Current through Register Vol. 35, No. 18, September 24, 2024
A.
Definition of a sponsored non-citizen: A non-citizen lawfully admitted for
permanent resident status into the United States, for which an individual has
executed an affidavit of support pursuant to section 213A of the Immigration
and Nationality Act. Not all lawful non-citizens are sponsored. Only in the
event that the sponsored non-citizen is eligible in accordance with of
8.139.410.9 NMAC shall the HCA
consider available to the household the income and resources of the sponsor and
spouse.
B. Date of entry or date of
admission: The date established by the immigration and naturalization service
(INS) as the date the sponsored non-citizen was admitted for permanent
residence.
C. Sponsor: An
individual who has executed an affidavit of support or similar agreement on
behalf of a non-citizen, as a condition of the non-citizen's entry or admission
into the United States as a permanent resident.
D. Exempt non-citizens: The provisions of
this section do not apply to the following:
(1) a non-citizen participating in the food
stamp program as a member of the sponsor's food stamp household;
(2) a non-citizen sponsored by an
organization or group rather than an individual;
(3) a non-citizen who is not required to have
a sponsor under the Immigration and Nationality Act; or
(4) a non-citizen that ISD has determined is
indigent.
(a) For purposes of this paragraph,
the term indigent means that the sum of the eligible sponsored non-citizen's
household's own income, the cash contributions of the sponsor and others, and
the value of any in-kind assistance the sponsor and others provide, does not
exceed one hundred thirty percent of the poverty income guidelines for the
household's size.
(b) The
caseworker shall determine the amount of income and other assistance provided
in the month of application.
(c) If
the non-citizen is indigent, the amount that the HCA shall count shall be the
amount actually provided for a period beginning on the date of such
determination and ending 12 months after such date. Each indigence
determination is renewed for additional 12-month periods.
(5) A battered non-citizen spouse,
non-citizen parent of a battered child, or child of a battered non-citizen, for
12 months after the HCA determines that the battering is substantially
connected to the need for benefits, and the battered individual does not live
with the batterer. After 12 months, the HCA shall not deem the batterer's
income and resources if the battery is recognized by a court or the INS and has
substantial connection to the need for benefits, and the non-citizen does not
live with the batterer.
E. Sponsored non-citizen's responsibility:
The HCA shall attribute the entire amount of income and resources to the
applicant eligible sponsored non-citizen until the non-citizen provides the
information specified below. The sponsored non-citizen is responsible for:
(1) obtaining the cooperation of the
non-citizen's sponsor(s) to provide the caseworker, at the time of application
or recertification, with the information or documentation necessary to
determine the income and resources of a sponsor and a sponsor's
spouse;
(2) providing the names and
other identifying factors of other non-citizens for whom the non-citizen's
sponsor has signed an affidavit of support;
(3) reporting the require information about
the sponsor and sponsor's spouse should the non-citizen obtain a different
sponsor during the certification period;
(4) reporting a change in income should the
sponsor or the sponsor's spouse change or lose employment or die during the
certification period.
F.
Information required: The following information shall be obtained from the
non-citizen at the time of initial application and at recertification:
(1) the full amount of the income and
resources of a non-citizen's sponsor;
(2) the full amount of the income and
resources of a sponsor's spouse, if the spouse is living with the
sponsor;
(3) provision of the
Immigration and Nationality Act under which the non-citizen was
admitted;
(4) date of the
non-citizen's entry or admission as a lawful permanent resident as established
by INS;
(5) the non-citizen's date
of birth, place of birth, and non-citizen registration number;
(6) number of dependents claimed or who could
be claimed as dependents by the sponsor and the sponsor's spouse for federal
income tax purposes;
(7) name,
address and phone number of the non-citizen's sponsor;
(8) the above information shall be verified
at initial application and at recertification.
G. Deemed income:
(1) The monthly income of the income of a
sponsor and the sponsor's spouse (if living with the sponsor) shall be
considered the unearned income of the sponsored non-citizen, until the
non-citizen achieves US citizenship through naturalization or has worked 40
qualifying quarters of coverage as defined by the social security
administration. If the sponsored non-citizen can demonstrate that the
non-citizen's sponsor is the sponsor of other non-citizens, the HCA shall
divide the income by the number of such sponsored non-citizens. The spouse's
income shall be counted even if the sponsor and spouse were married after the
sponsoring agreement was signed. The monthly income attributed to the sponsored
non-citizen is the total gross earned and unearned income (less exclusions) of
the sponsor and sponsor's spouse (if living with the sponsor) at the time the
household containing the sponsored non-citizen member applies or is recertified
for participation in the FSP, reduced by:
(a)
a twenty percent earned income amount for the portion of the income determined
as earned income of the sponsor and the sponsor's spouse; and
(b) an amount equal to the FSP's monthly
gross income eligibility limit for a household equal in size to the sponsor,
the sponsor's spouse, and any other person who is claimed or could be claimed
by the sponsor or the sponsor's spouse as a dependent for federal income tax
purposes.
(2)
TANF-sponsored non-citizen income: If a non-citizen has already reported gross
income information about the non-citizen's sponsor according to TANF sponsored
non-citizen rules, that income amount shall be used for food stamp deeming
purposes.
(3) Sponsor-paid money:
Actual money paid to the non-citizen by the sponsor or the sponsor's spouse
shall not be counted as income to the non-citizen unless the amount paid
exceeds the amount deemed to the non-citizen. The amount paid that actually
exceeds the amount deemed shall be counted as income to the non-citizen, in
addition to the deemed amount.
H. Deemed resources:
(1) The full amount of the resources reduced
by $1,500 of a sponsor and the sponsor's spouse (if living with the sponsor)
shall be deemed to be the resources of the sponsored non-citizen until the
non-citizen achieves US citizenship through naturalization or has worked 40
qualifying quarters of coverage as defined by the social security
administration. The spouse's resources shall be counted even if the sponsor and
spouse were married after the sponsoring agreement was signed. If the sponsored
non-citizen can demonstrate that the non-citizen's sponsor is the sponsor of
other non-citizens, the HCA shall divide the resources by the number of such
sponsored non-citizens. Resources available to the sponsor shall be determined
in accordance with the provisions found in 8.139.510 NMAC.
(2) TANF sponsored non-citizen resources: If
a non-citizen has already reported all resource information on the
non-citizen's sponsor according to TANF sponsored non-citizen rules, that
resource amount shall be used for food stamp deeming purposes as the amount to
be attributed to the non-citizen.
I. Determining eligibility and benefit
amount: The amount of income and resources deemed to be that of the sponsored
non-citizen is considered in determining the eligibility and benefit amount of
the household of which the non-citizen is a member.
J. Sponsors:
(1) Sponsoring more than one non-citizen: If
the sponsored non-citizen can demonstrate that the non-citizen's sponsor is the
sponsor of other non-citizens, the HCA shall divide the income and resources by
the number of such sponsored non-citizens.
(2) Non-citizen switches sponsors: If the
non-citizen reports that they have changed sponsors during the certification
period, deemed income and resources shall be recalculated based on information
and verification about the new sponsor and the sponsor's spouse. The change
shall be handled in accordance with change- reporting requirements, time frames
and procedures, as appropriate.
(3)
Loss of sponsorship: If a non-citizen loses their sponsor, and does not get
another, the full amount of the income and resources of the previous sponsor
continues to be attributed to the non-citizen until the non-citizen achieves US
citizenship through naturalization or has worked 40 qualifying quarters of
coverage as defined by the social security administration. If the non-citizen
sponsor dies, the income and resources shall no longer be attributed to the
non-citizen.
K. Awaiting
verification: Until the non-citizen provides information or verification
necessary to determine eligibility, the sponsored non-citizen is ineligible.
The caseworker shall determine the eligibility of any remaining household
members. The caseworker shall consider available to the remaining household
members the income and resources of the ineligible non-citizen in determining
the eligibility and benefit level of the remaining household members. If the
sponsored non-citizen refuses to cooperate in providing information or
verification, other adult members of the non-citizen's household are
responsible for providing the information or verification required. If the
caseworker subsequently receives information or verification, the caseworker
shall act on the information as a reported change in household membership in
accordance to timeliness standards. If the same sponsor is responsible for the
entire household, the entire household is ineligible until such time as the
household provides the needed sponsor information or verification. The
caseworker shall assist the non-citizen in obtaining verification.
L. Over-issuance: A non-citizen's sponsor and
the non-citizen shall be jointly liable for repayment of any over-issuance of
food stamp benefits resulting from incorrect information provided by the
sponsor. The sponsor of a non-citizen or the non-citizen shall also be
independently responsible for the obligation to repay any over-issuance of food
stamp benefits resulting from incorrect information provided by the sponsor.
(1) Good cause/sponsor: If a non-citizen's
sponsor has good cause or is without fault for supplying the incorrect
information, the non-citizen's household is solely liable for repayment of the
over-issuance. The caseworker shall determine whether good cause exists in such
situations, and shall consider the facts and circumstances, including
information submitted by the non-citizen and by the sponsor. Good cause
includes, but is not limited to, a misunderstanding by a sponsor of the
responsibility to report information about the sponsor's resources and income
or a lack of information provided at the time a sponsor executed the affidavit
of support or similar agreement on behalf of the non-citizen. Problems caused
by the inability of a sponsor or non-citizen to speak, read, or write English
may constitute good cause.
(2)
Establishing the claim: If a sponsor does not have good cause, the caseworker
shall determine whether to establish a claim for the over-issuance against the
sponsor or the non-citizen's household, or both. The HCA may choose to
establish claims against both parties at the same time or to establish a claim
against the party considered most likely to repay first. If a claim is
established against the non-citizen's sponsor first, the caseworker shall
ensure that a claim is established against the non-citizen's household if the
sponsor fails to respond to a demand letter within 30 days of receipt. The HCA
shall return to the non-citizen's sponsor or the non-citizen's household any
amounts repaid in excess of the total amount of the claim.
(3) Claims collection against sponsor:
(a) The restitution bureau initiates a
collection action by sending a non-citizen's sponsor a written demand letter
which informs the sponsor of the amount owed, the reason for the claim, and how
the sponsor may pay the claim. The sponsor shall be informed that they shall
not be held responsible for repayment of the claim if the sponsor can
demonstrate good cause or absence of personal fault for the incorrect
information having been supplied to the HCA. In addition, the restitution
bureau shall follow up the written demand letter with personal contact, if
possible. The HCA may pursue other collection actions as appropriate to obtain
payment of a claim against any sponsor who fails to respond to a written demand
letter. The restitution bureau shall end a collection action against a sponsor
at any time if it has documentation that the sponsor cannot be located, or if
the cost of further collection efforts is likely to exceed the amount that can
be recovered. If a non-citizen's sponsor responds to a written demand letter
and is financially able to pay the claim at one time, the restitution bureau
shall collect a lump sum cash payment. The restitution bureau shall negotiate a
payment schedule with the sponsor for repayment of the claim, as long as
payments are made in regular installments. For more information on handling
claims, see 8.139.640.11 NMAC.
(b)
Exception: A sponsor who is participating in the food stamp program as a
household shall be excluded from any demand for repayment of the value of food
stamp benefits issued to a sponsored non-citizen.
(4) Fair hearing: A sponsor is entitled to a
fair hearing either to contest a determination that the sponsor was at fault
for giving incorrect information, or to contest the amount of the
claim.
(5) Claims collection
against non-citizen households: Before initiating collection against a
sponsored non-citizen's household for repayment of an over issuance caused by
incorrect information having been supplied concerning the sponsor or sponsor's
spouse, a caseworker shall determine whether the incorrect information supplied
was due to an inadvertent household error or an intentional program violation
(IPV) on the part of the non-citizen. Claims collection against a household
shall be pursued regardless of the current eligibility status of sponsored
non-citizen or non-citizen households.
(a)
Intentional misrepresentation: If sufficient documentary evidence exists to
substantiate that incorrect information was provided by an act of IPV on the
part of the non-citizen, the case shall be referred as a request for IPV
disqualification, in accordance with the procedures in
8.139.647.8 NMAC. A claim against
an non-citizen's household shall be handled as an inadvertent error claim until
there is a determination of an IPV by an administrative disqualification
hearing official or a court of appropriate jurisdiction.
(b) Misunderstanding/unintended error. If it
is determined that incorrect information was supplied because of a
misunderstanding or unintended error on the part of the sponsored non-citizen,
the claim shall be handled as an inadvertent household error claim.
M. Memorandum of
agreement: An agreement has been entered into by the secretary of the United
States department of agriculture (USDA), the U.S. secretary of state, and the
U.S. attorney general regarding sponsored non-citizen and their sponsors. A
sponsor and non-citizen, at the time the sponsor executes an affidavit of
support or similar agreement on behalf of the non-citizen, will be informed of
the requirements of Sec. 1308 of P.L. 97-98. Under the agreement, the bureau of
consular affairs of the state department and local INS offices provide
information to the HCA that is needed to carry out the provisions of the
agreement. The agreement lists the specific information that must be released
by all parties to facilitate identification of the non-citizen and sponsor and
enable the HCA to verify required information supplied by the non-citizen which
is essential for eligibility determinations.
