Indigence Exception Rule (for I-864 only)

THIS RULE ONLY APPLIES TO THE AFFIDAVIT OF SUPPORT (I-864). THE INDIGENCE EXCEPTION MUST BE RENEWED EVERY YEAR.

General Information

Generally, if an immigrant’s sponsor signs the “Affidavit of Support” (I-864), the income and resources of the sponsor (and the sponsor’s spouse if living in the same household) are deemed to the immigrant for purposes of determining CAPI eligibility. If an immigrant is no longer being provided with support by his or her sponsor, and as a result, the immigrant is unable to provide him/herself with both shelter and food, this rule is suspended under the “Indigence Exception.”

When deeming is suspended under the Indigence Exception, the only income from the sponsor that is counted is:

• Actual monies (cash) received directly from the sponsor, and
• In-kind income that the immigrant actually receives from the sponsor.

When the Indigence Exception does NOT Apply

The Indigence Exception does NOT apply when:

• The immigrant lives with his or her sponsor, or
• The immigrant lives with someone other than the sponsor, and receives free room AND board, even if the immigrant’s income is less than the SSI rate.
• The immigrant lives independently and receives free room and board (or the gift of money with which to purchase room and board).

Criteria for the Indigence Exception Rule

ALL of the following criteria MUST be met before the Indigence Exception rule can apply:

• Sponsor-deeming would result in (or it is determined that it would result in) a denial, suspension, or reduction of CAPI benefits; AND
• The immigrant is unable to obtain both food and shelter, AND
• The immigrant completes and signs the “Cash Assistance Program for Immigrants (CAPI) Indigence Exception Statement” (SOC 809), AND
• The EW determines that the indigence exception applies.

The indigence exception rule applies for 12 months and sponsor deeming shall not occur in the twelve-month period. After that, sponsor deeming will apply unless a new indigence exception has already been evaluated and granted.

Reminder: This rule does not apply when the CAPI client fails to provide sponsorship verification. Refer to Verification of Sponsor Information for details.

Sponsor Deeming Results in a Denial, Suspension, or Reduction of CAPI Benefits

In order for the Exception Rule to apply, the amount of the sponsor’s income deemed to the sponsored immigrant MUST result in a:

• Denial
• Suspension, or
• Reduction of CAPI benefits.

The determination can be made by completing the “Cash Assistance Program for Immigrants (CAPI) Sponsor to Alien Deeming Worksheet” (SOC 454). Since most of the CAPI clients who claim to be indigent will not be able to obtain any verification from their sponsor, the actual denial, suspension or reduction need not take place. The completion of the SOC 454 will suffice for this requirement.

ExampleExample

Determining if the Noncitizen is Unable to Obtain Food and Shelter

If the noncitizen is living apart from his or her sponsor and not receiving free food and shelter in another person’s household, the noncitizen shall be considered unable to obtain food and shelter if:

• The total gross income that the noncitizen receives from all sources is less than the federal SSI Individual rate if the noncitizen is not living with his or her spouse, or the federal SSI Couple rate if the non-citizen is living with his or her spouse, and
• The resources available to the noncitizen and noncitizen spouse are less than the applicable CAPI resource limit.

The total gross income and available resources counted for the purpose of determining whether the noncitizen is unable to obtain food and shelter consist of:

• All of the noncitizen’s own income (including income normally excluded such as General Assistance) and resources (including liquid resources normally excluded such as burial funds);
• The income and resources of the non-citizen’s spouse (if living together) or parent(s) (if living with the minor noncitizen); and
• Any cash assistance provided by other individuals or agencies (including the sponsor).

Reminder: The indigence exception applies for a 12-month period. The period begins whenever all of the conditions are met and runs for 12 consecutive months (including nonpayment months).

• If the noncitizen is receiving free shelter and also receiving free food from another persons’ household, the noncitizen is not eligible for the Indigence Exception deeming rule. The Indigence Exception request must be denied and the CAPI application must be processed as a regular CAPI sponsored application. The “Sponsor’s Statement of Facts Income and Resources” form (SOC 860) is required.

Indigence Exception Required Forms

As part of the indigence exception, CAPI regulations specifically require that the county obtain a signed statement from the sponsor(s) regarding the sponsor’s income and resources. In addition, the immigrant- applicant/recipient must provide information regarding the amount of support received from the sponsor.

The following forms are used for the determination of CAPI Indigence Exception:

Cash Assistance Program for Immigrants Indigence Exception Statement (SOC 809)

The immigrant must complete and sign the SOC 809 to declare the level of support he/she receives from the sponsor. The EW must attempt to corroborate the client’s allegations documented in the SOC 809 by contacting the sponsor by telephone and must document this attempt and its outcome in a Journal Entry. However, a request for indigence exception must not be denied solely based on sponsor unavailability or sponsor noncooperation with verification attempts.

Note: If the client is unable to provide the sponsor's telephone number, or if the EW attempts to contact the sponsor but is unable to reach out to him/her, or the sponsor refuses to provide information, the EW must accept the clients allegations regarding sponsor support (or lack thereof) as indicated on SOC 809, and grant indigence exception.

The SOC 809 expires 12 months after it is signed and must therefore be completed at each CAPI eligibility redetermination conducted in a case where the indigence exception applies.

Cash Assistance Program for Immigrants Statement of Household Expenses and Contributions (SOC 453)

The clients living arrangements MUST be verified. If the client does not reside alone, an SOC 453 must be obtained to determined if the client is paying his/her pro-rata share.

Cash Assistance Program for Immigrants (CAPI) Sponsor to Alien Deeming Worksheet” (SOC 454).

This for is used to calculate the amounts of income/resources from the sponsor(s) to the CAPI applicant/recipient.

Indigence Exception Determination Form (SOC 813)

As part of the indigence exception, CAPI regulations specifically require a completed a “CAPI Indigence Exception Determination” form (SOC 813). The information obtained from all the Indigence Exception required forms will aid in the completion of the SOC 813.

NOTE: This form must be completed in its entirely. Non-applicable fields are to be completed with “N/A.”

Completing the SOC 813

To avoid any confusion when the form is reviewed by the California Department of Social Services, the instructions below should be followed:

Top Section of Form

• Select only one of the boxes for “Initial Claim” and “Redetermination”
• If an application for indigence exception was previously denied and the individual is now reapplying, please use the “Initial Claim” box.

County Identification

• It must be completed to allow CDSS to identify the county completing the form (for statistical purposes and to facilitate any necessary clarifications). The SOC 813 in the DEBS Library has been pre-populated with the name of the county’s.

Name(s) of Applicant(s) or Recipient(s) and Spouse

• The “Spouse” field must only be used for CAPI couples. If only the wife or only the husband is applying for or receiving the indigence exception, counties should leave the “spouse” field blank (even if applicant/recipient is married).

Case Number(s)

• For CAPI Couples, only one single form (SOC 813) should be used, even if a separate case number is assigned for each spouse. The case number for each spouse should be listed.

Sponsor(s) Name(s)

• The name of each sponsor must be listed on a separate line. If the applicant or recipient has three or more sponsors, an additional form should be attached.

Section A - Living Arrangements

• Only one box should be checked for items 1and 2.

  • Note: If applicant “Lives with Sponsor” or “Lives with others and receives free shelter and food,” the Indigence Exception does not apply (skip directly to Section D).

• Only one box must be checked for items 3, 4, 5, or 6
• Box #3 should not be checked if the total income and resources in section B is zero. A CAPI applicant cannot pay for room and board without the means to do so. Checking Box #3 is an indication that the EW has verified that the applicant does in fact have sufficient income and/or resources to pay for room and board.
• Box #4 should be checked if applicant lives independently, and the comments field in Section D should be used to describe how the applicant obtains food and shelter.

  • IMPORTANT: Box #4 should not be checked if “Total income from all sources” in Section B is zero. A CAPI applicant cannot live independently without the means to do so.

• Box #5 should be checked if the applicant lives with others and receives free room and board. The EW must skip directly to Section D. The indigence exception does not apply.
• Box #6 should be selected if the applicant/recipient is homeless.
• Do not select box #4. [See “Homeless Individuals Claiming Indigence Exception” on page 24.].

Section B: Monthly Income

• Redeterminations Only section - In this field, the recipient’s current monthly CAPI payment should be listed. If the form is being submitted for a CAPI couple, then the entire amount of CAPI received monthly by both spouses would be listed here.
• All Cases – This area is to be completed for both initial cases and redeterminations.
• All applicable lines must be completed accordingly. Non applicable lines must be marked with N/A.

  • NOTE: The total cash and in-kind contributions from others includes all non-CAPI public cash benefits such as GA/GR and CalWORKs. Do not include CalFresh and housing subsidies (i.e., any housing assistance provided by non-profit organizations, federal, state or local government).

• Total Income from all Sources - This is the sum of all figures in the lines 1, 2, and 3.
• Federal SSI Rate – If both spouses are applying for CAPI, use the couples’ rate.

Section C: Resources

• Resources include any cash or liquid assets or real or personal property owned by the applicant (or owned by the applicant’s spouse) that could be converted to cash to be used for the applicant’s support and maintenance. For purposes of the indigence exception, in-kind items should be evaluated at their actual value, not the presumed maximum value.
• All applicable lines must be completed accordingly. Non applicable lines must be marked with N/A.

Section D: Comments

• A brief narrative must be entered describing the reasons of the county’s decision as to whether to grant or deny the indigence exception. It must include a brief description of the individual’s living situation and any other significant information relevant to he determination; such as; Inter-county transfer, application upon release from skilled nursing facility, living in a motel room, etc.

ExampleExample

ExampleExample

Note: The CDSS will not accept forms on which the Comment section is left blank.

Federal SSI resource limit – For spouses who are both applying for CAPI, the couples’ rate should be used. The individual rate should be used for those who are applying for CAPI as an individual only, whether or not the applicant is married.

Bottom Section

• One box must be checked to indicate if the Indigence Exception “does” or “does not” apply.

  • NOTE: CDSS will NOT accept any SOC 813 if neither box is checked or if both boxes are checked.

Where to send the completed SOC 813

A copy of the “Indigence Exception Determination” (SOC 813) to USCIS and CDSS as follows:

• Approved SOC 813s must be sent to:
  • U.S. Citizenship and Immigration Services (USCIS) - Office of Program and Regulation Development
• Approved and Denied SOC 813s must be send to:
  • California Department of Social Services - Adult Program Division - Benefits Program Unit

Reminder: The indigence exception rule applies for a full 12 months period and sponsor deeming shall not occur in the 12 month period. 

After that, sponsor deeming will apply unless a new indigence exception has already been evaluated and granted. A new set of forms is required every year.

Homeless Individuals Claiming Indigence Exception

An applicant for the indigence exception should be considered homeless if he or she “is an individual with no permanent living arrangement, i.e., no fixed place of residence.”

ExampleExample

When completing the CAPI Indigence Exception Determination form (SOC 813), box# 6 of Section A: Living Situation should be checked.

Indigence Exception vs Sponsor Deeming

For the indigence exception to apply, sponsor deeming must result in denial, suspension or reduction of CAPI benefits. In reviewing the SOC 809 completed by the noncitizen, the EW must determine whether applying sponsor deeming would have this result.

Example 1Example 1

Example 2Example 2

Income

When determining if the immigrant’s income is below the Federal SSI rate, ALL the immigrant’s following income must be counted when determining if the immigrant is unable to obtain food and shelter:

• The immigrant’s own income (including income that was excluded when determining CAPI, such as General Assistance and Food Stamps); AND
• The income of the immigrant’s spouse (if living together) or parents (if living with the minor immigrant); AND
• Any cash, food, housing, or other assistance provided by the other individuals or agencies (including the sponsor).

Note: In-kind support and maintenance should be counted at its actual value, not the PMV.

If the total income is less than the SSI benefit rate, then the amount of the immigrant’s resources must be calculated to determine if he/she is under the resource limit.

Resources

The following resources must be counted when determining if the immigrant is unable to obtain food and shelter:

• All liquid resources, even excluded liquid resources such as burial funds.
• The sponsor’s resources.

Note: A sponsor’s resources are considered to be the immigrant’s ONLY if the immigrant has an ownership interest in them, can convert them to cash, and is NOT legally restricted from using them.

Loans to the Applicant or Recipient of Indigence Exception

An applicant/recipient with little or no income or resources who claims to pay for shelter and food with borrowed funds, must provide a detailed documentation regarding the loan arrangements in order for the EW to determine whether this is truly a loan that must be repaid (a “genuine loan”) or whether this is actually a gift (applicant is receiving free room and board or funds to purchase shelter and food) and therefore would not qualify for the indigence exception.

The three-step process below must be followed to determine whether an applicant/recipient claiming to be supported by loans qualifies for the indigence exception rule.

STEP 1: Obtain a Written Statement from the Lender

The written statement from the lender must indicate:

• The amount of money borrowed,
• A detailed description of any repayment arrangements established and
• Whether the lender resides with the applicant.

Note: The Eligibility Worker is entitled to disbelieve statements of the lender or claimant when these contradict other evidence available to the county.

It is the responsibility of the applicant/recipient to obtain the required verification. If the applicant/recipient fails to supply a written statement from the lender, CAPI benefits must be denied or terminated.

STEP 2: Determine if the Loan is Genuine

The EW must determine whether the loan is genuine and must be repaid or if it is actually a gift. The following criteria must be used for the determination of a genuine loan:

• The obligation to repay
  • The lender and the borrower must acknowledge in the written statement the obligation to repay, and the written statement must be signed by both, the lender and the borrower.
• The loan must be unconditional
  • The loan must be repaid under any circumstances (not conditionally), and there must be reasonably likelihood of repayment.

Conditional Loan

A conditional loan is not a genuine loan because it must be repaid only if certain conditions occur; in other words, if the conditions do not occur, the loan need not be repaid. For example, if the lender’s affidavit contains statements such as “I would like her to pay me back” - this indicates a preference rather than loan terms that will be enforced, or “he must start paying rent after his CAPI is approved” indicates that applicant will likely not be required to repay the loan if CAPI is denied.

No Reasonable Likelihood of Repayment

For a loan to be genuine, repayment must be feasible. The facts must show that the individual can repay the loan using his or her own resources and income. For example, if an applicant who reports zero income and resources has, based on all evidence available to the county, little or no funds with which to repay the loan the EW may determine that, in the absence of CAPI, there is no reasonable likelihood that the loan will ever be repaid. Therefore, the repayment of the loan is not feasible, and there is no likelihood of repayment.

The EW is entitled to disbelieve the lender’s assertion that the loan must be repaid and to determine that the loan is not genuine, but is in fact a gift of free shelter and food.

NOTE: A loan of food and shelter, or money loaned for the purposes of purchasing food and shelter, is to be considered a gift if:

• The loan need not be repaid, or

• The loan cannot reasonably be expected to be repaid, or

• The loan must only be repaid under certain conditions (such as if CAPI is granted).

Step 3: Complete the SOC 813 Indigence Exception Determination Worksheet

Once a determination of a genuine loan is done, the SOC 813 must be completed accordingly:

Section A - Box #3 (lives with other and pays room and board) or Box #4 (lives independently) should be checked. Section D should include details regarding the applicant/recipient’s living arrangements.

Section B and C - should be used to determine whether the applicant or recipient is able to obtain both shelter and food.

The value of a genuine cash or in-kind loan must be listed in the SOC 813 as the applicant/recipient’s own income/resources for the purpose of determining a CAPI applicant’s ability to purchase shelter and food.

Note: Borrowed funds are not considered income to the applicant. The information in the SOC 813 is only use for the determination of Indigence Exception and it does not affect the information provided in the SOC 814.

Loan vs Gift

A loan that is not genuine, should be considered a gift.

When the applicant/recipient’s needs for shelter and food are satisfied by gifts of in-kind food and shelter or by money provided for the purchase of food and shelter, the CAPI applicant/recipient is ineligible for the indigence exception.

The indigence exception applies only when the applicant or recipient is unable to obtain both food and shelter.

Reminder: The Indigence Exception does NOT apply when:

• The immigrant lives with his or her sponsor, or

• The immigrant lives with someone other than the sponsor, and receives free room AND board, even if the immigrant’s income is less than the SSI rate.

• The immigrant lives independently and receives free room and board (or the gift of money with which to purchase room and board).

Indigence Exception Procedures

Eligibility Worker must follow the procedures below when processing CAPI indigence Exception cases:

Note: Under NO circumstances is the Indigence Exception Rule to be granted until ALL of these steps are followed.

 

1. EW
   1. Obtain the completed required form SOC 809.
   2. Determine Indigence Exception eligibility.
   3. Complete the “Indigence Exception Determination” form (SOC 813).

      1. Note: Incomplete or incorrect forms will be returned to the county

   4. Scan the SOC 813 to Imaging.
   5. Forward the SOC 813 to the appropriate entity. [Refer to "Referrals to the USCIS" section below].

Duration of the Indigence Exception

When the criteria for this exception is met, deeming is suspended for 12 consecutive months. The 12 month period can begin at any time when all of the conditions are met. It can be effective with the first of the month of eligibility, or in any subsequent month. All required CAPI Indigence Exception forms must be completed when re-evaluating eligibility.

The indigence exception rule applies for 12 months and sponsor deeming shall not occur in the 12 month period. After that, sponsor deeming will apply unless a new indigence exception has already been evaluated and granted.

ExampleExample

Mrs. Trent, an immigrant whose sponsor has executed a new “Affidavit of Support” (I-864), alleges during her initial CAPI interview on October 10, 2015, that her sponsor gives her only $350 per month in cash and no other support. Mrs. Trent lives alone. The sponsor verifies her allegation. The EW determines that the criteria for the indigence exception is met because she doesn’t live with her sponsor, does not receive free room AND board from anyone else, and her income is less than the SSI rate. The first payment takes effect on November 1, 2015. The Indigence Exception period is from November 2015 until October 2016.

Effective January 2016, the sponsor receives an increase in pay, and begins to pay the sponsored immigrant $550 a month. This amount would put her over the SSI Federal Benefit Rate, however sponsor deeming continues to be suspended until October 2016. At this time, the amount of the CAPI grant MUST be recalculated and the new lower amount issued.

Treatment of Income and Resources

When deeming is suspended under this exception, the usual income and resource policies are applied. However, the following changes are applied for the sponsor’s income and resources:

Income

ONLY income that the non-citizen actually receives from the sponsor/sponsor’s spouse is counted for CAPI purposes. Under the Indigence Exception, if the sponsor/sponsor’s spouse provides NO income or support, then NO income is counted.

Resources

Resources owned by the sponsor/sponsor’s spouse are ONLY considered to be the immigrant’s resources if the immigrant:

• Has an ownership interest in them, AND
• Has the right, authority, or power to convert the resource to cash; AND Is NOT legally restricted from using the resources for his or her support.

Referrals to the United States Citizenship and Immigration Services (USCIS)

The USCIS tracks the failure of sponsors to adequately support those sponsored. It is required under 8 U.S. Code, Section 1631(e)(2) that USCIS be notified in EVERY case where the indigence exception applies. When the EW approves the Indigence Exception that allows CAPI eligibility, the county MUST notify USCS of that fact and send a copy of the notification to the CDSS.

The California Department of Social Services also keeps track of the completion of the CAPI Indigence Determination form (SOC 813). All completed SOC 813s whether approved or denied must be sent for state review.

The EW must send a copy of the “Indigence Exception Determination” (SOC 813) to USCI and CDSS as follows:

USCIS

Send all approved SOC 813s to:
Office of Program and Regulation Development
U.S. Citizenship and Immigration Services
20 Massachusetts Avenue NW
Washington, DC 20529-0001

 

CDSS

Forward all (approved and denied) SOC 813s as follows:
By email at: soc813@dss.ca.gov. (prefer method).
or if needed, by U.S. mail to:
California Department of Social Services
Adult Programs Division,
Benefit Programs Unit
744 P Street, M. S. 9-11-91
Sacramento, CA 95814-6413

 

Note: The SOC 813 must be completed entirely. Not applicable fields must be marked with N/A. Incomplete or incorrect forms will be returned to the county.

Reminder: The form is required as part of CAPI intake and annual redetermination.

Related Topics

Sponsor Deeming