New York Codes, Rules and Regulations
Title 18 - DEPARTMENT OF SOCIAL SERVICES
Chapter II - Regulations of the Department of Social Services
Subchapter B - Public Assistance
Article 1 - Determination of Eligibility-General
Part 349 - General Provisions
Section 349.3 - Citizenship and alien status

Universal Citation: 18 NY Comp Codes Rules and Regs ยง 349.3

Current through Register Vol. 46, No. 39, September 25, 2024

(a) Definitions.

(1) A qualified alien is:
(i) a refugee admitted under section 207 of the Immigration and Nationality Act;

(ii) an asylee granted asylum under section 208 of the Immigration and Nationality Act;

(iii) a person whose deportation was withheld under section 241(b) or 243(h) of the Immigration and Nationality Act;

(iv) a Cuban and Haitian entrant (as defined in section 501[e] of the Refugee Education Assistance Act of 1980), including all Cuban or Haitian parolees;

(v) an alien admitted into the United States as an Amerasian immigrant as described in section 402(a)(2)(A)(i)(V) of the Personal Responsibility and Work Opportunity Act of 1996 (8 U.S.C. 1612 [a][2][A]);

(vi) a person lawfully admitted for permanent residence in the United States;

(vii) a person paroled into the United States under section 212(d)(5) of the Immigration and Nationality Act for a period of at least one year, except Cuban or Haitian parolees;

(viii) a person granted conditional entry into the United States under section 203(a)(7) of the Immigration and Nationality Act; and

(ix) a battered spouse and dependents meeting the criteria of section 431(c) of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996.

(2) A specially qualified alien is:
(i) a refugee admitted under section 207 of the Immigration and Nationality Act, for a period of seven years from the date the person was admitted into the United States as a refugee;

(ii) an asylee granted status under section 208 of the Immigration and Nationality Act, for a period of seven years from the date that the asylee was granted status;

(iii) a person for whom deportation was withheld under section 241(b) or 243(h) of the Immigration and Nationality Act, for a period of seven years from the date that the deportation was withheld;

(iv) a Cuban and Haitian entrant (as defined in section 501[e] of the Refugee Education Assistance Act of 1980) for a period of seven years from the the date such status was granted;

(v) an alien admitted into the United States as an Amerasian immigrant as described in section 402(a)(2)(A) of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (8 U.S.C. 1612 [a][2][A]) for a period of seven years from the date the person was admitted into the United States;

(vi) a person lawfully admitted for permanent residence into the United States who has worked for or can be credited with 40 qualifying quarters as defined under title II of the Federal Social Security Act, or can be credited with such qualifying quarters exclusive of any quarter after December 31, 1996, in which such person or such person's parent or spouse received any Federal means tested assistance, whose entry into the United States was at least five years earlier or who entered the United States prior to August 22, 1996; and

(vii) any qualified alien who is on active duty, other than active duty for training, in the United States Armed Forces or who has received a discharge characterized as honorable and not on account of alienage, or the spouse, unremarried surviving spouse or unmarried dependent child of any such alien if such alien, spouse or dependent child is also a qualified alien.

(b) Eligibility requirements.

(1) No person except a citizen or a specially qualified alien is eligible for family assistance or safety net assistance except as follows:
(i) A qualified alien who is not a specially qualified alien, who entered the United States before August 22, 1996, and continuously resided in the United States until attaining qualified status is, if otherwise eligible, eligible for family assistance and safety net assistance.

(ii) A qualified alien who has resided in the United States for five or more years but whose entry into the United States was on or after August 22, 1996, is, if otherwise eligible, eligible for family assistance and safety net assistance.

(iii) A qualified alien, who is not a specially qualified alien, who has resided in the United States for less than five years and whose entry into the United States occurred on or after August 22, 1996, is, if otherwise eligible, eligible for safety net assistance but is ineligible for family assistance.

(iv) An alien whose status is not within the meaning of the term qualified alien but who is otherwise permanently residing in the United States under color of law; as such term was used on August 21, 1996, by the Federal Administration for Children and Families is, if otherwise eligible, eligible for safety net assistance.

(v) A person paroled into the United States under section 212(d)(5) of the Immigration and Nationality Act for a period of less than one year is, if otherwise eligible, eligible to receive any State or local nonfederal assistance provided under this section on the same terms as such programs are available to persons who are qualified aliens.

(vi) Nothing herein precludes the receipt by an alien of community based noncash assistance in accordance with the directions of the United States Attorney General.

(2) Eligibility for services.
(i) Qualified aliens, if otherwise eligible and except as otherwise provided by Federal law shall be eligible for services funded under title XX of the Federal Social Security Act.

(ii) Any alien, including an alien who is not a qualified alien, is eligible for adult protective services and services and assistance relating to child protection to the extent that such person is otherwise eligible pursuant to the regulations of the Office of Temporary and Disability Assistance and the Office of Children and Family Services of the department.

(3) An alien is eligible for additional State payments for aged, blind and disabled persons under the Social Services Law only to the extent that such person is not ineligible for Federal SSI benefits due to alien status.

(c) Referral and reporting of aliens unlawfully residing in the United States.

(1) Referral. Any applicant or recipient who has been determined to be ineligible for family assistance, or safety net assistance because he or she is an alien unlawfully residing in the United States or because he or she failed to furnish evidence that he or she is lawfully residing in the United States must be immediately referred to the United States Bureau of Immigration and Customs Enforcement, or the nearest consulate of the country of the applicant or the recipient for such service or consulate to take appropriate action or furnish assistance.

(2) Reporting. Each social services district must report to the Office of Temporary and Disability Assistance, the name and address and other identifying information known to it with respect to any alien known to be unlawfully in the United States in the manner prescribed by such office. A determination that an individual is not lawfully present in the United States can be made only about someone who is applying for benefits. Such a determination cannot be made about an individual who is only submitting an application for benefits on behalf of other family members. A determination by a social services district that an applicant is not lawfully present in the United States can only be a result of a finding of fact or conclusion of law that is made as part of a formal determination subject to administrative review and supported by a determination by the Bureau of Immigration and Customs Enforcement or the Executive Office of Immigration Review, such as a final order of removal. A response to the social services district through the Systematic Alien Verification for Entitlements System (SAVE) that shows no service record exists for the individual or indicates that the individual has an immigration status rendering him or her ineligible for benefits does not support a finding of unlawful presence in the United States.

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