TN 5 (02-99)
SI 00502.153 SSI Eligibility for Nonqualified Aliens Who Were Receiving SSI on 8/22/96 — 1998 “Grandfathering” Legislation
Public Law (P.L.) 105-306, Section 2, Noncitizen Benefit Clarification and Other Technical Amendments Act of 1998
P.L. 105-306 enacted on 10/28/98 supersedes prior welfare and immigration reform legislation regarding alien/citizenship status and SSI eligibility criteria for nonqualified aliens who were receiving benefits on 8/22/96. Under the prior legislation, SSI benefits for nonqualified aliens were to be suspended effective 10/1/98 unless the aliens adjusted to U.S. citizens, nationals, certain American Indian status, or qualified alien status. Under P.L. 105-306, nonqualified aliens receiving SSI benefits on 8/22/96 were grandfathered. On 12/3/98 CO sent notices to approximately 9,000 SSI recipients who are affected by the 1998 legislative change informing them that their benefits would not automatically be suspended effective 10/1/98.
B. Policy — “Grandfathered”
A nonqualified alien who was receiving SSI benefits on 8/22/96 (“receiving” as defined in SI 00502.100B.) does not lose SSI eligibility effective 10/1/98, provided all other factors of eligibility continue to be met. These aliens are “grandfathered.” For these individuals, alien eligibility will continue to be determined based on the alien eligibility provisions of the Act, including the Permanent Resident Under Color of Law (PRUCOL) standard (SI 00501.420).
2. Retention of Grandfathering Rights
A nonqualified grandfathered alien retains his/her grandfathering rights even if benefits terminate, for example, after a period of 12 months' suspension, and the alien subsequently files a new SSI application.
EXAMPLE: An aged SSI alien recipient was determined to be ineligible effective 5/98 based on excess income (N01). The alien had been granted deferred action status as indicated by the code “J” in Alien/Citizenship (AR) field of the SSR. In 10/99, her income decreased and she filed a new SSI claim. Because she had been receiving SSI as of 8/22/96, she is found to meet the alien eligibility requirements for the subsequent period based on her “nonqualified grandfathered” status. As such, she does not have to meet the requirements for eligibility as a “qualified alien;” however, she still must meet the PRUCOL requirements in SI 00501.420. Therefore, her current PRUCOL status must be developed.
3. Review of Alien/Citizenship Status
The alien/citizenship status of nonqualified grandfathered aliens will be reviewed during the regular redetermination (RZ) process. See SI 00502.153E.
4. Who is a Nonqualified Alien
The following AR codes in the PRSN segment of the SSR reflect nonqualified PRUCOL alien status who are now grandfathered:
H - Silva v. Levi alien (SI 00501.420);
NOTE: AR Code H is not a valid code for months after 6/30/87.
J - Deportation/Removal withheld or Miscellaneous PRUCOL, considered to be nonqualified aliens if Alien Eligibility Reason (AER) field is blank (SI 00501.420);
P - Alien who entered the U.S. before 1/1/72 with continuous residence since then
R - Alien granted lawful temporary resident (LTR) status (SI 00501.420); NOTE: LTRs were required to file for adjustment to LAPR status within a prescribed period (see
SI 00501.440C.1.). The period for filing for adjustment under the law closed in or before 1990 for LTRs whose immigration statuses were not under appeal. Thus, all records with an AR code of “R” are questionable and should be reverified and updated. See SI 00502.153E.
T - Alien granted voluntary departure (SI 00501.420); or
W - Alien granted stay of deportation (SI 00501.420).
The SSI system is currently being modified to allow the posting of an AER code of “9” (grandfathered cases) for nonqualified aliens who were receiving SSI benefits on 08/22/96. You will be notified how to input the new AER code when the systems changes are complete.
C. Policy — PRUCOL
Aliens who are “PRUCOL” and who may be eligible for SSI include aliens who are residing in the U.S. with the knowledge and permission of the Department of Homeland Security (DHS) and whose departure from the U.S. the DHS does not contemplate enforcing (see SI 00501.420B.).
2. Who Cannot Be PRUCOL
The following aliens are never PRUCOL:
Nonimmigrants (i.e., visitors)
Aliens statutorily prohibited from being PRUCOL (i.e., Temporary Protected Status).
3. Application for Status Change
If an alien has filed an DHS application for a change in status, the pending application alone is not a sufficient basis for a finding of PRUCOL.
Contact with DHS is necessary to verify whether the alien is residing in the U.S. with the knowledge and permission of DHS and whether DHS contemplates enforcing the alien's departure (see SI 00501.430).
4. Continuous Residence
PRUCOL based on continuous residence remains in effect unless the recipient's U.S. residence ends after 1/1/72 (see SI 00501.425). No verification is required if continuous residence in the U.S. since before 1/1/72 has been established and there is no break in U.S. residency.
An absence from the U.S. of 6 months or less does not terminate or interrupt continuous residence for PRUCOL purposes.
If there has been an absence from the U.S. for more than 6 months, the recipient cannot meet PRUCOL based on continuous residence unless there is a strong indication the individual is maintaining U.S. residency (see GN 00303.720 - GN 00303.740). Maintaining a house or apartment in the U.S., paying U.S. income taxes as a U.S. resident for the period while abroad, or other similar acts are indications of maintaining U.S. residency.
If the recipient cannot meet PRUCOL based on continuous residence, determine if he/she may be eligible under another PRUCOL or qualified alien category (see SI 00502.100C.). Develop continuous residence in accordance with SI 00501.420C.2. and SI 00501.425B.
D. Procedure — responding to inquiries -- FOS and TSC spike units
If an individual who was receiving SSI benefits on 8/22/96 contacts SSA regarding continuing eligibility as a nonqualified alien, and the individual's current alien/citizenship status agrees with the data on the SSR, advise the individual that as a result of a change in the law, he/she may continue to be eligible for SSI as long as all factors of eligibility are met, including PRUCOL status.
In addition, advise the individual that eligibility may also be continued if he /she later becomes a qualified alien (see SI 00502.100C.) or a naturalized U.S. citizen. Remind all noncitizen SSI recipients who contact a FO or a TSC to report any change in immigration status to SSA. FOs should review the AR/AER coding on the SSR in light of any new evidence submitted by the recipient and update the record accordingly.
2. Prior Notice from SSA
Some of the grandfathered nonqualified aliens may have received special notices prior to the enactment of P.L. 105-306 informing them of the potential loss of benefits effective 10/1/98. If an individual calls in response to such a notice, tell the individual that evidence of alien/citizenship status is not required at the present time but will be accepted if available. Update the AR and AER fields of the SSR according to any evidence submitted. Also tell the individual that SSA may contact him/her if alien/citizenship documentation is needed in the future.
E. Procedure — FO actions for routine redetermination
1. Review Alien Status
Review the alien/citizenship status for nonqualified grandfathered aliens to establish continued eligibility as PRUCOL (or as qualified aliens or U.S. citizens). This review should be incorporated into the regular redetermination process for scheduled RZs, which are selected and conducted at periodic intervals. (See SI 02305.001 - SI 02305.010 for information regarding the RZ process.) If the AR code on the SSR is “P,” no further action is necessary unless the code is questionable based on information provided by the individual or in SSA's records.
2. Request Documentation
If the AR code is H, J, R, T, W, or a questionable P code, ask the recipient to bring his/her current DHS registration documents to the FO for examination using the SSA-L3074-U2 (see SI 02305.814) or the SSA-L3075-U2 (see SI 02305.815). Check the “other” block in the list of evidence needed and add the following language to the notice:
“Please bring us all evidence of your current immigration status, (i.e., documents issued by the Department of Homeland Security or the Executive Office of Immigration Review.) DO NOT mail these documents to us.”
Do not ask the recipient to mail such documents since he/she is required to carry the documents at all times.
Take the following actions if the recipient has no documentation:
If the recipient states that DHS is aware of his/her presence and is allowing continued U.S. residence, refer the recipient to DHS for evidence of immigration status.
If the recipient states that DHS is not aware of his/her presence in the U.S. and has no documentary evidence of immigration status, secure any evidence identifying the individual and submit to DHS (see SI 00502.153E.3.).
See SI 00501.430A.3. for verification of an alien status which is valid for less than one year.
3. Verification of PRUCOL Status
Complete Form SSA-4471, attach copies of both sides of the alien's immigration document(s) or other evidence, and forward to DHS as an attachment to DHS Form G-845 (see
SI 00501.430C.). Annotate item 7 of Form G-845 "Pre 8/22 /96 PRUCOL."
4. The PRUCOL Decision
Evaluate the DHS response on forms G-845 and SSA-4471 as follows:
If the alien is a qualified alien, PRUCOL does not apply (see SI 00502.150).
If the alien is in temporary protected status, PRUCOL does not apply (see
SI 00501.420D.2.). If DHS contemplates enforcing departure as of a specific date, that is the date PRUCOL is no longer met. Suspend benefits N13 effective with the month following the month in which PRUCOL is no longer met. If DHS contemplates enforcing departure, but no specific date is provided, suspend benefits effective with the month following the month the form was signed (see SI 00501.430D.3.). In either case, send the appropriate exhibit notice in SI 00502.153H.
In all other cases follow the instructions in SI 00501.430D., to determine if PRUCOL is met.
5. Systems Input
RZs for nonqualified grandfathered alien cases should be processed outside of the Modernized Supplemental Security Income Claims System (MSSICS) due to current systems limitations.
6. RZ within Past Year
If a scheduled or unscheduled RZ was conducted within the past year and alien status was verified, it will not be necessary to reverify alien status for the current scheduled RZ.
F. Exhibit notices
Send the appropriate exhibit notice in SI 00502.160 - SI 00502.170 when the redetermination of a grandfathered nonqualified alien results in a determination of ineligibility based on citizenship/alien status. (No notice is necessary if the alien continues to meet PRUCOL.)
Recipient in Current Pay: Send EXHIBIT Notice in SI 00502.160
Recipient in Non-Pay Status: Send EXHIBIT Notice in SI 00502.165
Recipient in 1619(B) Status: Send EXHIBIT Notice in SI 00502.170