TN 13 (11-06)

Citations:

Public Law (P.L.) 105-33 , section 5571; P.L. 104-208 , section 501; P.L. 104-193 , section 431;

62 FR 65285-87 dated 12/11/97

A. Background

P.L. 104-193 , as amended, provides an exception to the rules which restrict eligibility for public benefits for certain aliens who were battered or subjected to extreme cruelty (also referred to as "abused") by a spouse or by a member of the household where the alien was residing when the abuse took place. Under this provision, “deemed qualified alien” status can be established for certain battered or abused aliens provided they meet additional conditions. (See SI 00502.200 for changes in sponsor-to-alien deeming rules that apply to alien claimants who have been battered or subjected to extreme cruelty.)

B. Policy -- General

1. Deemed Qualified Aliens

Alien claimants filing for Federal benefits may be eligible as "deemed qualified aliens" under P. L. 104-193 , as amended by P.L. 104-208 and P. L. 105-33 , based on battery or extreme cruelty. The alien claimant must meet the following four requirements to be considered "deemed qualified aliens" based on battery or extreme cruelty:

1. the alien, the alien's child, or the parent of an alien child must have been battered or subjected to extreme cruelty by a spouse, parent, or other member of the family living in the same household as the alien, and in the case of an alien whose child is abused, the alien did not participate in the abuse, AND

2. there is a substantial connection between the abuse and the need for the benefits sought, AND

3. the abusive act(s) must have taken place while the alien was in the United States, but the battered alien must not be currently residing with the batterer, AND

4. the Department of Homeland Security (DHS) or the Executive Office for Immigration Review (EOIR) has approved the alien's petition, or has found that the alien's pending petition sets forth a prima facie case, under one of the provisions of the Immigration and Naturalization Act (INA) listed under SI 00502.116B.2.

2. Immigration Statuses Required For Eligibility

1. Status as an Immediate Relative of a U.S. Citizen under section 204(a)(1)(A)(i) of the INA based on a petition filed by a U.S. citizen for his/her spouse or child, OR

2. Status as an Immediate Relative of a U.S. Citizen under section 204(a)(1)(A)(ii) of the INA based on a petition filed by a widow(er) of a U.S. citizen to whom the alien had been married for at least 2 years at the time of the citizen's death, OR

3. Status as an Immediate Relative of a U.S. Citizen under section 204(a)(1)(A)(iii) of the INA based on a petition filed by an alien spouse of a U.S. citizen with whom he or she has resided in the U.S., and the alien or a child of the alien has been battered or subjected to extreme cruelty by the citizen spouse, OR

4. Status as an Immediate Relative of a U.S. Citizen under section 204(a)(1)(A)(iv) of the INA based on a petition filed by a child of a U.S. citizen with whom he or she resided in the U.S., and who was subjected to battery or extreme cruelty by such parent during the period of residence, OR

5. Classification to Immigrant Status as the Spouse or Child of a lawfully admitted for permanent residence (LAPR) alien under section 204(a)(1)(B)(i) of the INA based on a petition filed by a LAPR for his/her spouse or child, OR

6. Classification to Immigrant Status as the Spouse of a LAPR Alien under section 204(a)(1)(B)(ii) of the INA based on a petition filed by the alien spouse of the LAPR alien with whom he or she has resided in the U.S., and the alien or a child of the alien has been subjected to battery or extreme cruelty by the LAPR alien with whom he or she has resided in the U.S., OR

7. Classification to Immigrant Status as the Child of a LAPR Alien under section 204(a)(1)(B)(iii) of the INA based on a petition filed by the child of the LAPR alien with whom he or she resided in the U.S., and the alien child has been subjected to battery or extreme cruelty by the LAPR alien, OR

8. Suspension of Deportation and Adjustment to LAPR status under section 244(a)(3) of the INA as in effect prior to 4/1/97, based on a petition filed by an alien who has been a continuous U.S. resident for at least 3 years, and who (or whose child) has been subjected to battery or extreme cruelty by a spouse or parent who is a U.S. citizen/LAPR alien, OR

9. Cancellation of Removal and Adjustment to LAPR Status under section 240A(b)(2) of the INA, based on a petition filed by an alien who has been a continuous U.S. resident for at least 3 years, and who has been subjected to battery or extreme cruelty by a spouse or parent who is a U.S. citizen or LAPR alien.

   NOTE: Alien claimants who have filed a petition under SI 00502.116B.2.c., SI 00502.116B.2.d., and SI 00502.116B.2.f. through SI 00502.116B.2.i. (i.e., self-petition cases) may be considered "deemed qualified aliens" based on battery or extreme cruelty if they have been granted a prima facie determination from DHS or EOIR, as applicable, and meet all other requirements.

3. SSI Eligible Exception Categories of Battered Aliens

Alien claimants who are “deemed qualified aliens” based solely on battery or extreme cruelty may be eligible for SSI if, in addition to meeting the other SSI eligibility requirements, they also meet one of the following categories:

1. Veteran (SI 00502.140C).

2. Active duty military (SI 00502.140D).

3. Spouse of a veteran or active duty military personnel
   (SI 00502.140E.1.).

4. Child of a veteran or active duty military personnel
   (SI 00502.140E.2.).

5. Aliens who are blind or disabled and were lawfully residing in the U.S. on 8/22/96 (SI 00502.142B).

C. Policy - Battered Aliens

1. Battered or Subjected to Extreme Cruelty

The alien claimant, the alien claimant's child, or the alien claimant's parent, must be determined to have been battered or subjected to extreme cruelty while residing in the U.S. in one of the following categories (see RS 00204.020C.5.g. for eligible alien statuses):

2. Substantial Connection Between Battery and Need for Benefits

In order to be a “deemed qualified alien” based solely on battery or extreme cruelty, SSA must determine that there is a substantial connection between the battery or extreme cruelty and the need for benefits.

a. Battered Alien Claimant

The requirement will not be satisfied solely by a determination that an applicant has been subjected to battery or extreme cruelty. ANY of the following circumstances may be considered to determine whether a substantial connection exists and they are when benefits are needed:

• to enable the individual to become self-sufficient following separation from the abuser;

• to escape the abuser or to ensure the safety of the individual;

• to replace the loss of financial support that occurred when the individual separated from the abuser;

• to replace the financial support resulting from the loss of a job, or work absences or lower job performance, or work absences to attend legal proceedings relating to the abuse that resulted when the individual separated from the abuser and was in fear of his/her personal safety;

• to obtain medical attention or mental health counseling caused by the abuse;

• to recover from the loss of a dwelling or source of income, or fear of the abuser following separation from the abuser which jeopardizes the individual's ability to care for his/her children (e.g., inability to house, feed, or clothe children or to put children into a day care for fear of being found by the abuser);

• to alleviate nutritional risk or need;

• to provide medical care during a pregnancy resulting from the abuser's sexual assault or abuse of, or relationship with, the individual;

• to replace medical coverage and/or health care services lost when the individual separated from the abuser.

  THIS LIST IS NOT INTENDED TO BE ALL-INCLUSIVE. THERE MAY BE OTHER CIRCUMSTANCES WHICH COULD BE CONSIDERED REASONABLE FOR DETERMINING THAT THIS REQUIREMENT IS MET.

b. Alien Claimant Whose Child or Parent Has Been Battered

In cases where the alien claimant's child or the alien claimant's parent has been battered, the alien claimant and the battered individual must BOTH be residing in the same household apart from the batterer. Unless there is reason to believe otherwise, assume that since the alien claimant is no longer living with the abuser and is filing for benefits, there is a need for benefits in order for the alien claimant and his/her child or parent to continue living independent of the batterer.

3. Battered Individual No Longer Resides in the Same Household With the Batterer

In order to be a “deemed qualified alien” based on battery or extreme cruelty, the battered individual (i.e., alien claimant, alien claimant's child, alien claimant's parent) must no longer be physically residing in the same household as the individual responsible for the battery or extreme cruelty. We will provide referrals for any battered alien seeking assistance in establishing a separate residence from the batterer. Claimants will generally need the assurance of the availability of benefits in order to be able to leave the batterer and survive independently. If eligible, benefits are payable the month following establishment of a separate residence. If the battered individual resumes living with the batterer, benefits are suspended the month after the month in which they resume living together.

4. Alien Claimant Did Not Actively Participate in the Abuse

In the case of an alien claimant whose child has been battered or subjected to extreme cruelty, the alien claimant must not have actively participated in the battery or extreme cruelty.

D. Definitions

1. Battery or Extreme Cruelty

Any act or threatened act of violence, including any forceful detention, which results in, or threatens to result in, physical or mental injury.

NOTE: Psychological or sexual abuse or exploitation, including rape, molestation, incest (if the victim is a minor), or forced prostitution are considered acts of violence.

IMPORTANT: This definition is not an exhaustive list of acts of violence that constitute battery or extreme cruelty. Other abusive actions may also be considered acts of violence. The acts mentioned in the definition in SI 00502.116D.1., and other non enumerated abusive actions should be regarded as acts of violence whenever they occur, so long as one or more of the acts takes place in the U.S. and while the family relationship between the batterer and the battered individual exists.

2. Executive Office of Immigration Review (EOIR)

The office in the Department of Justice that oversees the Board of Immigration Appeals.

3. Member of the Spouse's or Parent's Family

Any person related by blood, marriage, or adoption to the spouse or parent of the alien claimant, or any person having a relationship to the spouse or parent that is covered by the civil or criminal domestic violence statutes of the State or Indian lands where the alien claimant resides, or the State or Indian lands in which the alien claimant, the alien claimant's child, or the alien claimant's parent received a protection order.

NOTE: The family member must reside in the same household as the alien or the alien's parent at the time of the battery and at the time the alien claimant files a petition or application with the DHS or the EOIR.

4. Prima Facie Determination

An interim determination. The DHS or the EOIR can make an interim or prima facie determination of alien status for certain individuals who self-petition for immigration status as listed in SI 00502.116B.2. A prima facie determination by the DHS will be made only after a self-petition (see Note at the end of SI 00502.116B.2.) has been filed with the DHS. This determination will be made usually within 3 weeks of filing of the self-petition. By the end of the 3 weeks, DHS will mail the alien claimant an approval notice, a notice of prima facie determination, or a request for additional documentation. An DHS notice of prima facie determination will expire upon issuance of a final decision by the DHS or 150 days after issuance, whichever is earlier.

An EOIR prima facie determination will expire upon the date of the alien claimant's hearing on the merits of his/her case, or if made by the Board of Immigration Appeals (BIA), upon issuance of the Board's decision on the appeal. The alien claimant is eligible for benefits until the date of the hearing or until the final determination has been made by the BIA.

E. Procedure - Battery and Extreme Cruelty

1. When to Develop Battery or Extreme Cruelty in SSI Cases

If the alien claimant alleges that he or she, his/her child or if a child, his/her parent has been battered in the U.S. but does not present an DHS document listed in SI 00502.116F.1., take the following steps:

NOTE: DO NOT DEFER development of battery or alien status pending receipt of a disability determination.

2. Documentation Proving Battery or Extreme Cruelty

If the alien claimant presents DHS documentation listed in the tables in SI 00502.116F.3.a., item 3 and item 4, and SI 00502.116F.3.b., item 1 and item 2 which establishes battery, PROCEED to SI 00502.116E.3.

a. Alien Claimant With Court Order Based on Battery

A protection order or copy of a court record indicating criminal conviction against the batterer who is the spouse, parent, or a member of the spouse's or parent's family who resided in the same household as the battered individual (and alien claimant, if they are separate individuals) satisfies the battery or extreme cruelty requirement for alien claimants in the following situations:

• A protection order has been issued against the batterer of the alien claimant, the alien claimant's child or the alien claimant's parent; or

• A copy of the verdict and the judgment or sentence against the batterer committing an act of violence against the alien claimant, the alien claimant's child or the alien claimant's parent.

b. All Other Alien Claimants

Alien claimants not meeting the requirements in SI 00502.116E.2.a. must provide evidence of abuse. CONSIDER any credible evidence offered by the alien claimant. Evidence of battery or extreme cruelty includes, but is not limited to:

• Reports or affidavits from police, judges and other court officials, medical personnel, school officials, clergy, social workers, counseling or mental health personnel, and other social services agency personnel;

• Evidence that indicates that the alien claimant, the alien claimant's child or the alien claimant's parent sought safe haven in a shelter for battered individuals or similar refuge because of the battery against the alien claimant, the alien claimant's child or the alien claimant's parent; OR

• Photographs of the visibly injured alien claimant, alien claimant's child, or alien claimant's parent supported by a statement, submitted on a Form SSA-795, from the battered individual.

NOTE: An alien claimant may also submit his/her statement as well as statements from family members, friends or other third parties who have personal knowledge of the battery or cruelty. The statement should be submitted on an SSA-795 form. You have the discretion to conclude that the statement is credible, and, by itself or in conjunction with other evidence, provides enough relevant evidence to demonstrate battery or extreme cruelty.

KEEP a copy of all evidence presented by the alien claimant.

c. Alien Claimant Whose Child Has Been Battered

In cases where an alien claimant's child has been battered, the alien claimant must submit his/her statement indicating that the alien claimant did not actively participate in the battery or extreme cruelty. The statement should be submitted over the claimant's signature, e.g., on an SSA-795.

3. Substantial Connection Between Battery and Need for Benefits

a. Battered Alien Claimant

In order to be considered a “deemed qualified alien,” a determination must be made that there is a substantial connection between the battery or extreme cruelty and the need for benefits.

For title XVI claims, generally, the filing of a claim for SSI indicates a need for benefits. REVIEW POLICY -- BATTERED ALIENS SI 00502.116C.2.a. for circumstances which indicate such a connection exists. If there is reason to believe that none of these circumstances exist, further development will be needed in order to make a substantial connection determination. DOCUMENT the file as to the nature of the additional development undertaken.

For title II claims, you must document which circumstance establishes the substantial connection between battery or extreme cruelty and the need for benefits. REVIEW SI 00502.116C.2.a. and DOCUMENT the file with the appropriate circumstance. If none of these apply, undertake additional development and DOCUMENT your action.

b. Alien Claimant Whose Parent or Child Has Been Battered

The alien claimant must currently be residing with the battered individual. For the purposes of this provision, interpret "residing with" broadly and accept any reasonable allegations that the alien claimant and battered individual are residing together. TAKE THE FOLLOWING ACTIONS:

• OBTAIN a statement from the alien claimant about whether the alien claimant and the battered individual are currently residing together.

• ACCEPT the alien claimant's statement as proof of "residing with." The statement should be submitted over the claimant's signature, e.g., on an SSA-795.

• INSTRUCT the alien claimant that benefits will be suspended if the alien claimant resumes residing with the batterer or stops residing with the battered individual.

F. Procedure - Development of DHS Status for Battered Aliens

If possible eligibility based on battery is indicated, REQUEST the alien claimant's DHS documents and determine immigration status as follows based on the evidence presented:

1. Alien Claimant Presents DHS or EOIR Documents

• Alien claimant has documents which establish an appropriate DHS status for eligibility based on battery.

  (i) Approval from DHS or EOIR

  • DHS Form I-797 indicating suspension of deportation or cancellation of removal (see tables in SI 00502.116F.3.a., item 1, SI 00502.116F.3.a., item 2, SI 00502.116F.3.a., item 3); OR

  • Final order of Immigration Judge or Board of Immigration Appeals indicating approval (see table in SI 00502.116F.3.a., item 4).

  (ii) Prima facie case established

  • DHS Form I-797 indicating prima facie determination (see table at SI 00502.116F.3.b., item 1); OR

  • Order of Immigration Judge or Board of Immigration Appeals indicating prima facie determination (see table in SI 00502.116F.3.b., item 2).

  • Alien claimant's documents do not establish an appropriate DHS status for eligibility based on battery- petition filed, no evidence of approval or prima facie determination (see table in SI 00502.116F.3.c.); OR

  • Alien claimant has documents which indicate DHS has initiated deportation or removal proceedings (see table in SI 00502.116F.3.d.).

2. Alien Claimant Has No DHS or EOIR Documents

• Alien claimant alleges having petitioned for an DHS status (see table in SI 00502.116F.3.e.); OR

  • Alien claimant has no knowledge of DHS status (see table in SI 00502.116F.3.e.); OR

  • Alien claimant has no petition filed, but has basis to file (SI 00502.116F.3.f.).

3. Table - Development of Alien Status - Battery or Extreme Cruelty

COMPARE the DHS/EOIR evidence submitted by the alien claimant to the documents described in the first column of the table, beginning with the section appropriate to the status alleged.

SI 00502.116M., Exhibits 3 and 4, illustrate DHS Form I-797. The DHS Form I-797 is a multi-use form. To be eligible for benefits based on extreme cruelty or battery, the Case Type, Notice Type and Section, which are located in the top right corner of the form, must have the following:

• Case Type - I-360, Petition For Amerasian, Widow, or Special Immigrant, or I-130, Immigrant Petition for Relative, Fiance(e), or Orphan

• Notice Type - Approval Notice. For cases where a prima facie determination has been granted, there will not be a Notice Type section. Instead, refer to the body of the form to establish that the prima facie determination is valid.

• Section - Spouse of U.S. Citizen or LAPR, Unmarried Child Under 21 of U.S. Citizen or LAPR, Unmarried Child Over 21 of LAPR, or Self-petitioning Spouse or Child of Abusive U.S. Citizen or LAPR, or Widow(er) of a U.S. Citizen to whom the alien had been married for at least 2 years at the time of the citizen's death.

  NOTE: If the document presented as evidence of immigration status appears questionable, VERIFY status with DHS or EOIR, as appropriate, before making a determination on eligibility. Examples of an order of an immigration judge granting suspension of deportation under section 244(a)(3) of the INA as in effect prior to 4/1/97 or cancellation of removal under section 240A(b)(2) of the INA (or prima facie case under either section) vary widely in appearance. In addition, court orders based on other sections of the INA that do not establish eligibility also utilize the same forms or format. VERIFY status with EOIR if a court order does not use the appropriate terminology and INA citations unless it clearly shows the individual is ineligible.

a. Approved Petition

b. Prima Facie Case Established

c. Petition Filed, No Evidence of Prima Facie Case

d. Deportation/Removal Proceedings

e. Alleges Petition Filed

f. No Petition, Has Basis To File

4. Verification of Immigration Status

a. Verification with DHS via the SAVE program

When asking DHS to verify an alien claimant's immigration status:

• COMPLETE a SAVE verification request form in accordance to established procedures (see SI 00502.115) and INCLUDE a copy of any supporting documents provided by the individual. The request form should be properly completed and submitted with all required information in order for DHS to provide verification information.

• PROVIDE the requested information at the top of the form and then CHECK the appropriate options for the remainder of the form. ENTER the alien's SSN in the agency case tracking number block.

• DATE AND SIGN THE FORM.

FORM COMPLETION:

DATE AND SIGN THE FORM.

ATTACH all documentation showing that an DHS Form I-360 has been filed (SI 00502.116F.3.c., item 1).

FAX the request form to DHS.

b. Verification with EOIR

When asking EOIR to verify an alien claimant's immigration status, SUBMIT a verification request form (see SI 00502.116M., Exhibit 2). The request form should be replicated on field office letterhead in order for EOIR to provide verification information. INCLUDE a copy of any supporting documents provided by the individual. FAX the form to the office of the appropriate immigration court (a list of immigration courts and their addresses, FAX and telephone numbers are included in SI 00502.116M., Exhibit 5).

FORM COMPLETION:

ATTACH a copy of any other documentation.

FAX to the appropriate EOIR court.

DATE AND SIGN THE FORM.

G. Procedure - Battered Individual Residing in the Same Household With the Batterer

DETERMINE if the battered individual physically resides in the same household as the batterer (SI 00502.116C.3.).

1. Applicant living with the batterer

If the applicant is living with the batterer, follow these steps:

2. Applicant not living with batterer

If the applicant is no longer living with the batterer, follow these steps:

3. Evidence of no longer living with the batterer

Evidence includes, but is not limited to, any of the following:

• Civil Protection Orders requiring the batterer to stay away from the battered individual, or evicting the batterer from the battered individual's residence;

• Employment Records of the alien claimant, the alien claimant's child, or claimant's parent;

• Utility Receipts in the alien claimant or alien claimant's parents name;

• School Records of the alien claimant or alien claimant's child;

• Rental Records or records from a building or property manager in the alien claimant or alien claimant's parents name;

• Signed Statements from a staff member at a shelter for battered individuals or homeless persons, family members, friends or other third parties with personal knowledge, or from the battered individual; or

• Any other records establishing that the battered individual no longer resides with the abusive spouse, parent, or family member.

H. Procedure - Referrals for Assistance

Many of the alien claimants seeking assistance under this provision will need assistance on various matters relating to both their immigration status and domestic violence-related concerns.

1. DHS Forms Request Line

Alien claimants who are eligible to self-petition under the Violence Against Women Act, but have yet to do so, may request an DHS Form I-360 and filing instructions. DIRECT the alien claimant to the DHS forms request line (1-800-870-3676).

2. National Domestic Violence Hotline

REFER all abused alien claimants to the National Domestic Violence Hotline (1-800-799-7233) so they can obtain assistance from a local domestic violence service provider and referrals to immigration attorneys.

3. Alien in Deportation/Removal Proceedings

If an alien claimant or alien claimant's child who is in deportation or removal proceedings has been battered or subjected to extreme cruelty in the United States by a spouse or parent who is a U.S. citizen or LAPR, and the alien claimant or alien claimant's child has been present in the U.S. for at least 3 years, he or she may file an application with EOIR requesting suspension of deportation or cancellation of removal, as applicable.

REFER the alien claimant to the appropriate immigration court according to SI 00502.116M, Exhibit 5, and DENY the claim using denial code N13 in SSI cases. (See RS 00204.040D to suspend T2 benefits.)

INFORM the alien claimant that, upon filing the application with EOIR, he or she may ask the court to make a prima facie evaluation of the application and that, if the court issues a prima facie determination, he or she should return to the office to file a claim for benefits based on battery and extreme cruelty (SI 00502.116F.3.d.).

I. Postentitlement/Eligibility--Verification of Eligibility Based on Battery or Extreme Cruelty

ESTABLISH an AT diary on all SSI alien records eligible based on battery or extreme cruelty.

1. Prima Facie Cases

a. Alien Claimant is Eligible for Benefits Based on DHS or EOIR Prima Facie Determination

DIARY the record for 150 days from the date the prima facie determination was made. The alien claimant should have an DHS Form I-797 approval notice or a final order from an immigration judge or Board of Immigration Appeals granting suspension of deportation under section 244(a)(3) of the INA or cancellation of removal under section 240A(b)(2) of the INA (SI 00502.116F.1.a.(ii)).

b. Alien Claimant's Prima Facie Determination Was Approved

DIARY the case annually thereafter until the alien claimant is granted LAPR status (SI 00502.116I.2.). If not approved, see SI 00502.116K.1.a.

2. Approved Petition Case

TAKE THE FOLLOWING ACTIONS for all approved petition cases:

• DIARY the record 1 year from the date the award is input, and at 1-year intervals thereafter until LAPR status is granted to determine if alien claimant's immigration status has changed.

• REQUEST alien claimant's current DHS documents.

• IF ALIEN CLAIMANT PRESENTS DHS FORM I-551: FOLLOW normal verification procedure (see SI 00502.115).

• IF ALIEN CLAIMANT DOES NOT HAVE AN DHS FORM I-551, VERIFY:

  • immigration status with DHS Vermont Service Center (SI 00502.116F.4.), AND

  • that the alien claimant (and the battered individual if they are separate individuals) has not resumed living with the person responsible for the battery.

• IF ALIEN STATUS HAS CHANGED, UPDATE change in alien eligibility (SI 00502.116J. and SI 00502.116K.).

J. Systems Processing Instructions for Alien Battery Cases

1. Background

Until further changes are made to the system, SSI eligibility based on battery is coded differently on the Supplemental Security Record (SSR) and in MSSICS.

2. Initial SSI Claim Awards

a. MSSICS

• IF ALIEN STATUS IS VERIFIED as being a “deemed qualified alien” based on battery, CODE a "Z" in the ALIEN STATUS field and ENTER a "Y" in the BATTERY PETITION FILED field.

• ENTER the appropriate exception code. For military exceptions, enter 4, 5, or 6, as appropriate. If the disability exemption is met, MAKE CERTAIN that the Disability Clearance Data (CDIB) screen is completed with an established onset date and the proper multi-category code if the claimant is an aged disabled alien.

b. Non-MSSICS

If the battery requirements are met, CODE a "Z" in the citizenship/alien (AR) field. ENTER the appropriate exception code in the AQ field on the SSR.

3. Initial Title II Claims

PROCESS the title II claim following the procedure ALIEN NEEDS REVERIFICATION in RS 00204.040C. DETERMINE the expiration of status date for the month of suspension following instructions in SI 00502.116I.

4. Posteligibility

a. Change from “Deemed Qualified Alien” status to a Qualified Alien Status

• An alien can receive benefits based on battery only while in one of the immigration categories listed in SI 00502.116B.2.

• If the alien's immigration category (see SI 00502.116B.2. for categories) changes, UPDATE the AR code to reflect the new status. Eligibility will continue if the alien adjusts to a qualified alien status and still meets an exception. DOCUMENT the change of the old AR code to the updated AR code in the "REMARKS" field of the SSR.

b. Loss of “Deemed Qualified Alien” Status Based on Battery

• Until further changes can be made in systems processing, if an alien loses battered alien status (SI 00502.116K.1.), PROCESS the suspension as follows:

• MSSICS PROCESSING

  This is a MSSICS limitation. UPDATE the AR code to "2" via a PR-9 input. DOCUMENT the change of the old AR code to the updated AR in the "REMARKS" field and GENERATE a N13 denial via 1719B input.

• PROCESSING OUTSIDE OF MSSICS

  UPDATE the AR code to "2" via a PR-9 input. DOCUMENT the change of the old AR code to the updated AR in the "REMARKS" field and GENERATE a N13 denial via 1719B input.

c. Loss of Eligibility Based on Exception No Longer Met

IN TITLE XVI CLAIMS ONLY, until further changes can be made in systems processing, if one of the exception categories in SI 00502.116B.3. are no longer met, PROCESS the suspension as follows:

• MSSICS PROCESSING

  This is a MSSICS limitation. DELETE the exception code via a PR-9 input. ANNOTATE the "Remarks" field and GENERATE a N13 via 1719B input.

• PROCESSING OUTSIDE OF MSSICS

  DELETE the exception code via a PR-9 input. ANNOTATE the "REMARKS" field and GENERATE a N13 via 1719B input.

K. Posteligibility

1. Events Causing Loss of Status as a Battered Alien

Eligibility of an alien claimant based on battery will end if any of the following occur:

• A change in alien status may result in loss of “deemed qualified alien” status. This may include failure by DHS or EOIR to approve a petition for status where eligibility was based on a prima facie determination by DHS or EOIR. (Also see SI 00502.116J.2.a. for expiration of prima facie determination.) See SI 00502.100A.6.

• The battered individual resumes residing with the batterer. (See SI 00502.116C.3.)

  SUSPEND SSI benefits N13 effective the first full calendar month following the month the individual resumes living with the batterer.

  NOTE: Before suspending benefits, make sure that the alien claimant has not adjusted to LAPR or other qualified alien status.

• The alien claimant resumes residing with the batterer or stops residing with the battered individual. (See SI 00502.116E.3.b.)

FOR TITLE XVI CLAIMS, SUSPEND SSI benefits N13 effective the first full calendar month following the month the individual resumes living with the batterer.

NOTE: Before suspending benefits, make sure that the alien claimant has not adjusted to LAPR or other qualified alien status.

2. Change in Marital Status of Widow(er)

If a widow(er) was found eligible for benefits based on battery and reports that
he or she has remarried (SI 02301.005):

• ACCEPT the individual's allegation of marriage unless the conditions in SI 00501.150C. exist.

  NOTE: If the new spouse is an SSI recipient, conduct an unscheduled redetermination per SI 02305.022 and convert both individuals to members of a couple per SI 00501.154.

• DOCUMENT the following information on an SSA-795 (or if a redetermination is required, the "Remarks" section of an SSA-8203-BK) or the appropriate MSSICS screens:

  • the type of event (i.e., the marriage);

  • the date of the marriage;

  • changes in countable income and resources, including the amount deemed to the recipient.

• CONSIDER the alien claimant's potential entitlement for other benefits.

• REVERIFY the alien claimant's immigration status with the DHS Vermont Service Center (SI 00502.116F.4.a.).

  • On the DHS Request Form, CHECK b) on Item 1 and the first box under Item 2.

  • ATTACH a file-stamped copy of the claimant's DHS I-360 petition.

3. Change of Address

If alien claimant reports change of address, REVERIFY that the alien claimant (and the battered individual if not the same person) is physically living apart from the batterer.

L. References

• Sponsor-to-Alien Deeming, SI 00502.200

• How To Act on Reports, SI 02301.010

• Unscheduled Redeterminations, SI 02305.022

• Developing Marital Status - RZs, SI 02305.083

M. Exhibits

Exhibit 1 - FAX Request Form - From Benefit Agency to DHS

Exhibit 2 - FAX Request Form - From Benefit Agency to EOIR

Exhibit 3 - DHS Form I-797 with Case Type I-130

Exhibit 4 - DHS Form I-797 with Case Type I-360

Exhibit 5 - Executive Office for Immigration Review - Immigration Courts

Exhibit 1 – FAX Request Form – From Benefit Agency to DHS

[sample only-request to be submitted on letterhead of requesting agency]

FAX Request Form - From Benefit Agency to DHS

To DHS Vermont Service Center fax 802/527-3159

Attn: Battered Alien Review Unit This FAX consists of ___ pages

This request is being submitted by:

Name (printed): ______________________________ Title:_____________________________

Agency name and address:_____________________________________________________ _____________________________________________________________________

Fax Number: ______________________ Phone number: ____________________

Agency case tracking number: _____________________(optional)

Item 1: An alien applicant is seeking public benefits from the agency identified above, pursuant to recent welfare reform legislation. This applicant falls into one of two categories:

Item 2: The above-referenced agency requests that DHS: (please check only one)

Date: __________________ Agency Signature: ___________________________________

DHS Request Form - page 1 of 3

PART A: For an Applicant Who Is the Beneficiary of a Petition Filed by Spouse or Parent or Who Has Self-Petitioned as a Widow(er)

DHS Request Form - page 2 of 3

Part B: For an Applicant Who Has Self-Petitioned as a Battered Spouse or Child

                                                             DHS Request Form - page 3 of 3

Exhibit 2 FAX Request Form - From Benefit Agency to EOIR

         [sample only-request to be submitted on letterhead of requesting agency]

                      FAX Request Form - From Benefit Agency to EOIR

To: Executive Office for Immigration Review This FAX consists of ___ pages.

Immigration Court: ____________________________(insert name of city/state)

Attn: Court Administrator Fax number: ____________________________

This request is being submitted by:

Name (printed): ______________________________ Title: _____________________________

Agency name and address: _____________________________________________________________________ _____________________________________________________________________

Fax Number: _______________________ Phone number: _______________________

Agency case tracking number (optional): _____________________________

Item 1: The above-referenced requests that EOIR: (please check only one)

Item 2: If you checked the last item above, please fill out the following information. If the applicant has a copy of a receipt notice or other documentation indicating that he or she filed an application for suspension of deportation or cancellation of removal, please attach a copy.

Benefit Applicant's full name: _________________________________________________

Benefit Applicant's date of birth: ____________________________

Benefit Applicant's best guess as to when petition was filed: _____________(mo/yr)

Benefit Applicant's best guess as to with which immigration court petition was filed: ____________________________________________

Benefit Applicant's address at time of filing petition: ____________________________________

(street address, city, state, zip code)__________________________________________

Exhibit 3 DHS Form I-797 with Case Type I-130

Printer Friendly Version

Printer Friendly Version

Exhibit 4 DHS Form I-797 with Case Type I-360

Printer Friendly Version

Printer Friendly Version

Exhibit 5 EXECUTIVE OFFICE FOR IMMIGRATION REVIEW - IMMIGRATION COURTS

The following is a list by State of the Immigration Courts for the Executive Office for Immigration Review as of 3/9/99.