TN 12 (05-05)

SI 00502.108 SSI Eligibility For Cuban/Haitian Entrants

A. Introduction

This section is organized as follows:

Subsection

Topic

Additional Information

SI 00502.108A.

Introduction

Effect of Balanced Budget Act of 1997 on SSI eligibility for Cuban/Haitian entrants

SI 00502.108B.

Policy - who is a “Cuban/Haitian entrant” or in a status that is to be treated as a Cuban/Haitian entrant

Describes the categories of Cuban/Haitian entrants

NOTE: this includes instructions for LAPRs under CAA66, NACARA, and HRIFA

SI 00502.108C.

Policy - final, non-appealable and legally enforceable order of removal

Effect on status as Category 2(A), 2(B), and 2(C) Cuban/Haitian entrant

SI 00502.108D.

Policy - exception conditions that permit SSI eligibility for Cuban/Haitian entrants

Discusses exception conditions that permit eligibility for qualified aliens as they apply to Cuban/Haitian entrants

SI 00502.108E.

Policy - exemption from the five-year bar on eligibility

 

SI 00502.108F.

Policy - eligibility for certain other nationals of Cuba or Haiti

Effect on status as a Cuban/Haitian entrant for aliens covered by other immigration laws: IRCA and parole under 212(d)(5) of the INA.

SI 00502.108G.

Examples

 

SI 00502.108H

References

 

The Balanced Budget Act of 1997 (BBA 97) created four policies concerning SSI eligibility for “Cuban/Haitian entrants” as defined in Section 501(e) of the Refugee Education Assistance Act of 1980 (REAA 80). These policies are:

1. Qualified Alien Status

Under section 5302(c) (3) of the BBA 97 “Cuban/Haitian entrants” as defined in section 501(e) of the REAA 80 are qualified aliens. See SI 00502.108B. for who is a Cuban/Haitian entrant or who has a status that is to be treated as a “Cuban/Haitian entrant” for SSI purposes.

The qualified alien status for a “Cuban/Haitian entrant” is fully retroactive to the date the alien first became a “Cuban/Haitian entrant.” For example, if an alien entered the U.S. on 5/16/80 in one of the “Cuban/Haitian entrant” categories described in SI 00502.108B., then he or she is a “Cuban/Haitian entrant,” and thus a qualified alien, beginning 5/16/80.

A “Cuban/Haitian entrant” may be eligible for SSI if he/she meets one of the conditions that permit eligibility for qualified aliens in SI 00502.100A.3. These conditions are repeated in SI 00502.108D. of this section as they relate to “Cuban/Haitian entrants.”

2. Lawful Presence/Lawfully Residing in the United States

As qualified aliens, “Cuban/Haitian entrants” as defined in section 501(e) of the REAA 80 are considered to be lawfully present in the U.S. under DHS regulation at 8 CFR §103.12(a)(1) for the purposes of determining whether an alien is lawfully residing in the U.S. If a “Cuban/Haitian entrant” also meets the residency requirement in GN 00303.720, then he or she is “lawfully residing” in the U.S.

Lawfully residing in the U.S. is relevant for three of the conditions that permit SSI eligibility for qualified aliens:

  • Certain U.S. military personnel and their dependents (SI 00502.140);

  • Aliens who were receiving SSI on 8/22/96 and are lawfully residing in the U.S. (SI 00502.150); and

  • Blind/disabled aliens who were lawfully residing in the U.S. on 8/22/96 (SI 00502.142).

A national of Cuba or Haiti who is currently in a qualified alien category other than “Cuban/Haitian entrant” (e.g., LAPR) may have been a “Cuban/Haitian entrant” at some point in the past. If the alien was a “Cuban/Haitian entrant” on 8/22/96 and also met the U.S. residency requirement on that date, then he/she was “lawfully residing in the United States on 8/22/96.” If such an alien is also blind or disabled, then he/she meets the exception condition that permits eligibility in SI 00502.142.

NOTE: See SI 00502.108F. for SSI eligibility considerations for a special category of nationals of Cuba or Haiti who may not be “Cuban/Haitian entrants” under the REAA 80, but are nevertheless considered to be lawfully present under DHS' regulation at 8 CFR §103.12(a)(4)(iii).

3. Seven-Year Time-Limited Eligibility Category

Under section 5302(a) of the BBA 97, a national of Cuba or Haiti may be eligible for a maximum of 7 years from the date he or she first became a “Cuban/Haitian entrant,” or was granted a status and is to be treated as a “Cuban/Haitian entrant” for SSI purposes provided he or she filed for SSI within 7 years of that date. See SI 00502.108D.2. for a full discussion of the 7-year limited eligibility rule as it relates to Cuban/Haitian entrants.

NOTE: Not all “Cuban/Haitian entrants” are subject to the 7-year time limit. See SI 00502.108D.1. and the example in SI 00502.108G.1.

4. Exemption from the 5-Year Bar on Eligibility for Aliens Who Enter the U.S. On or After 8/22/96

Under section 5302(c) (1) of the BBA 97, a national of Cuba or Haiti who is a “Cuban/Haitian entrant” is exempt from the 5-year bar on eligibility for aliens who enter the U.S. on or after 8/22/96. See SI 00502.108E. for more information about the exemption from the 5-year bar for Cuban/Haitian entrants.

B. Policy - Who Is a “Cuban/Haitian Entrant”

The Department of Homeland Security (DHS) recognizes several different categories of aliens from Cuba or Haiti who meet the definition of a “Cuban/Haitian entrant” as defined in Section 501(e) of the REAA 80 for the purposes of determining qualified alien status and SSI eligibility. In order to be a “Cuban/Haitian entrant”, an alien must be a national of Cuba or Haiti and meet the requirements for one of the categories listed in SI 00502.108B.1. through SI 00502.108B.4.

IMPORTANT: In addition, based on recent litigation and in the absence of definitive guidance from the immigration authorities, SSA will now consider nationals of Cuba or Haiti who adjusted to LAPR status under the Nicaraguan and Central American Relief Act (NACARA) or the Haitian Refugee Immigration Fairness Act (HRIFA) to be “Cuban/Haitian entrants” by virtue of the adjustment to LAPR status. See SI 00502.108B.5. for a complete discussion of this provision. Also, nationals of Cuba or Haiti who adjusted to LAPR status under the Cuban Adjustment Act of 1966 (CAA66) should be treated as a “Cuban/Haitian entrant” by virtue of the adjustment to LAPR status for the purposes of establishing SSI eligibility. See SI 00502.108B.6., for a complete discussion of this provision.

All SSI claims that were previously held in accordance with Transmittal 11 issued in March 2005 should now be worked according to these new policies. In addition, the Appeals Council (AC) will issue new decisions favorable to the claimants based on these policies for any case where the AC had previously reversed a favorable ALJ decision to a denial based on the earlier more restrictive definition of who is a “Cuban/Haitian entrant.”

NOTE: A future POMS transmittal will address how to handle cases that were previously denied per the earlier more restrictive definition of “Cuban/Haitian entrant” and were administratively final before the “hold” instructions in transmittal 11 in March 2005 were issued.

IMPORTANT: If the alien meets more than one “Cuban/Haitian entrant” category in SI 00502.108B.1. through SI 00502.108B.6., the earliest date the alien meets any of these categories is controlling for determining SSI eligibility; including the beginning of the 7-year period for time-limited eligibility.

The categories of “Cuban/Haitian entrants” are as follows:

1. Category 1

There are two subcategories of Category 1 Cuban/Haitian entrants:

  • Subcategory A: Classified as “Cuban/Haitian Entrant (Status-Pending)” under the INA on or after 4/21/80; or

  • Subcategory B: Paroled into the U.S. on or after 10/10/80; or

    EXCEPTION: An alien is not a Category 1, Subcategory B “Cuban/Haitian entrant” if the alien he or she:

    • Was paroled into the U.S. in the custody of a Federal, State, or local law enforcement or prosecutorial authority; and

    • The parole was for purposes of criminal prosecution in the U.S. or solely to testify as a witness in proceedings before a judicial, administrative or legislative body in the U.S.

IMPORTANT: An alien in Category 1, Subcategory A or B retains status as a Category 1 “Cuban/Haitian entrant” regardless of any subsequent changes in immigration status. Thus, it is possible for an alien to be a Category 1 “Cuban/Haitian entrant” and LAPR at the same time. However, it is possible for a Category 1 “Cuban/Haitian entrant” (either subcategory) to lose SS I eligibility if one of the situations in SI 00502.100A.6.b. through SI 00502.100A.6.d. applies.

2. Category 2(A)

Alien is in parole status, has not acquired any other status under the INA, and is not subject to a removal order that is final, non-appealable, and legally enforceable. (See SI 00502.108C. for information about orders of removal.)

3. Category 2(B)

Alien is the subject of removal proceedings under the INA, and is not subject to a removal order that is final, non-appealable and legally enforceable. “Removal proceedings” include deportation, exclusion, or removal proceedings. (See SI 00502.108C. for information about orders of removal.)

NOTE: If the alien has an asylum application pending before the Executive Office for Immigration Review (EOIR) rather than before DHS, then he/she may be a Category 2(B) Cuban/Haitian entrant, but not a Category 2(C) Cuban/Haitian entrant.

4. Category 2(C)

Alien has an application for asylum pending with DHS, and is not subject to a removal order that is final, non-appealable, and legally enforceable. (See SI 00502.108C. of this section for information about orders of removal.)

NOTE: An alien with an asylum application pending before the EOIR is not a Category 2(C) Cuban/Haitian entrant, but may be a Category 2(B) Cuban/Haitian entrant.

5. LAPRs under NACARA or HRIFA (New Category)

IMPORTANT: In addition to the categories listed in SI 00502.108B.1. through SI 00502.108B.4. that are recognized by DHS, we will now consider a national of Cuba or Haiti who adjusts to LAPR status under NACARA or HRIFA to be a “Cuban/Haitian entrant” by virtue of such adjustment.

a. Special Coding for Award

If the alien is allowed as a Cuban /Haitian entrant based solely on LAPR status under NACARA or HRIFA, code the award input such that the Case Characteristics (CG) field of SSR shows “CH01.” Refer to SM 01301.820 and SM 01601.460C.1. for the CG field of the SSR. See MSOM MSSICS 023.006 for coding the Miscellaneous Data (CMSC) in MSSICS.

b. NACARA

The Nicaraguan Adjustment and Central American Relief Act (NACARA) allowed certain aliens, including certain nationals of Cuba, to adjust to LAPR status.

Evidence of Adjustment to LAPR Status under NACARA

An alien who presents a DHS document such as an I-551 or a temporary I-551 stamp in a foreign passport with one of the following codes has adjusted to LAPR under NACARA:

NACARA Code

Meaning

NC6

Nicaraguan or Cuban granted LAPR

NC7

Spouse of a NC6 granted LAPR

NC8

Child of a NC6 granted LAPR

NC9

Unmarried son or daughter of NC6 granted LAPR

See SI 00502.115E.9. for how to verify status as a Cuban/Haitian entrant based on adjustment to LAPR under NACARA.

c. HRIFA

The Haitian Refugee Immigration Fairness Act (HRIFA) allowed certain nationals of Haiti to adjust to LAPR status.

Evidence of Adjustment to LAPR Status under HRIFA

An alien who presents a DHS document such as an I-551 or a Temporary I-551 stamp in a foreign passport with one of the following codes adjusted to LAPR under HRIFA:

HRIFA Code

Meaning

HA6

Haitian granted LAPR under HRIFA section 902(b)(1)(A)

HA7

Spouse of HA6

HA8

Child of an HA6

HA9

Unmarried son or daughter of HA6

HB6

Haitian granted LAPR under HRIFA section 902(b)(1)(B)

HB7

Spouse of HB6

HB8

Child of HB6

HB9

Unmarried son or daughter of HB6

HC6

Haitian granted LAPR under HRIFA section 902(b)(1)(C)

HC7

Spouse of HC6

HC8

Child of HC6

HC9

Unmarried son or daughter of HC6

HD6

Haitian granted LAPR under HRIFA section 902(b)(1)(C)

HD7

Spouse of HD6

HD8

Child of HD6

HD9

Unmarried son or daughter of HD6

HE6

Haitian granted LAPR under HRIFA section 902(b)(1)

HE7

Spouse of HE6

HE8

Child of HE6

HE9

Unmarried son or daughter of HE6

See SI 00502.115E.9. for how to verify status as a Cuban/Haitian entrant based on adjustment to LAPR under HRIFA.

6. LAPRS under the CAA 66 (New Category)

In addition to the categories listed in SI 00502.108B.1. through SI 00502.108B.5., SSA will treat as a “Cuban/Haitian entrant” for SSI purposes any Cuban or Haitian national who adjusted to LAPR status under the CAA 66 by virtue of such adjustment.

a. Special Coding for Award

If the alien is allowed as a Cuban /Haitian entrant based solely on LAPR status under the CAA 66, code the award input such that Case Characteristics (CG) field of SSR shows “CH02.” Refer to SM 01301.820 and SM 01601.460C.1. for the CG field of the SSR. See MSOM MSSICS 023.006 for coding the Miscellaneous Data (CMSC) in MSSICS.

b. Overview of the CAA 66

The Cuban Adjustment Act of 1966 (Public Law 89-732 enacted 11/2/66) permits an alien who is a native or citizen of Cuba to adjust to LAPR if certain requirements are met. In addition, adjustment to LAPR status under the CAA 66 is also applicable to a spouse or child of the native or citizen of Cuba, regardless of the spouse's/child's citizenship or country of birth, provided the spouse or child is living with Cuban native/citizen in the U.S.

See SI 00502.108B.6.e. for documentary evidence of LAPR status granted under the CAA 66.

c. Native or Citizen of Cuba vs. National of Cuba: Effect on Cuban/Haitian Entrant Status

The term “native or citizen” of Cuba as used in CAA 66 is not the same thing as a “national of Cuba” (or Haiti) under the REAA 80.

  • A person who is a citizen of Cuba is also a national of Cuba; but

  • A “native” of Cuba could be a citizen of Cuba or another country. If a Cuban native is a citizen of another country, then he/she is not “a national of Cuba or Haiti,” and thus is not a “Cuban/Haitian entrant” under the REAA 80.

    EXCEPTION: A Cuban native who became a citizen of Haiti before adjusting to LAPR under the CAA 66 is a “national of Cuba or Haiti” for REAA 80 purposes

d. Spouse or Child of Native/Citizen of Cuba: Effect on Cuban/Haitian Entrant Status

A spouse or child of a native or citizen of Cuba may adjust to LAPR status under the CAA66. According to CAA 66, the spouse or child does not have to be a citizen or native of Cuba. However, in order to be a “Cuban/Haitian entrant” under REAA 80, the individual must be a “national of Cuba or Haiti”. Therefore, pay careful attention to the country of origin on the SAVE query when developing “Cuban/Haitian entrant” status. See SI 00502.115C.1. for using primary SAVE to verify nationality.

e. Evidence of Adjustment to LAPR Status Under the CAA 66

An alien who presents a DHS document such as an I-551 or a temporary I-551 stamp in a foreign passport with one of the following codes has adjusted to LAPR under the CAA 66. Verify the document and status with DHS using the verification procedures in SI 00502.115C.1. and SI 00502.115E.9. In particular, pay close attention to the “country of origin” field on the SAVE query to determine whether the alien is a national of Cuba or Haiti as required by the REAA 80.

The following codes indicate the alien adjusted to LAPR under the CAA 66:

Code

Legend on Primary SAVE Query (SI 00502.115C.1.)

Meaning

CUP

Cuban Refugee/Non-Cuban Spouse/Child-Other

LAPR status under the CAA 66 (P.L. 89-732).

IMPORTANT: An alien with this code may not be a national of Cuba. If the alien is not a national of Cuba or Haiti, then he or she is not a “Cuban/Haitian entrant” under REAA 80.

CU0

Cuban Refugee Parent of U.S. Citizen

LAPR status under the CAA 66 (P.L. 89-732).

CU6

Cuban Refugee

Adjustment to LAPR under Section 1 of the CAA 66 (P.L. 89-732) as amended by P.L. 94-571 (10/20/76).

CU7

Non-Cuban Spouse/Child of an alien classified as CU6

Adjustment to LAPR status under Section 1 of the CAA 66 (P.L. 89-732) as amended by P.L. 94-571 (10/20/76).

IMPORTANT: An alien with this code may not be a national of Cuba. If the alien is not a national of Haiti, then he or she is not a “Cuban/Haitian entrant” under REAA 80.

CU8

Cuban Refugee Spouse Of U.S. Citizen

Adjustment to LAPR status under the CAA 66 (P.L. 89-732).

CU9

Cuban Refugee Child Of U.S. Citizen

Adjustment to LAPR status under the CAA 66 (P.L. 89-732)

CNP

Cuban Refugee/ Non-Cuban Spouse/Child of a Cuban Refugee

Adjustment to LAPR status under the CAA 66 (P.L. 89-732).

IMPORTANT: An alien with this code may not be a national of Cuba. If the alien is not a national of Cuba or Haiti, then he or she is not a “Cuban/Haitian entrant” under REAA 80.

IMPORTANT: “Cuban/Haitian entrant” status for benefit eligibility purposes may not be directly related to an alien's current DHS immigration status. Therefore, the alien's documentation may not readily identify the individual as a “Cuban/Haitian entrant.” Consider whether the individual meets the criteria for each of the categories in SI 00502.108B.1. through SI 00502.108B.6. before making a determination that an alien is not a “Cuban/Haitian entrant” or in a status that is to be treated as a “Cuban/Haitian entrant.”

Contact the Regional Office for assistance after all development (see SI 00502.115E.9.), if:

  • Cuban/Haitian entrant status is questionable; or

  • You do not have sufficient information to allow or deny the claim.

C. Policy - Final, Non-Appealable and Legally Enforceable Order of Removal

1. Effect on Status as a Cuban/Haitian Entrant

If a national of Cuba or Haiti is subject to a final, non-appealable and legally enforceable order of removal, then he/she is not a Category 2(A), Category 2(B), or Category 2(C) Cuban/Haitian entrant effective with the date the order first became:

  1. Final, and

  2. Non-appealable, and

  3. Legally enforceable.

The order must meet all three characteristics in order to bar status as a Cuban/Haitian entrant Category 2(A), Category 2(B), or Category 2(C).

2. Definition of a “Final, Non-appealable, Legally Enforceable Order for Removal”

A final, non-appealable, legally enforceable order of removal is an order of exclusion, deportation, or removal that has all of the following characteristics:

  1. Is administratively final under the INA; and

  2. For which appellate proceedings have concluded; and

  3. For which no right to direct appeal or to petition for administrative or judicial review exists; and

  4. For which no stay (including an automatic stay) or other lawful order issued by a Federal court or any other entity with authority to bind DHS prevents DHS from executing the order of removal.

IMPORTANT: An order for removal that is final, non-appealable and legally enforceable has no effect on status as a Category 1 (Subcategory A or B) Cuban/Haitian entrant.

NOTE: DHS, not SSA, determines whether an order of removal is final, non-appealable and legally enforceable. See SI 00502.115E.9.d. for DHS' responses to questions regarding Cuban/Haitian entrants on the Supplement to the G-845. See SI 00502.115 C.4 for the USCIS mailing address when verifying Cuban Haitian entrant status via G-845 and its Supplement.

3. Alien Within Time Period for Voluntary Departure

An alien who is within a period of time for voluntary departure granted by DHS or an Immigration Judge is not subject to a final order of removal per se. However, an Immigration Judge's grant of voluntary departure will be accompanied by an alternate order of removal that becomes final, non-appealable and legally enforceable if the alien overstays the voluntary departure period.

EXCEPTION: An alternate order of removal issued in connection with voluntary departure does not become final, non-appealable and legally enforceable if the alien has filed a timely appeal with the Executive Office of Immigration Review (EOIR) Board of Immigration Appeals.

D. Policy - Exception Conditions that Permit Eligibility for Cuban/Haitian Entrants

In general, when determining eligibility for all qualified aliens (and not just Cuban/Haitian entrants as defined in REAA 80), first try to establish eligibility based on one of the conditions without a time limit in SI 00502.100A.3.a. through SI 00502.100A.3.d. (These conditions as they relate to Cuban/Haitian entrants are discussed in SI 00502.108D.1.)

Then, if the alien does not meet one of the conditions in SI 00502.100A.3.a. through SI 00502.100A.3.d., (or SI 00502.108D.1.), determine if he or she meets one of the categories for 7 years of time-limited eligibility in accordance with SI 00502.100A.3.e. and SI 00502.106. The rules for time-limited eligibility as they relate to Cuban/Haitian entrants are discussed in SI 00502.108D.2.

1. Eligibility Without a Time Limit

A “Cuban/Haitian entrant,” like any other qualified alien, is potentially eligible for SSI without a time limit if he or she meets one of the following alien eligibility conditions:

  1. Was receiving SSI on 8/22/96 and is lawfully residing in the U.S. (i.e., a grandfathered qualified alien in accordance with SI 00502.150);

NOTE: A “Cuban/Haitian entrant” as defined in REAA 80 is a qualified alien and as such is lawfully present in the U.S. according to DHS' interim regulation at 8 CFR § 103.12(a)(1). In general, if an alien is lawfully present and meets the SSI residency requirement in SI 00501.001B.1. and GN 00303.720 at the requisite point in time, then he or she is “lawfully residing” in the U.S. See SI 00502.142 for more information about “lawfully residing in the U.S.”

  1. LAPR with 40 Qualifying Quarters (See SI 00502.135. Refer to SI 00502.108E. for the exemption from the 5-year bar on eligibility);

  2. Is lawfully residing in the United States and is a veteran/active duty member of the U.S. Armed Forces; a spouse of veteran/active duty member; or a dependent child of veteran/active duty member (SI 00502.140). See the NOTE under SI 00502.108D.1.a. for lawfully residing in the U.S. for “Cuban/Haitian entrants.”

  3. Was lawfully residing in the United States on 8/22/96 and is blind or disabled (See SI 00502.142). See the NOTE in SI 00502.108D.1.a. for lawfully residing in the U.S. for “Cuban/Haitian entrants.”

See SI 00502.108G.1. for an example of a Cuban/Haitian entrant who is eligible without a time limit. Refer to SI 00502.108D.2. if a Cuban/Haitian entrant does not meet one of the conditions listed in SI 00502.108D.1.a. through SI 00502.108D.1.d.

2. 7-Year Time-Limited Eligibility

a. General

A Cuban/Haitian entrant, like any other alien in one of the 7-year categories listed in SI 00502.100A.3.e., is potentially eligible for a maximum of 7 years from the date he or she first became a Cuban/Haitian entrant if all of the following are met:

  • The alien is currently a Cuban/Haitian entrant or in a status that is treated as a “Cuban/Haitian entrant” or is otherwise a qualified alien who had prior status as a Cuban/Haitian entrant (or other 7-year category in SI 00502.106B.);

  • The alien filed for SSI within 7 years of the date he or she first became a Cuban/Haitian entrant or was granted a status that is treated as a “Cuban/Haitian entrant” for SSI purposes; and

  • The alien does not meet a condition for indefinite eligibility in SI 00502.108D.1.

The 7 years of eligibility begin with the earliest date the alien met one of the categories of Cuban/Haitian entrant or attained a status that is to be treated as a “Cuban/Haitian entrant” in SI 00502.108B.

NOTE: If the alien meets one of the conditions in SI 00502.108D.1. then eligibility may continue beyond the 7-year period.

Refer to SI 00502.106 for more information about 7-year time limited eligibility and SI 00502.130B.7.c. for evidence of the date the alien first became a Cuban/Haitian entrant or was granted an alien status that is treated as a “Cuban/Haitian entrant” for SSI purposes.

See SI 00502.108G.3. for an example of a Cuban/Haitian entrant who is eligible based on 7 years of limited eligibility.

See SI 00502.108G.5. for an example of a Cuban/Haitian entrant who is not eligible based on 7 years of limited eligibility because he or she did not file for SSI within the prescribed 7-year time frame.

b. Change to Another Qualified Alien Status During 7-Year Period

In general, a Cuban/Haitian entrant who adjusts to LAPR status or another qualified alien status during the 7-year period may remain eligible based on the original 7-year period of eligibility.

NOTE: An alien who adjusts to LAPR status under NACARA, HRIFA, or the CAA 66 is considered to be or treated as a Cuban/Haitian entrant effective with the earlier of:

E. Policy - Exemption From the Five-Year Bar on Eligibility

1. General

In general, under the 1996 Welfare Reform legislation as amended, qualified aliens who enter the United States on or after 8/22/96 cannot get SSI for their first five years in this country. However, there are several exceptions to this rule, including “Cuban/Haitian entrant” as defined in REAA 80. Thus, a Cuban/Haitian entrant or an alien who is to be treated as a “Cuban/Haitian entrant” for SSI purposes who enters the U.S. at any time will not be subject to the 5-year bar. (See SI 00502.135B.1. for a complete list of alien categories who are exempt from the 5-year bar.)

2. Interaction Between the Exemption from the 5-Year Bar and the Other Alien Eligibility Requirements

A Cuban/Haitian entrant or alien who is to be treated as a “Cuban/Haitian entrant” for SSI purposes who enters the U.S. on or after 8/22/96 is exempt from the five-year bar. However, like any other alien exempt from the 5-year bar, the alien must still meet the two-pronged alien eligibility requirement under the Welfare Reform legislation:

  • Be a qualified alien; and

  • Meet a condition that permits eligibility for qualified aliens.

As a “Cuban/Haitian entrant” the individual is by definition a qualified alien. A qualified alien must also meet one of the conditions in SI 00502.100A.3. (or SI 00502.108D.) in order to get SSI. Thus, a Cuban/Haitian entrant who enters the U.S. on or after 8/22/96 could be subject to 7 years of time-limited eligibility if he or she does not meet one of the conditions that permits eligibility without a time limit in SI 00502.108D.1.

See SI 00502.108G.3. for an example of a Cuban/Haitian entrant who entered the U.S. on or after 8/22/96, is not subject to the 5-year bar on eligibility, but is limited to a maximum of 7 years of eligibility.

F. Policy - Eligibility for Certain Other Nationals of Cuba or Haiti

Only a person who meets one of the categories listed in SI 00502.108B. is considered to be a “Cuban/Haitian entrant,” or in a status that is to be treated as a “Cuban/Haitian entrant” for the purposes of determining SSI eligibility. However, there is some overlap between certain other DHS immigration provisions for individuals from Cuba or Haiti and the categories of Cuban/Haitian entrants in SI 00502.108B. Thus, an individual covered by one of these other DHS provisions may or may not be a “Cuban/Haitian entrant” for SSI purposes. These other immigration provisions and their effect on SSI alien eligibility are discussed below.

1. “Cuban-Haitian” Adjustment Under the Immigration Reform and Control Act of 1986 (IRCA)

The “Cuban-Haitian” adjustment provision in Section 202(b) of IRCA allowed certain individuals from Cuba or Haiti to adjust to LAPR status.

CAUTION: The language in Section 202 of IRCA refers to “Cuban/Haitian entrants;” however, this is not necessarily the same status as “Cuban/Haitian entrant” as defined in section 501(e) of the REAA 80. If an alien under section 202 of IRCA also meets one of the categories covered by section 501(e) of REAA 80, then he or she is a “Cuban/Haitian entrant” for SSI eligibility purposes.

There are two categories of nationals of Cuba or Haiti who are eligible for adjustment to LAPR status under IRCA. We refer to these categories as “IRCA-1” and “IRCA-2.”

a. IRCA-1: Definition - “Cuban/Haitian Entrant (Status Pending)” as of 11/6/86

An alien can adjust to LAPR under IRCA-1 if he or she meets both of the following requirements:

  • Is a national of Cuba or Haiti; and

  • Has received an immigration designation of “Cuban/Haitian Entrant (Status Pending)” on or before 11/6/86, the date of enactment of IRCA (Public Law 99-603 §202(b)(1)).

b. IRCA-1: Effect on SSI Eligibility

Aliens who first met the definition in IRCA Section 202(b)(1) on or after 4/21/80 are by definition a subset of Cuban/Haitian entrants Category 1 Subcategory (A) as defined under the REAA 80. (See SI 00502.108B.1. for the definition of Category 1 Cuban/Haitian entrants.) Therefore, an alien who meets the IRCA-1 definition on or after 4/21/80 is a qualified alien for SSI eligibility purposes and is also exempt from the 5-year bar.

In addition, according to DHS' regulations at 8 CFR §103.12(a)(1) and §103.12(a)(4)(iii), IRCA-1 aliens are considered to be lawfully present in the U.S. and thus may meet the “lawfully residing” requirement for the qualified alien eligibility conditions described in SI 00502.140, SI 00502.142, and SI 00502.150.

c. IRCA-2: Definition - Certain Nationals of Cuba or Haiti in the U.S. before 1/1/82

An alien can adjust to LAPR status under IRCA-2 if he or she meets all of the following requirements:

  • Is a national of Cuba or Haiti;

  • Arrived in the United States before January 1, 1982; and

  • Was not admitted to the United States as a nonimmigrant, unless the alien filed an application for asylum with the Immigration and Naturalization Service (INS, now DHS) before 1/1/82. (In general, a nonimmigrant is defined as an alien who seeks temporary entry to the United States for a specific purpose.)

d. IRCA 2: Effect on SSI Eligibility

An alien who meets the “IRCA-2” definition might be a Cuban/Haitian entrant under the REAA 80 if he or she also meets one of the 4 categories of Cuban/Haitian entrants described in SI 00502.108. In other words, status as an IRCA-2 alien does not preclude status as a “Cuban/Haitian entrant” as defined under REAA 80.

According to DHS' interim regulation at 8 CFR §103.12(a)(4)(iii), an “IRCA-2” alien is considered to be lawfully present in the U.S. based on “IRCA-2” status alone, even if he or she is not a qualified alien based on “Cuban/Haitian entrant” status under REAA 80. As such, an IRCA-2 alien may meet the lawfully residing requirement of the alien eligibility conditions in SI 00502.140, SI 00502.142, or SI 00502.150. However, in general, an IRCA-2 alien who is not a Cuban/Haitian entrant under the REAA 80 would have to be in another “qualified alien” category (e.g., LAPR) in order to get SSI.

e. Evidence of Status Under the Cuban-Haitian Provisions of IRCA

An alien who has an immigration document such as an I-551 or a temporary I-551 stamp in a foreign passport with one of the codes in the chart below has adjusted to LAPR under IRCA. He or she may or may not be a “Cuban/Haitian entrant” as defined in REAA 80. Verify the document and status with DHS to determine if the alien was/is also a Cuban/Haitian entrant under the REAA 80 for SSI purposes or is otherwise a qualified alien who is potentially eligible for SSI.

Code

Legend on SAVE Query (see SI 00502.115C.1.)

Meaning

CB1

“Conditional-Spouse Of Cuban Haitian Entrant”

New Arrival: Spouse of alien granted legalization under Section 210, 245A of the INA, or Section 202 of P.L. 99-603 (Cuban-Haitian entrant)-conditional.

Section 112 of P.L. 101-649 (1/29/90) and 216 as added by P.L. 99-639 (11/10/86).

IMPORTANT: The spouse must also be a national of Cuba or Haiti in order to be a “Cuban/Haitian entrant” under REAA 80.

CB2

Conditional-Child Of Cuban Haitian Entrant

New arrival: Child of alien granted legalization under Section 210, 245A of the INA, or Section 202 of P.L. 99-603 (Cuban-Haitian entrant)-conditional.

Section 112 of P.L. 101-649 (1/29/90) and 216 as added by P.L. 99-639 (11/10/86).

IMPORTANT: The child must also be a national of Cuba or Haiti in order to be a “Cuban/Haitian entrant” under REAA 80.

CB6

“Conditional-Spouse Of Cuban Haitian Entrant”

Adjustment LAPR: Spouse of alien granted legalization under Section 210, 245A of the INA, or Section 202 of P.L. 99-603 (Cuban-Haitian entrant)-conditional.

Section 112 of P.L. 101-649 (1/29/90) and 216 as added by P.L. 99-639 (11/10/86).

IMPORTANT: The spouse must also be a national of Cuba or Haiti in order to be a “Cuban/Haitian entrant” under REAA 80.

CB7

“Conditional-Child Of Cuban Haitian Entrant”

Adjustment: Child of alien granted legalization under Section 210, 245A of the INA, or Section 202 of P.L. 99-603 (Cuban-Haitian entrant)-conditional.

Section 112 of P.L. 101-649 (1/29/90) and 216 as added by P.L. 99-639.

IMPORTANT: The child must also be a national of Cuba or Haiti in order to be a “Cuban/Haitian entrant” under REAA 80.

CH6

“Cuban-Haitian Entrant”

Cuban-Haitian entrant under Section 202 of IRCA, P.L. 99-603 enacted 11/6/86.

2. Other Qualified Alien Statuses for Nationals of Cuba or Haiti

a. General

A national of Cuba or Haiti could theoretically be in any one of the 8 categories of qualified aliens listed in SI 00502.100A.2.

b. LAPR and Cuban/Haitian Entrant Status

Some nationals of Cuba or Haiti who are currently LAPR may have prior or concurrent status as a “Cuban/Haitian entrant.” For example, a Category 1A or 1B “Cuban/Haitian entrant” who adjusts to LAPR status will be an LAPR and a “Cuban/Haitian entrant” at the same time (see SI 00502.108B.1.). An alien also could have been a category 2(A), 2(B), or 2(C) “Cuban/Haitian entrant” before adjusting to LAPR. An LAPR who was originally found eligible for a maximum of 7 years from the date he or she became a “Cuban/Haitian entrant”/or was granted a status that is treated as a “Cuban/Haitian entrant” can remain eligible for the full 7 years since the alien went from one qualified alien status to another. See SI 00502.106D.1.

c. Asylum and Category 2(B) or 2(C) Cuban/Haitian entrant Status

A category 2(B) Cuban/Haitian entrant is in removal proceedings. See SI 00502.108B.3. of this section for the definition and requirements for “Cuban/Haitian entrant” category 2(B).

A category 2(C) “Cuban/Haitian entrant” is an asylum applicant. See SI 00502.108B.4. for the definition and requirements for “Cuban/Haitian entrant category” 2(C).

A Category 2(B) or 2(C) “Cuban/Haitian entrant” who is later granted asylum under section 208 of the INA remains a qualified alien based on asylee status. A current asylee who was originally found eligible for a maximum of 7 years from the date he or she became a Category 2(B) or 2(C) “Cuban/Haitian entrant” can remain eligible for the full 7 years since the alien went from one qualified alien status to another (see SI 00502.106D.1.).

NOTE: The 7-year period in this situation is determined by the date the alien first acquired status as a “Cuban/Haitian entrant.”

d. Parolee under Section 212(d) (5) and Cuban/Haitian Entrant Status

One of the more common classifications for individuals from Cuba or Haiti is parolee under Section 212(d)(5) of the INA. (NOTE: All parole related to immigration is granted under section 212(d)(5) of the INA.)

IMPORTANT: A parolee from Cuba or Haiti might also be a “Cuban/Haitian entrant” under the REAA 80; however, he or she might not realize that “Cuban/Haitian entrant” status is at issue. Therefore, if a national of Cuba or Haiti alleges that he/she was paroled into the U.S., be sure to develop status as a “Cuban/Haitian entrant” (see SI 00502.115E.9. and SI 00502.130B.7.). This is especially crucial if the parolee does not meet one of the conditions that permit SSI eligibility without a time limit, and status as a “Cuban/Haitian entrant” would permit 7 years of time-limited eligibility.

The following categories of “Cuban/Haitian entrants” are also parolees under section 212(d)(5) of the INA:

  • Category 1A;

  • Category 1B; and

  • Category 2(A).

REMINDER: A parolee is a qualified alien based on the parole status under section 212(d)(5) of the INA only if the parole was granted for a period of one year or more. However, if a Category 2(A) “Cuban/Haitian entrant” was granted parole for less than one year, he/she is not a qualified alien based solely on parole status under 212(d)(5), but he or she is a qualified alien based on category 2(A) “Cuban/Haitian entrant” status.

G. Examples

1. Unlimited SSI Eligibility as Cuban/Haitian Entrant

Facts: Juan Cabrera-Rosas, a national of Cuba, entered the U.S. on 5/6/80. On 4/19/96 an Immigration Judge issued an order of deportation. DHS exercised its prosecutorial discretion and decided not to implement the order of deportation. Juan filed for SSI on 8/29/2002 and was found disabled as of that date. His I-94 indicated that he entered the U.S. on 5/6/80 as a “Cuban/Haitian Entrant (Status Pending).” DHS completed the G-845 and G-845 Supplement verifying the information relating to alien status.

Determination: Juan is a Category 1 Subcategory “A” Cuban/Haitian entrant beginning 5/6/80. He remains in that status indefinitely since Category 1 “Cuban/Haitian entrant” status remains in effect without regard to any subsequent changes in immigration status. Therefore, the Immigration Judge's order for deportation has no bearing on Juan's Category 1 “Cuban/Haitian entrant” status. Since Juan was a “Cuban/Haitian entrant” beginning with his entry into the U.S. and continuing, he is considered to be lawfully present in the U.S. on 8/22/96. If he meets the residency requirement in SI 00501.400B. and GN 00303.700, then he is potentially eligible for SSI payments beginning 9/2002 without a time limit since he was lawfully residing in the U.S. on 8/22/96 and is blind or disabled.

2. Alien Treated as a “Cuban/Haitian Entrant” Based on LAPR Status Granted Under the CAA 66

Facts: Maria Gonzalez-Maldonado was admitted to the U.S. on 9/18/97 as a nonimmigrant from her native country of Cuba. She was granted LAPR status on 9/18/01. Her I-551 (Permanent Resident Card) shows code “CU6.” The SSAFO verified the information on the I-551 using the primary SAVE online database query. Since she was from Cuba, the SSAFO also requested verification of the I-551 information and “Cuban/Haitian entrant” status by submitting a G-845 package (including the G-845 Supplement) to DHS. DHS returned the G-845/G-845 supplement to the SSAFO verifying the following: Maria is not subject to a final order of removal, she never filed for asylum in the U.S., she was never placed in removal proceedings, she was never paroled into the U.S., and she adjusted to LAPR status under the CAA 66. LAPR status under the CAA 66 was verified by DHS's “Yes” response to Question #21 in Section 9 of the G-845 Supplement. Maria filed for SSI for the very first time on February 15, 2003 and was found disabled as of that date.

Determination: Maria is to be treated as a “Cuban/Haitian entrant” for SSI purposes since she was granted LAPR status under the CAA 66 (See SI 00502.108B.6.). Her verified I-551 with Code CU6 indicates she adjusted to LAPR status under the CAA 66. Therefore, Maria is eligible for SSI for 7 years from the date she became an LAPR under the CAA 66. In addition, she is exempt from the 5-year bar (See SI 00502.135B.1. for a complete list of alien categories that are exempt from the 5-year bar.). The adjudicator input code “CH02” for the CG of the SSR on the CMSC screen in MSSICS in accordance with MSOM MSSICS 023.006 .

3. Time-Limited Eligibility as a Cuban/Haitian Entrant

Facts: Hélène Bétancourt entered the U.S. on 6/25/97 from Haiti. She filed for asylum as of that date. She is not subject to any order for removal. Her application for asylum is still pending with DHS. Hélène filed for SSI on 2/20/2002 as an aged individual. She indicated on her application that she is not disabled. She has no prior SSI eligibility or U.S. military service connection. DHS verified that Hélène's asylum application was still pending with DHS.

Determination: Hélène is eligible based on time-limited eligibility as a Category 2(C) Cuban/Haitian entrant. Her 7-year period of potential eligibility begins on 6/25/97. Since she did not file for SSI until 2/20/2002, she is potentially eligible for SSI payment beginning 3/2002. Hélène will lose eligibility beginning 7/01/2004 based on 7 years from the date she first became a “Cuban/Haitian entrant”—or 6/25/97.

NOTE: Although Hélène entered the U.S. on or after 8/22/96 she is not subject to the 5-year bar on eligibility since she was a “Cuban/Haitian entrant,” one of the categories of aliens who are exempt from the 5-year bar.

4. Cuban/Haitian Entrant Status Ended - Closed Period of Eligibility

Facts: Guillaume LaPrière, a national of Haiti, entered the U.S. without inspection (EWI) on 4/27/1993 and was put in proceedings on 5/1/93 when he was apprehended by the immigration authorities. He filed for SSI on 1/13/2002 and was found disabled as of that date. On 5/7/2002, an Immigration Judge granted him voluntary departure. (There is no final order for removal.) Guillaume did not appeal the Immigration Judge's decision. DHS completed the G-845/G-845 Supplement verifying all immigration-related events and dates.

Determination: Guillaume was a category 2(B) “Cuban/Haitian entrant” beginning 5/1/93 based on the date he was put in proceedings. Thus, he was a qualified alien beginning 5/1/93. Since he was still a Category 2(B) “Cuban/Haitian entrant” as of 8/22/96, he was lawfully present in the U.S. on that date. SSA determined that he also met the SSI residency requirement as of 8/22/96. Therefore, Guillaume was potentially eligible for SSI payment beginning 2/2002 since he was lawfully residing in the U.S. on 8/22/96 and is blind or disabled. He was not subject to the 7-year time limitation. Guillaume lost Category 2(B) “Cuban/Haitian entrant status” (and thus qualified alien status) effective 5/7/2002—the date the Immigration Judge granted him voluntary departure—since he was no longer “in proceedings” as of that date. Therefore, Guillaume's SSI payments are suspended effective 6/2002.

5. Eligibility Not Possible - 7-Year Period Expired Before First Possible Month of SSI Eligibility

Facts: Rafaela Velasquez-Muñoz, a national of Cuba, entered the United States on 5/23/94. She filed for asylum with DHS that same day. Her application for asylum was transferred from DHS to the Executive Office for Immigration Review (EOIR) on 7/25/96. Her application for asylum is still pending with EOIR. There has been no order for her removal or deportation. She filed for SSI on 6/27/2002, when she attained age 65. She indicated on her SSI application that she is not disabled. She has no military connection and has never filed for SSI before. DHS completed the G-845/G-845 Supplement verifying all immigration-related events and dates.

Determination: Rafaela was a qualified alien as a Category 2(C) “Cuban/Haitian entrant” beginning 5/23/94. Her status changed to “Cuban/Haitian entrant” Category 2(B) on 7/25/96 because that is when the EOIR took jurisdiction of her asylum application. Rafaela is still in Category 2(B) “Cuban/Haitian entrant” status, and as such, is still a qualified alien. She was lawfully residing in the U.S. on 8/22/96 based on her qualified alien status as a Category 2(B) “Cuban/Haitian entrant;” however she does not meet the eligibility condition for blind/disabled aliens who were lawfully residing in the U.S. on 8/22/96 since she is not disabled. She does not meet any other condition that permits SSI eligibility without a time limit.

Next, we consider whether Rafael can be eligible for 7 years under the time-limited provision. Her 7-year period begins with the earliest date she met a “Cuban/Haitian entrant” category. In this case, the earliest date is 5/23/94 based on the date Rafaela became a category 2(C) “Cuban/Haitian entrant.” The 7-year period ends with 6/01/2001. Since the 7-year period ran out before Rafaela's first possible month of eligibility for payment—7/2002 (based on filing for SSI in 6/2002), her SSI claim must be denied under code N13.

NOTE: Rafaela's status as a Category 2(B) “Cuban/Haitian entrant” continues and is not affected by the expiration of the 7-year period. She is a qualified alien, but she does not meet any condition that permits eligibility for qualified aliens.

6. Change to LAPR Status during 7-Year Period of Limited Eligibility

Facts: Francisco Cabrera-Gonzalez, a Cuban national, entered the United States on 09/05/96 and applied for asylum with DHS on the same date. He is not subject to a removal order that is final, non-appealable, and legally enforceable. He was granted asylum 10/11/97. Francisco adjusted to LAPR status effective 10/30/98. DHS completed the G-845/G-845 Supplement verifying all immigration-related events and dates. Francisco filed for SSI on 08/01/2000. DDS found Francisco to be disabled as of this date.

Determination: Francisco met qualified alien status as a Category 2C (asylum applicant) “Cuban/Haitian entrant” on 09/05/96. Francisco was determined to be disabled as of 08/01/2000. In accordance with SI 00502.106D., if an alien in one of the time-limited categories adjusts to another qualified alien category during the 7-year period, such as LAPR, the alien's eligibility can continue during the entire 7 years. Therefore, he is eligible for SSI benefits for 7-years from the date qualified alien status was first met. In this case, Francisco's 7-year period runs from 10/1996 through 09/2003. However, since Francisco was approved for benefits effective 08/2000, he is only potentially eligible to receive SSI checks beginning 9/2000 through 09/2003. He will be N13 beginning 10/2003. Refer to SI 00502