Citizenship and Alien Status - Definitions
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Citizenship and Alien Status - Definitions

Revised April 18, 2013

Purpose: This section provides basic definitions of various citizen and immigrant statuses relevant for determining eligibility for federal and state programs.
WAC 388-424-0001Citizenship and alien status - Definitions

WAC 388-424-0001

WAC 388-424-0001

Effective August 29, 2011

WAC 388-424-0001 Citizenship and alien status - Definitions

For the purposes of determining an individual's citizenship and alien status for public assistance, the following definitions apply:

 

1.  "Lawfully present" are immigrants or noncitizens who have been inspected and admitted into the United States and not overstayed the period for which they were admitted, or have current permission from the U.S. Citizenship and Immigrant Services (CIS) to stay or live in the U.S.

2.  "Qualified aliens" are lawfully present immigrants defined in federal law as one of the following:

a.  Individuals lawfully admitted for permanent residence (LPRs).

b.  Individuals who are admitted to the U.S. as refugees under INA §207.  The following individuals are treated the same as refugees in their eligibility for public assistance:

i.  Hmong or Highland Lao are members of a 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 U.S.  This category also includes the spouse (including un-remarried widow or widower) or unmarried dependent child of such tribal members.

ii.  Victims of trafficking according to federal law are:

A. Individuals who have been certified or approved as victims of trafficking by the federal office of refugee resettlement.

B.  Immediate family members of trafficking victims.  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.

iii.  Special immigrants from Iraq and Afghanistan are individuals granted special immigrant status under INA §101(a)(27).

c.  Individuals who have been granted asylum under INA §208.

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

e.  Abused spouses or children, parents of abused children, or children of abused spouses:

i.  When the alien no longer resides with the person who committed the abuse, and has one of the following:

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 of unmarried child under age twenty-one of a lawful permanent resident (LPR);

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.

ii.  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 twenty-one years old.  Children of abused persons who meet the conditions above retain their "qualified alien" status even after they turn twenty-one years old.

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

g.  Individuals granted withholding of deportation or removal under INA §243 (h) or §241 (b)(3).

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

i.  Amerasians who were born to U.S. citizen armed services members in Southeast Asia during the Vietnam War.

3.  "Nonqualified aliens" are noncitizens who are lawfully present in the U.S. and who are not included in the definition of qualified aliens in subsection (1) of this section.  Nonqualified aliens include but are not limited to:

a.  Citizens of Marshall Islands, Micronesia or Palau;

b.  Immigrants paroled into the U.S. for less than one year;

c.  Immigrants granted temporary protected status; or

d.  Nonimmigrants who are allowed entry into the U.S. for a specific purpose usually for a limited time are also nonqualified.

Examples include:

i.  Business visitors;

ii. Students; and

iii. Tourists.

4.  "Undocumented aliens" are noncitizens without a lawful immigration status as defined in subsections (2) or (3) of this section, and who:

a.  Entered the U.S. illegally; or

b.  Were lawfully admitted but whose status expired or was revoked per United States Citizenship and Immigration Services (USCIS).

5.  "U.S. citizens" are one of the following:

a.  Individuals born in the United States 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).

b.  American Indians born outside the U.S. without regard to immigration status or date of entry if:

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

ii.  They are members of a federally recognized Indian tribe or Alaskan Native village or corporation.

c.  Individuals who have become naturalized U.S. citizens.

d.  Individuals born abroad to at least one U.S. citizen parent depending on conditions at the time of their birth, per title 8, subchapter III, section 1401 of the United States Code.

e.  Individuals who turn eighteen years of age on or after February 27, 2001, automatically become U.S. citizens if the following conditions are met while the individual is under age eighteen per INA 320.

i.  The individual is granted lawful permanent resident (LPR) status;

ii. At least one of the individual's parents is a U.S. citizen by birth or naturalization; and

iii. The individual:

A.  Resides in the U.S. in the legal and physical custody of the citizen parent; or

B.  Was adopted according to the requirements of INA 101 and resides in the U.S. in the legal and physical custody of the citizen parent.

f.  Individuals who turned eighteen before February 27, 2001, would have automatically become a citizen if, while the individual was still under eighteen, he or she became a lawful permanent resident and both his or her parents naturalized.  Such individuals also may have derived citizenship when only one parent naturalized, if the other parent was dead or a U.S. citizen by birth, or the individual's parents were separated and the naturalized parent had custody.

6.  "U.S. nationals"  are persons who owe 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:

a.  Persons born in American Samoa or Swain's Island after December 24, 1952; and

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

 

 

This is a reprint of the official rule as published by the Office of the Code Reviser. If there are previous versions of this rule, they can be found using the Legislative Search page.

CLARIFYING INFORMATION

Eligibility for all programs must determine an individual's citizenship or alien status.  An individual will fall into one of the following four groups for purposes of benefits eligibility:

  • Citizen or U.S. National;
  • Lawfully Present Qualified Aliens;
  • Lawfully Present Non-Qualified Aliens; or
  • Undocumented Aliens.

NOTE: Deferred Action Childhood Arrivals (DACA) are not eligible for Medicaid or CHIP. DACA individuals are non-qualified aliens who have been granted deferred action, but unlike other deferred action individuals, they are not eligible for Medicaid or CHIP. DACA individuals may be eligible for state-funded assistance, including MCS, SFA, and FAP. DACA individuals must be coded CL in the INS Stat field on the ALAS screen in ACES. 

Consult the "Decision Trees" in Appendix I for an overview of citizenship and alien status eligibility rules.  For a list of typical citizenship/immigration documents and some sample documents, se the National Immigration Law Center NILC Guide in Appendix II.

For guidance on how to read a Visa, I-94 or Permanent Resident Card select the appropriate link.


NOTE:

If uncertain as to the individuals eligibility for benefits do not deny or approve without review of the NILC guide or if needed clarification please contact appropriate program staff below.

For cash or food eligibility:

Tom Berry (360) 725-4617 or by email at berrytj@dshs.wa.gov

Olga Walker (360) 725-4641 or by email at walkeop@dshs.wa.gov

For medical eligibility:

Dody McAlpine (360) 725-9964 or by email at dody.mcalpine@hca.wa.gov

Kathy Johansen (360) 725-1321 or by email at kathy.johansen@hca.wa.gov

  1. Child Citizenship Act of 2000.  To acquire citizenship under the Act, persons must have met all the conditions in WAC 388-424-0001 on or after February 27, 2001.  The Act applies to children related to the citizen parent by birth or adoption only - stepchildren are not included unless also adopted.  Once the terms of the Act have been met, subsequent changes in the parents' marital status, such a separation or divorce, have no bearing on the child's citizenship.  Nor does it matter whether the parent in question was a U.S. citizen at the time the child entered the U.S.

    If the child is 18 years or older when the parent becomes a citizen, child citizenship laws do not apply and he/she must independently apply for naturalization.  For information on the Department's naturalization assistance program, see the Social Services Manual, SSI Facilitation Chapter, Section E, subsection on SSI facilitation.

    For persons who automatically become citizens under terms of the Child Citizenship Act of 2000 or previous legislation, USCIS issues no documentation unless requested.  Clients themselves may not be aware that they or their children are already citizens.  If there is uncertainty about whether a particular client has met the conditions for automatic citizenship, you might want to refer them to an immigration attorney or the Northwest Immigrant Rights Project in Western Washington at 206-587-4009 or in Eastern Washington at 509-854-2100.
  2. Born Abroad/Acquisition of Citizenship. It is possible that a child or grandchild of a U.S. citizen who was born abroad may have acquired citizenship at birth.  In such cases, citizenship may depend on which parent is a U.S. citizen, how long the citizen parent resided in the U.S., and whether the parents were married at the time.  A person that might belong to this category should be referred to an immigration attorney for advice.
  3. American Indians.  The term "American Indian" refers to tribes throughout North America, including Canadian tribes.  American Indians born outside the United States are eligible for federal benefits to the same extent as U.S. Citizens if they are:
  • Canadian-born American Indians who are at least 50 percent American Indian blood.  This category does not include the spouse or child of such a person unless he or she also possesses 50 percent American Indian blood (request tribal verification that verifies 50% American Indian blood).
  • Canadian-born American Indians who are less then 50 percent American Indian blood who have been continuously residing in the U.S. since prior to December 24, 1952.
  • A member of a federally-recognized Indian tribe (see Governor's Office of Indian Affairs website) or Alaska Native villages and corporations (see Federal Register Notice).

Non-citizen cross-border Indians who do not meet the criteria above are considered undocumented unless they have another immigration status with USCIS.


NOTE:

Non-citizen American Indians have the same eligibility for benefits as U.S. Citizens, but citizen documentation requirements do not apply.  they will need to supply tribal verification they meet the requirements above.

4.  Lawfully present alien" - Refers to any non-citizen presently permitted to remain in the United States.  "Lawfully present" means that USCIS has actively granted these immigrants permission to remain in the U.S. and has issued documentation that is currently valid as to their status.  A lawfully present alien must still meet state residency requirements in WAC 388-468-0005 to qualify for benefits.

5. "Qualified alien" and "Non-qualified alien" are terms used in federal immigration law and do not by themselves indicate whether an immigrant is eligible for benefits.  "Qualified", "non-qualified" and undocumented aliens may be eligible for some benefits.

6.  Hmong or Highland Laotian tribe members:

·         They may be eligible for federal benefits based on the individual's qualified alien status.  For example, after tribe members are admitted as refugees.

·         If not eligible under a qualified alien status, they must be lawfully present in the U.S. and must sign the following statement under penalty of perjury to be eligible for federal benefits:
I was a Hmong (or Highland Laotian) tribe member when the tribe assisted the U.S. military during Vietnam era (August 5,1964 to May 7, 1975). See Appendix III for a printable version of this statement.

The tribe member must be born prior to May 8, 1975.  The tribe member's spouse and unmarried dependent children do not have to be tribal members in order to qualify for federal benefits.

7. The following lawfully present non-qualified aliens may be eligible for State funded assistance:

·         Abused aliens who are a relative of a U.S. citizen with an approved I-130 petition but not meeting the other requirements of battered immigrants, as described in WAC 388-424-0001. Abused aliens who have self-petitioned under VAWA but not yet received "Notice of  "Prima Facie" eligibility, as described in WAC 388-424-0001.

·         Applicants for adjustment of status, asylum, cancellation of removal, suspension of deportation or withholding of deportation or removal.

·         Cancellation of removal, deferred action or suspension of deportation granted. (Note: if a person is granted cancellation of removal or suspension of deportation based on having been abused or granted deferred action based on an approved self-petition as an abused alien, they are a "qualified alien").

·         Deferred enforced departure granted.

·         Family Unity granted.

·         "K", "S", "U" or "V" statuses, designated on a person's visa, allow holders to work and eventually to adjust to Lawful Permanent Resident (LPR) status.

·         Lawful temporary residents under the amnesty program of the Immigration Reform and control Act (IRCA), including those admitted under Sections 210 ("special agricultural workers") and 245A of the INA.

·         Citizens of the Marshall Islands, Micronesia or Palau.  These individuals have special rights under Compacts of Free Association and are lawfully allowed to enter, reside and work in the U.S. but are not U.S. Nationals.

·         Order of suspension granted.

·         Paroled into the U.S. for a period of one year or less.

·         Residing in the U.S since prior to January 1, 1972.

·         Eligible to petition as special immigrant juveniles.  these are juveniles who have been declared a "dependent of the state" and eligible for long-term foster care due to abuse, neglect or abandonment.

·         Stay of deportation or removal granted.

·         Temporary protected status granted.

·         Voluntary departure granted - definite or indefinite time.

8.  Expired Documents versus Expired Status.

·         Many immigrant documents have expiration dates.  Some immigrants lose their immigrant status when their immigrant document expires; however, many do not.

·         Qualified Aliens:  Qualified alien status does not expire even if the document is expired, with the following exceptions:

1.    Parolees - Their status expires after the expiration date.  Parolees usually have an I-94 arrival/departure record stamped with an entry and expiration date.  Some may have their expiration date stamped "waived" or "indefinite".

2.    Lawful Permanent Resident with Conditions (2 year Conditional Residents) - Conditional residents receive a 2 year LPR card based on  a recent marriage to a U.S. citizen. At the end of the 2 years, they must either file a joint petition to remove the condition or a request for a waiver of the joint filing requirement (for grounds that include divorce and /or domestic violence).  Clients with this expired status need to be asked for proof of a pending petition to remove the condition or copy of application to waive the joint filing requirement.

 


NOTE:

Battered immigrants may face difficulties in filing to remove the condition on residence.  You may want to refer such clients to an immigration attorney or Northwest Immigrant Rights Project in Western Washington at 206-587-4009 or Eastern Washington at 509-854-2100.

  • Non-Qualified Aliens:  Some lawfully present non-qualified aliens have temporary status or pending applications and consequently their status may expire when their document is expired or when a final denial of their application is issued, with the following exceptions:
    1. Citizens of Marshall Islands, Micronesia or Palau - They may have a birth certificate, current or expired I-94 Arrival/Departure Record, current/expired passport, or other document verifying they are citizens of one of these countries.
    2. Persons granted cancellation of removal or suspension of deportation.
  • Additional Information Regarding Specific Document Types and Status:
    1. I-797 - Notice of Action may or may not have an expiration date.  It is used to notify the client that a fee was paid, an application was accepted, the case is pending, a step in the process is completed, or status is approved.  Immigrants with I-797s are undocumented unless it verifies that status has been approved.

      An example that a step in the process has been completed but status has not been approved is the Notice of Approval for "Immigrant Petition for Relative".  This is the initial step in the family -related immigrant application process.  It solely establishes relationship.  It does not establish status.  If this is the only document provided, the immigrant is considered undocumented for purposes of benefits eligibility.

      An example that status is approved is the "Approval Notice" of an I-360 Self-Petition under the Violence Against Women Act (VAWA).  In most cases a VAWA self-petitioner will first receive a "Prima Facie" notice, indicating that the petitioner has submitted evidence sufficient to establish a case.  Both notices verify that the client is a "Qualified Alien" and their status does not expire.
    2. Order from Immigration Judge - An order is issued because the immigrant is or has been in removal proceedings.  The Judge provides a decision notifying the immigrant whether the immigrant can remain in the country.  The order does not have an expiration date.

      An example of a status  granted by an "Order from Immigration Judge" are "Granted withholding of deportation" which is a "Qualified Alien" category and "Order of Supervision" which is a non-qualified alien category.
    3. Form I-589 - Applicant for Asylum (non-qualified alien) does not have an expiration date, however, USCIS is required to provide a decision within 180 days.  Despite this requirement, some asylum applicants may not receive a decision within the 180 day deadline.  If the document is more than 180 days old staff will need to check USCIS website (see below) to determine if it is still pending a decision.  If still pending a decision, the asylum applicant retains their non-qualified status.

NOTE:

If an applicant for Asylum is a national of Cuba or Haiti they are Cuban/Haitian Entrants eligible for benefits to the same extent as refugees while their application is pending.

  • In cases with expired immigration documents, direct clients to apply with USCIS for renewal with instructions to submit the new USCIS form I-912 "Request for Fee Waiver", at the same time they apply for the new documents.  As public benefit's recipients, DSHS clients are eligible for Fee Waiver with their application.

    Form I-912, "Request for Fee Waiver", and instructions on how to complete this form, are now available on he USCIS website at USCIS - FORMS.  Fee Waiver Guidance can be found at USCIS - Fee Waiver Guidance.
  • If USCIS denies the fee waiver request, they will notify the client with a notice of rejection and an explanation why the fee waiver request was denied.  In these cases, copy the notice of rejection into the client's file and offer help paying for the documents.  If USCIS approves the fee waiver request, the client will also be notified.
  • Staff can check the current case status of pending USCIS documents by entering the receipt number on the document at http://www.uscis.gov/portal/site/uscis.

NOTE:

If unable to verify claim is still pending using the USCIS website the client will need to provide updated documentation from USCIS as to their current status.  You may want to refer the client to an immigration attorney or Northwest Immigration Rights Project in Western Washington at 206-587-4009 or Eastern Washington at 509-854-2100.

  • All non-qualified aliens with expired documents or no current claim or document pending with USCIS, would be considered undocumented for purposes of benefits eligibility.

9.  Reporting or release of information regarding immigrants.

  • Release of information about immigrant clients is subject to he same confidentiality rules that govern release of all client information to outside parties, including law enforcement agencies such as USCIS. 
  • The department is only obligated to report legal immigrants in the case of the "indigence exemption" from sponsor deeming.  See WAC 388-450-0156 for a description of this reporting requirement.
  • The department's obligation to report the presence of undocumented immigrants to USCIS has been very narrowly defined by the federal government.  Such a report is only to be made in the following circumstances:
    1. An administrative law judge (ALJ) has determined that an individual is unlawfully present in the U.S., in the course of the individual's pursuing eligibility for federally funded benefit (including TANF, non-emergency Medicaid, CHIP, SSI and federal Basic Food); and
    2. The ALJ's finding is supported by a determination by USCIS, such as a Final Order or Deportation.
  • The department is only expected to make a determination about an individual's legal or illegal immigration status if such determination is necessary to decide whether the individual is eligible for benefits.  Undocumented immigrants should never be required to contact USCIS themselves.
  • If you believe a report to USCIS is required, based on all the above circumstances, contact the appropriate immigrant eligibility program manager.  Do not contact USCIS directly.

10.  When requesting information necessary to determine citizenship or alien status, be sensitive to the right of clients not to be discriminated against on the basis of race, color or national origin.  All similarly situated clients should be treated in the same manner.  For example, while it is necessary to clarify questionable information to establish eligibility, clients should not be singled out for closer scrutiny simply because they look or sound "foreign."

ACES PROCEDURES

Recording Citizenship / Alien Status

See Interview - (DEM 2) Client Demographic 2 Screen

Completion of the (ALAS) Screen for Non-Citizens

See Interview - (ALAS) Aliens, Students, and Medically Indigent Screen

Modification Date: April 18, 2013