421-4        FIVE YEAR WAITING PERIOD

 

Qualified aliens who entered the U.S. on or after August 22, 1996 cannot receive APA benefits until they have been in the U.S. for five years or until they become U.S. citizens. (See APA MS 421-4 E for more information once individual's have met the five-year waiting period.)

 

When the five-year waiting period begins depends upon the date the alien physically entered the U.S.  Aliens who arrived before August 22, 1996 may not be subject to the five-year waiting period.  Apply the five-year waiting period as follows:

 

 

A. QUALIFIED ALIEN ARRIVING ON OR AFTER 8/22/96

 

An alien who physically arrived and was lawfully admitted to the United States on or after August 22, 1996, must be evaluated for qualified alien status.  If the alien was admitted as a qualified alien, and is subject to the five-year waiting period, the period starts from the date the alien physically arrived in the U.S.

 

B. NON-QUALIFIED ALIEN ARRIVING ON OR AFTER 8/22/96

 

A non-qualified alien who physically arrived in the United States on or after August 22, 1996, must obtain qualified alien status before the five-year waiting period begins.  The five year waiting period begins on the date the non-qualified alien obtains qualified alien status, not the date they physically arrived in the U.S.

 

C. ALIEN ARRIVING BEFORE 8/22/96

 

An alien who physically arrived in the United States before August 22, 1996, but obtained qualified alien status on or after that date is not subject to the five-year waiting period as long as he or she remained continuously present in the U.S.  Any single absence from the United States of more than 30 days, or a total aggregate of absences of more than 90 days, is considered to interrupt continuous presence.  However, once an immigrant obtains qualified alien status, he or she does not have to remain continuously present in the United States in order to avoid application of the five-year waiting period.  This rule also applies to aliens who entered the country without proper documentation and those who overstayed their visa.

 

For most legal entrants, the U.S. Citizenship and Immigration Services (USCIS) maintains a record of arrivals to and departures from the country.  Verification of continuous presence may be obtained for most legal entrants by filing Form G-845 and Form G-845-Supplement with the USCIS.  

 

The USCIS does not maintain an arrival and departure record for some entrants, such as Canadian and Mexican border crossers, and illegal entrants.  In this situation, the alien must submit proof of his or her claimed date of entry and documentation showing proof of continuous presence, such as a letter from an employer or series of pay stubs or utility bills in the immigrant’s name.

 

D.  ALIENS EXEMPT FROM THE FIVE-YEAR WAITING PERIOD

 

The following qualified aliens are exempt from the five-year waiting period:
 

  1. Refugees admitted under Section 207 of the Immigration and Naturalization Act (INA);

  2. Asylees admitted under Section 208 of the INA;

  3. Aliens whose deportation is being withheld under sections 241(b)(3) or 243(h) of the INA;

  4. A Cuban/Haitian entrant as defined in section 501(e) of the Refugee Education Assistance Act of 1980;

  5. Aliens admitted to the U.S. as an Amerasian immigrant;

  6. Qualified aliens who are honorably discharged U.S. military veterans, active-duty military, and their spouses (including a surviving spouse who has not remarried), and unmarried dependent children (including dependent stepchildren);

     

Note: 

Hmong and other Highland Lao tribal people who fought on behalf of the Armed Forces of the United States during the Vietnam conflict and who have been lawfully admitted to the U.S.  as permanent residents are considered veterans exempt from the five-year waiting period under this paragraph.

 

  1. Victims of trafficking under section 107(b)(1) of the Trafficking Victims protection Act of 2000, including certain family members of victims of a severe form of trafficking.

  2. Legal permanent residents who first entered the country under an exempt category (i.e. as a refugee, asylee, Cuban or Haitian entrant, trafficking victim, or alien whose deportation was being withheld) and who later converted to legal permanent resident status.

  3. Members of a federally recognized Indian tribe, as defined in 25 USC 450b(e).

  4. American Indians born in Canada under section 289 of the Immigration and Nationality Act.

  5. Special immigrants from Iraq and Afghanistan admitted under section 101(a)(27) of the INA .

 

 E.  INDIVIDUALS WHO ARE AT THE END OF THE FIVE-YEAR WAITING PERIOD

 

An individual who applies for assistance is not eligible until they have met all eligibility requirements, including the five-year waiting period.  

 

 

Example:

Maria submitted an application for benefits on May 21, 2011.
  She entered the country on June 2, 2006.  She is not eligible for benefits until she has met the five-year waiting period.  Maria meets the five-year waiting period as of June 2, 2011.  She is eligible for benefits effective June 2, 2011.  Maria’s May 21, 2011 application is denied first month and a new benefit start date of June 2 is used.

 

 

 

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MC #33 (3/12)