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TANF-ACF-PA-2005-01 (Eligibility of Native Americans born in Canada or Mexico for Federal TANF and State Maintenance-of-Effort (MOE) benefits)

Published: November 15, 2005
Audience:
Tribal TANF, Temporary Assistance for Needy Families (TANF)
Topics:
TANF Guidance
Types:
Policy Announcements (PA)

To:

State agencies administering the Temporary Assistance for Needy Families (TANF) program, Indian tribes administering approved TANF Plans, and other interested parties.

Subject:

Eligibility of Native Americans born in Canada or Mexico for Federal TANF and State Maintenance-of-Effort (MOE) benefits.

Key References:

Title IV of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) and the Balanced Budget Act of 1997 (8 U.S.C. 1611 et seq.); section 289 of the Immigration and Nationality Act (8 U.S.C. 1359); 8 CFR Part 289; and, 45 CFR Part 286.

Background:

Title IV of PRWORA as amended, provides that only certain non-citizens may receive a Federal public benefit or a State or local public benefit.  While sections 402(a)(2)(G) and (b)(2)(E) of PRWORA as amended (8 U.S.C. 1612(a)(2)(G) and (b)(2)(E)) exempt certain Indians from otherwise applicable restrictions under the Federal Food Stamp program, the Supplemental Security Income program, and the Medicaid program, there is no similar provision for the TANF program.

Purpose:

We have received questions from States and federally recognized Tribes, which are operating their own Tribal TANF programs regarding the eligibility of non-citizen Native Americans born in Canada or Mexico to receive TANF benefits.  Questions have arisen for various reasons:  Tribal lands straddle the border of Mexico or Canada.  Certain tribes in the U.S. have non-citizen members and relatives born in Mexico or Canada who live in the U.S. with their families. Other non-citizen tribal members or relatives live in Canada or Mexico and pass and repass the border for work, for medical care, to conduct business, to visit family and relatives, or to participate in cultural affairs and ceremonial events.

This policy announcement provides guidance on determining whether a non-citizen Native American born in Canada or Mexico is eligible for a Federal public benefit funded with Federal TANF funds (“Federal TANF public benefit”) or a State or local public benefit funded with State or local monies that have not been commingled with Federal TANF funds and may be claimed toward a State’s maintenance-of-effort requirement (“MOE-funded public benefit”).

Guidance:

Only U.S. citizens, nationals of the U.S.[i] and qualified aliens may receive most Federal, State, or local public benefits.[ii] Membership in or descendant/ancestry to a Native American Tribe residing in the U.S., including a federally recognized Tribe, does not automatically confer U.S. citizenship or satisfactory immigrant status.  (Of course, the individual may be a U.S. citizen or national, but tribal membership alone does not confer U.S. citizenship.)  In order to provide a non-exempted Federal 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. 1621 et seq.  We have summarized the basic eligibility provisions below.

Qualified aliens are the only non-citizens who are eligible for a Federal TANF public benefit.  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 eligible for federally funded or administered public benefits and services to the same extent as refugees.[iii]

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.


[i] For public benefit eligibility purposes, all nationals are treated like citizens. A national of the U.S. means a citizen of the U.S., or a person who, though not a citizen of the U.S., owes permanent allegiance to the U.S. Essentially, a non-citizen national is a person born in an outlying possession of the United States (American Samoa or Swains Island) on or after the date the U.S. acquired the possession, or a person whose parents are U.S. non-citizen nationals (subject to certain residency requirements).  (See 8 U.S.C. 1401 et seq. and 8 U.S.C. 1101(a)(22).)

[ii] Except for the funding source, the statutory definitions 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).  This Notice was transmitted via TANF-ACF-IM-98-5, dated August 4, 1998 and 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. For example, a use of TANF funds that may not meet the definition of a “Federal public benefit” might include pregnancy prevention services that are available to individuals regardless of financial need.

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.

[iii] States (including D.C., the U.S. Virgin Islands, Puerto Rico, and Guam) may 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 decides NOT to help qualified aliens, then the State MUST permit the following exempted 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, States MUST help the following exempted qualified aliens for as long as they remain programmatically eligible: legal permanent residents who have worked forty qualifying quarters after 12/31/96 and have not received any Federal means-tested public benefit during any such period, or to aliens who are veterans, members of the military on active duty, and their spouses and unmarried dependents. Per the U.S. Code at 8 U.S.C. 1641(a), 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.

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 non-citizen 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 8/22/96 affirmatively providing for such eligibility.  (Of course, all expenditures must meet all MOE requirements in the TANF regulations at 45 CFR 263 subpart A).

If a benefit is neither a Federal public benefit nor a State or local public benefit, then the State may provide that benefit to all non-citizens.[4]

Historically, immigration policy on Native American Indian non-citizens born in Canada differs somewhat from immigration policy on Native American non-citizens born in Mexico. Therefore, we have discussed each below, in separate sections.  We have also addressed certain definitions in the Tribal TANF regulation at 45 CFR 286.5.

Native Americans Born In Canada:

1. Section 289 entrants:

Section 289 of the Immigration and Nationality Act (INA) provides a statutory right of entry into the United States to non-citizen Native Americans born in Canada “who possess at least 50 per centum of blood of the American Indian race.”[5] (See 8 U.S.C. 1359)

However, this right of entry into the U.S. does NOT equate with having lawful permanent resident (LPR) status or any other qualified alien status under 8 U.S.C. 1641. U.S. Citizenship and Immigration Services’ (USCIS) regulations at 8 CFR Part 289 (American Indians born in Canada) elaborate on the criteria for lawful admission for permanent residence for section 289 entrants[6].  Basically, section 289.2 (Lawful admission for permanent residence) states that any Native American born in Canada “who at the time of entry” was entitled to section 289 rights of entry “and has maintained residence in the United States since his entry, shall be regarded as having been lawfully admitted for permanent residence.”[7]  Section 289.3 states that lawful admission for permanent residence of a Native American born in Canada is recorded on Form I-181 (Memorandum of Creation of Record of Admission for Lawful Permanent Residence). But, even absent Form I-181 or possession of Form I-551 (Alien Registration Receipt Card for permanent residents, commonly referred to as a “Green Card”), USCIS would still consider a section 289 entrant who has established and maintained his/her residence in the U.S. a lawful permanent resident (LPR).  If an individual has a “green card”, this is evidence of a qualified alien status (LPR) whether or not the individual obtained that status by virtue of entry under section 289 and residence in the United States.

An LPR is a qualified alien. However, a section 289 entrant is only considered an LPR, and thus a qualified alien, by virtue of having established and maintained residence in the U.S. “Residence” is defined in section 101(a)(33) of the Immigration and Nationality Act as the person’s “principal, actual dwelling place in fact, without regard to intent.”

The date that a section 289 entrant began his/her U.S. residency is the date that the individual should be considered to be a qualified alien, for purposes of eligibility for a Federal public benefit or a State or local public benefit under 8 U.S.C. 1611 or 1621.  For example, a section 289 entrant who began his/her residency on or after August 22, 1996 is subject to the 5-year bar on receipt of a Federal means-tested public benefit, such as federally funded TANF assistance.  (See 6 U.S.C. 1613) If the individual has not been continuously present in the U.S. since the date that residency was initially established, then the most recent date that the individual established and maintained U.S. residency would be used to calculate whether s/he is still subject to the 5-year bar. As described further below, though, not all section 289 entrants are necessarily residents.

In summary, to achieve LPR status, a section 289 entrant must show evidence that s/he was born in Canada, has at least 50 percent Native American blood, and has established and maintained residence in the U.S.  Once the individual achieves LPR status, s/he is a qualified alien and may be eligible for Federal, State, or local public benefits -- subject to the 5-year bar, if applicable, on federally funded TANF means-tested public benefits and assuming all other eligibility requirements have been met.

States and Tribes have the flexibility to develop their own methods for verifying the date the individual established and maintained residency, including using USCIS regulations at 8 CFR 244.9(a)(2).  The regulations at 8 CFR 244.9(a)(2) provide broad and flexible ways of demonstrating continuous residence in the U.S., and may be useful in determining the date of entry into the U.S.[8]  State and Tribal agencies should remain open to any and all evidence that the individual is able to offer regarding his or her entry or entries into the United States.

States and Tribes may also establish their own evidence requirements for determining place of birth and blood quantum.  We recommend that States and Tribes consult the DOJ Interim Guidance, Verification of Citizenship, Qualified Alien Status and Eligibility under Title IV of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (62 FR 61344, November 17, 1997).  For example, the Interim Guidance indicates the following for American Indians born in Canada and covered by section 289 of the INA:  “INS Form I-551 (Alien Registration Receipt card, commonly known as a “green card”) with the code S13; unexpired temporary I-551 stamp in Canadian passport or an INS Form I-94 with the code S13; or a letter or other tribal document certifying at least 50 percent of American Indian blood, combined with a birth certificate or other satisfactory evidence of birth in Canada.”  (62 FR page 61411)

As explained above, not all non-citizen Native Americans born in Canada who are entitled to enter, or have entered, the United States under section 289 of the INA may be considered LPRs.  For example, those who maintain their residence in Canada (or anywhere else outside of the U.S.) are not LPRs.  Also, a section 289 entrant may enter the U.S. on one or more occasions without ever establishing and maintaining U.S. residency.  While such persons may meet the “right of entry” requirement (at least 50 per centum of blood of the American Indian race), they do not meet the U.S. residency requirement. In order to be considered an LPR, both requirements must be met.  Furthermore, the 5-year bar, if applicable, would be counted beginning on the date that the section 289 entrant established and maintained U.S. residency.

2. Native Americans born in Canada who are not section 289 entrants:

USCIS regulations at 8 CFR 289.1 (Definition) states that the term “American Indian born in Canada” as used in section 289 of the INA “does not include a person who is the spouse or child of such an Indian or a person whose membership in an Indian tribe or family is created by adoption, unless such person possesses at least 50 per centum or more of such blood.”

Even though some Native Americans born in Canada may lack section 289 rights of entry, this does not necessarily mean they also lack satisfactory immigration status.  If the individual is a qualified alien as defined in 8 U.S.C. 1641, then s/he may be eligible for a Federal TANF public benefit.  Qualified aliens, nonimmigrants under the INA and individuals paroled into the U.S. for less than a year, who are members of an “eligible family”, would be eligible for a State or local public benefit using MOE funds that have not been commingled with Federal TANF funds, presuming they meet all other applicable eligibility requirements.

For example, some Native Americans born in Canada, both with and without section 289 entrant rights may be in the U.S. temporarily for business or pleasure, for workshops on traditional cultures and language, for medical care, or for other reasons.  As a general matter, the vast majority of Canadian citizens who visit the US temporarily for business or pleasure are not required by DHS to have passports, visas or Border Crossing Identification Cards (BCC).  (See 8 CFR 212.1.)  They are considered “nonimmigrants.”  Nonimmigrants may be eligible for a State or local public benefit using MOE funds that have not been commingled with Federal TANF funds, if they meet all other programmatic eligibility criteria.  In addition, some Native Americans born in Canada may be lawful permanent residents of the U.S. and possess a “green card”, whether or not this status was obtained as a result of section 289.  These individuals may be eligible for a Federal TANF public benefit or for a State or local public benefit using MOE funds that have not been commingled with Federal TANF funds.

3. Examples:

a.  An American Indian woman was born in Canada and came to the U.S. in June 2001 on a student visa.  Her papers showed she possesses 25 per centum blood of the American Indian race, and has ancestry to the federally recognized Tribe nearby.  She has been staying with relatives who live in the Tribe’s service area.  The Tribe operates an approved Tribal TANF program.  She married in September 2003.  Her husband is a U.S. citizen and an enrolled member of the Tribe nearby that operates an approved Tribal TANF program.  In November 2004, their son was born in the U.S.  In March 2005, she applied for Federal Tribal TANF assistance for herself, her husband, and their son.  She does not have a “green card,” although as the spouse of a U.S. citizen she is eligible to be sponsored by her husband for LPR status.

Conclusion:  The family assistance unit may consist of the father and their son, who are both U.S. citizens.  If the family is financially eligible according to the Tribe’s quantified income and resource (if applicable) standards, and meets all other eligibility requirements, then the family unit may receive federally funded TANF assistance.  The mother is not a section 289 entrant as she does not possess the requisite 50 percent or greater blood quantum.  As a result, this negates the need to determine whether, as a section 289 entrant, she could be considered an LPR by virtue of having established and maintained residence in the U.S.  The Tribe will need to determine whether the mother has any immigration status that would qualify her for Federal TANF assistance. Note that the mother entered the U.S. on or after 8/22/96 and will likely be subject to the 5-year bar on the receipt of a Federal means-tested TANF public benefit.  If the mother has an immigration status that would qualify her for a State or local public benefit, and the Tribe receives MOE funds from the State to provide assistance to eligible families in the Tribe’s service area, then the family unit may consist of the mother, the father, and their son.  Under such circumstances, the Tribe may provide federally funded Tribal TANF assistance to the father and son and use MOE funds that have not been commingled with Federal TANF funds to pay the mother’s portion of assistance.

b.  A pregnant woman was admitted to the U.S. in June 1996 as a section 289 entrant. She was visiting family members living near the Canadian border.  After an extended visit, she decided to remain in the U.S. On September 2, 1996, she rented an apartment; the lease is in her name.  She remained in the U.S. until mid-November, when she returned to Canada to give birth to her daughter.  The mother was able to show that her daughter also met the minimum 50 per centum blood requirement to enter the U.S. as a section 289 entrant.  She returned to the U.S. with her daughter in time for Christmas.  In March of 1997, she applied for TANF assistance for herself and her daughter.

Conclusion: When the mother initially entered the U.S. in June 1996 she was a visitor, and had not established U.S. residency.  Thus, as a section 289 entrant, she could not be regarded as having obtained qualified alien status as a lawful permanent resident until September 1996, when she showed that she had actually established and maintained residence in the U.S.  Although the mother obtained qualified alien status on or after 8/22/96, she first entered the U.S. in June 1996 (i.e., before 8/22/96) as a non-qualified alien.  The 5-year bar on the receipt of federally funded TANF assistance does not apply to her as long as she has been “…continuously present in the United States from the latest date of entry prior to August 22, 1996, until the date he or she obtained qualified alien status. In general, any single absence from the United States of more than 30 days, or a total of aggregated absences of more than 90 days, should be considered to interrupt ‘continuous presence.’”[9]  The TANF agency determined that the mother was continuously present in the U.S. from June through September of 1996 (when she actually established and maintained U.S. residency).

The mother presented evidence which established that her daughter had at least 50 per centum blood of the American Indian race.  The mother also provided proof that her daughter will be living with her in the U.S.  Thus, the child may be regarded as having been lawfully admitted as a permanent resident.  However, the child is barred for five years from receiving a federally funded means-tested public benefit because she entered the U.S. on or after 8/22/96 and she is not in an exempted category.  The 5-year bar for the child begins in December 1997, when the mother brought her daughter to the U.S. to live with her in their home.

The family assistance unit may consist of the mother only or the mother and the child.  The child may not receive federally funded assistance during the 5-year bar.  If the family is financially eligible according to the State’s quantified income and resource (if applicable) standards, and meets all other eligibility requirements, then the State may use Federal TANF funds to pay the mother’s portion of assistance and use MOE funds that have not been commingled with Federal TANF funds to pay the daughter’s portion of assistance.  This would also apply if the family applied for assistance under a Tribe’s TANF program, and the State provided MOE funds to the Tribe.

Native Americans Born In Mexico:

  1. Texas Band of Kickapoo:

Federal law provides special treatment for the Kickapoo Tribe of Oklahoma and the Kickapoo Traditional Tribe of Texas (formerly known, jointly, as the “Texas Band of Kickapoo”). (25 U.S.C. 1300b-11). In 1983, the Texas Band roll provisions were established and codified in 25 U.S.C. 1300b-13. This section afforded Texas Band members two privileges. First, under 25 U.S.C. 1300b-13(c), any member of the Texas Band was given a time-limited opportunity (which expired in 1989) to apply for U.S. citizenship. Citizenship would be promptly granted to the applicant. Members of the Texas Band who opted for citizenship were issued the American Indian Card (Form I-872).  In the Department of Justice, Interim Guidance on Verification of Citizenship, Qualified Alien Status and Eligibility Under Title IV of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, it states that a primary documentary evidence of status as a U.S. citizen or non-citizen national is the “American Indian Card with a classification code ‘KIC’ and a statement on the back (identifying U.S. citizen members of the Texas Band of Kickapoos living near the U.S./Mexican border).”[10]  As with other U.S. citizens, members of the Texas Band who are U.S. citizens are eligible for Federal TANF public benefits and MOE-funded public benefits, provided they meet all of the State’s or Tribe’s eligibility requirements.  Second, 25 U.S.C. 1300b-13(d) provides that non-citizen members of the Texas Band are entitled “to freely pass and repass the borders of the United States and to live and work in the United States.”  Such individuals may apply for and receive from USCIS a Native American Indian Card to serve as proof of their “pass/repass” status.  However, the “pass/repass” status does not equate to having lawful permanent resident (LPR) or other qualified alien status under 8 U.S.C. 1641 for the purpose of eligibility for a Federal public benefit or a State or local public benefit. Furthermore, unlike non-citizen Native Americans born in Canada who enter the United States under section 289 of the INA, non-citizen members of the Texas Band are not regarded as having been lawfully admitted for permanent residence by virtue of entering under “pass/repass” and establishing residence in the United States.  Thus, a Mexican Kickapoo Indian who possesses “pass/repass” status would be eligible for non-exempt Federal TANF public benefits only if s/he is a qualified alien as defined in 8 U.S.C. 1641(b).  A Mexican Kickapoo Indian who possesses “pass/repass” status would be eligible for non-exempt MOE-funded public benefits only if s/he is a qualified alien, nonimmigrant under the INA, an individual paroled into the U.S. for less than a year, or an illegal alien provided the State enacted a law after 8/22/96 that affirmatively provides for eligibility of illegal aliens for State and local public benefits (8 U.S.C. 1621).

In summary, satisfactory immigration status must be established in accordance with Federal law at 8 U.S.C. 1611 et seq. for Mexican Band members who have pass/repass status and all other Mexican Band members who are not U.S. citizens.

All other Native Americans born in Mexico:

The satisfactory immigration status of all other non-citizen Native Americans born in Mexico (including non-citizen members of a U.S. tribe) must be established, as they have no greater right to enter or remain in the United States than any other Mexican national.  Of course, as previously mentioned, some Native American born in Mexico, as with other Mexican nationals, may be LPRs or otherwise in a qualified alien status for the purpose of eligibility for a non-exempt Federal TANF public benefit or a non-exempt State or local public benefit, in accordance with Federal law at 8 U.S.C. 1641.

In order to enter in the U.S., other Mexican nationals residing in Mexico generally must obtain a visa or a Border Crossing Identification Card (BCC), and abide by the terms and conditions of a lawful nonimmigrant admission based on that visa or BCC.[11]  As nonimmigrants, they are ineligible for a non-exempt Federal TANF public benefit.  However, States may use MOE funds that have not been commingled with Federal TANF funds to help nonimmigrants under the INA, provided the family meets all other programmatic eligibility requirements.

3. Examples:

a.  A Native American woman has been receiving federally funded TANF assistance for herself and her two minor children since March 2004.  The woman’s mother-in-law also lives in the home, but does not receive TANF assistance.  The mother was born in Mexico and entered the U.S. in July 1995.  In May 1996, her immigration status was adjusted to that of lawful permanent resident based upon her marriage to a U.S. citizen who died in 1998.  Both children were born in the U.S. As tribal members, the family has been living on tribal lands on the U.S. side of the border since entering the country.

In July of 2004, the mother left home temporarily to return to tribal lands in Mexico to care for her ill sister.  The grandmother cared for the children in her absence. When her sister died at the end of September, the mother of the children rejoined her family in the U.S.  The mother’s sister and daughter already possessed a valid BCC. So, the niece accompanied her aunt when she returned to her home.  In January, the Aunt requested adding her niece to the assistance grant. As it turns out, the niece had overstayed the time allowed for BCC holders.

Conclusion: State or Tribal TANF policy on temporary absence of a caretaker relative from the home dictates whether the TANF agency either continued to meet or removed the mother’s needs from the assistance grant during her absence.  Since the mother’s return, the family assistance unit would consist, at a minimum, of the mother and her two children.  The niece is no longer in the country legally.  Therefore, the niece’s needs may not be added to the assistance unit unless the State has enacted a law after 8/22/96 that affirmatively allows eligibility of illegal aliens for MOE-funded assistance using segregated State TANF MOE funds or separate State MOE funds.

b.  A Native American woman and her two minor grandchildren, all born in Mexico, have been visiting tribal members in their sister U.S. tribal community.  The grandmother takes care of her grandchildren.  All three entered the U.S. in September, 2005 with a valid visa and I-94 form permitting them to stay for up to six months.  In November, the grandmother was seriously injured in a car accident.  The hospital where she was treated advised that she needs up to three months to recuperate before she is well enough to return to Mexico.  The children are staying in the U.S. with their Aunt until their grandmother recuperates.  The Aunt applied for assistance on behalf of the children only in December.  At the time of application, the children’s status as nonimmigrants had not expired.

Conclusion: As nonimmigrants, the children are not eligible for a non-exempt Federal TANF public benefit.  However, if all programmatic eligibility criteria are met, the State may use MOE funds that have not been commingled with Federal TANF funds to provide a State or local public benefit.  For example, if the family is financially eligible and meets all other eligibility requirements, the State may provide, on the children’s behalf, a nonrecurring short-term (i.e., no longer than 4 months) benefit to deal with the crisis or episode of need.  This would also apply to a Tribal TANF program that receives MOE funds from the State.

Tribal TANF Regulatory Provisions:

In this section, we will discuss certain definitions in 45 CFR 286.5 in the order in which they appear in the Code of Federal Regulations.

1. Definition of “eligible families:”

The definition of “eligible families” at 45 CFR 286.5 includes:

  • “(3) All qualified aliens, who meet the Tribe’s criteria for Tribal TANF assistance, who entered the U.S. on or after August 22, 1996, who have been in the U.S. for at least 5 years beginning on the date of entry into the U.S. with a qualified alien status, are eligible beginning five years after the date of entry into the U.S.  There are exceptions to this 5-year bar for qualified aliens who enter on or after August 22, 1996, and the Tribal TANF program must cover these excepted individuals:  (a) An alien who is admitted to the U.S. as a refugee under section 207 of the Immigration and Nationality Act; (b) An alien who is granted asylum under section 208 of such Act; (c) An alien whose deportation is being withheld under section 243(h) of such Act; and (d) An alien who is lawfully residing in any State and is a veteran with an honorable discharge, is on active duty in the Armed Forces of the U.S., or is the spouse or unmarried dependent child of such an individual.”

This subsection addresses the 5-year bar on eligibility for a Federal means-tested public benefit. The subsection also addresses the qualified aliens who are exempt from this bar. The bar applies to qualified aliens entering the U.S. on or after 8/22/96, unless the person is exempted. However, the list of exempted qualified aliens is incomplete. Exempted qualified aliens also include Amerasians and Cuban/Haitian entrants. These categories of aliens should also be considered to meet the definition of an “eligible family.”[12]

  • “(4) All permanent resident aliens who are members of an Indian tribe, as defined in section 4(e) of the Indian Self-Determination and Education Assistance Act.”[13]  Pursuant to 8 U.S.C. 1611(a), only citizens, nationals, and qualified aliens are eligible for a Federal TANF public benefit. Qualified aliens are defined at U.S. Code at 8 U.S.C. 1641.  A qualified alien includes “an alien who is lawfully admitted for permanent residence under the Immigration and Nationality Act.”  We understand this regulatory provision to be a further description of individuals who may meet the definition of a qualified alien in 8 U.S.C. 1641 as aliens who are lawfully admitted for permanent residence.  This provision does not provide an additional basis for eligibility beyond the limitations imposed by Federal law.
  • “(5) All permanent resident aliens who have 40 qualifying quarters of coverage as defined by Title II of the Act.”   All aliens who are lawfully admitted for permanent residence are qualified aliens.  LPRs who are not statutorily exempted are barred for five years from receiving Federal means-tested public benefits if they entered the U.S. on or after August 22, 1996.   Although most LPRs who can be credited with 40 qualifying quarters of coverage would likely have been in a qualified alien status for five years, this regulatory provision does not provide an additional basis for eligibility beyond the limitations imposed by Federal law.

2. Definition of “Qualified Aliens:”

  • “Qualified Aliens has the same meaning given the term in 8 U.S.C. 1641 except that it also includes members of an Indian tribe, as defined in section 4(e) of the Indian Self-Determination and Education Assistance Act, who are lawfully admitted under 8 U.S.C. 1359.”

Federal law at 8 U.S.C. 1359 gives American Indians born in Canada who possess at least 50 per centum of blood of the American Indian race the right of entry in the United States.  As discussed earlier in this announcement, this right of entry does not equate with having satisfactory immigration status as a qualified alien. Under the USCIS implementing regulations at 8 CFR 289.2 (Lawful admission for permanent residence), such Native Americans are regarded as lawfully admitted for permanent residence ONLY IF the individual has established and maintained residence in the U.S. since his/her entry.  If so, then s/he may be regarded as a lawful permanent resident.  A lawful permanent resident is a qualified alien.  Whether an individual is a member of a recognized Indian tribe is not relevant to whether the individual is a qualified alien or to whether the individual is eligible for section 289 entry, although it is likely to be relevant for other reasons to the individual’s ability to participate in a particular Tribal TANF program.

Resources:

  • Title 8, Chapter 14 (Restricting Welfare and Public Benefits for Aliens) of the U.S. Code, available online at.
  • Interpretation of “Federal Public Benefit” -- transmitted to States on August 4, 1998 via TANF-ACF-IM-98-5. A copy of the publication has been provided online.*
  • HHS definition of means-tested public benefit -- transmitted to States on August 28, 1997 via TANF-ACF-IM-97-4, and published in the Federal Register on August 26, 1997 (62 FR 45256). A copy of this publication has been provided at Means-Tested Public Benefit*
  • Attorney General Notice of Final Order Number 2353-2001, published on January 16, 2001 in 66 FR 3613 regarding the Final Specification of Community Programs Necessary for Protection of Life or Safety Under Welfare Reform Legislation.  This Order enumerates the policy and benefits that are necessary for the protection of life or safety. A copy of this publication has been provided at AG Notice*
  • DOJ’s Interim Guidance on Verification of Citizenship, Qualified Alien Status and Eligibility Under Title IV of the Personal responsibility and Work Opportunity Reconciliation Act of 1996. A copy of this publication has been provided here at DOJ's Interim Guidance.*
  • USCIS 8 CFR Parts 289, 244, and 214 are available online.

*To view these documents download Adobe Reader

Inquiries:

Please direct any inquiries to the appropriate ACF Regional Administrator.


/s/
Sidonie Squier
Director
Office of Family Assistance



[1] For public benefit eligibility purposes, all nationals are treated like citizens. A national of the U.S. means a citizen of the U.S., or a person who, though not a citizen of the U.S., owes permanent allegiance to the U.S. Essentially, a non-citizen national is a person born in an outlying possession of the United States (American Samoa or Swains Island) on or after the date the U.S. acquired the possession, or a person whose parents are U.S. non-citizen nationals (subject to certain residency requirements).  (See 8 U.S.C. 1401 et seq. and 8 U.S.C. 1101(a)(22).)

[2] Except for the funding source, the statutory definitions 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).  This Notice was transmitted via TANF-ACF-IM-98-5, dated August 4, 1998 and 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. For example, a use of TANF funds that may not meet the definition of a “Federal public benefit” might include pregnancy prevention services that are available to individuals regardless of financial need.

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.

[3] States (including D.C., the U.S. Virgin Islands, Puerto Rico, and Guam) may 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 decides NOT to help qualified aliens, then the State MUST permit the following exempted 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, States MUST help the following exempted qualified aliens for as long as they remain programmatically eligible: legal permanent residents who have worked forty qualifying quarters after 12/31/96 and have not received any Federal means-tested public benefit during any such period, or to aliens who are veterans, members of the military on active duty, and their spouses and unmarried dependents. Per the U.S. Code at 8 U.S.C. 1641(a), 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.

[4] 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 FR 3613, January 16, 2001.

[5] This right of entry originally arose from the Treaty of Amity, Commerce, and Navigation (the Jay Treaty) between England and the United States. The Jay Treaty was signed in 1794 and ratified by the U.S. in 1795.

[6] These regulations apply to the former Immigration and Naturalization components that are currently in the Department of Homeland Security (DHS) (Immigration and Customs Enforcement and Customs and Border Protection) whose responsibilities may include determining the status of aliens, as well as to USCIS, but are referred to as USCIS regulations for ease of reference, as USCIS is the DHS component primarily responsible for adjudicating the status of aliens within the United States and for immigration status verification activities relating to public benefits.

[7] 8 CFR 289.2 includes the following exception to the 50 per centum blood requirement: “A person who does not possess 50 per centum of the blood of the American Indian race, but who entered the United States prior to December 24, 1952, under the exemption provided by the Act of April 2, 1928, and has maintained his residence in the United States since such entry shall also be regarded as having been lawfully admitted for permanent residence.”

[8] Although 8 CFR 244.9(a)(2) addresses a different purpose than eligibility for a Federal, State, or local public benefit, USCIS has advised that it would be appropriate for benefit granting agencies to follow this subsection when they need to verify whether section 289 entrants are LPRs.

[9] See U.S. Department of Justice’s Interim Guidance on Verification of Citizenship, Qualified Alien Status and Eligibility Under Title IV of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, 62 FR 61415, November 17, 1997.

[10] 62 FR page 61363, November 17, 1997.

[11] Native Americans born and residing in Mexico frequently visit their sister communities in the U.S. for business or pleasure, for workshops on traditional cultures and language, for medical care, or for other reasons.  In such situations, USCIS will usually issue a BCC, which is the equivalent to a B-2 nonimmigrant tourist visa.  The card has certain restrictions. For example, holders of a Mexican BCC are temporarily admitted into the U.S. and may only travel within a 25-mile zone from the border (75 miles, if admitted to visit in Arizona).  The BCC is valid for ten years and generally permits the holder unlimited border crossings.

[12] See 8 U.S.C. 1613(b). In addition, regarding the exception for active military veterans and their family members, the Tribal TANF program must only serve such exempted veterans, members of military on active duty, and their spouses and unmarried dependent children living in their Tribal TANF service area and included in their service population, as identified in the Tribe’s approved TANF plan.

[13] Per section 4(e) of the Indian Self-Determination and Education Assistance Act, “Indian tribe” means any Indian tribe, band, nation, or other organized group or community, including any Alaska Native village or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act (85 Stat. 688) [43 U.S.C. 1601 et seq.], which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.”  25 U.S.C. 450b.(e) Hence, only federally recognized Tribes may elect to operate a Tribal TANF program (45 CFR 286.15). Currently, there are 562 tribal entities that are recognized as “Indian tribes.”  The Department of the Interior’s Bureau of Indian Affairs publishes updates in the Federal Register to its current list of federally recognized Tribes or “Indian Entities Recognized and Eligible to Receive Services From the United States Bureau of Indian Affairs.”