Q&A From the Field

Immigration

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These families meet the McKinney-Vento definition of homeless because they were placed in hotels in your community. If they enrolled in school in your community while in hotels, these schools meet the definition of school of origin and the students have the right to remain there if it is determined to be in their best interest. Each situation would need to be evaluated individually to determine best interest. The McKinney-Vento Act needs to be followed fully, including providing transportation and also, in the case of a disagreement over best interest, providing written notice to the family with the explanation of the school’s decision and how to appeal. The students must be able to remain in the school where enrollment is sought during the appeal process.

Liaisons should identify the children as McKinney-Vento eligible now, because they lack a fixed, regular and adequate nighttime residence at this time. The vast majority will continue to be eligible after they leave the base, as well. Even if they receive refugee or other support services, those services are time limited and often do not result in stable, adequate housing over the long term.

Afghan evacuees are not technically refugees. Legally, refugees have to go through a long process and get their status and visa approved before they enter the US. This didn’t happen in Afghanistan. Some people who worked with the US military do have Special Immigrant visas, but that’s a tiny minority. Most are classified as “parolees” and receive limited, short-term supports. Additional information, including links to materials in Farsi/Dari are available in this brief.

No. The district has violated federal law. Schools cannot ask about immigration status, including whether or what kind of visa a student may have. It is illegal for them to do so. Student visas are arranged directly with a school district while a student is still abroad. If a student had a student visa to attend a school, the school would know ahead of time. Any other kind of visa is irrelevant to the right to attend school, and asking about a visa only serves to chill the right to attend school. This is a violation of law and Supreme Court decisions. For a student experiencing homelessness, schools must follow the McKinney-Vento Act and enroll the student regardless of visa status or immigration status. Students here on tourist visas or no visa at all have the legal right to attend school here, and it is illegal for a school to refuse enrollment based on visa or immigration status. This brief might be useful for more information.

There is nothing in the McKinney-Vento Act particular to refugees. However, the McKinney-Vento Act applies fully to all refugees experiencing homelessness. In general, liaisons receiving families from Afghanistan should identify them as McKinney-Vento eligible now. Of course, as in all things McKinney-Vento, eligibility is a case-by-case determination. However, the vast majority of these families certainly lack a fixed, regular and adequate nighttime residence at this time.

It’s also important to be careful with the use of the word refugee. While these are refugees in the layperson’s use of the word, very few are legally refugees. Legally, refugees have to go through a long process and get their status and visa approved before they enter the US. This didn’t happen in Afghanistan. Only legal refugees will receive refugee resettlement services through the federal government. Some people who worked with the US military have Special Immigrant Visas, but that’s a very small minority. Some will be eligible for a new Priority 2 (P-2) designation granting U.S. Refugee Admissions Program (USRAP) access for certain Afghan nationals and their eligible family members. However, most Afghans will be arriving under a program called humanitarian parole. They will receive a medical screening, perhaps some very basic cultural information and resource referral, and a one-time payment of about $1200 per person. Refugee resettlement agencies are struggling to serve families who are not legal refugees, but support is minimal. Even legal refugees receive only short-term services and very often end up qualifying for McKinney-Vento services. That’s why we feel confident that in general, it is safe to say that most arriving Afghans will not have stable, adequate housing over the short- to medium-term. Incidentally, the same is true for families arriving from Haiti following the recent earthquake and tropical storm.

It also seems that some families (perhaps many) will want to relocate to cities where there already are Afghan populations. So they may not end up staying where they land for very long. That makes immediate McKinney-Vento identification even more important. Providing them with information about the McKinney-Vento Act now, while the school knows where they are and how to reach them, will help them be equipped with information wherever they may seek to enroll later.

This document provides some information on applying the McKinney-Vento Act to immigrants and refugees.

Here are some resources in Farsi/Dari that might be helpful.  Farsi is the primary language spoken in Afghanistan, although it is called Dari there.

1. McKinney-Vento Brochure in Farsi/Dari (Language spoken in Afghanistan), with thanks to San Juan USD, California

2. McKinney-Vento Poster in Farsi/Dari (Language spoken in Afghanistan), with thanks to Irvine USD, California

3. McKinney-Vento Enrollment Form in Farsi/Dari (Language spoken in Afghanistan), with thanks to Irvine USD, California

Here is some general information and links to help Afghans connect to services:

Both refugees and asylum-seekers are requesting to remain in the U.S. because they have been persecuted or fear they will be persecuted on account of race, religion, nationality, and/or membership in a particular social group or political opinion. Refugees seek protection from outside of the US. Their status is granted before they enter the US, and they have a sponsoring agency to assist in their resettlement.  They receive a refugee visa while they are outside the US, which gives them the right to enter the US and receive services from the sponsoring agency for a period of time. Refugees sometimes are McKinney-Vento eligible, if they meet the definition of homeless.

Asylum-seekers present themselves at the border, or at an immigration office (in person or by filing paperwork), and request asylum.  They have to go through a legal process before they are granted asylum. Ultimately, few will be granted asylum. Again, asylum-seekers can be McKinney-Vento eligible, if they meet the definition of homeless.

When youth enter the U.S. on their own, they usually do receive a health screening and immunizations, and then they are placed somewhere by the Office of Refugee Resettlement— which is confusing, because they are not actually refugees.  Most of these youth are McKinney-Vento unaccompanied homeless youth. Children who are taken into custody by immigration authorities receive health screenings and immunizations prior to being released to a sponsor or foster family. Some information about this is available here.

According to the World Health Organization, most foreign countries have immunization rates that are similar to the United States.  Country-specific immunization information is available from the WHO:

Also, here is an FAQ from the U.S. government regarding children who come through immigration processes:

“Q: Do these children pose a health risk?

A: The Centers for Disease Control and Prevention believes that the children arriving at U.S. borders pose little risk of spreading infectious diseases to the general public. Countries in Central America, where most of the unaccompanied alien children are from (Guatemala, El Salvador, and Honduras), have childhood vaccination programs, and most children have received some childhood vaccines. However, they may not have received a few vaccines, such as chickenpox, influenza and pneumococcal vaccines. As a precaution, ORR is providing vaccinations to all children who do not have documentation of previous valid doses of vaccine.

Children receive an initial screening for visible and obvious health issues (for example: lice, rashes, diarrhea, and cough) when they first arrive at Customs and Border Protection (CBP) facilities. Onsite medical staff are available at CBP facilities to provide support, and referrals are made to a local emergency room for additional care, if needed. Children must be considered “fit to travel” before they are moved from the border patrol station to an ORR shelter.

Children receive additional, more thorough medical screening and vaccinations at ORR shelter facilities. If children are found to have certain communicable diseases, they are separated from other children and treated as needed. The cost of medical care for the children, while they are in ORR custody, is paid by the federal government.”

Anyone physically present in the US has the right to attend school here regardless of immigration status— refugees, asylum seekers, undocumented youth, etc.   Public schools cannot ask families or youth about their immigration status. Also, the McKinney-Vento Act applies equally to students from other countries. If they are experiencing homelessness, they have the right to enroll in school, which includes full participation, immediately.  It is not different because the family or youth is coming from another country.

This document on our website has some resources that might be helpful.

This is a sticky situation for this student. She’s not technically covered by FERPA if she’s just talking to a college representative.  That means that although the college representative shouldn’t call the authorities, there’s no assurance they won’t or can’t. I think the student probably just has to gauge the person’s level of hostility or understanding.  Maybe she could ask a couple of open-ended questions without saying anything about herself, like, “Are there any clubs here that advocate for immigrants?” or, “Are there activities for foreign students?” The person’s answers and body language responding to those questions probably will say a lot about whether it’s a safe environment.

The best approach may be to talk to them without saying anything about her immigration status at all. She’s not eligible for in-state tuition or any state financial aid in your state, and of course no federal financial aid, so she doesn’t even need to ask about that and have them tell her no.

You might also consider exploring–especially since she’s been in the United States for so long–whether she had DACA. She can renew that status if it’s been granted to her in the past. We have some information in English and Spanish on our website.

The proposed Public Charge rule is complex, but here is some basic information. First, you can refer people to the text of the proposed rule (although it is quite long). This was published on October 10, and people can submit comments on it until December 10.

As you noted, at this point it is only a proposed rule and does not have any legal effect currently. It’s also important to note that the rule does not affect U.S. citizen children of immigrant parents directly, although it could affect them indirectly by affecting their parents. The proposed rule would affect people who are applying for a visa or other legal status to enter the U.S., or who are requesting a change in their visa or immigration status in the U.S.

The Public Charge provision itself has been in effect for some time. It requires people applying to enter the U.S. to demonstrate they are unlikely to become a “public charge,” which means they are unlikely to receive various kinds of public benefits. There are exemptions to this requirement. The proposed rule would make changes to the provision to broaden the definition of “public benefits,” making it more difficult for people to demonstrate that they will not become a public charge.

The proposed rule appears NOT to include the following programs in the definition of “public benefit.” In other words, receiving these benefits would not count against a person applying for admission or a change of status in the U.S.:

      • School meals
      • McKinney-Vento Education for Homeless Children and Youth services
      • Title I and other “means-tested programs under the ESEA”
      • Immunization assistance
      • Foster care/adoption payments
      • Soup kitchens and food banks
      • Crisis counseling
      • DV services
      • Mental illness/substance abuse services
      • “Short-term shelter or housing assistance for the homeless, for victims of DV, or for runaway, abused, or abandoned children”
      • Any higher education assistance
      • Head Start
      • In-kind disaster relief
      • Workforce Innovation and Opportunity Act services

However, there are many programs included that will affect families, children and youth, including:

      • SNAP (although children under 18 are exempted)
      • TANF
      • Section 8 (housing choice and project-based)
      • Subsidized public housing
      • General Assistance (in states that offer GA)
      • Medicaid
      • SSI
      • CHIP (Children’s Medicaid— this program is not included in the proposed rule, but the agency is seeking comments about whether it should be included.)

Additional pieces of the rule that may be of interest to homeless liaisons include the following:

“Because of the nature of the public benefits that would be considered under this rule—which are generally means- tested and provide cash for income maintenance and for basic living needs such as food, medical care, and housing—DHS believes that receipt of such benefits even in a relatively small amount or for a relatively short duration would in many cases be sufficient to render a person a public charge.”

“By way of illustration, under the proposed policy, an alien’s receipt of Medicaid for 9 months and receipt of public housing for 6 months, if both occurred within the same 36-month period, would amount to 15 months of receipt of non-monetizable benefits, regardless of whether these periods of time overlapped, were consecutive, or occurred at different points in time during the 36-month period. As such, the receipt of those benefits would be considered for purposes of this rule.”

SchoolHouse Connection is likely to join other organizations in commenting on the rule, and publishing a brief once the rule is final.

There aren’t always clear answers. It always depends on the individual situation and whether the students have a fixed, regular and adequate nighttime residence. Below are some examples when sponsored immigrants could be eligible even while they are with their original sponsors.

Full Question: I got a call from someone in our ELL Department asking about McKinney-Vento eligibility for sponsored immigrant families. This has always been a bit murky to me. I know there aren’t always clear answers, but here is a snapshot of what we are currently doing.

New Sponsored Immigrants: they are not eligible for McKinney-Vento on arrival, or eligible as long as they are staying at their first placement. If they leave that placement and become doubled up or in a motel, then they would be eligible.

Refugees: Pretty much the same as above. As long as they are in their first placement they are not eligible. If they then move from that situation into one that meets MV they are eligible.

Does this general approach make sense? And is it any different for immigrants that are not sponsored?

Full Answer: As general rules, these seem right. However, like you said, there aren’t clear answers, and it always depends on the individual situation and whether the students have a fixed, regular and adequate nighttime residence.

Below are some examples when sponsored immigrants could be eligible even while they are with their original sponsors.

Sometimes unaccompanied immigrant children are placed with sponsors that are totally inappropriate.  We have seen them placed with people who are labor trafficking them, for example.  Clearly that’s not a fixed, regular, adequate residence, and those children are McKinney-Vento eligible.

Other times they are placed with sponsors who themselves meet the McKinney-Vento definition of homeless (doubled up or in a motel, usually). Again, those children are McKinney-Vento eligible, even in their initial placement.

We don’t think the sponsorship actually matters very much.  It really depends on the living situations.  Sponsors supposedly have some level of legal responsibility for the children placed with them, but they definitely do not have guardianship, and there is little if any monitoring of how sponsors treat the children or even whether the children continue to live with the sponsors.  So, sponsorship – in terms of McKinney-Vento eligibility – is irrelevant.  It would depend on the living situation.

Family preparedness plans are available in English, Spanish and Chinese here.

Child care funded through the Child Care and Development Fund is available to children who are citizens, regardless of the parents’ immigration status. “The final rule adds paragraph (c), clarifying that only the citizenship and immigration status of the child, the primary beneficiary of CCDF, is relevant for the purposes of determining eligibility under [the Personal Responsibility and Work Opportunity Reconciliation Act of 1996] and that a Lead Agency, or other administering agency, may not condition eligibility based upon the citizenship or immigration status of the child’s parent.” This regulation is available here.

Child care funded under TANF or another program may have requirements related to the parent’s immigration status. More information is available here.

Plyer v. Doe applies to public schools and public education. Some community or supplemental programs may require legal immigration status or documents and may be unavailable to undocumented students. For example, undocumented students may not be able to access vocational programs that require work authorization, or driver’s education and/or programs that require a driver’s license (in states where undocumented individuals cannot get driver’s licenses).

Colleges may be asking students to complete the FAFSA in order to determine eligibility for state financial aid. In CA, MN, NM, TX and WA, undocumented students are eligible for state aid. Most states use the FAFSA to determine eligibility for state aid, so they may ask students to complete the form for that reason. In addition, some colleges offer institutional aid to undocumented students and may use the FAFSA to determine eligibility for that aid.

In any case, students must have a valid Social Security number to complete the FAFSA. Students should never put false Social Security numbers, for themselves or their parents, on the FASFA. More information on this topic is available here.

Immigration status does not affect compulsory school attendance. Any child and youth subject to compulsory attendance must attend school under the conditions of the state law, regardless of immigration status.

No, it does not violate Plyler vs. Doe, as long as it does not result in parents or students being wary or afraid to enroll in school. Many school districts ask about birth country as part of providing services (and receiving federal funds) under the Title III Immigrant Education Program. Requiring an answer to that question as a condition of enrollment or receiving services may violate Plyler vs. Doe because it may deter immigrant parents and youth from enrolling in school. And of course this information would be part of the student’s educational record and cannot be released without the parent’s consent (unless an exception applies under the Family Educational Rights and Privacy Act).