Applicability of Public Charge and Deeming Rules to Immigrant Survivors and Their Children Eligible for Healthcare Subsidies

Public Charge

Immigrant survivors may be reticent to seek healthcare subsidies that they and their children are eligible for because they are concerned that seeking subsidized healthcare will prevent them from becoming lawful permanent residents under public charge laws. The public charge ground of inadmissibility refers to the barring of a foreign national from obtaining lawful permanent resident status if he or she is likely to become a public charge. Under the Violence Against Women Reauthorization Act of 2013, immigrant crime victims who pursue immigration relief such as VAWA self-petitioning, battered spouse waiver, VAWA cancellation of removal, VAWA suspension of deportation, U visa and T visa are exempt from public charge ever affecting their applications for lawful permanent residency or any other immigration benefit. Thus, immigrant survivors can seek and receive publicly funded healthcare or other benefits for themselves and their children without any concern being determined to be a public charge.

For immigrant crime victims and other immigrants who pursue other paths to lawful permanent residency, it is important to note that, with one exception, obtaining healthcare subsidies that they or their children are eligible to receive will not cause the immigrant to be denied lawful permanent residency on the basis of public charge. Medicaid, Medicare, and other similar health services are excluded from the publicly funded programs DHS is allowed to consider when making public charge determinations. The only form of healthcare benefit that would lead to a finding that the immigrant is likely be a public charge and should, therefore, be inadmissible for lawful permanent residency would be institutionalization for long-term care at the government’s expense, since the immigrant would be primarily dependent on the government for support for such an extended period of time.

For further information on immigrant crime victims and public charge, see Catherine Longville & Leslye Orloff, Immigrant Crime Victims and Public Charge: Post-VAWA 2013 (June 20, 2014)

The Public Charge Regulations that codify public charge law prior to the VAWA 2013 amendments that apply in all cases other than VAWA, T and U visa applicants

Deeming

“Deeming” refers to the practice of counting the income of an immigrant’s sponsor together with the immigrant’s own income in determining financial eligibility for state or federal public benefits programs. Deeming applies to spouses and children with family based immigration cases. Certain immigrants are exempt from sponsor deeming. Exempt immigrants include immigrants who are not required to have sponsors, including, but not limited to: refugees; asylees; parolees; Cuban Haitian entrants; immigrants who have naturalized; immigrants whose sponsor has died; certain qualified battered spouses and children; indigent immigrants who would go hungry or homeless without assistance; and immigrants who have or can be credited with 40 quarters of work credit. Additionally, for states that choose to provide subsidized healthcare to lawfully residing children and/or pregnant women, deeming does not apply.

Exemption from Deeming for Certain Qualified Battered Immigrants

When the person who sponsored the immigrant is also the immigrant’s abusive spouse or parent, the immigrant victim will not be able to access the income of the abuser when applying for benefits. Counting the abusive spouse or parent’s income as income that is attributed to the immigrant victim results in the immigrant victim losing access to public benefits eligibility that Congress intended they receive.

To address this issue, Congress included a specific exemption from deeming for certain qualified battered immigrants. Qualified battered immigrant spouses and children of citizen and lawful permanent residents can be exempt for one year from the deeming requirements if:

  • The battery or extreme cruelty took place in the United States;
  • The abuser was the spouse, parent, or member of spouse’s or parent’s family;
  • There is a “substantial connection between the battery or extreme cruelty and the need for the healthcare benefit;” and
  • The victim no longer resides with the abuser.

This qualified battered immigrant exemption can extend beyond a year, the battered immigrant must demonstrate that:

  • An order of a judge or a prior DHS determination has recognized the battery or extreme cruelty; and
  • There continues to be a substantial connection between the abuse and battery suffered and the need for the benefits sought.

For more information on the issue of deeming, and on the issue of the battered immigrant exemption to deeming, please see the following resources:

  1. Catherine Longville and Leslye Orloff, Public Benefits: What is “Deeming” and What are its Exceptions
  2. Soraya Fata, Leslye E. Orloff and Monique Drew, Access to Programs and Services that Can Help Victims of Sexual Assault and Domestic Violence
  3. Tanya Broder and Jonathan Blazer, Overview of Immigrant Eligibility for Federal Programs (October 2011)

© 2015 National Immigrant Women’s Advocacy Project. The contents of this publication may be reprinted. Any reprinting must be accompanied by the following acknowledgement: This material was reprinted from the National Immigrant Women’s Advocacy Project, American University, Washington College of Law.

This project was developed under grant number 2013-TA-AX-K009 awarded by the Office on Violence Against Women, U.S. Department of Justice. The opinions, findings, conclusions and recommendations expressed in this program are those of the author(s) and do not necessarily reflect the views of the Department of Justice, Office on Violence Against Women.

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Free Technical Assistance and Resources for Professionals Serving Immigrant and Refugee Women and Children

The National Immigrant Women’s Advocacy Project (NIWAP, pronounced new-app) is a national provider of training, legal and social science research, policy development and technical assistance to advocates, attorneys, pro bono law firms, law schools, universities, federal, state and local law enforcement, prosecutors, judges, court staff, social services and health care providers, justice system personnel and other professionals who work with immigrant women, children and crime victims. We offer assistance on a broad range of issues including access to services, safety and legal rights.

Please see this flyer for details, or see below:

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Two Fact Sheets on the Importance of Immigrant Crime Victim Relief, DACA and DAPA

NIWAP staff and students have developed two factsheets which bring the experiences of immigrant women and immigrant crime victims into the National discussion and debate on immigration.  Several  amendments strove to impede implementation of an expanded DACA program and initiation of the DAPA program, but both programs bring significant benefits for immigrant victims. The second factsheet summarizes why how the DeSantis amendment would only serve to eliminate DHS authority to grant humanitarian waivers for victims of domestic violence.

Impact of DeSantis Amendment on Immigrant Victims of Domestic Violence
By: Rachel Feuer, Alexandra Iannolo, Benish Anver & Leslye Orloff
February 3, 2015

The DeSantis Amendment will undermine long established protections for immigrant domestic violence victims created in the Violence Against Women Acts of 2000 and 2005 by eliminating the Domestic Violence Victim Waiver and other U visa waiver protections for immigrant victims of domestic violence who wrongfully end up with domestic violence convictions.

Why Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of U.S. Citizen and Lawful Permanent Resident Children (DAPA) is Critical in Promoting Immigrant Crime Victim Cooperation with the Criminal Justice System
By: Wojciech Koval, Nicholas Thies, Benish Anver & Leslye Orloff
February 9, 2015

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NIWAP Newsletter: February 2015 edition

Vol. 1 • Issue 3 • February 2015

In this Issue:

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Report: “Early Access to Work Authorization”

NIWAP’s report “Early Access to Work Authorization for VAWA Self-Petitioners and U Visa Applicants,” published last year, summarizes the purpose, history, and importance of work authorization for immigrant survivors of domestic violence. It also summarizes a 2013 NIWAP survey of service providers about the length of time their clients spent waiting for work authorization, what they did during the waiting period, and their experiences after receiving work authorization.

The initial process of obtaining a work authorization often takes too long and exposes immigrant survivors of violence to retaliation, coercion, and further harm including incidents of violence and abuse.

Learn more from the report, linked below:

Early Access to Work Authorization for VAWA Self-Petitioners and U Visa Applicants
By: Krisztina E. Szabo, David Stauffer, Benish Anver, and Leslye E. Orloff
February 12, 2014

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VAWA Confidentiality Newsletter


NIWAP Newsletter • VAWA Confidentiality • January 2015

 The National Immigrant Women’s Advocacy Project (NIWAP, pronounced new-app) is pleased to announce a series of newsletters specialized by topic that we are developing in our capacity as national technical assistance providers under our Office on Violence Against Women, U.S. Department of Justice, grant.*

This newsletter, the first in our series, is devoted to the special federal VAWA confidentiality protections designed to help protect immigrant victims of domestic violence, sexual assault, human trafficking and other crimes. This newsletter will provide you with up to date information about: VAWA confidentiality law, its protections against deportation, reliance on perpetrator provider information, limitations on immigration enforcement, and protections against disclosure of even the existence of the VAWA confidentiality protected case, with very limited exceptions. Throughout this and each of our future newsletters you will find links to: statutes, government policies and regulations, legislative history, training manuals, materials, and toolkits and other relevant information to better assist you in your work with immigrant crime victims.

Please share this newsletter with others in your community and in the field who encounter immigrant survivors in their work including those who may be interested in subscribing to our newsletter. Please contact NIWAP (info@niwap.org or 202-247-4457) with any questions on VAWA Confidentiality. More information regarding VAWA confidentiality is also available in the NIWAP web library.

Thank you for your service to the community. We look forward to working in partnership with your organization.

* This project was supported by Grant No. 2013-TA-AX-K009 awarded by the Office on Violence Against Women, U.S. Department of Justice. The opinions, findings, conclusions and recommendations expressed in this publication are those of the author(s) and do not necessarily reflect the views of the Department of Justice, Office on Violence Against Women.

Newsletter: October 2014

Vol. 1 • Issue 2 • October 2014

In this Issue:

  • Demographics of Unaccompanied Minors in the United States
  • Screening Children and Crime Victims for Immigration Relief Eligibility Using a Trauma Informed Approach
  • Comparing Public Benefits for Forms of Immigration Relief
  • Latest Developments at NIWAP
  • Webinars
  • Publications
  • Student Corner
  • Trainings

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Unaccompanied Minors: State Demographics

From October 2013 through September 30, 2014 there was a 77% increase in the number of unaccompanied minors that have crossed the border into the United States.

Most of the children crossing the border turn themselves over to U.S. customs and border patrol officials. Once in the United States, immigrant children who are unaccompanied minors are processed by the U.S. Department of Homeland Security (DHS) and turned over to the Department of Health and Human Services’ (HHS) Office of Refugee Resettlement (ORR) for care, custody and placement in a temporary facility while efforts are made to place each child with suitable family members or other sponsors in the United States. Children who are unable to find sponsors, or children without qualifying sponsors, remain in ORR custody and are housed in longer term custodial facilities under contracts with HHS.

There is at least one unaccompanied minor that has been placed in all 50 states and the District of Columbia. The states receiving the greatest numbers of unaccompanied immigrant minors are: California, Florida, Georgia, Louisiana, Maryland, New Jersey, New York, North Carolina, Tennessee, Texas, and Virginia. Each of these states has received over 1,000 immigrant children. Find out how many children have been placed in your state.

Legal Services Corporation recently released a new regulation and policy regarding eligibility for legal services. Unaccompanied minors who have been victims of domestic violence, sexual assault, and trafficking may qualify under the anti-abuse regulations (See 45 C.F.R. § 1626.2).

In light of this development, we have extended registration for our webinar scheduled for Monday, November 3, on the expansion of access to legal services. View the legislative and regulatory materials, and NIWAP’s analysis.

The unaccompanied immigrant children crossing the U.S. border are fleeing violence such as homicide, gang violence, rape, sexual assault, and human trafficking. This migration of unaccompanied children fleeing violence in Central America accounts for a 77% rise in the numbers of immigrant girls arriving as unaccompanied minors over the numbers of girls arriving in 2013. Although the journey from their home countries, through Mexico and across the U.S. border is dangerous for all children, girls face the added risks of rape and sexual assault, which explains why unaccompanied girls arrive in the U.S. pregnant or having taken, or are traveling with, contraceptives.

Additionally, as immigrant children are placed with sponsoring families, advocates, attorneys, health care providers, schools and other professionals who assist these children need be aware that recently immigrated children, particularly girls, are at heightened risk of suffering sexual assault and child abuse in the United States. Immigrant girls in the United States are twice as likely to have suffered sexual assault by the time they reach high school as U.S. born girls.

Immigrant children and youth who have suffered crime victimization either in their home countries or in the United States may qualify to apply for legal immigration status that will allow them to remain in the United States. It is important for programs serving immigrants, children, and victims of domestic violence, sexual assault, dating violence, stalking and human trafficking to conduct screening to determine whether youth and children you are helping are immigrants and whether they have suffered crime victimization. Early screening is important because it may help immigrant children that have been placed in removal proceedings stay in the country. Additionally, certain forms of immigration relief that these children qualify for require that applications be submitted before the child reaches a specific age, or they become ineligible.

The various forms of immigration relief for which immigrant children may qualify include:

  • Special Immigrant Juvenile Status (SIJS) available to immigrant children under the age of majority in the state that the child resides or has been placed, who obtains a state court order that includes findings that they have been subjected to abuse, neglect or abandonment by one or both of their parents. State law definitions of abuse, abandonment or neglect apply. Unaccompanied minors should be screened for eligibility. See moreinformation on SIJS eligibility requirements.
  • T visa and continued presence for victims of human trafficking. Unaccompanied minors who have experienced human trafficking in the United States may qualify. See moreinformation on the T visa and continued presence.
  • U visa immigration protection for immigrants who have suffered domestic violence (battering or extreme cruelty, includes child abuse) sexual assault, stalking, extortion, kidnapping, felonious assault and other criminal activities perpetrated in the U.S. or in violation of U.S. laws. Unaccompanied minors who experience criminal activity in the United States may qualify.See more information on the U visa.
  • VAWA self-petitioning and VAWA cancellation of removal for immigrant victims of child abuse perpetrated by the child’s U.S. citizen or lawful permanent resident parent or step-parent. The child must have suffered battering or extreme cruelty before turning 21 and has up to the age of 25 to file. Married youth and adults abused by their citizen or lawful permanent resident spouses also qualify. Relatively few unaccompanied minors will qualify for this form of immigration relief as recent immigrants. However, immigrant children placed with parents and step-parents who are U.S. citizens or lawful permanent residents could qualify based on abuse that occurs after the children arrived in the United States. Advocates, attorneys and other professionals working with recent immigrant children should remain aware that immigrant children joining or being reunited with families in the United States are vulnerable to child abuse and incest. See more information on VAWA immigration relief.
  • Deferred Action for Childhood Arrivals (DACA): It is important to note that newly arriving unaccompanied minors do not qualify for DACA. DACA is available to help undocumented immigrant children who were under age 31 and in the United States on June 15, 2012, who had arrived in the U.S. when they were under the age of 16 and who have continually resided in the United States since June 15, 2007. DACA offers protection from deportation and work authorization but does not include a path to permanent legal immigration status. Children receiving DACA should be screened and receive information about the SIJS and crime victim related immigration remedies to identify those who qualify for forms of immigration relief that include a path to lawful permanent residency and citizenship.See more information on DACA.

United States Citizenship and Immigration Services released a brochure explaining the various eligibility requirements for these different forms of immigration relief. A version of this brochure to which NIWAP has added SIJS and DACA is on NIWAP’s website in English, Spanish, Russian, Korean, and Chinese.

In order to help advocates, attorneys, judges, law enforcement agencies and other professionals assess which form of immigration relief immigrant children and immigrant crime victims qualify for, NIWAP has developed a series of comparison charts that will be helpful for immigrant crime victims that could qualify for more than one forms of immigration relief. The group that could qualify for both is identified:

NIWAP has also developed screening tools to help advocates, attorneys and police identify immigrant crime victims and children who are eligible for immigration relief.

These nuances among the various forms of immigration relief designed to help immigrant children and immigrant victims can be very challenging. If you have any questions about the difference between one type of immigration relief and another or questions regarding legal rights and options for immigrant crime victims, women and/or children, please feel free to call or email our technical assistance lines at info@niwap.org or (202) 274 4557.

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