TANF-ACF-PI-2010-05 (Eligibility of Iraqi and Afghan aliens who have been granted special immigrant status for Federal TANF and State Maintenance-of-Effort (MOE) benefits)

TO:

State agencies and Tribes administering the Temporary Assistance for Needy Families (TANF) program under title IV-A of the Social Security Act, and other interested parties.

SUBJECT:

Eligibility of Iraqi and Afghan aliens who have been granted special immigrant status for Federal TANF and State Maintenance-of-Effort (MOE) benefits

PURPOSE:

The purpose of this Program Instruction is to update the policy regarding the eligibility of Iraqi and Afghan aliens granted special immigrant status for Federal TANF and State MOE public benefits, as a result of legislation.

REFERENCES:

Sec. 8120 of PL 111-118 (DOD Appropriations Law).

BACKGROUND:

On December 19, 2009, Congress passed the DOD Appropriations Law which among other things, extended the period of time for which certain Iraqi and Afghan aliens are eligible to receive public benefits. Prior to this, per the Refugee Crisis in Iraq Act of 2007, certain Iraqi refugees were only eligible to receive up to eight months of benefits. Per the Afghan Allies Protection Act of 2009, certain Afghan aliens were also only eligible to receive up to eight months of benefits. The new DOD Appropriations Law has extended the eligibility period to the same period as refugees.

We have divided the guidance below into two sections. First, we briefly explain current law as it applies to eligibility of noncitizens for a Federal TANF public benefit or a State MOE public benefit. Then, we apply the above-cited section to the noncitizen eligibility provisions.

GUIDANCE:

1. Basic Summary of Federal Law:

Qualified aliens are the only non-citizens eligible to receive a TANF-funded federal public benefit.[1] Qualified aliens are defined in 8 U.S.C. 1641. Qualified aliens are lawful permanent residents (LPRs), asylees, refugees, aliens paroled into the United States for at least one year, aliens whose deportations are being withheld, aliens granted conditional entry, Cuban/Haitian entrants, and certain battered aliens. Victims of severe forms of trafficking and certain family members are also eligible for federally funded or administered public benefits and services to the same extent as refugees.

Per 8 U.S.C. 1613, a qualified alien who enters the U.S. on or after August 22, 1996, is not eligible for any Federal means-tested public benefit (such as federally funded TANF assistance) for a period of five years beginning on the date of the alien’s entry into the United States with a status within the meaning of the term “qualified alien.” The following qualified aliens are exempted from this 5 year bar: refugees, asylees, aliens whose deportation is being withheld, Amerasians, Cuban/ Haitian entrants, as well as veterans, members of the military on active duty, and their spouses and unmarried dependent children.

Qualified aliens, nonimmigrants under the Immigration and Nationality Act (INA), and individuals paroled into the U.S. for less than a year are the only noncitizen groups that are eligible for a State or local MOE-funded public benefit. Aliens that are not lawfully present in the U.S. may also be eligible for a State or local MOE-funded public benefit if the State has enacted a law after August 22, 1996 affirmatively providing for such eligibility. (Of course, all expenditures must meet all MOE requirements in the TANF regulations at 45 CFR 263, subpart A).

States (including D.C., the U.S. Virgin Islands, Puerto Rico, and Guam) have the authority to decide whether or not to provide a TANF-funded federal public benefit or a MOE-funded public benefit to otherwise eligible qualified aliens (8 U.S.C. 1612(b)(1) and 1622). If a State has elected to help qualified aliens, then the information in the next paragraph does not apply.

States have the authority to decide whether to help qualified aliens who arrived in this country prior to August 22, 1996 and qualified aliens who arrived on or after August 22, 1996, once the 5 year bar (unless exempt) has expired. If a State has decided NOT to provide a Federal or State-funded public benefit to qualified aliens, then the State may not deny assistance to certain qualified aliens for a limited period of time, and other qualified aliens for as long as they remain programmatically eligible. In other words, Congress did not give States the authority to deny eligibility to all qualified aliens. States that have elected not to help qualified aliens may not deny assistance to the following qualified aliens who meet the State’s eligibility criteria to receive TANF benefits for five years after the date of entry into the U.S. or the date asylum or withholding of deportation was granted: refugees (and victims of severe forms of trafficking and certain family members), asylees, aliens whose deportation has been withheld, Amerasians, and Cuban/Haitian entrants. Also, these States may not deny assistance on the basis of alien status to the following qualified aliens for as long as they remain programmatically eligible: LPRs who have forty qualifying quarters after December 31, 1996 and have not received any Federal means-tested public benefit during any such period (once the 5 year bar has expired for an LPR entering the U.S. on or after August 22, 1996), or aliens who are veterans, members of the military on active duty, and their spouses and unmarried dependents.

Tribes do not have the authority to decide whether or not to help qualified aliens. Hence, Tribal TANF programs may not deny on the basis of alien status a TANF-funded federal public benefit to eligible qualified aliens in its service population who meet all of the Tribe’s TANF program requirements.[2]

If a benefit is neither a Federal public benefit nor a State or local public benefit, then the State may provide the benefit to all noncitizens.[3]

In order to provide a non-exempted TANF public benefit to a non-citizen applicant, the State or Tribe must verify that the individual has a satisfactory immigration status — i.e., in accordance with Federal law at 8 U.S.C. 1611 et seq. and section 1137(d) of the Social Security Act

1. 2. Application of the Provisions Regarding Eligibility of Iraqi and Afghan Nationals Who Have Been Granted Special Immigrant Visas.

States and Tribes operating approved Tribal TANF programs must treat Iraqi and Afghan special immigrants as refugees for the same time period as refugees, as explained below.

Refugees entering the U.S. on or after August 22, 1996 are exempt from the 5 year bar on receipt of a Federal means-tested public benefit (e.g., TANF assistance, using Federal TANF funds or commingled Federal TANF/State MOE funds). Therefore, Iraqi and Afghan aliens granted special immigrant status under section 101(a)(27) of the INA are exempt from the 5 year bar on receipt of Federal means-tested TANF public benefit for the same time period as refugees. Iraqi and Afghan special immigrants will possess an immigrant visa and/or other documentation as described in the table at the end of this Program Instruction. States and Tribes would contact United States Citizenship and Immigration Services, within the United States Department of Homeland Security to resolve any questions about the individual’s official immigration status.

Under Section 8120 of Pub. L. No. 111-118, Department of Defense Appropriations Act, 2010, Afghan and Iraqi Special Immigrants are now eligible for TANF benefits and services for the same time period as refugees, beginning on their date of entry to the U.S. or date of adjustment of status if applying from within the U.S. for Special Immigrant Status, subject to laws in effect for each time period.

Thus, Iraqi and Afghan special immigrants admitted to the U.S. on or after the effective date of December 19, 2009 are eligible for TANF benefits and services for the same time period as a refugee.

Iraqi and Afghan special immigrants who were already in the U.S. in special immigrant status on the effective date of the law, December 19, 2009 are eligible for TANF benefits and services for the same time period as a refugee. Note that the law contains no provision for retroactive eligibility for TANF benefits for such special immigrants for that time period after they reached eight months in the U.S., but before December 19, 2009.

It is important to remember that States and Tribes may only provide federally funded TANF assistance and most MOE-funded benefits, services or assistance to a financially needy family that consists of, at a minimum, a child living with a relative, or consists of a pregnant woman.[4] The family must meet the quantified income and applicable resource criteria established by the State or Tribe for that particular benefit. Thus, an Iraqi or Afghan special immigrant who is not a member of an eligible family would generally not be eligible for federally funded TANF assistance or MOE funded assistance or other benefits. However, States and Tribes may use segregated Federal TANF funds to provide the individual with services that do not constitute “assistance” as defined in 45 CFR 260.31 or 45 CFR 286.10, as long as the expenditure is reasonably calculated to accomplish a purpose of the TANF program.

DOCUMENTATION [5]:

• For Afghan and Iraqi Special Immigrants under Section 1059 of the NDAA 2006, PL 109-163:

• Documents Applicable to Afghan Special Immigrants:

EFFECTIVE:

Immediately

INQUIRIES:

Inquiries should be directed to the appropriate Regional TANF Program Manager.

/s/
Ann H. Barbagallo
Acting Director
Office of Family Assistance

<sub>Endnotes:

[1] Except for the funding source, the statutory definition of a Federal public benefit and a state or local public benefit are identical. In pertinent part, the definition of a Federal public benefit reads as follows: “Any retirement, welfare, health, disability, public or assistance housing, postsecondary education, food assistance, unemployment benefit, or any other similar benefit for which payments or assistance are provided to an individual, household, or family eligibility unit by an agency of the United States or by appropriated funds of the United States."”(8 U.S.C. 1611(c) and 1621(c))</sub>

_{The U.S. Department of Health and Human Services (HHS) published an Interpretation of Federal Public Benefit in 63 FR 41658 (August 4, 1998) and transmitted via TANF-ACF-IM-98-5 dated August 4, 1998. The Notice applies to Federal TANF funds and to Federal TANF funds that have been commingled with State MOE funds. This Notice identified the TANF program as one of the HHS programs that provides a Federal public benefit. The Notice also stated that “This does not mean, however, that all benefits or services provided by these programs (including the TANF program) are Federal public benefits….” The Notice includes discussion on how to discern whether a benefit should be considered a Federal public benefit}

_{It is generally up to the State to determine whether the benefit(s) it provides with MOE funds that have not been commingled with Federal TANF funds constitutes a state or local public benefit.}

_{[2] Tribal TANF programs may only serve families (citizens and qualified aliens) who are part of the Tribe’s service population residing within the Tribe’s geographic service area as indicated in the Tribe’s approved TANF plan.}

_{[3] Certain noncash Federal and State or local public benefits are also available to all non-citizens. These are commonly referred to as “exempted public benefits.” Exempted public benefits basically consist of benefits that are necessary for protection of life or safety and include those specified by the Attorney General. See Final AG Order 2353-2001, published in 66 FFR 3613, January 16, 2001.}

_{[4] Limited exception in 45 CFR 263.2(a)(4)(ii): States may use MOE funds to provide certain pro-family non-assistance benefits and services to an individual or family regardless of financial need or family composition if the activity is reasonably calculated to accomplish TANF purpose 3 or 4. Tribes receiving MOE funds from the State may do the same, if allowed by the State.}

_{[5] The U.S. Department of State (DOS) issued the SI visa classification codes appearing in the Tables.}