TN 8 (10-00)

SI 00502.240 New Version Affidavit of Support

A. Background

The Welfare Reform Act of 1996 (as amended by the Immigration Reform Act of 1996 and the Balanced Budget Act of 1997) created new sponsor deeming rules that apply to aliens whose sponsors sign new, legally enforceable affidavits of support. Department of Homeland Security (DHS) began using the new version affidavits of support with applications for immigrant visas or adjustments of status filed on or after 12/19/97.

B. Preview

This section includes policy guidance on these topics:

  • Application of deeming in new version affidavit of support cases (SI 00502.240C.);

  • Exceptions to sponsor deeming in new version affidavit of support cases (SI 00502.240D.);

  • Deeming period for new version affidavit of support cases (SI 00502.240E.); and

  • Amount of income and resources deemed in new version affidavit of support cases (SI 00502.240F.).

It also provides instructions for implementing these policies.

C. Policy — new version affidavit of support — alien subject to sponsor deeming

With the exceptions noted in SI 00502.240D., the income and resources of aliens whose sponsors signed new version affidavits of support are deemed to include the income and resources of their sponsors (and their sponsor's spouses, if both spouses live in the same household). Sponsored aliens are subject to deeming regardless of whether they live with their sponsors.

NOTE: References throughout these instructions to “sponsor” also include the sponsor’s spouse who lives in the same household as the sponsor.

For new version affidavit of support cases, if the alien’s sponsor is the alien’s ineligible spouse or parent, sponsor deeming, not spousal or parental deeming, applies in the case.

Unlike the policies that apply in old version affidavit of support cases (SI 00502.220):

  • Aliens sponsored under the new version affidavit of support who become blind or disabled after admission to the U.S. are not exempt from sponsor deeming; and

  • There is no time limit on sponsor deeming under the new version affidavit. Deeming continues indefinitely until one of the events listed in SI 00502.240E.2. occurs.

D. Policy— exceptions to sponsor deeming in new version affidavit of support cases

The following aliens who sought visas or status adjustment after 12/17/97 are not subject to sponsor deeming:

1. Aliens who do not have sponsors

Among the categories of aliens potentially eligible to receive SSI, those who do not have sponsors include most aliens:

  • with refugee status (SI 00502.100); or

  • with asylee status (SI 00502.100); or

  • whose deportations have been withheld under section 243(h) of the Immigration and Nationality Act (INA) (as it existed before 4/1/97) or whose removals have been withheld under section 241(b)(3) of the INA (after 3/31/97) (SI 00502.100).

NOTE: Some of the aliens in the above categories will have sponsors. However, sponsors of these types of aliens are not required to sign the new version affidavit.

2. Aliens who have been battered or subjected to extreme cruelty in the United States, certain aliens whose children have been battered or subjected to extreme cruelty, and certain alien children whose parents have been battered or subjected to extreme cruelty

Instructions for this exception are still being developed.

3. Aliens for whom nonreceipt of or reduction in SSI would cause indigence

This exception generally only applies for 12 months. See SI 00502.280 for instructions on applying this exception.

4. Aliens who have 40 qualifying quarters (QQs)

Since sponsor deeming ceases (or does not apply) when a lawfully admitted for permanent residence (LAPR) alien can be credited with 40 QQs, deeming does not apply on an ongoing basis in the case of an LAPR alien who is SSI-eligible because he/she has 40 QQs. (See SI 00502.135 for instructions on the 40 QQ exception.)

NOTE: No other exceptions to sponsor deeming apply. The list of sponsor-to-alien deeming exclusions in SI 01320.910 does not apply to new version affidavit of support cases.

E. Policy — deeming period for new version affidavit of support cases

1. When Deeming Begins

a. Initial claims

In initial claims situations, the income and resources of a sponsor who signed a new version affidavit are deemed to the alien to determine initial eligibility and, if eligible, payment for the first month in which all eligibility factors are met (see SI 00601.009.)

The sponsor's income in the first month of payment is used to determine the alien's payment for that month and for the subsequent month. Thereafter, regular retrospective monthly accounting (RMA) rules apply.

EXAMPLE:

An alien whose sponsor has signed a new version affidavit files an SSI application on 7/21/99. The alien’s sponsor signed the affidavit on 4/4/98. Apply deeming in 7/99 to determine the first month of eligibility. The sponsor's income for 8/99 is deemed to the alien to determine the amount of payment for 8/99, the first month of payment.

b. Posteligibility

In posteligibility situations (e.g., adjustment of status cases), the income and resources of a sponsor who signed a new version affidavit are deemed to the alien beginning the month after the month the alien attains permanent residence.

EXAMPLE:

An SSI-eligible alien who entered the country in a temporary status petitions DHS to adjust her status to LAPR. Before granting LAPR status, DHS requires that she have a sponsor who signs a new version affidavit of support. The sponsor signs the affidavit and consequently the alien attains LAPR on 12/12/98. Deeming begins effective 1/1/99. If the alien remains eligible for benefits and a normal RMA budget cycle applies, payment is first affected in 3/99.

2. When Deeming Ceases

Deeming ceases to apply the month after the month:

  • the alien becomes a naturalized citizen of the United States (GN 00303.100 and GN 00303.120A.9.); or

  • the sponsor dies; or

  • the alien is no longer LAPR and has departed the U.S.

Deeming ceases to apply in the month the LAPR alien can be credited with 40 QQs. (REMEMBER: QQs earned by a spouse or parent can be counted as the alien’s QQs. See SI 00502.135.)

If none of the above events occurs, deeming continues indefinitely.

REMEMBER: Even if deeming is to be stopped, when determining the SSI payment amount, any deemed income in the budget month is included in the computation following regular RMA rules.

F. Policy — amount of income and resources deemed to an alien in new version affidavit of support cases

The amount of the sponsor’s income and resources subject to deeming will be determined as specified in SI 01320.940 and SI 01330.500.)

Deemed income and resources from the sponsor are added to the alien’s own countable income and resources to determine the alien’s total countable income and resources.

When the sponsor’s income and resources are deemed to the alien, cash and in-kind support and maintenance (ISM) provided to the alien by the sponsor are NOT counted as income to the alien. However, when the indigence exception (described in SI 00502.280) applies, any income (cash or ISM) the alien receives from the sponsor would count as income to the alien.

G. Procedure

1. When to Verify Sponsorship

Keep in mind that sponsor-to-alien deeming need not be developed for any month in which an alien is ineligible for SSI for a reason other than deeming (for example, the alien is ineligible because of the alien’s own income or resources). Also keep in mind that most new alien claimants who have sponsors will not be “eligible aliens” for SSI purposes (SI 00502.100).

a. Refugees, Asylees, Deportation- or Removal-Withheld Aliens

If you determine that the alien was admitted as a refugee, asylee, deportation- or removal-withheld alien, document the file that the alien will not have a sponsor who signed a new version affidavit due to his/her immigration status. No verification of sponsorship is needed.

b. Aliens Who Have Acquired 40 QQs

Aliens who have acquired 40 QQs are excepted from deeming. Therefore, if you have established that an alien can be credited with 40 QQs (see SI 00502.135), no verification of sponsorship is needed.

c. Other Aliens

Verify sponsorship for all other qualified aliens who are otherwise eligible for SSI and subject to deeming. (Refer to the chart in SI 00502.100 for a list of qualified aliens who are potentially eligible to receive SSI.) See SI 00502.215C. for a list of immigration codes that may indicate the alien was sponsored under a new version affidavit.

EXCEPTION: If the alien would be ineligible based on his/her own income and resources, verification of sponsorship is not needed.

NOTE: For aged aliens who need a disability determination, do not defer development of sponsorship pending the disability decision. (See SI 01320.915.)

2. How to Verify Sponsorship

Follow regional instructions for contacting DHS to verify sponsorship. In the absence of regional instructions, contact DHS for verification of sponsorship using DHS Form G-845. Complete and attach a G-845 Supplement (see SI 00502.115B.6. for exhibit) and ask DHS to complete Item 7. Ask the local DHS contact office to check their central case control. Since an individual’s records can be interfiled with the records of other family members, any information you can give DHS about the alien's date of entry or about other family members (their names, dates of entry, point of entry, etc.) will help DHS locate the needed information.

If DHS does not respond to your request within 30 days (or other period based on regional instructions), send a followup request. Indicate that this is a followup and include a copy of the original request and the date it was made.

3. Developing the “Indigence” Deeming Exception

Cases where the indigence exception would apply are sensitive and require tactful handling.

To determine if the indigence exception should be developed, discuss deeming provisions and the exceptions with the alien. Explain to the alien that SSA considers the sponsor’s income and resources to be the alien's income and resources in determining eligibility and computing payment. Explain briefly when the indigence exception applies. If it appears the exception might apply, follow the guidelines in SI 00502.280.

4. Verifying Sponsor’s Income and Resources

Follow the instructions in SI 01320.920.

5. Determining Deemed Income and Resources

Apply the policies in SI 00502.240F. to determine the amount of deemed income and resources.

6. Systems Considerations

MSSICS cannot process cases where deeming under the new version affidavit will apply. Input the sponsor’s deemed income as Type V unearned income (see SM 01005.195 for initial claims input and SM 01305.330 for posteligibility input). Also, input the appropriate sponsor deeming code to the AR field (see SM 01005.630).