaCare. (TPS).

** Federal law suggests that a U.S. citizen child of a sponsored immigrant parent might not qualify for SNAP due to deeming See, e.g., 8 U.S.C. §§ 1631(d)(3) and 1612(a)(2)(J), as well as 7 U.S.C. § 2014(i)(2)(E). However, the U.S. Department of Agriculture stated in “Guidance on Non-Citizen Eligibility” dated June 2011 that all children must be “treated equitably in that a sponsor’s income cannot be considered when determining the child’s eligibility for SNAP.” See http://www.fns.usda.gov/snap/government/pdf/Non-Citizen_Guidance_063011.pdf , p. 34.

Note that deeming in SNAP is less onerous than deeming for other programs. 7 U.S.C. § 2014(i)(2)(A); MDHS COMBINED MANUAL (hereafter CM) § 16.21.03 (08/13). The MA provision is found at MINN. STAT. § 256B.06, Subd. 5.

How Deeming Works

In general, 100% of the income and assets of the sponsor AND the sponsor’s spouse are considered fully available to the immigrant, whether or not actually available.

NOTE: Deeming calculations are a little more favorable for SNAP, because there the sponsor’s family size and other obligations do affect eligibility. 7 U.S.C. § 2014(i)(2)(A); CM 16.21.03 (08/13). For MA, income and assets are deemed only to the sponsored immigrant. MFIP uses a household concept, so even U.S. citizens may be affected by deeming in that program.

The sponsor’s family size and fixed debts are irrelevant for all programs but SNAP.

The burden of proving the sponsor has little income is generally on the immigrant applying for assistance.

The sponsor’s income and assets are deemed until: the sponsor becomes a U.S. citizen, works 10 years (40 work quarters) at Social Security-covered work, permanently leaves the U.S., or dies. Deeming will also end when the sponsor dies.

Divorce (from a sponsor or the relative of a sponsor) has no effect on deeming.

The government can sue the sponsor for benefits provided to the immigrant under either of the exceptions described below.

8 U.S.C. §§ 1183a, 1631, 1632; 8 C.F.R. § 213a.2(e)(2)(i); also CM, § 16.21.03 (08/13). (NOTE: All sections of the CM and the HEALTH CARE PROGRAMS MANUAL (HCPM), as well as DHS fact sheets and “eDocs,” are found at www.dhs.state.mn.us under “publications”).

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Exceptions to Deeming

A. INDIGENCE

× Sponsor-deeming will NOT apply if the welfare agency determines that, as a result of the sponsor’s failure to provide support, the immigrant is without food and shelter.

× Benefits can be provided under this exception for 12 months, with the possibility of additional 12-month renewals. 8 U.S.C. § 1631(e); CM 16.21.03 (08/13).

B. BATTERED SPOUSE OR CHILD

Sponsor-deeming will NOT apply for 12 months if the immigrant provides a statement or document that s/he or the child has been battered or subjected to extreme cruelty by the immigrant’s spouse or parent, the immigrant is no longer living with the batterer, AND the battery or cruelty is substantially connected to the need for assistance.

After 12 months, the exception will end unless the batterer was the immigrant’s sponsor, there continues to be a need resulting from the battery or cruelty, AND the battery or cruelty has been recognized in a court order, such as an Order for Protection, or in a USCIS determination.

Some statement or documentation to support the allegations may be required. 8 U.S.C. § 1631(f); CM § 16.21.03 (08/13).

Benefits to Which Deeming Applies

Cash programs : SSI, MSA, GA, MFIP, DWP, FSS, WB.

Food programs : SNAP for adults, MFAP.

Health care programs : MA.*

* For MA, income is deemed only to sponsored immigrants, not to other members of the household.

Deeming does NOT apply to:

× Emergency Medical Assistance (EMA), MA for pregnant women or children, OR MinnesotaCare

× SNAP for non-citizen children.

8 U.S.C. §§ 1631(d)(3), 1632(b)(1) (referring to 8 U.S.C. § 1621(b)(1)), 1612(a)(2)(J); and 7 U.S.C. § 2014(i)(2)(E); MINN. STAT. § 256B.06, Subd. 5; CM §§ 15.48.03 (8/13) and 16.21.03 (08/13); HCPM § 3.45.05 (12/1/13).

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Special 3-Year Deeming, Only in MFIP

Deeming as described above applies only to family-based immigrants and those who came here to work in a relative’s business.

However, state law allows a different form of limited (3-year) income deeming in MFIP, DWP, FSS, and WBP only, for immigrants arriving through means other than a relative petition (such as a diversity visa). Such deeming does NOT apply to refugees or asylees. The indigence and domestic violence exceptions listed above are not applicable, but this deeming scheme takes into account a sponsor’s family size and support obligations.

42 U.S.C. § 608(f); MINN. STAT. § 256J.37, Subd. 2(c); CM § 16.21 (07/12).

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4. “SAVE”(Systematic Alien Verification for Entitlements)

SAVE is an inter-agency governmental information-sharing program.

It is used to verify immigration status for public assistance (MFIP, DWP, WB, SNAP, MFIP) and public housing purposes.

It is not used for reporting immigration (or lack thereof) to Immigration.

It is not used for GA, EGA, MSA, or Group Residential Housing (GRH).

8 U.S.C. § 1642; Minn. Stat. § 256.01, Subd. 18; CM § 10.18.11.03 (12/13).

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5. REPORTING TO IMMIGRATION

The requirement to report stems from the 1996 PRWORA law. 42 U.S.C. § 611a.

Who Is Required to Report?

o Agencies receiving TANF funds (i.e., counties administering MFIP). 42 U.S.C. § 611a.

o Social Security, because it administers the SSI program. 42 U.S.C. § 1383(e)(9).

o Public Housing Agencies (PHAs) contracting with the department of Housing and Urban Development (HUD). 42 U.S.C. § 1437y.

What Must Be Reported?

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The names, addresses, and other “identifying information” on anyone the worker “knows” to be unlawfully in the U.S.

Reporting in Minnesota

Minnesota DHS first issued reporting protocols for county agencies on 4/1/99. It subse- quently issued a clarifying bulleting reiterating the protocols, which had narrowly interpreted the federal reporting requirements. The reporting protocols were later codified in the Combined Manual. (CM § 11.03.27.03 (05/13). Under state policy, county agencies must:

Report to DHS, not to immigration. DHS may report to Immigration, after first ensuring that the civil rights of the individual being reported are not being violated.

Not verify immigration status if the status is not relevant to the eligibility for benefits. Examples are a person or pregnant woman applying for EMA or MA, or a parent who asserts ineligibility for herself but is applying for assistance for a U.S. citizen child.

Stop inquiring into immigration status when the applicant declares an unwillingness or inability to verify such status.

Interpret “knowledge” of unlawful presence very narrowly, so that county agencies generally lack the requisite knowledge to make a report.

Comply strictly with data privacy laws when disclosing immigration information (applicants must sign a special release to authorize the agency to contact USCIS).

It is believed that MN DHS has not reported anyone to USCIS sinceenactment of this policy.

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6. PUBLIC CHARGE CONSIDERATIONS

Immigrants applying for permanent residency through a family member should consider “public charge” issues before applying for certain government benefits for themselves, their spouses, or their minor children. Getting such benefits might harm their chances of adjusting their status and getting a green card. The USCIS wants to make sure that such immigrants will not become “public charges.”

Federal guidelines have made it clear that only cash benefits and long-term medical care, such as nursing home care, can be considered for public charge purposes. (Although USCIS says that SNAP benefits are specifically exempted from public charge determinations, some immigration attorneys have found that USCIS personnel have sometimes considered SNAP to be akin to cash benefits). Refugees and asylees are not subject to public charge considerations.

See “PUBLIC CHARGE” Q & A (9/3/09), and “PUBLIC CHARGE” Fact Sheet (4/29/11), at www.uscis.gov; “THE INS PUBLIC CHARGE GUIDANCE: WHAT DOES IT MEAN FOR IMMIGRANTS WHO NEED PUBLIC ASSISTANCE?” by Shawn Fremstad, Center on Budget and Policy Priorities, 1/7/00 (www.cbpp.org); CM § 11.03.17 (4/13).

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7. FIVE-YEAR BAR (waiting period)

A provision in the welfare reform law prevents many immigrants from getting access to federally-funded benefits (SSI, Food Stamps, cash assistance or health care) during the first 5 years they are in “qualified” status. The bar does not apply to refugees, asylees, or those granted withholding of deportation, or to U.S. veterans, those on active duty with the U.S. armed forces, or the spouses or minor dependents of veterans or military personnel. The only federal benefit not subject to the bar is Emergency Medical Assistance (EMA), discussed below.

8 U.S.C. §§ 1613, “FIVE YEAR LIMITED ELIGIBILITY OF QUALIFIED ALIENS FOR FEDERAL MEANS-TESTED PUBLIC BENEFITS,” 1611(b)(1)(A).-------------------------------------------------------------------------------------------------------------------------------

8. FEDERAL BENEFITS

a. SSI Benefits for Low-Income Disabled or Elderly (65 or Older)

NOTE: SSI IS CURRENTLY THE MOST RESTRICTIVE PROGRAM FOR NON-CITIZENS.

To qualify for SSI, non-citizen applicants must:

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

meet a federal exception (i.e., be an American Indian born in Canada (8 U.S.C. § 1612(a)(2)(G)) or be a non-citizen receiving SSI on the basis of a “very old” application (8 U.S.C. § 1612(a)(2)(H)); AND

meet certain residency requirements.

SSI Residency Issues:

Immigrants Lawfully and Permanently Here Before Welfare Reform (i.e., applicants who were LPRs in the U.S. before 8/22/96):

If on SSI on 8/22/96, immigrants can keep getting SSI for as long as they remain elderly or disabled. 8 U.S.C. § 1611(b)(5), (referring to 8 U.S.C. § 1612(a)(3)(A)); P.L. 105-306 (10/28/98) (NONCITIZEN BENEFIT CLARIFICATION AND OTHER TECHNICAL AMENDMENTS ACT).

If they were not on SSI on 8/22/96, immigrants can get SSI now if they are “qualified” non-citizens AND they are disabled. 8 U.S.C. § 1612(a)(2)(F).

Benefits based on age (65 or over) are no longer available to this group.

Immigrants Arriving or Adjusting to LPR Status After Welfare Reform (8/22/96)

“Unqualified” non-citizens cannot get SSI. 8 U.S.C. § 1611(a).

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Interestingly, most “qualified” non-citizens can’t get SSI, either.

There are 3 exceptions to ineligibility for SSI of immigrants arriving or adjusting after 8/22/96:

1. Those granted refugee, asylee, or withholding status may get SSI for 7 years after attaining the status. 8 U.S.C. §§ 1612(a)(2)(A), 1613(b)(1)).

NOTE: The original 5-year “window” of SSI eligibility for refugees and asylees was extended to 7 years by THE BALANCED BUDGET ACT of 1997. The SSI EXTENSION ACT OF 2008 allowed certain refugees and asylees to get an additional 2 years, with a 3rd year available to those with pending citizenship applications. The extension law expired 9/30/11.

2. U.S. veterans and active-duty members of the U.S. armed forces and theirdependents can get SSI without time limits and are not subject to the 5-year bar. (Hmong soldiers who fought with the CIA during the Vietnam War are not “U.S. veterans,” despite a declaration of Congressional intent to the contrary. P.L. 105-33, Title V, Subtitle F, Ch. 4, Subch. A, § 5566 (1997)). 8 U.S.C. §§ 1612(a)(2)(c), 1613 (b)(2).

3. Immigrants who have worked (or are credited with) 40 work quarters at Social Security-covered work (work where FICA taxes have been taken out) can get SSI without time limits, but they are subject to the 5-year bar. 8 U.S.C. § 1612(a)(2)(B).

NOTE: As a need-based program, SSI applies sponsor-deeming. Most immigrants subject to an Affidavit of Support, however, will be ineligible for SSI anyway, unless they are veterans or have worked 40 quarters. In the latter case, they may qualify for SSDI, which does not deem sponsor income.

Note About “40 Work Quarters” Exception

Only work where FICA taxes have been deducted from pay counts.

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

Any quarters worked after 12/31/96 in which the household received federal “need-based” benefits (AFDC, MFIP, SNAP, SSI, MA) do not count for the exception.

8 U.S.C. §§ 1612(a)(2)(B)(ii), 1645.

b. SNAP (Supplemental Nutritional Assistance Program, a/k/a Food Stamps)

Unless sponsor-deeming applies, all “qualified” non-citizens can get SNAP 5 years after obtaining permanent legal status. 8 U.S.C. § 1612(a)(2)(L).

The following non-citizens can get SNAP immediately (with no 5-year waiting period):

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Lawfully present immigrants in the U.S. on 8/22/96 who have been certified disabled by the State Medical Review Team (SMRT) or Social Security. 8 U.S.C. § 1612(a)(2)(F), 7 U.S.C. § 2012(j)(2).

Lawfully-present immigrants under age 18. 8 U.S.C. § 1612(a)(2)(J).

Refugees, asylees, and those whose deportation has been withheld. 8 U.S.C. § 1612(a)(2)(A).

U.S. veterans and active-duty members of the U.S. armed forces, their spouses and surviving un-remarried spouses, and their unmarried dependent children. 8 U.S.C. §§ 1612(a)(2)(C), 1613(b)(2).

Elderly immigrants who were “lawfully residing” in the U.S. as of 8/22/96 and who were 65 or older as of that date. 8 U.S.C. § 1612(a)(2)(l).

Most Hmong and Highland Laotian immigrants. 8 U.S.C. § 1612(a)(2)(K); CM §§ 11.03.06 (05/13) and 11.03.09 (05/13).

NOTE: SNAP benefits are subject to sponsor-deeming, but not for minor children.

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9. STATE AND FEDERAL/STATE BENEFITS

General Requirement: “Steps” Toward Citizenship

Most non-citizen recipients of state-funded cash or food assistance (including GA, MSA, and state-funded MFIP) must take “steps” toward obtaining citizenship.

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

have lawfully resided in the U.S. fewer than 4 years;

are 70 or older; OR

are living in a nursing home, group home, or similar type of facility.

“Steps” include:

Taking citizenship, literacy, or ESL classes, or being on a wait list for ESL or literacy classes;

Having an application for citizenship on file with USCIS and either awaiting a testing or swearing-in date or applying for language or civics waivers; or

Having failed the citizenship test at least twice or having an inability to understand the rights and responsibilities of U.S. citizenship.

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Minn. Stat. §§ 256D.05, Subd. 8(b); 256J.11, Subd. 3. Also CM 11.03.03 (05/13).“Lawfully Residing People”

Certain people without Lawful Permanent Residency may qualify for particular state-funded benefits. The Manuals contain a non-exhaustive list, including:

Lawful Temporary Residents and those with Temporary Protected Status (TPS); Applicants for asylum who have employment authorization; Spouses or children of U.S. citizens with an approved visa petition and a pending

application for adjustment to LPR status; People granted humanitarian Parole status; Those in other discretionary classifications, including Deferred Enforced Departure

(DED), deferred action, stay of deportation, etc.

CM § 11.03.24 (05/13), “NON-CITIZENS – LAWFULLY RESIDING PEOPLE.” See also HCPM § 11.25.25 (11/1/12), “OTHER LAWFULLY PRESENT NONCITIZENS.”

NOTE:

1) T-Visas : Victims of trafficking are “qualified” and “eligible for benefits to the same extent as

refugees.” CM § 11.03.30 (12/10).

2) U-Visas : Eligibility is less clear for U-Visa (crime victim) recipients. Although defined as

“non-immigrants” under 8 C.F.R. § 1.3, they qualify for MinnesotaCare (See below). U-Visa recipients are potentially eligible for state-funded food benefits, per CM § 10.18.24 (11/12); nothing in the CM addresses their eligibility for cash aid.

3) DACA : Those granted Deferred Action for Childhood Arrivals are not considered “lawfully residing” for MA. See Center for Medicaid and CHIP Services 8/28/12 letter, SHO#12-002, http:/www.medicaid.gov/Federal-Policy-Guidance/downloads/SHO-12-002.pdf . While it seems they should be eligible for MNCare per MINN. STAT. § 256L.04, Subd. 10, and 8 C.F.R. § 1.3(a)(4)(vi), a MN DHS health care chart says no. http://hcopub.dhs.state.mn.us/iapmstd/IAPM_documents/Immigration_Status_and_Minnesota_Insurance_Affordability_Program_Eligibility.pdf.

a. CASH AND FOOD ASSISTANCE: TANF Programs

(i) Family Stabilization Services (FSS)

FSS began in February 2008, providing services to low-income families through a case management model as an alternative to MFIP and DWP (see below). FSS is mandated to serve families not making significant progress in the MFIP employment and training program due to barriers to employment. MINN. STAT. § 256J.575, Subd. 1.

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Non-citizens in the U.S. for 12 months or fewer are automatically eligible for the program. Id. at Subd. 3(a)(3). Also eligible are MFIP and DWP recipients who are applying for SSI or SSDI, who have been granted an MFIP hardship extension, or who are 60 or older. Id. at Subd. 3(a)(1), (2), and (4). Non-citizens who have been in the U.S. less than a year must be given ESL opportunities and skills training through FSS for up to 12 months, after which time a case manager will help determine their continuing participation in the program. Id. at Subd. 3(b).

(ii) Diversionary Work Program (DWP)

DWP is a 4-month program for new MFIP applicants and for former MFIP recipients who are reapplying after having been off MFIP for 12 months. MINN. STAT. § 256J.95, Subds. 1, 3. After 4 months of DWP, recipients who have not secured work automatically transfer to MFIP. Id., Subd. 12. Non-citizen eligibility for DWP is identical to eligibility for MFIP.

(iii) Minnesota Family Investment Program (MFIP)

Most legal non-citizens permanently in the U.S. who meet criteria are eligible, whether “qualified” or “unqualified” under federal law. Most will have to work or look for work in order to get benefits. MINN. STAT. §§ 256J.11, Subd. 1(c); 256J.08, Subd. 73.

Immigrants who are not refugees or asylees (such as recipients of diversity visas or battered immigrants), who arrived or attained their status after 8/22/96, and who are not subject to sponsor-deeming, will have to have their MFIP paid for with state funds, as they are not eligible for federally-funded MFIP during their first 5 years in the U.S. because of the federal “bar.” MINN. STAT. § 256J.11, Subd. 3. They must take steps toward citizenship. Id.

(iv) Work Participation Cash Benefits (WB)

WB is a program for people exiting DWP or MFIP with earnings. When it started in 2009, WB provided $50 cash per month to eligible households. The following year, the amount was reduced to $25 per month. Non-citizens are eligible to the same extent they would be eligible for MFIP, DWP, or FSS. MINN. STAT. § 256J.621. The WB program ends 12/1/14. Id. at Subd. 2; MINN. SESSION LAW 2013, Ch. 108, Art. 3, § 30.

MFIP & DWP Work Plans and ESL

As stated, most MFIP and DWP recipients have to work.

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

MFIP recipients may fulfill only half of their work participation requirements through attendance at ESL classes unless they are taking intensive functional work literacy.

Recipients may include ESL in their work plans for only 24 out of 60 MFIP months.

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MINN. STAT. §§ 256J.531, Subd. 2; 256J.49, Subd. 13(a)(5); 256J.95, Subd. 15(c).

NOTE: Sponsor-deeming may affect eligibility for FSS, DWP, MFIP, and WB. MINN. STAT. § 256J.37, Subd. 2.

b. CASH ASSISTANCE : General Assistance (GA)

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

One eligibility category authorizes GA for people over 18 whose primary language is not English and who are attending high school at least half time.

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

MINN. STAT. § 256D.05, Subdd. 1(a)(13), 8.

c. c. CASH ASSISTANCE: Minnesota Supplemental Assistance (MSA)

MSA is a state supplement for recipients of SSI and people who would be getting SSI but for excess income. People living in a “shared household”

are not usually eligible. Immigration restrictions are the same as those for the SSI program, which means they are very restrictive. Those not eligible for SSI due to sponsor-deeming are also be ineligible for MSA.

MINN. STAT. § 256D.425, Subd. 1; CM 20.21 (12/13), “MSA ASSISTANCE STANDARDS.”

d. EMERGENCY CASH ASSISTANCE: Emergency Assistance (EA) and Emergency General Assistance (EGA)

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

NOTE: Sponsor-deeming may preclude eligibility, but applicants may qualify for benefits anyway because of the indigence exception.

MINN. STAT. §§ 256J.626, Subd. 3; 256D.06, Subd. 2; CM §§ 16.21.03 (08/13) and 15.48.03 (08/13).

e. CASH – Non-need-based : Unemployment Insurance (UI)

State law says that UI benefits will not be paid unless the worker was:

Lawfully admitted for permanent residence at the time of the employment;

Lawfully present for purposes of the employment; OR

Permanently residing in the U.S. “under color of law” at the time of the employment.

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Work done before gaining legal status does not count toward the earnings requirements.

NOTE: Because UI is not need-based, sponsor-deeming does not apply.

MINN. STAT. § 268.085, Subd. 12.

f. FOOD : Minnesota Food Assistance Program (MFAP)

Non-citizen lawfully residing on a permanent basis in the U.S. who are not on MFIP and are not eligible for federally-funded SNAP may qualify for food benefits through MFAP if they are age 50 or older. The program follows federal SNAP regulations, which means sponsor-deeming could affect eligibility. MINN. STAT. § 256D.053.

g. HEALTH CARE:(i) Medical Assistance (MA)

MA is potentially available to immigrants who:

Are low-income; AND Meet categorical MA eligibility requirements by being:

pregnant; part of an MFIP household or living with minor children; under 21; certified disabled by the State Medical Review Team (SMRT) or Social Security; 65 or older; OR At least 21, without dependents, and living ≤ 133% of federal poverty guidelines.

NOTE: Sponsor-deeming may affect eligibility, but NOT for pregnant women or children.

MINN. STAT. §§ 256B.055, 256B.06, Subds. 4, 5.

SOME NON-CITIZENS LOST THEIR MA ELIGIBILITY IN EARLY 2012:

The Minnesota legislature eliminated state-funded MA formost non-citizens who did not fall under the federal

definition of “qualified” on page 3, above.

What this means is:

× “OTHERWISE LAWFULLY RESIDING”: Immigrants who did not meet the federal definition of “qualified” (see p. 3) and who therefore are not eligible for federally-funded MA, but who are considered “otherwise lawfully residing” such that they would have been eligible for state-funded MA, can no longer get state-funded MA benefits. Included in the cuts are people with:

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× pending applications for asylum or withholding or removal;× Deferred Enforced Departure (DED); × pending immigration status;× Temporary Protected Status (TPS); and× U-Visas.

× SUBJECT TO 5-YEAR BAR: Immigrants subject to the “5-year bar” on federal benefits no longer have access to state-funded MA during their 5-year waiting period for federal MA. Affected immigrants include LPRs such as recipients of diversity visas (winners of the immigration “lottery”), and people who came to the U.S. through a family-based petition where sponsor-income is low enough that it doesn’t make them ineligible.

NOTE: Those who lost MA due to the demise of the state-funded component should be eligible for MinnesotaCare (See below), unless they’re Medicare recipients.

State-Funded MA Exception for Pregnant Women and Children:

Pregnant women and children who are lawfully present in the U.S. (including those who have been paroled into the U.S., have temporary resident status, are under Temporary Protected Status, are Family Unity beneficiaries, have received Deferred Enforced Departure, have applied for asylum and have work authorization, or are the spouse or child of a U.S. citizen and have a pending application for adjustment to LPR status, are still eligible for MA, funded through the federal Children’s Health Insurance Program (CHIP). Pregnant women who are not lawfully present in the U.S. are also eligible for benefits during pregnancy and for 60 days post-partum, funded through EMA (labor & delivery) & CHIP (prenatal & postpartum care).

MINN. STAT. § 256B.06, Subd. 4(d),(i).

State-Funded MA Exception for Torture Survivors:

State law allows those otherwise ineligible for MA to get coverage if they are receiving “care and rehabilitation” services from a non-profit center established to serve victims of torture (i.e., the Center for Victims of Torture). Those receiving such services do not have to meet MA guidelines in terms of categorical eligibility, income and asset restrictions, or immigration requirements.

MINN. STAT. § 256B.06, Subd. 4(j); HCPM § 3.45.15 (6/1/11).

(ii) Emergency Medical Assistance (EMA)

Emergency MA benefits in Minnesota were significantlyreduced, both in terms of available services and

locations where services could be received, in early 2012.

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EMA is available only to those categorically eligible for MA -- i.e., living in a household with minor children; pregnant; elderly; certified disabled; under 21; or over 21, living in a household without minor dependents, and having income ≤ 133% FPG.

MINN. STAT. §§ 256B.055, 256B.06.EMA Is for “Emergency Medical Services”

Federal law defines “emergency medical services” as services required for medical conditions manifesting themselves by acute symptoms of sufficient severity (including severe pain) suchthat the absence of immediate medical attention could reasonably be expected to result in:

placement of the patient’s health in serious jeopardy, serious impairment to bodily functions, OR serious dysfunction of any bodily organ or part.

42 U.S.C. § 1396b(v)(3), 8 U.S.C. § 1369(d); 42 C.F.R. § 440.255.* (*NOTE that the federal regulation includes the phrase “sudden onset,” which is not included in federal law).

Until 2012, the definition of “emergency medical services” was interpreted very loosely in Minnesota, so that it covered chronic conditions and many home-based services.

Since early 2012, most chronic conditions and home-based services are no longer covered by EMA. The current EMA statute significantly limits services covered and sites in which services are provided. The statute initially

stated that EMA was no longer available for chemotherapy and kidney dialysis, but an exception was added during the 2012 legislative session (see below). However, insulin, personal care assistant services, home health care, mental health care or medications, and certain other services and treatments continue not to be covered, to a great extent.

The current EMA statute says that EMA is only for services:

delivered in an emergency room or ambulance that are “directly related” to the treatment of an emergency medical condition;

delivered on an in-patient basis in a hospital following admission from the emergency room for an acute emergency condition; or

for follow-up and “directly related” to the original services provided to treat the emergency medical condition.

MINN. STAT. § 256B.06, Subd. 4.

On 12/19/11, DHS announced that “consistent with federal law,” it would allow “limitedexceptions” for some care and treatment provided in other settings, “without which theperson’s cardiovascular or respiratory condition” would be affected (i.e., damage would

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reasonably be expected to occur to the person’s health, bodily functions, or bodily organs orparts). DHS said that EMA would cover services for recipients:

who had an emergency medical condition covered by EMA and were discharged to a nursing facility or home/community setting directly from an ER or in-patient hospitalization;

who needed continuing treatment for the emergency medical conditionthat necessitated their placement in a nursing facility or home/community setting; AND

whose treatment and services provided in the nursing facility or home/community settingwere directly responsible for preventing their cardiovascular or respiratory conditionfrom becoming an emergency medical condition within 48 hours.

DHS EMA provider FAQ (12/29/11).

In April 2012, Governor Dayton signed a bill allowing EMA to pay for:

kidney dialysis services provided in a hospital or free-standing dialysis facility; and

surgery and the administration of chemotherapy, radiation, and related services necessary to treat cancer, if the recipient has a cancer diagnosis not in remission.

MINN. STAT. § 256B.06, Subd. 4(k) (extended by MINN. SESSION LAW 2013, ch. 108, Art. 6, § 7).

NOTE: DHS has issued some sample EMA coverage scenarios. They are available on theDHS website at www.dhs.state.mn.us/main/idcplg?IdcService=GET_DYNAMIC_CONVERSION&dID=136064.

(iii) MinnesotaCare

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.

MINN. STAT. § 256L.04, Subd. 10.

Effective 1/1/14, non-immigrants are eligible for MNCare.

MINN. SESSION LAW 2013, Ch. 108, Art. I, §46, amending MINN. STAT. § 256L.04, subd. 10.

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NOTE: As mentioned, DACA recipients arguably should be eligible for MinnesotaCare. MINN. STAT. § 256L.04, Subd. 10; 8 C.F.R. § 1.3(a)(4)(vi), defining “lawfully present aliens” as including those in deferred action status. However, DHS says DACA grantees are not eligible for MNCare. http://hcopub.dhs.state.mn.us/iapmstd/IAPM_documents/Immigration_Status_and_Minnesota_Insurance_Affordability_Program_Eligibility.pdf.

Sponsor-deeming does not apply to MNCare, since 1/1/14. MINN. SESSION LAW 2013, Ch. 108, Art 1, § 68, repealing MINN. STAT. § 256L.04, Subd. 10a.

10. OTHER BENEFITS

Some benefits are available without regard to immigration status. These include:

Women, Infants and Children (WIC) benefits. States receive federal grantsthrough WIC to provide supplemental foods, health care referrals, and nutritional education to low-income pregnant and post-partum women and to infants and children up to age 5 who are found to be at nutritional risk. Income must be at or below 185% of federal poverty guidelines. Funding for WIC, unless most other child nutrition programs, is discretionary; benefits are first-come, first-served.

42 U.S.C. § 1786, SPECIAL SUPPLEMENTAL NUTRITION PROGRAM FOR WOMEN, INFANTS, AND CHILDREN.

School breakfast and lunch program benefits. 8 U.S.C. § 1615(a).

Head Start program benefits. 42 U.S.C. § 9840.

K-12 free public education. PLYLER V. DOE, 457 U.S. 202 (1982). (By a 5-4 vote, the U.S. Supreme Court struck down a Texas law authorizing school districts to deny admission to children not

“legallyadmitted” into the U.S. as violating the Equal Protection

Clause of the 4th Amendment).

Public health immunizations; testing for and treatment of symptoms of communicable diseases. 8 U.S.C. § 1611(b)(1)(C).

Services from soup kitchens, crisis counseling and intervention programs, and short-term shelter. 8 U.S.C. § 1611(b)(1)(D).

Child care assistance for U.S. citizen children of undocumented immigrants. MDHS CHILD CARE ASSISTANCE PROGRAM POLICY MANUAL, §§ 4.15 (03/11), 4.15.3 (04/07).

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11. CONSIDERATIONS FOR MIXED-STATUS HOUSEHOLDS

Parents who are undocumented or who have overstayed a visa, and LPR or U.S. citizen spouses of undocumented individuals, may understandably be leery of applying for benefits for their U.S. citizen children. In most instances,protections are in place to keep folks from being reported.

DO tell the agency you are not eligible for benefits yourself due to your immigration status. Tell the agency you are applying for benefits only for your eligible householdmember. (The inquiry into your own immigration status is supposed to stop).

DO NOT provide details about your own immigration status to the agency.

DO NOT provide your own Social Security number, unless it is to verify your incomefor a benefit for which household income is an eligibility criterion.

DO provide proof of your income, even if you have used a fake Social Security number to work. The agency is not supposed to look beyond the income information.

DO verify your pregnancy, if you are seeking prenatal care or medical care for labor and delivery.

-------------------------------------------------------------Laura Melnick

Southern Minnesota Regional Legal Services, Inc. (SMRLS)55 E. Fifth St., #400St. Paul, MN 55101

651-894-6932laura.melnick@smrls.org

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