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TANF-ACF-PI-2009-01 (supersedes TANF-ACF-PI-2008-01) (Eligibility of Iraqi and Afghan aliens who have been granted special immigrant status for Federal TANF and State Maintenance-of-Effort (MOE) benefits)

Published: January 8, 2009
Audience:
Temporary Assistance for Needy Families (TANF)
Topics:
Maintenance of Effort (MOE), State TANF and MOE Annual Reports, TANF Data Reporting Systems, Financial, Maintenance of Effort (MOE)
Types:
Program Instructions (PI)
Tags:
State Maintenance-of-Effort (MOE)

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

REFERENCES:

National Defense Authorization Act for Fiscal Year 2006 (Public Law 109-163) (NDAA 2006); An Act to Increase the Number of Iraqi and Afghani Translators and Interpreters Who May be Admitted to the United States as Special Immigrants and For Other Purposes (Public Law 110-36); Consolidated Appropriations Act, 2008 (Public Law 110-161), National Defense Authorization Act for Fiscal Year 2008 (Public Law 110-181) (NDAA 2008), Consolidated Security, Disaster Assistance, and Continuing Appropriations Act 2009 (Public Law 110-329), Title IV of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 and the Balanced Budget Act of 1997 (8 U.S.C. 1611 et seq.).

PURPOSE:

The purpose of this Program Instruction (PI) 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.

BACKGROUND:

Under section 1059 of the NDAA 2006, up to 50 Iraqi and Afghan translators working for the U.S. military have been eligible for special immigrant visas (SIVs) each fiscal year. Special immigrants are admitted as lawful permanent resident aliens (LPRs). Public Law 110-36, which President Bush signed into law on June 15, 2007, amended section 1059 by expanding the coverage of section 1059 to certain translators working under civilian authority, and by increasing the total number of principal beneficiaries admitted under the NDAA 2006 to 500 a year for FY 2007 and FY 2008 only. In addition to the principal translators, beneficiaries include spouses and unmarried children under age 21 of a principal who are accompanying or following to join the principal. In FY 2009, the number of SIVs available for this category of immigrant will revert to 50 annually. Neither of these statutes provided any special rules relating to eligibility of these LPRs for a Federal or State-funded public benefit.

Congress subsequently addressed eligibility of the Iraqi and Afghan special immigrants for a public benefit in the Consolidated Appropriations Act, 2008 (Public Law 110-161), and the National Defense Authorization Act for Fiscal Year 2008 (Pub. L 110-181) (NDAA 2008).

Section 525 of Division G of Public Law 110-161 (Consolidated Appropriations Act, 2008), signed into law on December 26, 2007, states the following: “Iraqi and Afghan aliens granted special immigrant status under section 101(a)(27) of the Immigration and Nationality Act shall be eligible for resettlement assistance, entitlement programs, and other benefits available to refugees admitted under section 207 of such Act for a period not to exceed 6 months.” (Underlining added). Public Law 110-161 is an appropriation bill which expired on September 30, 2008. Unless the authority in section 525 of Division G is extended, Afghani special immigrants may no longer be treated as refugees after September 30, 2008. (See Public Law 110-329 below.)

Section 1244(g) of NDAA 2008, signed into law on January 28, 2008, states the following: “Iraqi aliens granted special immigrant status described in section 101(a)(27) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(27) shall be eligible for resettlement assistance, entitlement programs, and other benefits available to refugees admitted under section 207 of such Act (8 U.S.C. 1157) for a period not to exceed eight months.” (Underlining added)

The NDAA 2008 also substantially expanded the Iraqi SIV program by authorizing up to 5,000 additional SIVs per year for the next five years for Iraqi nationals who provided faithful and valuable service for or on behalf of the U.S. Government for a period of at least one year, and who have experienced or are experiencing a serious threat as a consequence of that employment. Unlike the preexisting section 1059 program, the NDAA 2008 provisions are not limited to translators. Spouses and children of the principal beneficiaries are also eligible for SIVs. 

Section 101 of Division A of Public Law 110-329 (Consolidated Security, Disaster Assistance, and Continuing Appropriations Act, 2009), signed into law on September 30, 2008 continues the authority made available in Division G of the Consolidated Appropriations Act, 2008 (Public Law 110-161). The authority given in Division G of Public Law 110-161 is to treat Afghan special immigrants as refugees for 6 months. Public Law 110-329 is also an appropriations bill whose effect is limited to fiscal year 2009. Unless a new appropriation bill or other law continues the authority made available in this Public Law, then Afghan special immigrants would no longer be treated as refugees after September 30, 2009. Refer to the discussion in the guidance below.

We divide 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 525 and 1244(g) provisions to the noncitizen eligibility provisions.

GUIDANCE:

1.         Basic Summary of Federal Law:

Qualified aliens are the only non-citizens eligible to receive a Federal TANF 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 (e.g., 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 Federal TANF 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 must help 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 must permit 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 must help 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 must provide a Federal TANF 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.

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

Sections 525 of Division G of Public Law 110-161, enacted December 26, 2007, and 1244(g) of the NDAA 2008, enacted January 28, 2008, require States to treat these Iraqi and Afghan special immigrants as refugees for a time-limited period, 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 a time-limited period.  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.

The time-limited exemption period for Iraqi special immigrants is 8 months.  The 8-month count begins on the date the individual entered the U.S. as a special immigrant, i.e., was admitted as an LPR either at the port of entry or by adjustment of status within the United States.[4]  We construe section 1244(g) of NDAA 2008, enacted January 28, 2008, to have extended the exemption period from 6 months to 8 months for all Iraqi special immigrants.

Pursuant to section 525 of Division G of Public Law 110-161, the time-limited exemption period for Afghan special immigrants is 6 months. (The 8-month exemption period, added by section 1244(g) of the NDAA 2008, does not include the Afghan special immigrants.) Public Law 110-161 is an appropriation bill whose authority ended on September 30, 2008 . Yet on September 30, 2008 , the Consolidated Security, Disaster Assistance, and Continuing Appropriations Act, 2009 (Public Law 110-329) was enacted. Section 101 of Division A of Public Law 110-329 continues the same policy contained in section 525 of Division G of Public Law 110-161 to treat Afghan special immigrants as refugees – i.e., exempt from the 5 year bar for the 6 month time-limited exemption period. The 6 month count begins on the date the individual entered the U.S. as a special immigrant -- i.e., was admitted as an LPR either at the port of entry or by adjustment of status within the United States.

Public Law 110-329 is an appropriations bill for fiscal year 2009. Therefore, unless a new appropriation bill or other law extends this provision, Afghan special immigrants may no longer be treated as refugees after September 30, 2009 . Special immigrants are LPRs and would be treated as such if the policy is not extended. LPRs are not exempt from the 5 year bar on receipt of a Federal means-tested public benefit. (See discussion below.)

The following example illustrates application of the 6-or-8 month time limit exemption period. An Afghan individual, his wife, and two small children were admitted to the U.S. as special immigrants on September 28, 2008 , and settled in State X. The time-limited exemption period for Afghan special immigrants is 6 months. The family applies for TANF assistance during November, 2008. The 6 month exemption period begins on September 28, 2008 . If the family meets all programmatic requirements, then the family may receive five months of federally funded TANF assistance or any other federally funded means-tested public benefit.

The 6-or-8-month Federal benefit period described above applies to all States and Tribes, provided the family meets all TANF programmatic requirements.[5]  States may also choose to use MOE funds to provide a State-funded public benefit during this period.

Once the above 6-or-8-month exemption period ends, these special immigrants would no longer be exempt from the 5-year bar on receipt of a Federal means-tested public benefit.  These special immigrants are LPRs and, except for the limited 6- or -8 month exemption period described in this Program Instruction, are subject to the same treatment in terms of eligibility for a Federal TANF public benefit and/or MOE-funded public benefit as other LPRs.[6]  LPRs who enter the U.S. on or after August 22, 1996 are subject to the 5-year bar on receipt of any Federal means-tested TANF public benefit (e.g., federally funded TANF assistance).  Since the bar only applies to the use of Federal funds, States may use State MOE funds that have not been commingled with Federal TANF funds to help eligible families that meet all applicable programmatic requirements.

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.[7]  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, during the 6-or-8 month exemption period, 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:[8]

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

Applicant

Documentation

Principal Applicant Iraqi or Afghan Special Immigrant

 

Iraqi or Afghan passport with an immigrant visa stamp noting that the individual has been admitted under IV (Immigrant Visa) Category SI1 and DHS stamp or notation on passport or I-94 showing date of entry.

Spouse of Principal Applicant Iraqi or Afghan Special Immigrant

Iraqi or Afghan passport with an immigrant visa stamp noting that the individual has been admitted under IV (Immigrant Visa) Category SI2 and DHS stamp or notation on passport or I-94 showing date of entry.

Unmarried Child Under 21 Years of Age of Iraqi or Afghan Special Immigrant

Iraqi or Afghan passport with an immigrant visa stamp noting that the individual has been admitted under IV (Immigrant Visa) Category SI3 and DHS stamp or notation on passport or I-94 showing date of entry.

Principal Applicant Iraqi or Afghan Special Immigrant

Principal Adjusting Status in the U.S.

DHS Form I-551 (“green card”) showing Iraqi or Afghan nationality (or Iraqi or Afghan passport), with an IV (immigrant visa) code of SI6.

Spouse of Principal Applicant Iraqi or Afghan Special Immigrant in P6 Category

DHS Form I-551 (“green card”) showing Iraqi or Afghan nationality (or Iraqi or Afghan passport), with an IV (immigrant visa) code of SI7

Unmarried Child Under 21 Years of Age of Iraqi or Afghan Special Immigrant in P6 Category

DHS Form I-551 (“green card”) showing Iraqi or Afghan Nationality (or Iraqi or Afghan passport), with an IV (“immigrant visa”) code of SI9

 

  • For Iraqi Special Immigrants under Section 1244 of PL 110-181

 

Applicant

Documentation

Principal Applicant Iraqi Special Immigrant 

Iraqi passport with an immigrant visa stamp noting that the individual has been admitted under IV (Immigrant Visa) Category SQ1 and DHS stamp or notation on passport or I-94 showing date of entry.

Spouse of Principal Applicant Iraqi Special Immigrant

Iraqi passport with an immigrant visa stamp noting that the individual has been admitted under IV (Immigrant Visa) Category SQ2 and DHS stamp or notation on passport or I-94 showing date of entry.

 Unmarried Child Under 21 Years of Age of Iraqi Special Immigrant

Iraqi passport with an immigrant visa stamp noting that the individual has been admitted under IV (Immigrant Visa) Category SQ3 and DHS stamp or notation on passport or I-94 showing date of entry.

Principal Applicant Iraqi Special Immigrant

Principal Adjusting Status in the U.S.

DHS Form I-551 (“green card”) showing Iraqi nationality (or Iraqi passport), with an IV (immigrant visa) code of SQ6.

Spouse of Principal Applicant Iraqi Special Immigrant in P6 Category

DHS Form I-551 (“green card”) showing Iraqi nationality (or Iraqi passport), with an IV (immigrant visa) code of SQ7.

Unmarried Child Under 21 Years of Age of Iraqi or Afghan Special Immigrant in P6 Category

DHS Form I-551 (“green card”) showing Iraqi (or Iraqi passport), with an IV (“immigrant visa”) code of SQ9.



EFFECTIVE:   Immediately

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

 

/s/
Sidonie Squier
Director
Office of Family Assistance

 

Endnotes:
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[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))

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]   Sections 525 of Division G of Public Law 110-161 and 1244(g) of Public Law 110-181 require States to treat the Iraqi and/or Afghan special immigrants as refugees for a time-limited period.  However, a small group of Iraqi and/or Afghan nationals were not admitted as special immigrants.  For humanitarian reasons, they were admitted to the U.S. on an expedited basis under a different immigration category (e.g., paroled into the country for less than a year).  For these individuals, the 6-or-8-month exemption period begins when the individual’s status has been given special immigrant/LPR status.  Until then, eligibility will depend on their current immigration status.  For example, an individual paroled into this country for less than a year is not eligible for a Federal (or commingled) TANF public benefit, but would be eligible for a MOE-funded public benefit.

[5]  This time-limited exemption period also applies to any States that elected not to help qualified aliens.  This is because any such State may not deny a Federal TANF public benefit until 5 years after the date an alien is admitted to the U.S. as a refugee under section 207 of the Immigration and Nationality Act.  The Iraqi and Afghan aliens were not admitted as refugees; therefore, the time-limited period that begins on the date refugee status was granted does not apply.  The Iraqi and Afghan aliens were admitted as special immigrants, but must be treated as refugees for the time-limited exemption period from the 5-year bar on receipt of a Federal means-tested public benefit.

[6]  “Special immigrant” under INA 101(a)(27) is not really an immigration status.  Rather, it is a preference category for permanent immigration.  “Special immigrants” are admitted as LPRs either through the port of entry with an immigrant visa, or by adjustment of status in the United States.  Indeed, the earlier Public Law 109-163 (the National Defense Authorization Act for FY 2006 and Public Law 110-36 (increasing the number admitted under the National Defense Authorization Act for FY 2006) expressly mentioned admissibility to the U.S. for permanent residence or adjustment to LPR status.  Thus, the Iraqi and Afghan translators and interpreters and their families will carry immigrant visas for permanent residence. 

[7] 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.

[8]   The U.S. Department of State (DOS) issued the SI visa classification codes appearing in the Tables.  The USCIS has not yet issued classification codes for the special immigrant visa categories, but anticipates that it will mirror the DOS classification codes.