Tracking #2008-00899
FA/P 11/7/08, eff. 1/1/09

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[I:/08013101.doc]

(9 CCR 2503-1)

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Revisions to Sections 3.140.11 through 3.140.191 were final adoption following publication at the 11/7/2008 State Board rule-making session, with an effective date of 1/1/2009 (Rule-making# 08-1-31-1). Statement of Basis and Purpose and specific statutory authority for these revisions were incorporated by reference into the rule. These materials are available for review by the public during normal working hours at the Colorado Department of Human Services, Division of Boards and Commissions, State Board Administration. 

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3.140  GENERAL REQUIREMENTS FOR CITIZENSHIP AND LAWFUL PRESENCE
3.140.1  CITIZENSHIP AND ALIEN STATUS [Rev. eff. 10/1/88]
The following are citizens of the United States and are generally eligible to receive social services and public assistance.
A.  Persons born in the United States, Puerto Rico, Guam, Virgin Islands (U.S.), American Samoa, or Swain's Island;
B.  Persons who have become citizens through the naturalization process;
C.  Persons born to U.S. citizens outside the United States with appropriate documentation.
3.140.11  Verification of Citizenship in the United States [Rev. eff. 1/1/09]
Citizenship may be verified by a birth certificate, possession of a U.S. passport, a certificate of U.S. citizenship (CIS form N-560 or NH-561), a certificate of naturalization (CIS form N-550 or N-570), a certificate of birth abroad of a citizen of the United States (Department of State forms FS-545 or DS-1350), or Identification Cards for U.S. citizens (CIS-I-179 or CIS-I-197). Documents that are acceptable as verification of citizenship can be found at 1 CCR 201.17, Attachment A. 
3.140.111  Verification of Questionable Citizenship Information [Rev. eff. 1/1/09]
The following guidelines shall be used in considering questionable statement(s) of citizenship from applicant:
A.  The claim of citizenship is inconsistent with statements made by the applicant, or with other information on the application, or on previous applications.
B.  The claim of citizenship is inconsistent with information received from another source.
Application of the above criteria by the eligibility worker must not result in discrimination based on race, religion, ethnic background or national origin, and groups such as migrant farm workers or Native Americans shall not be targeted for special verification. The eligibility worker shall not rely on a surname, accent, or appearance which seems foreign to find a claim to citizenship questionable. Nor shall the eligibility worker rely on a lack of English speaking, reading or writing ability as grounds to question a claim to citizenship.
3.140.112  Ineligible Until Proof of Citizenship Obtained [Rev. eff. 1/1/09]
The member whose citizenship is in question shall be ineligible to participate until proof of citizenship is obtained. If an alien is unable to provide any CIS document at all, there is no responsibility to offer to contact CIS on the alien's behalf. Responsibility exists only when the alien has a CIS document that does not clearly indicate eligible or ineligible alien status. The county department shall contact the State Department, not the CIS, to obtain information about the alien's correct status (see Section 3.120.23). The method used to document verification of citizenship and the result of that verification shall be contained in the case file.
3.140.12  Verification of Lawful Presence in the United States [Rev. eff. 1/1/09]
Pursuant to Section 24-76.5-103, Colorado Revised Statutes (C.R.S.), requires verification of lawful presence in the United States, by the county departments, for applicants of state or local benefits, and federal benefits provided by the Colorado Department of Human Services or by the county departments of human/social services under the supervision of the State Department. All persons eighteen years of age or older must establish lawful presence in the United States prior to receiving public benefits with the exception of those exempt in the list provided in Section 3.140.12, D.  The requirements of this section do not apply to applicants under the age of 18. 
A.  For purposes of this section:  Eff  12/01/2006
"Affidavit" means a State prescribed form wherein an applicant attests, subject to the penalties of perjury, that they are lawfully present in the United States. An affidavit need not be notarized.  Eff  12/01/2006
"Applicant" means a natural person eighteen years of age or older who submits an application to receive a state or local public benefit, or a federal public benefit, on his or her own behalf.   Eff  12/01/2006
"Application" means an initial or new application for benefits and renewal applications or redeterminations.  Eff  12/01/2006
"Federal public benefits" has the same meaning as provided in 8 U.S.C. Section 1611; no later amendments or editions of this section are incorporated. Copies may be available for inspection by contacting the Colorado Department of Human Services, Division of Colorado Works, 1575 Sherman Street, Denver, Colorado 80203, or any State Publications Library.  Eff  12/01/2006
"Produce" means to provide for inspection either: 1) an original or 2) a true and complete copy of the original document. A document may be produced either in person or by mail.  Eff  12/01/2006
"State or local public benefits" has the same meaning as provided in 8 U.S.C. 1621; no later amendments or editions of this section are incorporated. Copies may be available for inspection by contacting the Colorado Department of Human Services, Division of Colorado Works, 1575 Sherman Street, Denver, Colorado 80203, or any State Publications Library.  Eff  12/01/2006
B.  In order to verify his or her lawful presence in the United States, an applicant must: 
1.  Produce and provide to the county department: 
a.  A valid Colorado driver’s license or a Colorado identification card issued pursuant to Article 2 of Title 42, C.R.S.; or, 
b.  A United States military card or military dependent’s identification card; or, 
c.  A United States Coast Guard Merchant Mariner Card; or, 
d.  A Native American tribal document; or, 
e.  Any other document authorized by rules adopted by the Department of Revenue (1 CCR 201-17); or, 
f.  Those applicants who cannot produce one of the required documents may demonstrate lawful presence by both executing the affidavit and executing a request for waiver. The request for waiver must be provided to the Colorado Department of Revenue in person, by mail, or online, and must be accompanied by all documents the applicant can produce to prove lawful presence. A request for a waiver can be provided to the Department of Revenue by an applicant representative. 
Once approved by the Department of Revenue, the waiver is assumed to be permanent, but may be rescinded and cancelled if, at any time, the Department of Revenue becomes aware of the applicant’s violation of immigration laws. If the waiver is rescinded and cancelled, the applicant has the opportunity to appeal. 
The county department is responsible for verifying that the applicant is the same individual indicated as being lawfully present through the waiver. 
2.  Execute an affidavit saying that: 
a.  He or she is a United States citizen or legal permanent resident; or, 
b.   He or she is otherwise lawfully present in the United States pursuant to federal law. 
C.  The requirements of this section only apply to those programs that are considered either a “federal public benefit” or a “state or local public benefit” and require an application, but are not limited to, the following programs/services and applicants: 
1.  Temporary Assistance to Needy Families (TANF)/Colorado Works; 
2.  Aid to the Needy Disabled (AND); 
3.  Aid to the Blind (AB); 
4.  Old Age Pension (OAP);
5.  Low-Income Energy Assistance Program (LEAP); 
6.  18-21 year olds needing after care services such as housing, education funding, and support services; 
7.  Foster and adoptive parents receiving state subsidy; 
8.  Home Care Allowance; 
9.  Licensed child care providers. 
D.  The requirements of this section do not apply to the following applicants, programs and services: 
1.  For any purpose for which lawful presence in the United States is not required by law, ordinance, or rule; 
2.  For obtaining health care items and services that are necessary for the treatment of an emergency medical condition of the person involved and are not related to an organ transplant procedure; 
3.  For short-term, non-cash, in-kind emergency disaster relief; 
4.  For public health assistance for immunizations with respect to immunizable diseases and for testing and treatment of symptoms of communicable diseases whether or not such symptoms are cases by a communicable disease; 
5.  For programs, services, or assistance such as soup kitchens, crisis counseling and intervention, and short-term shelter specified by federal law or regulation that: 
a.  Deliver in-kind services at the community level, including services through public or private non-profit agencies; 
b.  Do not condition the provision of assistance provided on the individual recipient’s income or resources; and, 
c.  Are necessary for the protection of life or safety. 
6.  Pregnant women;
7.  For individuals over the age of eighteen years of age and under the age of nineteen years who continue to be eligible for medical assistance programs after their eighteenth birthday;
8.  Applications for the food assistance program;
9.  Applications for Medicaid where federal law has prescribed a different verification process (see 8.100.53, A, 2, of the Colorado Department of Health Care Policy and Financing rules – 10 CCR 2505-10);
10.  Child welfare services, except for application for family foster homes, adoptive homes, and youth 18-21 years of age as referenced in Section 7.406.1, JJ;
11.  Adult protective services;
12.  Refugee services; 
13.  Services provided under the Older Americans Act and state funding for senior services;
14.  Crisis Intervention Program under the Low-Income Energy Assistance Program (LEAP);
15.  Child support enforcement; and,
16.  For the adult member of the child care application in the Child Care Assistance Program (CCAP). 
3.140.13  Legal Immigrant [Rev. eff. 1/1/08]
Legal Immigrant means an individual who is not a citizen or national of the United States and who was lawfully admitted to the United States by the Citizenship and Immigration Services (CIS) as an actual or prospective permanent resident or whose physical presence is know and allowed by the CIS.
3.140.14  Documentation of Legal Immigrant [Rev. eff. 1/1/09]
An alien considered a legal immigrant will normally possess one of the following forms provided by the Citizenship and Immigration Services (CIS) as verification: 
A.  I-94 Arrival/Departure Record. 
B.  I-551: Resident Alien Card (I-551). 
C.  Forms I-688B or I-766 Employment Authorization Document. 
D.  A letter from CIS indicating a person’s status. 
E.  Letter from the U.S. Dept. of Health and Human Services (HHS) certifying a person’s status as a Victim of a Severe Form of Trafficking.  
F.  Iraqi and Afghan individuals who worked as translators for the U.S. military, or on behalf of the U.S. government, or families of such individuals; and have been admitted under a Special Immigrant Visa (SIV) with specific visa categories of SI1, SI2, SI3, SI6, SI7, SI9, SQ1, SQ2, SQ3, SQ6, SQ7, or SQ9. Eligibility limitations are outlined in Section 3.710.31, I. 
G.  Any of the documents permitted by the Colorado Department of Revenue rules for evidence of lawful presence (1 CCR 201-17, Attachment B). 
3.140.15  Verification with Systematic Alien Verification of Entitlement (SAVE) Program [Rev. eff. 8/1/05]
Legal immigrants applying for public assistance must present documentation from CIS showing the applicant's status. All documents must be verified through SAVE (Systematic Alien Verification for Entitlements) to determine the validity of the document. Benefits shall not be delayed, denied or discontinued awaiting the SAVE verification. 
3.140.16  Determination of Eligibility for Financial Assistance [Rev. eff. 1/1/09]
As a condition of eligibility for financial assistance a legal immigrant must provide income and resource information about such legal immigrant and the legal immigrant's sponsors unless otherwise provided in the eligibility criteria found in the specific program chapter. It shall be presumed that an affidavit of support demonstrates the sponsor’s ability to make income and resources available to an immigrant whom he or she sponsors at a minimum of one hundred twenty-five percent of the federal poverty level.
The applicant or recipient may rebut the county department’s determination that the income and resources of the sponsor are available. If such a determination is made, the applicant or recipient may be eligible for financial assistance.
If it is determined that the legal immigrant received financial assistance benefits that were the responsibility of the sponsor, the State Department or county department may recover such funds from the sponsor or the legal immigrant via the following:
A.  Income assignments;
B.  State income tax refund offset;
C.  State lottery winnings offset; and
D.  Administrative lien and attachment.
Enforcement of duties under affidavit of support shall be the responsibility of the sponsored immigrant.
3.140.161  Affidavit of Support [Rev. eff. 1/1/09]
Effective July 1, 1997, as a condition of eligibility for financial assistance, any legal immigrant applying for or receiving financial assistance shall agree in writing that, during the time period the recipient is receiving financial assistance, the recipient will not sign an affidavit of support for the purpose of sponsoring an alien seeking permission from CIS to enter or remain in the United States. A legal immigrant’s eligibility for financial assistance shall not be affected by the fact that the legal immigrant has signed an affidavit of support for an alien before July 1, 1997.
3.140.17  Qualified Alien [Rev. eff. 1/1/09]
A “qualified alien”  is defined as follows: 
A.  An alien lawfully admitted for permanent residence;
B.  An alien paroled into the United States under Section 212(d)(5) of the Immigration and Naturalization Act (INA) for a period of at least 1 year; 
C.  An alien granted conditional entry pursuant to Section 203(a)(7) of the INA prior to April 1, 1980; 
D.  A refugee under Section 207 of the INA; 
E.  An asylee under Section 208 of the INA; 
F.  An alien whose deportation is withheld under Section 243(h) or 241(B) (3) of the INA; 
G.  A Cuban or Haitian entrant as defined in Section 501(3) of the Refuge Education Assistance Act of 1980; 
H.  A Victim of Severe Form of Trafficking who has been certified as such by the U.S. Dept. of Health and Human Services (HHS); 
I.  Iraqis and Afghans granted Special Immigrant Visa status under Section 101(A)(27) of the INA; 
J.  An alien who has been battered or subjected to extreme cruelty in the U.S. by a family member; 
K.  An alien admitted to the U.S. as an Amerasian immigrant pursuant to Section 584 of the Foreign Operations, Export Financing, and Related Programs Appropriations Act of 1988 (as amended by Public Law No. 100-461); 
L.  An individual who was born in Canada and possesses at least fifty percent (50%) American Indian blood or is a member of an Indian tribe as defined in 25 U.S.C. Section 450B(e). 
3.140.171  Five Year Period [Rev. eff. 1/1/09]
Qualified aliens arriving in the U.S. on or after August 22, 1996, are generally barred from federal programs for five years unless they meet one of the following exceptions: 
A.  An honorably discharged U.S. veteran or active U.S. military personnel and/or spouse, unmarried children, widow and widower, including lawfully admitted permanent resident who is a Hmong or Highland Lao veteran of the Vietnam war; or, 
B.  A refugee, asylee, deportation withheld, or an alien granted status as a Cuban or Haitian entrant, a certified Victim of a Severe Form of Trafficking (these humanitarian immigrants maintain their original status when adjusting to Legal Permanent Resident (LPR) status and remain exempt from the five year bar); or, 
C.  An individual who: 1) was born in Canada and possesses at least fifty percent (50%) American Indian blood, or 2) is a member of an Indian tribe as defined in 25 U.S.C. Sec. 450B(e); or, 
D.  An individual admitted to the U.S., as an Amerasian immigrant pursuant to Section 584 of the Foreign Operations, Export Financing, and Related Programs Appropriations Act of 1988, as amended by Public Law No. 100-461; or, 
E.  A lawfully admitted permanent resident who is a Hmong or Highland Lao veteran of the Vietnam war. 
F.  An Afghan Special Immigrant Visa (SIV) holder is exempt for six months from the five-year bar, and an Iraqi  SIV is exempt for eight months. 
3.140.18  Aliens and Temporary Residents Not Eligible for Assistance [Rev. eff. 1/1/09]
The following individuals are not eligible for public assistance or social services programs:
A.  An alien with no status verification from CIS;
B.  An alien granted a specific voluntary departure date;
C.  An alien applying for a status; or,
D.  A citizen of foreign nations residing temporarily in the United States on the basis of visas issued to permit employment, education, or a visit.