Legislative Memorandum 

Restore Access to Temporary Assistance for Immigrant Victims of Domestic Violence and Other Crimes

In 2000, Congress passed legislation that provided a path to permanent residence for immigrant victims of crime, including trafficking and domestic violence, if a law enforcement agency certifies that the victim is cooperating in the prosecution of the crime.  Two types of visas were established, the U visa for victims of various crimes, including domestic violence, and the T visa, for victims of a severe form of trafficking.

In New York, applicants for U and T visas are considered “permanently residing under color of law” (PRUCOL) for the purpose of Medicaid eligibility.  Until recently, U visa applicants were also considered eligible for public assistance.  This is because the Department of Justice was taking so long in promulgating regulations to implement the U visa, applicants were being given “deferred action” by U.S. Citizenship and Immigration Services (USCIS), which could be renewed yearly, until regulations were issued.  OTDA has long recognized “deferred action” as a PRUCOL category.  As a result, these applicants were eligible for public assistance.

U visa regulations were finally issued by the Justice Department about a year ago.  Beginning early this year, applicants for U visas no longer receive deferred action because the applications are now simply adjudicated and the U visa granted.  Nevertheless, the process can still take up to a year.  During this processing time, applicants are not authorized to work and they are unable to receive public assistance. This leaves them with very few options for financial support while they await approval of their U visa, even though their circumstances are no different than they would have been less than a year ago when they would have been eligible for public assistance under “deferred action”.  This makes no sense and harms the most vulnerable of immigrants, victims of domestic violence and other serious crimes.

New York already treats applicants for U and T visas as PRUCOL for Medicaid eligibility purposes. We see no reason to treat these individuals differently for public assistance purposes, particularly when they previously would have been eligible and the only change is one of terminology. 

The chance of the U Visa applications being denied is minimal.  The national grant rates for U visa applications confirm this.  Over four thousand U visa applications have been granted over this last year and only slightly over 200 have been denied. This low denial rate is related to the requirement that applicants must submit certification by law enforcement that a serious crime has been committed against them and that they are cooperating in the persecution of that crime.  In these times, immigrants simply do not frivolously and carelessly file applications for immigration benefits because the risks of calling attention to themselves without a strong claim are far too great. 

Thus the number of people who would be affected should the state determine that this category of very vulnerable crime victims who now have no access to income or financial support be re-categorized as PRUCOL.

To get a sense of how many people we are talking about we conducted an informal survey of the major advocacy organizations that assist immigrants with U visa applications, including Safe Horizon, Sanctuary for Families and the Legal Aid Society in New York City.  Based on their current caseloads, these organizations have a total of approximately 500 cases pending.  Many of these cases still have deferred action status and continue to be eligible for temporary assistance but as time passes, increasing numbers of applicants do not. 

In some cases, particularly in the case of domestic violence victims who make up the majority of U visa applicants, we believe continued inaction will only prove more costly to the state.  Under current law, these domestic violence victims must be provided with shelter regardless of their immigration status.  However, if they are not eligible for temporary assistance, they will be unable to leave shelter for permanent housing.  Thus, by failing to accord PRUCOL status to these U (and the small number of T visa applicants), New York is likely spending more on their care, since the monthly cost of shelter exceeds a regular public assistance grant.

For historical reasons, the approach by DOH and OTDA to the question of who is considered PRUCOL has been different.  The root of the difference lies in the different approaches taken almost thirty years ago by the federal AFDC and Medicaid programs.  These should no longer be relevant since federal law no longer recognizes PRUCOL as a benefit eligibility category.  However, New York has held on to the distinction between programs and while applicants for immigration benefits like U and T visas are considered PRUCOL for the state’s Medicaid program, they are not considered PRUCOL for temporary assistance purposes.  This is confusing, unfair and we believe, fiscally imprudent.  Furthermore, there is some real question about whether the state may, constitutionally, make such distinctions between immigrants based on the program for which they are applying.

We urge the state to act immediately and return to a consistent eligibility standard for Medicaid and public assistance so that this small category of crime victims have access to financial resources while they await approval of their U visa applications and can begin working to support themselves. 

10/30/09