WSR 10-09-111

EMERGENCY RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Economic Services Administration)

[ Filed April 21, 2010, 11:51 a.m. , effective April 21, 2010, 11:51 a.m. ]


Effective Date of Rule: Immediately.

Purpose: The department is proposing to amend via emergency adoption WAC 388-424-0001 and 388-424-0006 in order to allow special immigrants from Iraq and Afghanistan to be eligible for federally funded benefits to the same extent and for the same period of time as refugees as allowed under federal law. This change must be implemented immediately to comply with Public Law 111-118 the Department of Defense Appropriations Act of 2010, Division A, Title VIII, Section 8120.

Citation of Existing Rules Affected by this Order: Amending WAC 388-424-0001 and 388-424-0006.

Statutory Authority for Adoption: RCW 74.04.050, 74.04.055, 74.04.057, 74.08.090, 74.04.510, and 74.08A.120.

Other Authority: P.L. 111-118 The Department of Defense Appropriations Act of 2010, Division A, Title VIII, Section 8120.

Under RCW 34.05.350 the agency for good cause finds that immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest; and that state or federal law or federal rule or a federal deadline for state receipt of federal funds requires immediate adoption of a rule.

Reasons for this Finding: To extend the duration of eligibility of special immigrants from Iraq and Afghanistan for federally funded benefits from eight months from the date of entry into the United States or date of adjustment to special immigrant status, to the same period of time as refugees as required by the P.L. 111-118 The Department of Defense Appropriations Act of 2010, Division A, Title VIII, Section 8120, and to align special immigrants' eligibility for cash and medicaid with their eligibility for Basic Food program benefits. This change went into effect December 19, 2009, and some individuals would receive limited assistance if the department made the change only via the regular rule-filing process. The department is concurrently working on the permanent rule-filing process.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 1, Repealed 0; Federal Rules or Standards: New 0, Amended 1, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 2, Repealed 0.

Date Adopted: April 21, 2010.

Katherine I. Vasquez

Rules Coordinator

4192.1
AMENDATORY SECTION(Amending WSR 08-14-116, filed 6/30/08, effective 8/1/08)

WAC 388-424-0001   Citizenship and alien status -- Definitions.   "American Indians" born outside the United States. American Indians born outside the U.S. are eligible for benefits without regard to immigration status or date of entry if:

(1) They were born in Canada and are of fifty percent American Indian blood (but need not belong to a federally recognized tribe); or

(2) They are members of a federally recognized Indian tribe or Alaskan Native village or corporation.

"Hmong or Highland Lao." These are members of the Hmong or Highland Laotian tribe, which rendered military assistance to the U.S. during the Vietnam era (August 5, 1964 to May 7, 1975), and are "lawfully present" in the United States. This category also includes the spouse (including unremarried widow or widower) or unmarried dependent child of such tribe members.

"Nonimmigrants." These individuals are allowed to enter the U.S. for a specific purpose, usually for a limited time. Examples include:

(1) Tourists,

(2) Students,

(3) Business visitors.

"PRUCOL" (Permanently residing under color of law) aliens. These are individuals who:

(1) Are not "qualified aliens" as described below; and

(2) Intend to reside indefinitely in the U.S.; and

(3) United States Citizenship and Immigration Services or USCIS (formerly the Immigration and Naturalization Service or INS) knows are residing in the U.S. and is not taking steps to enforce their departure.

(("Special immigrants from Iraq and Afghanistan." According to federal law, special immigrants are Iraqi and Afghan aliens granted special immigrant status under section 101 (a)(27) of the Immigration and Nationality Act (INA).))

"Qualified aliens." Federal law defines the following groups as "qualified aliens." All those not listed below are considered "nonqualified":

(1) Abused spouses or children, parents of abused children, or children of abused spouses, who have either:

(a) A pending or approved I-130 petition or application to immigrate as an immediate relative of a U.S. citizen or as the spouse or unmarried son or daughter of a Lawful Permanent Resident (LPR) - see definition of LPR below; or

(b) A notice of "prima facie" approval of a pending self-petition under the Violence Against Women Act (VAWA); or

(c) Proof of a pending application for suspension of deportation or cancellation of removal under VAWA; and

(d) The alien no longer resides with the person who committed the abuse.

(e) Children of an abused spouse do not need their own separate pending or approved petition but are included in their parent's petition if it was filed before they turned age twenty-one. Children of abused persons who meet the conditions above retain their "qualified alien" status even after they turn age twenty-one.

(f) An abused person who has initiated a self-petition under VAWA but has not received notice of prima facie approval is not a "qualified alien" but is considered PRUCOL. An abused person who continues to reside with the person who committed the domestic violence is also PRUCOL. For a definition of PRUCOL, see above.

(2) Amerasians who were born to U.S. citizen armed services members in Southeast Asia during the Vietnam war.

(3) Individuals who have been granted asylum under Section 208 of the Immigration and Nationality Act (INA).

(4) Individuals who were admitted to the U.S. as conditional entrants under Section 203 (a)(7) of the INA prior to April 1, 1980.

(5) Cuban/Haitian entrants. These are nationals of Cuba or Haiti who were paroled into the U.S. or given other special status.

(6) Individuals who are lawful permanent residents (LPRs) under the INA.

(7) Persons who have been granted parole into the U.S. for at least a period of one year (or indefinitely) under Section 212 (d)(5) of the INA, including "public interest" parolees.

(8) Individuals who are admitted to the U.S. as refugees under Section 207 of the INA.

(9) Special immigrants from Iraq and Afghanistan are individuals granted special immigrant status under section 101 (a)(27) of the Immigration and Nationality Act (INA).

(10) Persons granted withholding of deportation or removal under Sections 243(h) (dated 1995) or 241 (b)(3) (dated 2003) of the INA.

"Undocumented aliens." These are persons who either:

(1) Entered the U.S. without inspection at the border, or

(2) Were lawfully admitted but have lost their status.

"U.S. citizens."

(1) The following individuals are considered to be citizens of the U.S.:

(a) Persons born in the U.S. or its territories (Guam, Puerto Rico, and the U.S. Virgin Islands; also residents of the Northern Mariana Islands who elected to become U.S. citizens); or

(b) Legal immigrants who have naturalized after immigrating to the U.S.

(2) Persons born abroad to at least one U.S. citizen parent may be U.S. citizens under certain conditions.

(3) Individuals under the age of eighteen automatically become citizens when they meet the following three conditions on or after February 27, 2001:

(a) The child is a lawful permanent resident (LPR);

(b) At least one of the parents is a U.S. citizen by birth or naturalization; and

(c) The child resides in the U.S. in the legal and physical custody of the citizen parent.

(4) For those individuals who turned eighteen before February 27, 2001, the child would automatically be a citizen if still under eighteen when he or she began lawful permanent residence in the U.S. and both parents had naturalized. Such a child could have derived citizenship when only one parent had naturalized if the other parent were dead, a U.S. citizen by birth, or the parents were legally separated and the naturalizing parent had custody.

"U.S. nationals." A U.S. national is a person who owes permanent allegiance to the U.S. and may enter and work in the U.S. without restriction. The following are the only persons classified as U.S. nationals:

(1) Persons born in American Samoa or Swain's Island after December 24, 1952; and

(2) Residents of the Northern Mariana Islands who did not elect to become U.S. citizens.

"Victims of trafficking." According to federal law, victims of trafficking have been subject to one of the following:

(1) Sex trafficking, in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained eighteen years of age; or

(2) The recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery.

(3) Under federal law, persons who have been certified or approved as victims of trafficking by the federal Office of Refugee Resettlement (ORR) are to be treated the same as refugees in their eligibility for public assistance.

(4) Immediate family members of victims are also eligible for public assistance benefits as refugees. Immediate family members are the spouse or child of a victim of any age and the parent or minor sibling if the victim is under twenty-one years old.

[Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057, 74.08A.320, 74.08.090, and Public Law 110-161 Section 525; Public Law 110-181 Section 1244; FNS Admin Notice 08-17; State Letter 04-12 from the Office of Refugee Resettlement. 08-14-116, 388-424-0001, filed 6/30/08, effective 8/1/08. Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057, 74.08.090. 04-15-004, 388-424-0001, filed 7/7/04, effective 8/7/04.]


AMENDATORY SECTION(Amending WSR 09-15-082, filed 7/14/09, effective 8/14/09)

WAC 388-424-0006   Citizenship and alien status -- Date of entry.   (1) A person who physically entered the U.S. prior to August 22, 1996 and who continuously resided in the U.S. prior to becoming a "qualified alien" (as defined in WAC 388-424-0001) is not subject to the five-year bar on TANF, nonemergency medicaid, and SCHIP.

(2) A person who entered the U.S. prior to August 22, 1996 but became "qualified" on or after August 22, 1996, or who physically entered the U.S. on or after August 22, 1996 and who requires five years of residency to be eligible for federal Basic Food, can only count years of residence during which they were a "qualified alien."

(3) A person who physically entered the U.S. on or after August 22, 1996 is subject to the five-year bar on TANF, nonemergency medicaid, and SCHIP unless exempt. The five-year bar starts on the date that "qualified" status is obtained.

(4) The following "qualified aliens," as defined in WAC 388-424-0001, are exempt from the five-year bar:

(a) Amerasian lawful permanent residents;

(b) Asylees;

(c) Cuban/Haitian entrants;

(d) Persons granted withholding of deportation or removal;

(e) Refugees;

(f) Special immigrants from Iraq and Afghanistan;

(g) Victims of trafficking who have been certified or had their eligibility approved by the office of refugee resettlement (ORR); and

(((g))) (h) Lawful permanent residents, parolees, or battered aliens, as defined in WAC 388-424-0001, who are also an armed services member or veteran as described in WAC 388-424-0007.

(5) In addition to subsection (4) of this section, the following "qualified aliens" are also exempt from the five-year bar on nonemergency medicaid and SCHIP:

(a) Pregnant women;

(b) Children under nineteen years of age; and

(c) Children under twenty-one years of age who are residing in a medical institution as described in WAC 388-505-0230.

[Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057, 74.04.510, 74.08.090, 74.08A.120, and P.L. No. 111-3 (H.R. 2, Title II, Sec. 214 - Children's Health Insurance Program Reauthorization Act of 2009); P.L. No. 111-08 Omnibus Appropriations Act of 2009, Office of Refugee Resettlement State Letter #09-17. 09-15-082, 388-424-0006, filed 7/14/09, effective 8/14/09. Statutory Authority: RCW 74.04.050, 74.04.057, 74.08.090, 74.09.500, 74.09.530. 07-07-023, 388-424-0006, filed 3/9/07, effective 4/9/07. Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057, 74.08.090. 05-16-055, 388-424-0006, filed 7/28/05, effective 8/28/05; 04-15-004, 388-424-0006, filed 7/7/04, effective 8/7/04.]

Washington State Code Reviser's Office