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Verifying and Reporting Noncitizens to DHS
Misinformation is rampant when it comes to verifying immigration status and reporting noncitizens to the Department of Homeland Security. Both noncitizens and agency workers are confused. This confusion can deter noncitizens from securing the benefits they may need. The post 9/11 political environment aggravates this problem because some agency workers and members of the public subject noncitizens to more scrutiny than is required. This section will discuss who is required to verify, to use the SAVE computer system, and to report undocumented noncitizens to DHS.
No verification necessary
Non-profits. Non-profit organizations administering benefits are not required to check or report applicants' immigration status. Non-profits can serve as a confidential and secure atmosphere for noncitizens to seek aid.
Emergency and non-emergency health care.
Health care providers and hospitals are not required to ask about a noncitizen's immigration status. While it is true that in 2004, there have been governmental and congressional efforts to require emergency health care workers to investigate a patient's immigration status, proposed legislation and other attempts have proved unsuccessful to date. It is important, however, to check with the National Immigration Law Center or an immigration advocate for new developments.
State and local agencies.
States need not check immigration status for federal programs, unless a "federal agency designates a program as a federal public benefit for which 'not qualified' immigrants are ineligible." Until they do, state and local agencies are not required to verify status. Furthermore, even if a program has been designated as a federal public benefit, federal guidance strongly encourages agencies to make financial and other eligibility decisions prior to checking immigration status. If a noncitizen does not qualify for benefit due to financial or other reasons unrelated to immigration status, there is no need to check immigration status.
"Verifying" is not the same as "reporting"
Many agencies administering federal programs already verify immigration status to determine an individual's eligibility for benefits. To do this, they use the DHS's immigration computer system, called "SAVE" (The Systematic Alien Verification for Entitlements System). The Department of Homeland Security is prohibited from using information provided through SAVE for immigration enforcement purposes, unless a criminal violation is involved. Once they have verified status, however, most programs are not obligated to report to DHS. Only certain agencies have to report (see next section on reporting requirements.)
If they ask immigration status questions, benefits agencies must verify only the status of the applicant and not that of family members who are not seeking benefits on their own behalf. HHS provided helpful guidance to state benefits agencies, which limits inquiries regarding immigration status and social security numbers. In addition, the guidance strongly encourages agencies to make financial and other eligibility decisions prior to asking about immigration status.
Reporting requirements are narrow
The welfare law has only a few very specific reporting requirements, which have been narrowly interpreted. Most programs are not obligated to report undocumented noncitizens to DHS. The only agencies required to report benefits applicants to DHS (under very narrow circumstances) are SSI, Food Stamps, TANF, and public housing authorities. There are no reporting requirements in health care programs, for example.
Even agencies that must report individuals to the DHS are only required to report those who they "know are unlawfully in the United States." Federal guidance defines "knowledge" of unlawful presence as a formal determination, subject to administrative review within the agency, which must also be supported by a determination by the INS (now DHS) or EOIR (immigration court), such as a final removal order. Examples of "knowledge" that are not acceptable include a negative response to a SAVE inquiry, an oral or written admission by an applicant, or an agency worker's suspicions. This definition applies to HUD, SSI, and TANF, and is one of two standards approved for use in the Food Stamp program. In practice, these standards should virtually never be met. In many states, there is much more fear about reporting among noncitizens than any actual reporting by benefits' caseworkers.
No guarantees
This does not ensure, however, that unsympathetic or confused benefits' administrators will never report noncitizens to DHS. "Rogue" caseworkers or other individuals may take it upon themselves to report clients. By doing so, these employees may violate privacy laws and their own benefits agencies' confidentiality policies. If DHS takes action, however, then the employee's violation of the rules has little relevance. Therefore, it is important to advise your clients not to disclose their undocumented status to benefits agencies, and to ensure that benefits agencies do not ask for unnecessary information. For benefits eligibility purposes, it is almost never necessary to ask whether someone is undocumented - noncitizens may simply state that they are "ineligible" or "not qualified" or that they are a non-applicant seeking benefits only for their other family members.
If you have specific concerns about a benefits' agency, contact a national or local immigrants' rights organization, such as the National Immigration Law Center, which has been successful in educating benefits agencies that believe they must report immigrants.
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Important: Noncitizens should not provide false social security numbers or any false information to benefits' agencies. No noncitizen should ever falsely claim to be a US citizen.
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Advocacy tips on verification and reporting
- Do not assume that benefits administrators understand which noncitizens qualify for the benefit they administer or know what the law dictates about reporting noncitizens to DHS.
- Work with state and local agencies to ensure that these officials do not solicit unnecessary information, investigate, or report when not required to by federal law.
- Do not assume that the results of a DHS computer program check are more accurate than a client's documents or assertions. Insist on a secondary SAVE verification (which is a manual verification instead of via computer) if you are sure that your client has been wrongfully denied. If an immigrant is otherwise eligible, administrators should not delay, deny, reduce, or terminate benefits while the applicant gathers documents or while DHS is verifying status.
- Provide a copy of agency guidance on reporting if an issue comes up.
- Complain about benefits' administrators who check or report applicants when they are not required to do so.
Revisiting your HIV Positive Client
You are now ready to apply what you have learned regarding noncitizen eligibility for federal and state benefits. Let us return to your HIV positive noncitizen client who walked into your office seeking assistance and answers to his or her questions. Is he or she eligible for the following services:
HIV testing?
Yes. Testing and treatment of symptoms of communicable diseases are specifically listed on the Attorney General's list and are available to everyone, regardless of immigration status.
Medications?
Yes. Again, medications fall under testing and treatment of symptoms of communicable disease on the Attorney General's list and are available to everyone, regardless of immigration status. Medications may be available via your state's AIDS Drug Assistance Program (ADAP).
Health care?
Maybe, but the type and scope of health care coverage may depend on your client's immigration status and may be affected by the first-five-years bar and/or sponsor deeming.
If your client is a "qualified" noncitizen and fulfills other program requirements, he or she may qualify for Medicaid. Even if your client is not "qualified," he or she may be entitled to Medicare if "lawfully present" and earned Medicare credits while working with authorization. He or she may also wish to explore Buy-In Medicare. See the benefits concepts section for more information on "lawfully present."
Emergency Medicaid is available without immigration status restrictions, if the immigrant meets the other program criteria, such as financial and local residence eligibility. Your client may also be eligible for health care services via unrestricted federal block grants or via a state alternative program.
Food Stamps?
Maybe, depending on immigration status, length of time in that status, and age, and if an adult, subject to the first-five-years bar and possibly sponsor deeming. If your client does not qualify for federal Food Stamps, there may be a state replacement program available. Also, soup kitchens, community food banks, senior nutrition programs such as meals-on-wheels, and other such community nutritional services for people requiring special assistance are all exempt from immigration status restrictions. This includes, for example, community food programs for people with HIV/AIDS.
Public housing?
Maybe, depending on the immigration status of your client and of other household members. If the client is homeless or a survivor of domestic violence, however, short-term shelter and housing assistance is on the Attorney General's list and is available without immigration status restrictions.
Disability benefits?
Maybe. Your client might qualify for SSI, depending on immigration status, work history, and whether he or she was lawfully residing in the US on the effective date of welfare reform (August 22, 1996.) Lawfully residing means the immigrant must show both that he or she was "lawfully present" and actually living in the US. Your client may also be subject to sponsor deeming. Consult the NILC chart, because SSI restrictions are complex. If your client has a long work history, he or she may qualify for SSDI if at least "lawfully present."
For noncitizen clients who work, but are undocumented, it is important to work with an immigration advocate. Your client may qualify for an immigration status that is, optimally, "qualified" for benefits purposes, and if not, he or she may qualify for an immigration status which would render him "lawfully present." Social Security is available to lawfully present persons with the requisite work history. Your client may be able to get credit for more quarters of his or her work than you realize. This may be important in the future, if your client becomes unable to support him or herself.
Congress has severely restricted noncitizen access to public benefits. Nevertheless, basic constitutional rights limit the restrictions Congress and individual states can impose. No government agency may limit access to basic services such as police, fire, ambulance, or public utilities. Both public agencies and many private businesses are still prohibited from discriminating against anyone on the basis of race or nationality but some legislation, such as the USA Patriot Act, enacted after September 11, 2001, may encourage anti-immigrant sentiment. Title VI of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, and national origin in programs and activities receiving federal financial assistance and may entitle clients of those programs who are "limited English proficient (LEP)"
to language assistance (see www.lep.gov for more information.) Elementary and secondary public education remains available to children regardless of their immigration status. Everyone should challenge discrimination against noncitizens, whether perpetrated by public officials or by private individuals. Most importantly, you must advocate on the national, state, local, and individual levels on behalf of your HIV positive noncitizen clients.
One of the most effective ways you can help your HIV positive noncitizen clients is to advocate for both changing restrictive laws and for implementing existing laws as favorably as possible for noncitizens living with HIV/AIDS. You can do this on many levels. Be aware that you may encounter racism, misconceptions, and stereotypes about noncitizens. The post September 11, 2001, environment has made this problem worse, giving a "green light" to those who dislike noncitizens. You must challenge these attitudes if you wish to help your clients.
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