N.M. Code R. § 8.139.420.9

Current through Register Vol. 35, No. 11, June 11, 2024

Section 8.139.420.9 - SPONSORED ALIENS

A. Definition of a sponsored alien: An alien lawfully admitted for permanent resident status into the United States, for which an individual has executed an affidavit of support pursuant to section 213A of the Immigration and Nationality Act. Not all lawful aliens are sponsored. Only in the event that the sponsored alien is eligible in accordance with of 8.139.410.9 NMAC shall HSD consider available to the household the income and resources of the sponsor and spouse.

B. Date of entry or date of admission: The date established by the immigration and naturalization service (INS) as the date the sponsored alien was admitted for permanent residence.

C. Sponsor: An individual who has executed an affidavit of support or similar agreement on behalf of an alien, as a condition of the alien's entry or admission into the United States as a permanent resident.

D. Exempt aliens: The provisions of this section do not apply to the following:

(1) an alien participating in the food stamp program as a member of the sponsor's food stamp household;

(2) an alien sponsored by an organization or group rather than an individual;

(3) an alien who is not required to have a sponsor under the Immigration and Nationality Act; or

(4) an alien that ISD has determined is indigent.

(a) For purposes of this paragraph, the term indigent means that the sum of the eligible sponsored alien's household's own income, the cash contributions of the sponsor and others, and the value of any in-kind assistance the sponsor and others provide, does not exceed 130% of the poverty income guidelines for the household's size.

(b) The caseworker shall determine the amount of income and other assistance provided in the month of application.

(c) If the alien is indigent, the amount that HSD shall count shall be the amount actually provided for a period beginning on the date of such determination and ending 12 months after such date. Each indigence determination is renewed for additional 12-month periods.

(5) A battered alien spouse, alien parent of a battered child, or child of a battered alien, for 12 months after HSD determines that the battering is substantially connected to the need for benefits, and the battered individual does not live with the batterer. After 12 months, HSD shall not deem the batterer's income and resources if the battery is recognized by a court or the INS and has substantial connection to the need for benefits, and the alien does not live with the batterer.

E. Sponsored aliens' responsibility: HSD shall attribute the entire amount of income and resources to the applicant eligible sponsored alien until the alien provides the information specified below. The sponsored alien is responsible for:

(1) obtaining the cooperation of the alien's sponsor(s) to provide the caseworker, at the time of application or recertification, with the information or documentation necessary to determine the income and resources of a sponsor and a sponsor's spouse;

(2) providing the names and other identifying factors of other aliens for whom the alien's sponsor has signed an affidavit of support;

(3) reporting the require information about the sponsor and sponsor's spouse should the alien obtain a different sponsor during the certification period;

(4) reporting a change in income should the sponsor or the sponsor's spouse change or lose employment or die during the certification period.

F. Information required: The following information shall be obtained from the alien at the time of initial application and at recertification:

(1) the full amount of the income and resources of an alien's sponsor;

(2) the full amount of the income and resources of a sponsor's spouse, if the spouse is living with the sponsor;

(3) provision of the Immigration and Nationality Act under which the alien was admitted;

(4) date of the alien's entry or admission as a lawful permanent resident as established by INS;

(5) the alien's date of birth, place of birth, and alien registration number;

(6) number of dependents claimed or who could be claimed as dependents by the sponsor and the sponsor's spouse for federal income tax purposes;

(7) name, address and phone number of the alien's sponsor;

(8) the above information shall be verified at initial application and at recertification.

G. Deemed income:

(1) The monthly income of the income of a sponsor and the sponsor's spouse (if living with the sponsor) shall be considered the unearned income of the sponsored alien, until the alien achieves US citizenship through naturalization or has worked 40 qualifying quarters of coverage as defined by the social security administration. If the sponsored alien can demonstrate that the alien's sponsor is the sponsor of other aliens, HSD shall divide the income by the number of such sponsored aliens. The spouse's income shall be counted even if the sponsor and spouse were married after the sponsoring agreement was signed. The monthly income attributed to the sponsored alien is the total gross earned and unearned income (less exclusions) of the sponsor and sponsor's spouse (if living with the sponsor) at the time the household containing the sponsored alien member applies or is recertified for participation in the FSP, reduced by:

(a) a 20% earned income amount for the portion of the income determined as earned income of the sponsor and the sponsor's spouse; and

(b) an amount equal to the FSP's monthly gross income eligibility limit for a household equal in size to the sponsor, the sponsor's spouse, and any other person who is claimed or could be claimed by the sponsor or the sponsor's spouse as a dependent for federal income tax purposes.

(2) TANF-sponsored alien income: If an alien has already reported gross income information about the alien's sponsor according to TANF sponsored alien rules, that income amount shall be used for food stamp deeming purposes.

(3) Sponsor-paid money: Actual money paid to the alien by the sponsor or the sponsor's spouse shall not be counted as income to the alien unless the amount paid exceeds the amount deemed to the alien. The amount paid that actually exceeds the amount deemed shall be counted as income to the alien, in addition to the deemed amount.

H. Deemed resources:

(1) The full amount of the resources reduced by $1500 of a sponsor and the sponsor's spouse (if living with the sponsor) shall be deemed to be the resources of the sponsored alien until the alien achieves US citizenship through naturalization or has worked 40 qualifying quarters of coverage as defined by the social security administration. The spouse's resources shall be counted even if the sponsor and spouse were married after the sponsoring agreement was signed. If the sponsored alien can demonstrate that the alien's sponsor is the sponsor of other aliens, HSD shall divide the resources by the number of such sponsored aliens. Resources available to the sponsor shall be determined in accordance with the provisions found in 8.139.510 NMAC.

(2) TANF sponsored alien resources: If an alien has already reported all resource information on the alien's sponsor according to TANF sponsored alien rules, that resource amount shall be used for food stamp deeming purposes as the amount to be attributed to the alien.

I. Determining eligibility and benefit amount: The amount of income and resources deemed to be that of the sponsored alien is considered in determining the eligibility and benefit amount of the household of which the alien is a member.

J. Sponsors:

(1) Sponsoring more than one alien: If the sponsored alien can demonstrate that the alien's sponsor is the sponsor of other aliens, HSD shall divide the income and resources by the number of such sponsored aliens

(2) Alien switches sponsors: If the alien reports that the alien has changed sponsors during the certification period, deemed income and resources shall be recalculated based on information and verification about the new sponsor and the sponsor's spouse. The change shall be handled in accordance with change- reporting requirements, time frames and procedures, as appropriate.

(3) Loss of sponsorship: If an alien loses their sponsor, and does not get another, the full amount of the income and resources of the previous sponsor continues to be attributed to the alien until the alien achieves US citizenship through naturalization or has worked 40 qualifying quarters of coverage as defined by the social security administration. If the alien sponsor dies, the income and resources shall no longer be attributed to the alien.

K. Awaiting verification: Until the alien provides information or verification necessary to determine eligibility, the sponsored alien is ineligible. The caseworker shall determine the eligibility of any remaining household members. The caseworker shall consider available to the remaining household members the income and resources of the ineligible alien in determining the eligibility and benefit level of the remaining household members. If the sponsored alien refuses to cooperate in providing information or verification, other adult members of the alien's household are responsible for providing the information or verification required. If the caseworker subsequently receives information or verification, the caseworker shall act on the information as a reported change in household membership in accordance to timeliness standards. If the same sponsor is responsible for the entire household, the entire household is ineligible until such time as the household provides the needed sponsor information or verification. The caseworker shall assist alien in obtaining verification.

L. Over-issuance: An alien's sponsor and the alien shall be jointly liable for repayment of any over-issuance of food stamp benefits resulting from incorrect information provided by the sponsor. The sponsor of an alien or the alien shall also be independently responsible for the obligation to repay any over-issuance of food stamp benefits resulting from incorrect information provided by the sponsor.

(1) Good cause/sponsor: If an alien's sponsor has good cause or is without fault for supplying the incorrect information, the alien's household is solely liable for repayment of the over-issuance. The caseworker shall determine whether good cause exists in such situations, and shall consider the facts and circumstances, including information submitted by the alien and by the sponsor. Good cause includes, but is not limited to, a misunderstanding by a sponsor of the responsibility to report information about the sponsor's resources and income or a lack of information provided at the time a sponsor executed the affidavit of support or similar agreement on behalf of the alien. Problems caused by the inability of a sponsor or alien to speak, read, or write English may constitute good cause.

(2) Establishing the claim: If a sponsor does not have good cause, the caseworker shall determine whether to establish a claim for the over-issuance against the sponsor or the alien's household, or both. HSD may choose to establish claims against both parties at the same time or to establish a claim against the party considered most likely to repay first. If a claim is established against the alien's sponsor first, the caseworker shall ensure that a claim is established against the alien's household if the sponsor fails to respond to a demand letter within 30 days of receipt. HSD shall return to the alien's sponsor and/or the alien's household any amounts repaid in excess of the total amount of the claim.

(3) Claims collection against sponsor:

(a) The restitution bureau initiates a collection action by sending an alien's sponsor a written demand letter which informs the sponsor of the amount owed, the reason for the claim, and how the sponsor may pay the claim. The sponsor shall be informed that they shall not be held responsible for repayment of the claim if the sponsor can demonstrate good cause or absence of personal fault for the incorrect information having been supplied to HSD. In addition, the restitution bureau shall follow up the written demand letter with personal contact, if possible. HSD may pursue other collection actions as appropriate to obtain payment of a claim against any sponsor who fails to respond to a written demand letter. The restitution bureau shall end a collection action against a sponsor at any time if it has documentation that the sponsor cannot be located, or if the cost of further collection efforts is likely to exceed the amount that can be recovered. If an alien's sponsor responds to a written demand letter and is financially able to pay the claim at one time, the restitution bureau shall collect a lump sum cash payment. The restitution bureau shall negotiate a payment schedule with the sponsor for repayment of the claim, as long as payments are made in regular installments. For more information on handling claims, see 8.139.640.11 NMAC.

(b) Exception: A sponsor who is participating in the food stamp program as a household shall be excluded from any demand for repayment of the value of food stamp benefits issued to a sponsored alien.

(4) Fair hearing: A sponsor is entitled to a fair hearing either to contest a determination that the sponsor was at fault for giving incorrect information, or to contest the amount of the claim.

(5) Claims collection against alien households: Before initiating collection against a sponsored alien's household for repayment of an overissuance caused by incorrect information having been supplied concerning the sponsor or sponsor's spouse, a caseworker shall determine whether the incorrect information supplied was due to an inadvertent household error or an intentional program violation (IPV) on the part of the alien. Claims collection against a household shall be pursued regardless of the current eligibility status of sponsored alien or alien households.

(a) Intentional misrepresentation: If sufficient documentary evidence exists to substantiate that incorrect information was provided by an act of IPV on the part of the alien, the case shall be referred as a request for IPV disqualification, in accordance with the procedures in 8.139.647.8 NMAC. A claim against an alien's household shall be handled as an inadvertent error claim until there is a determination of an IPV by an administrative disqualification hearing official or a court of appropriate jurisdiction.

(b) Misunderstanding/unintended error. If it is determined that incorrect information was supplied because of a misunderstanding or unintended error on the part of the sponsored alien, the claim shall be handled as an inadvertent household error claim.

M. Memorandum of agreement: An agreement has been entered into by the secretary of the United States department of agriculture (USDA), the U.S. secretary of state, and the U.S. attorney general regarding sponsored aliens and their sponsors. A sponsor and alien, at the time the sponsor executes an affidavit of support or similar agreement on behalf of the alien, will be informed of the requirements of Sec. 1308 of P.L. 97-98. Under the agreement, the bureau of consular affairs of the state department and local INS offices provide information to HSD that is needed to carry out the provisions of the agreement. The agreement lists the specific information that must be released by all parties to facilitate identification of the alien and sponsor and enable HSD to verify required information supplied by the alien which is essential for eligibility determinations.

N.M. Code R. § 8.139.420.9

02/01/95, 07/01/98; 8.139.420.9 NMAC - Rn, 8 NMAC 3.FSP.428, 5/15/2001; A, 2/14/2002