July 16, 2001
Dear Colleague:
As you know, the Victims of Trafficking and Violence Protection Act of 2000 (Public Law 106-38) (the Act) was enacted in October 2000 to combat trafficking through increased law enforcement, to ensure effective punishment of traffickers, to protect victims, and to provide certain Federal and State assistance to victims. About 50,000 women and children are trafficked annually into the United States along with an unknown number of men. Traffickers force young women and children into prostitution, slavery and forced labor through coercion, threats of physical violence, psychological abuse, torture and imprisonment.
You may have already had individuals apply for TANF benefits who are trafficking victims. I would like to take this opportunity to briefly explain how this Act applies to the TANF program and the process that is in place for determining eligibility under a very special set of circumstances.
Section 107 of the Act provides that a "victim of a severe form of trafficking" shall be eligible for benefits and services under any Federal or State program or activity funded or administered by any Federal official or agency, including the Department of Health and Human Services (HHS), to the same extent as an alien who is admitted to the United States as a refugee under section 207 of the Immigration and Nationality Act (INA). This eligibility is without regard to the actual immigration status of such victims. With respect to the TANF program, a refugee under section 207 of the INA is a qualified alien who is excepted from the 5-year bar on Federally-funded TANF benefits for qualified aliens who arrive on or after August 22, 1996. Thus, victims of trafficking, like refugees, are not barred from receiving Federally-funded TANF benefits during their first five years in the United States. See section 403 of the Personal Responsibility and Work Opportunity Reconciliation of 1996 (PRWORA), as amended (8 U.S.C. 1613).
States have been given the authority to decide whether to provide Federally-funded TANF benefits to certain qualified aliens. But, even if a State has chosen to deny eligibility to qualified aliens, the State must still permit certain excepted qualified aliens who meet the State's eligibility criteria to receive TANF benefits. Refugees are among the qualified aliens that have been provided a time-limited exception for five years from their date of entry into the U.S. Thus, victims of trafficking would be eligible for Federally-funded TANF benefits to the same extent the State has elected to provide these benefits to refugees. See section 402(b) of PRWORA, as amended (8 U.S.C. 1612(b)).
The Act also provides that HHS, in consultation with the Attorney General, is responsible for certifying that the adult is a victim of a severe form of trafficking and, therefore, eligible for benefits. Children under 18 years of age do not need to be certified. However, the child must still be determined eligible for benefits as a minor victim of a severe form of trafficking. These certification-related functions have been delegated to the Office of Refugee Resettlement (ORR) in Washington, D.C. ORR will issue a certification letter for adults and a letter, similar to the adult certification letter, for children. Hence, TANF agencies do not need to determine whether someone is a victim of a severe form of trafficking; nor will it be necessary to contact the Immigration and Naturalization Service or any other division of the Department of Justice to consult on these issues.
Applicants for TANF benefits who are victims of a severe form of trafficking must present their letter to the eligibility worker. The TANF agency should accept the certification letter or letter for children as proof of a status that confers eligibility for benefits. Sometimes, a family member who is not a victim of a severe form of trafficking will accompany the person who is a victim (e.g., parent flown in by the State Department to be with his/her minor child who is a victim), and will also apply for TANF benefits. Such persons would be barred from receiving Federally-funded or State/Federal commingled TANF benefits for 5 years unless his/her immigration status meets one of the statutory exceptions in PRWORA title IV, section 403(b) as amended (8 USC 1613(b)).
Although a victim of a severe form of trafficking may apply for TANF benefits, the applicant would still have to meet all other eligibility requirements with respect to the benefit to the same extent as any another client. All appropriate TANF rules and regulations also apply. I would like to mention a couple of other items to keep in mind when considering the benefits that may be available to a victim of a severe form of trafficking. If the individual is a member of a family that consists of, at a minimum, a child living with a relative (or consists of a pregnant woman), and the family meets all your financial and other eligibility criteria, then you may use either Federal TANF funds or State funds that you claim toward your maintenance-of-effort requirement to provide family members with assistance or services that are reasonably calculated to accomplish a purpose of the TANF program. If the victim of a severe form of trafficking is not a family member, as described above, then you may only use segregated Federal TANF funds to provide him or her with services that are not considered "assistance" (as defined under 45 CFR 260.31), but are reasonably calculated to accomplish a TANF purpose.
Finally, I have attached guidance prepared by ERR and sent to its refugee network. TANF agencies should follow this guidance as well. The attached package contains important information, including the steps the agency should take as part of the eligibility determination process. This package consists of: the letter sent to State Refugee Coordinators including background information, a sample certification letter for adults, a sample letter for children, a summary page, and frequently asked questions.
I hope this information will be useful to you.
Sincerely,
/s/
Samara Weinstein
Acting Director
Office of Family Assistance
Attachments:
Sample Letter of Certification
