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[Current Status: Withdrawn in January 2001 by PA-01-01]
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES
Administration on Children, Youth and Families
TO: State Agencies Administering or Supervising the Administration of Titles IV-B and IV-E of the Social Security Act
SUBJECT: Entitlement of Resident Alien Children to Receive Foster Care Maintenance and Adoption Assistance Payments Under Title IV-E of the Social Security Act
LEGAL AND RELATED REFERENCES:
Sections 402, 406(a) and 407 under title IV-A and sections 472(a)(4) and 473(a)(2)(B) under title IV-E of the Social Security Act; sections 245A(h), 210(f), and 210A of the Immigration and Nationality Act; section 201(b)(2)(A) of the Immigration Reform and Control Act of 1985 (P.L. 99-603); 45 CFR 233.50.
BACKGROUND:
Section 472(a)(4) of the Social Security Act (the Act) requires that to be eligible for foster care maintenance and adoption assistance payments under title IV-E, a child (1) must have received aid under section 402, Aid to Families with Dependent Children (AFDC), in or for the month in which court proceedings leading to the removal of such child from the home were initiated, or (2) would have received such aid for that month if application had been made or (3) had been living with a specified relative within six months prior to the month in which such proceedings were initiated, and would have received such aid for that month if he had been living with such a relative and application had been made.
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Pursuant to section 245A(h) of the Immigration and Nationality Act (INA), as added by section 201 of the Immigration Reform and Control Act of 1986 (IRCA), P.L. 99-603, aliens who have continuously resided in the United States illegally since before January 1, 1982, were eligible to apply to the Immigration and Naturalization Service (INS) for an adjustment of their immigration status to that of lawful temporary resident. After a period of eighteen months in a temporary resident status, an alien can apply for adjustment to permanent resident status.
If the alien does not apply for such adjustment by the end of the thirty-first month after the alien is granted temporary resident status, or if adjustment is denied, the alien's status as a lawful temporary resident terminates, and the alien returns to an unlawful status.
Section 245A(h) of the INA explicitly disqualifies any alien who was granted lawful temporary resident status from eligibility for assistance payments under the AFDC program for a period of five years from the effective date of the receipt of such status. This disqualification period is maintained even though the temporary status may be changed to that of permanent status within the five year period. Accordingly, 45 CFR 233.50 was revised to indicate that this new group of aliens is temporarily disqualified from AFDC eligibility (52 Fed. Req. 48689).
A question has been raised as to whether this disqualification prevents otherwise eligible resident alien children from receiving foster care maintenance payments or adoption assistance under title IV-E.
QUESTION
May States make foster care maintenance and/or adoption assistance payments under sections 472 or 473 of title IV-E on behalf of resident alien children who have'not received aid under section 402 (AFDC) of the Act?
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ANSWER:
Yes. Title IV-E foster care maintenance payments and adoption assistance may be provided on behalf of otherwise eligible resident alien children who are prohibited from receiving AFDC by the Immigration and Nationality Act. Effective November 6, 1986, P.L. 99-603, sections 201(b)(2)(A), added the following sentence at the end of section 472(a) of the Social Security Act:
In any case where the child is an alien disqualified under section 245A(h), 210(f) or 210A(d)(7) of the Immigration and Nationality Act from receiving aid under the State plan approved under section 402 in or for the month in which such agreement was entered into or court proceedings leading to the removal of the child from the home were instituted, such child shall be considered to satisfy the requirements of paragraph (4) [Footnote 1] and the corresponding requirements of section 473(a)(2)(B) [Footnote 2] , with respect to that month, if he or she would have satisfied such requirements but for such disqualification.
Therefore, although the Immigration and Nationality Act disqualifies certain alien dependent children from receiving assistance under the AFDC program, the ineligibility for such aid does not disqualify children who are otherwise title IV-E eligible from receiving assistance under the Federal foster care and adoption assistance programs.
For the foster care program, the child must meet the eligibility requirements under section 406(a) or section 407 related to need and deprivation of parental support or care and all section 472 eligibility requirements, except for those in section 472(a)(4).
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child with special needs.For the adoption assistance program under section 473(a)(1)(B)(ii), all applicable section 473 requirements must be met, except those in section 473(a)(2)(B)(i) and (ii).
For adoption assistance (nonrecurring adoption expenses) under section 473(a)(1)(B)(i), the must meet the State's definition of "a child with special needs."
Dodie Truman Borup
COMMISSIONER
Footnote 1: Refers to section 472(a)(4)
Footnote 2: Formerly section 473(a)(1)(B)