63-155       Qualified Battered/Abused Noncitizens and

  Victims of Trafficking

 

Table of Content

 

 

Section

Qualified Noncitizen Status of Battered/Abused Noncitizens

  155.1

Conditions of Eligibility

  155.2

Circumstances of the Abuse

  155.3

Connection to the Need

  155.4

Approval or Pending Petition

  155.5

Federal CalFresh Eligibility

  155.6

Battered/Abused Inquires

  155.7

Victims of Human Trafficking and Other Serious Crimes

  155.8

Immigration Visas for Victims of Human Trafficking and Other Serious Crimes

  155.9

Date of Entry and SAVE

  155.10

Contacting the ORR

  155.11

T Visa for Trafficking Victims

  155.12

U Visa for Victims of Serious Crimes

  155.13

SB 1569 – State Only Program

  155.14

Determination of Eligibility for Trafficking Victims under SB1569

  155.15

Termination of Eligibility for Trafficking Victims to State-Funded (SB 1569)

  155.16

Determination of Eligibility to SB 1569 of Other Serious Crimes Victims

  155.17

Work and SSN Requirements for Trafficking and Domestic Violence Victims under SB 1569

  155.18

 

63-155.1
Qualified Noncitizen Status of Battered/Abused Noncitizens

Federal Law provides “qualified noncitizen” status to categories of noncitizens who have been subjected to battery or extreme cruelty in the U.S. by a family member with whom they reside.  “Qualified noncitizen” status also extends to a noncitizen whose child has been abused, or a noncitizen child whose parent has been abused.

This group of battered noncitizens is exempt from sponsor deeming requirements for a 12-month period.  The exemption can be extended beyond the 12-month period if the noncitizen demonstrates that the battery is recognized by a court, administrative order, or by USCIS and if the agency administering the benefits (the worker) determines that the battery has a substantial connection to the need for benefits.

 

63-155.2
Conditions of Eligibility

A battered/abused noncitizen meets the definition of a “qualified noncitizen” if he/she meets the following four (4) requirements:

·      The noncitizen or the noncitizen’s child or parent has been battered or subjected to extreme cruelty within the U.S. by his/her spouse, parent or family member residing in the same household under circumstances explained in section 63-155.3 below;

·      The noncitizen no longer resides with the abuser;

·      There is a substantial connection between the battery or extreme cruelty and the need for benefits [Refer to section 63-155.4 below]; and

·      The noncitizen has an approved petition or a pending petition from USCIS, which sets forth a “prima facie” case as explained in section 63-155.5 below.

In general, these rules usually apply to abused noncitizens who are (or were) married to Legal Permanent Resident (LPR’s) or U.S. citizens, or whose parents are LPRs or U.S. citizens.

 

63-155.3
Circumstances of the Abuse

The noncitizen, the noncitizen's child or the noncitizen child's parent is considered to have been abused under the following circumstances:

·      The noncitizen has been battered or subjected to extreme cruelty in the U.S. by a spouse or parent of the noncitizen, or by a member of the spouse's or parent's family residing in the same household if the spouse or parent consented to or acquiesced to the battery or cruelty.

·      The noncitizen's child has been battered or subjected to extreme cruelty in the U.S. by a spouse or parent of the noncitizen, or by a member of the spouse's or parent's family residing in the same household if the spouse or parent consented to or acquiesced to the battery or cruelty, and the noncitizen did not actively participate in the battery or cruelty.

·      The parent of a noncitizen child has been battered or subjected to extreme cruelty in the United States by the parent's spouse, or by a member of the spouse's family residing in the same household as the parent, if the spouse consented to or acquiesced in such battery or cruelty.

 

63-155.4
Connection to Need

The following list includes, but is not limited to, circumstances which may demonstrate a substantial connection between the abuse/battery or extreme cruelty suffered by the applicant and the need for the benefit sought. A connection exists if the CalFresh benefits are needed to enable the noncitizen, the noncitizen’s child, and/or (in the case of a noncitizen child) the noncitizen’s parent to among other things to:

·   Become self-sufficient following separation from the abuser;

·   Escape the abuser and/or the community in which the abuser lives, or ensure safety from the abuser;

·   Fulfill a financial need due to loss of financial support resulting from separation from the abuser;

·   Fulfill a financial need caused by the loss of a job because of the circumstances of the abuse;

·   Provide or seek medical attention or mental health counseling, or health services due to disability resulting from the battery or extreme cruelty;

·   Fulfill a financial need because of the loss of a dwelling or source of income or fear of the abuser which, following separation from the abuser, jeopardizes the applicants’ or the parents’ ability to care for his or her children;

·   Alleviate nutritional risk or need resulting from the abuse or following separation from the abuser;

·   Provide or seek medical care during a pregnancy resulting from the abuser’s sexual assault or abuse of, or relationship with the abused noncitizen and/or care for any resulting children; or

·   Replace medical/health care services which were provided when living with the abuser.

 

63-155.5
Approval or Pending Petition

The battered noncitizen must show that he/she has an approved or pending petition which makes a “prima facie” case for immigration status in one of the following categories:

Self-Petitions

USCIS I-797 or I-797C documents must show approval or prima facie determination of an I-360 (Petition for Amerasian, Widow or Special Immigrant) form based on the status as a spouse or child of an abusive U.S. citizen or LPR.

A “prima facie” determination for a self-petitioner is an interim decision pending an approval or denial of the petition. Once USCIS makes a prima facie determination, the battered noncitizen will receive a prima facie notice, which is valid for 150 days after issuance. After the expiration of the prima facie notice, the battered non-citizen must have either a renewal of the prima facie notice or an approved petition.

Self-Petition by Widow(er) & Family Based Petitions

These petitions will not have a prima facie determination, but they may have a pending petition.  In this case a pending petition is a petition that has been submitted to USCIS and a final decision has not yet been provided.  The approval document for a family-based petition (USCIS I-797 or I-797C indicating approval of an I-360) must contain the following relationship information:

·      Spouse of U.S. citizen or LPRs; or

·      Unmarried children under age 21 of U.S. citizens or LPRs; or

·      The unmarried sons or daughters age 21 or older of LPR’s.

NOTE:  In this situation, it is not necessary to apply the battered non-citizen requirements as these battered non-citizens are “qualified non-citizens” that have attained LPR status through a family-based petition.  

Cancellation of Removal/Suspension of Deportation

An abused noncitizen already undergoing deportation proceedings can petition the Executive Office for Immigration Review (EOIR) for cancellation of removal/suspension of deportation as a battered non-citizen.  In this situation an approved petition will be a final court order or a notice from an Immigration Judge, Board of Immigration Appeals, or a federal court granting a cancellation of removal/ suspension of deportation.

A battered/abused noncitizen may also be granted deferred action. Deferred action means that USCIS has chosen not to initiate removal (deportation) proceedings against the battered/abused noncitizen for the period specified on the USCIS document.  The specified time period, usually fifteen months, is provided in order to allow the battered/abused noncitizen adequate time to apply for an adjustment of status, an immigrant visa, and/or employment authorization.

·      A battered/abused noncitizen can request an extension of the deferred action period.

·      USCIS can revoke a grant of deferred action, for reasonable cause, at any time.  The revocation takes place when USCIS initiates the deportation proceedings.

Refer to the “Relationship and Condition Requirement for Petitions (for Battered/abused Noncitizens” chart.

 

63-155.6
Federal CalFresh Eligibility

A battered/abused noncitizen meets the definition of a “qualified noncitizen”.  In order to receive federally funded Supplemental Nutrition Assistance Program (SNAP) benefits (CalFresh), battered/abused noncitizens must also meet one of the “Conditions of Eligibility for Qualified Noncitizens” explained in section 63-154.3 (i.e. legally residing in the U.S. for five years; or have a military connection; or blind or disabled; or under 18 years of age or 65 or older on August 22, 1996).

If not eligible to federal CalFresh (does not meet one the “conditions of eligibility for qualified noncitizens), the battered/abused qualified noncitizen, if otherwise eligible, is eligible for state-funded CalFresh (CFAP).

NOTE:  The five-year period begins when the prima facie case determination is issued or when the abused noncitizen’s I-130 or I-360 visa petition is approved, which is the date the noncitizen obtained “qualified status” as a battered/abuse noncitizen.

 

63-155.7
Battered/Abused Inquires

Self-petitioning battered noncitizens, not including widow(er), must file their applications via mail to the USCIS Vermont Service Center.  Therefore, workers must direct inquiries regarding these petitions to the Center.

 

The Vermont Service Center  is a section within USCIS whose function is to respond to inquiries and process self-petitions for battered/abused noncitizens.

Workers will utilize normal procedure of sending a G-845s form to the local USCIS office for inquires on approved family based self-petitions and self-petitions by widows(er).

For pending petitions, and in instances where the battered/abused noncitizen provides documentation other than the ones listed above (I-797 or I-797C), the worker must fax the USCIS documents along with the USCIS request form (the “Fax Request Form”) to the Vermont Service Center for verification.

The fax number is: (802) 527-4864.

In cases involving cancellation of removal/suspension of deportation proceedings for battered non-citizens, workers can fax a request for information to the Executive Office for Immigration Review (EOIR) or contact the Immigration Court indicated.

NOTE:  All “Fax Request Forms” for information must be approved and signed by the FRC Manager or the Assistance Manager.

When necessary, FRC staff will make the following information available to clients claiming to be victims of abuse:

·   The National Domestic Violence Hotline number 1-800-799-7233; and

·   The USCIS Forms Request line number 1-800-870-3676.

 

63-155.8 
Victims of Human Trafficking and Other Serious Crimes

The Trafficking Victims Protection Act of 2000 makes adult victims of severe forms of trafficking, who have been certified by the federal Office of Refugee Resettlement (ORR), eligible for federal CalFresh (to the same extent as refugees).

Eligibility has also been expanded to include the victim’s minor children, spouses and in some cases the parents and siblings of the trafficking victim at the time the T Visa application is filed.

Victims of severe forms of trafficking who are under 18 years of age are also eligible for benefits to the same extent as refugees, but do not need to be certified by the ORR

 

63-155.9 
Immigration Visas for Victims of Human Trafficking and Other Serious Crimes

In October 2000, the federal Trafficking Victims Protection Act of 2000 created two new nonimmigrant visas:

·   The “T” Visa, for victims of a severe form of trafficking in persons, and

·   The “U” Visa, for victims of criminal activity.

NOTE:  If the noncitizen trafficking victim is under 21 years old, on the date the T Visa application is filed, Derivative Visas may be available to the spouse (T-2), children (T-3), victim’s parents (T-4), and single minor siblings (T-5).

If the noncitizen trafficking victim is 21 or older on the date the T Visa is filed, Derivative T Visas will be available to the victim’s spouse and children (parents and minor siblings are not eligible for benefits if the trafficking victim is 21 or older at the time the T Visa application is filed).

 

63-155.10
Date of Entry and SAVE

A.  DATE OF ENTRY

For a non-citizen who is already in the United States (U.S.) on the date that the Derivative T visa is issued, the date of entry for purposes of benefits and services is the Notice Date on the Form I-797, Notice of Action of approval of the individual’s Derivative T Visa.

For a non-citizen individual who enters the U.S. on the basis of a Derivative T Visa, the date of entry for purposes of benefits and services is the date of entry stamped on the individual’s passport or I-94 Arrival Record. 

B.  SYSTEMATIC ALIEN VERIFICATION SYSTEM (SAVE)

The Department of Homeland Security’s SAVE system does not contain information about victims of a severe form of trafficking.  Until further notice, workers will not contact SAVE concerning trafficking victims or trafficking victim’s non-immigrant family members.

 

63-155.11
Contacting the ORR

Workers must call the toll-free trafficking verification line at 1-866-401-5510 to notify the ORR of the benefits for which the individual has applied.

The Office of Refugee Resettlement (ORR) is a branch of the United States Department of Health and Human Services – Administration for Children and Families that provides assistance to newly arriving immigrants in need, in becoming integrated members of American society.

 

63-155.12
T- Visa for Trafficking Victims

Human trafficking is a form of modern-day slavery.  Federal law defines “severe forms of trafficking in persons” to mean:

·      Sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such an act has not reached 18 years of age; or

·      The recruitment, harboring, transportation, provision or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery.

Trafficking victims apply to USCIS for a T Visa by submitting a Form I-914, “Application for T Nonimmigrant Status”.

Once the adult trafficking victim has been certified by ORR, he or she is eligible for federal benefits to the same extent as refugees.  For minor trafficking victims, the ORR issues an eligibility letter, which makes the minors eligible for federal CalFresh.

 

63-155.13 
U-Visa for Victims of Serious Crimes

Federal law defines noncitizen victims of serious crimes as noncitizens who:

·   Have suffered substantial physical or mental abuse as a result of having been victims of criminal activity involving, or similar to, the following violations: rape; torture; trafficking; incest; domestic violence; sexual assault; abusive sexual contact; prostitution; sexual exploitation; female genital mutilation; being held hostage; peonage; involuntary servitude; slave trade; kidnapping; abduction; unlawful criminal restraint; false imprisonment; blackmail; extortion; manslaughter; murder; felonious assault; witness tampering; obstruction of justice; perjury or attempt; conspiracy or solicitation to commit any of the above mentioned crimes; and

·   Possess information concerning criminal activity (or in the case of an alien child under the age of 16, the parent, guardian, or adult representing the child); and

·   Have been helpful, are being helpful, or are likely to be helpful to a federal, state, or local law enforcement official, prosecutor, or judge or to other federal, state, or local authorities investigating or prosecuting criminal activities described above (or in the case of an alien child under the age of 16, the parent, guardian, or adult representative of the alien is helpful).

 

63-155.14 
SB 1569 – State Only Program

SB 1569 was enacted to provide assistance to trafficking victims prior to federal ORR certification by creating a new, state-supported program to provide critical services to these victims as they await, or prepare to request approval for, federally-funded benefits.  SB 1569 also recognizes that applicants for “U Visa Interim Relief” who are willing to cooperate with law enforcement officials need support and services.

These noncitizens are eligible to state-funded benefits, CFAP, under provisions of SB 1569.

Follow procedures and regulations in FSPG Section 63-156 to determine eligibility to CFAP for Victims of Trafficking.

 

63-155.15
Determination of Eligibility for Trafficking Victims under SB1569

To determine eligibility for victims of a severe form of trafficking under SB 1569,

·      The worker must first determine if the applicant meets the definition of a victim, based on all relevant information.

A sworn statement by a victim (or a representative if the victim is not able to competently make a sworn statement) is sufficient if at least one item of additional evidence is provided, including, but not limited to:

o  Police, government agency, or court records or files

o  News articles

o  Documentation from a social services, trafficking, or domestic violence program, or a legal, clinical, medical, or other professional from whom the applicant or recipient has sought assistance in dealing with the crime

o  A statement from any other individual with knowledge of the circumstances that provided the basis for the claim

o  Physical evidence

o  A copy of a completed visa application

o  Written notice from the (USCIS) of receipt of the T Visa application

·      In the absence of additional evidence, a sworn statement by a victim will be sufficient if the worker determines that the applicant is credible.  An applicant is credible unless there is an independent, reasonable basis for finding the applicant “not credible”.  The finding of credibility (or lack thereof) must be documented in the case record.

·      After determining, based on one of the items above, that the applicant meets the definition of a trafficking victim, the worker must then determine if the applicant:

o  Has filed an I-914 application for a T Visa with USCIS and the application has not been denied; or

o  Is preparing to file an application for a T Visa; or

o  Is otherwise taking steps to meet the eligibility conditions for federal benefits.

o  Is a person for whom “continued presence” in the U.S. has been requested by federal law enforcement because s/he is assisting or willing to assist in the investigation or prosecution of human traffickers.

Note: “Continued Presence” is a status that allows trafficking Victims assisting law enforcement to remain in the country during the course of a criminal investigation. 

Victims of human trafficking who are granted continued presence may assist local, state, and federal, law enforcement officials.

·      The following documentation can be used in determining whether an applicant has filed, or is preparing to file, for a T Visa:

o  A confirmation receipt or letter from USCIS verifying an application                      for a T Visa has been filed; or

o  A copy of the application for a T Visa (I-914); or

o  If an applicant has not yet filed for a T Visa (no documentation is available), the applicant’s statement that s/he has filed or intends to apply for a T Visa, or is taking steps to become federally eligible (e.g., is working with a community-based agency to prepare to qualify for federal benefits, working with law enforcement, etc.), is acceptable.

Documentation could also include statements from persons in official capacities (e.g. law enforcement officials or victim advocates) who have assisted or are assisting the victim with the T Visa application or steps to becoming eligible.

 

63-155.16
Termination of Eligibility for Trafficking Victims to State-Funded (SB 1569)

Eligibility for state-funded (CFAP) eligibility will be terminated if:

·      The recipient’s application for a T Visa is finally administratively denied; or

“Final Administrative Denial” means that an appeal of the visa denial has been unsuccessful or the time to appeal the denial has passed without an appeal having been filed, whichever comes first.

 

·      The recipient has not applied for a T Visa within one year of applying for state benefits; or

·      A request by law enforcement officers on behalf of the recipient for federal continued presence status has not been made within one year; or

·      The recipient is issued a T visa resulting in federal food stamp eligibility.

If certified, the case will be switched from CFAP to federal effective the date of certification, without a break in benefits.

A Notice of Action (NOA) is not necessary to be sent if the only change in the case is the claiming adjustment (from state-funded to federal-funded).

 

63-155.17
Determination of Eligibility to SB 1569 for Other Serious Crimes Victims

SB 1569 provides state-funded services for non-citizen victims of domestic violence or other serious crime.  In order to be eligible as a nonimmigrant victim of serious crimes, SB1569 requires that an applicant files a request for a U Visa.

Petitioners who have requested U Visa Interim Relief prior to October 17, 2007 are also eligible to state-funded benefits, if otherwise eligible.  To be eligible, the worker will verify the applicant has filed a formal application for U Visa (Form I-918 and required supplements).

Acceptable documentation for verifying that an application for a U Visa has been filed or a request for U Visa Interim Relief was filed (U Visa Interim Relief is acceptable only if the request was filed prior to October 17, 2007) includes, but is not limited to:

·      Statements from persons in official capacities (e.g., law enforcement officials or victim advocates) who have assisted or are assisting the victim with the application for U Visa Interim Relief; or

ACL 06-60

·      A confirmation receipt or letter from USCIS verifying that a request has been filed; or

·      The Notice of Action (form I-797) approving a U Visa or a request for U Visa Interim Relief (U Visa Interim Relief is acceptable only if the  request was filed prior to October 17, 2007); or

·      A form I-797 which serves as a fee receipt for an employment authorization request based on a U Visa applications; or

·      A copy of the Petition for U Nonimmigrant status (Form I-918); or an Employment Authorization Document (EAD) issued under Category “A19” or “A20” for an Approved U Visa petitioner.

Eligibility for state-funded services will continue until the recipient has a final administrative denial of the U Visa application or when the 60-month program limitation has been reached, whichever comes first.

“Final administrative Denial” means that an appeal of the visa denial has been unsuccessful or the time to appeal the denial has passed without an appeal having been filed, whichever comes first.

 

63-155.18
Work and SSN Requirements for Trafficking and Domestic Violence Victims under SB 1569

A.  WORK REQUIREMENTS

Victims of human trafficking, domestic violence or other serious crimes are not subject to food stamp work rules, ABAWD work requirements, work registration requirements, and/or penalties for voluntary quit or reduction of hours.  Consequently, no sanctions will be applicable.

B.  SOCIAL SECURITY NUMBER (SSN) REQUIREMENT

SB 1569 victims of human trafficking, domestic violence, or other serious crimes do not have to provide or apply for a SSN as a condition of eligibility to state-funded food stamp benefits.

The trafficking victim will be required to provide a SSN as a condition of eligibility to federal CalFresh after being certified by the Office of Refugee Resettlement (ORR).  [Refer to Section 63-161]