TN 8 (10-00)
SI 00502.280 Indigence Exception to Sponsor Deeming
Generally, if an alien’s sponsor signed a new version affidavit of support, the income and resources of the sponsor (and the sponsor's spouse if living in the same household) are deemed to the alien for purposes of determining SSI eligibility and payment amount. However, under the provision described in this section, deeming is suspended for certain "indigent" aliens.
NOTE: References throughout these instructions to "sponsor" also include the sponsor’s spouse who lives in the same household as the sponsor.
The indigence exception applies for a qualified alien (as defined in SI 00502.100A.2.) when:
sponsor deeming results in denial or suspension of an alien’s SSI eligibility, or reduction in the SSI benefit payable to an alien; AND
the alien is unable to obtain both food and shelter.
In determining whether the alien is unable to obtain both food and shelter, we consider:
all of the alien’s own income and resources (including SSI and other income excluded when determining SSI); and
any cash, food, housing, or other assistance provided by other individuals (including the sponsor).
NOTE: When the indigence exception is applied and SSI benefits are paid or increased, the alien's sponsor is liable for repayment of the SSI paid. (See SI 02220.065 for repayment procedures.)
When deeming is suspended under this exception, the only income from the sponsor that is included as the alien's income is the amount of cash or in-kind support and maintenance (ISM) that the alien actually receives from the sponsor. A sponsor's resources are considered to be the alien's resources only if the alien has an ownership interest in them, can convert them (if not cash), and is not restricted from using them (SI 01110.100B).
1. Condition Under Which Indigence Exception Applies
The indigence exception to sponsor deeming can apply in both initial claim and post-eligibility situations.
a. Alien Lives with Sponsor
If the alien is living with his or her sponsor, assume that the sponsor is providing food and shelter, so alien is meeting his or her food and shelter needs. The indigence exception will not be granted and deeming will apply when the alien is residing with his or her sponsor.
b. Alien Lives Apart from Sponsor
If the alien is living apart from his or her sponsor, the alien will be found to be unable to obtain food and shelter if:
the total income (of all kinds and from all sources) the alien actually receives is less than the Federal benefit rate (FBR); and
the resources available to the alien are under the applicable resource limit.
However, if the alien receives free room and board, the exception does not apply, even if the alien's total income is less than the FBR.
In determining the alien's total income for the indigence test, include all income, even excluded income (e.g., SSI, general assistance). However, do not include those items that are not income (e.g., medical and social services) per SI 00815.000 ff. Also, for the indigence test, in-kind items should be evaluated at their actual value, not the presumed maximum value (PMV).
In determining the alien's resources for the indigence test, include all liquid resources, even excluded liquid resources (e.g., burial funds, underpayments within first 6 months of receipt).
2. Period When the Indigence Exception Applies
When the criteria for this exception are met, deeming is suspended for a 12-month period. Deeming ceases in the month all conditions of the exception are met.
The 12-month exception period can begin at any time the conditions for its application are met. This can be at the time the individual files an application or, in post-eligibility situations, any month the conditions for granting the exception first apply.
The exception is granted for a period of 12 consecutive months (including any nonpayment months that may fall within the 12-month period). During the 12-month period, sponsor deeming does not take place, even if the alien ceases to meet the indigence test (e.g., the support provided by the sponsor increases). However, any changes in the alien's income, including an increase in the amount of income (cash or ISM) provided by the sponsor, are treated as changes in income to the alien.
Multiple occurrences of the exception are permissible. As circumstances warrant, the exception can apply for one 12-month period, for multiple 12-month periods that run consecutively, or for multiple 12-month periods separated by one or more months in which sponsor deeming applies. Each 12-month period is a discrete entity; if an alien remains indigent, a new 12-month period would begin at the expiration of a prior 12-month period. Therefore, a new decision about the alien’s indigence is needed when any 12-month period expires.
3. Referral of Cases to DHS
When the indigence exception allows an alien to receive SSI, the Department of Homeland Security (DHS) must be notified (see SI 00502.280F).
C. Policy - How Sponsor’s Income And Resources Are Counted When Deeming Exception Applies
When deeming is suspended under this exception, the usual income policies (SI 00810.000 through SI 00835.901) are applied to any contributions made to the alien by the sponsor and to any other income the alien receives. The resources policy in SI 01110.100B applies to the sponsor's and alien's joint resources. Any other resources of the alien are counted under the usual policies (SI 01110.000 through SI 01150.210).
When deeming is suspended under this exception, any income the alien actually receives in cash or in kind from the sponsor is included in the alien’s income for SSI purposes. (Since deeming is suspended, the instruction in SI 01320.940B about treatment of cash and in-kind income provided to an alien by a sponsor does not apply.)
Under the indigence exception, if the sponsor provides no income (cash or ISM) to the alien, no income from the sponsor is chargeable.
Under the indigence exception, the resources policy described in SI 01110.100B is applied in determining whether a sponsor’s resource is countable as the alien’s resource. Note that this is different from deeming the sponsor's resources to the alien.
Accordingly, resources owned by a sponsor are considered the alien’s resources only if the alien:
has an ownership interest in them; and
has the right, authority, or power to convert the resources to cash (if not already cash); and
is not legally restricted from using the resources for his or her support and maintenance.
D. Procedure--Developing And Documenting Deeming Exception
Cases involving the indigence exception are sensitive cases and, as such, require tactful questioning.
There are several prompts that indicate the indigence exception should be developed:
while you are discussing deeming provisions (SI 00502.240G.3.) the applicant alleges the indigence exception applies to his or her case; or
while developing the income/resources, the alien indicates he/she gets little or no support from his or her sponsor.
1. Determine Whether Deeming Exception Applies
If the alien lives with his or her sponsor, determine that the exception does NOT apply.
If the alien lives apart from his or her sponsor, develop the alien’s income and resources. If the income (including excluded income per SI 00502.280B.1.b.) the alien actually receives is less than the FBR and resources available to the alien are under the applicable resource limit, determine that the alien meets the criteria for exception from deeming.
2. Contact the Sponsor
Contact the sponsor to confirm the alien’s allegations regarding amounts of income and resources the sponsor provides or makes available to the alien.
If the alien does not know the sponsor's whereabouts, contact DHS using DHS Form G-845 to obtain the sponsor's address.
If you cannot locate the sponsor, accept the alien’s signed allegation if the allegation is credible and does not conflict with other information in file.
If the allegations are not creditable or conflict with other information in file, weigh all evidence in file and make a decision based on all the information you have obtained.
3. Determine Income and Resources
Determine the amount of the income the alien actually receives and the amount of resources owned by the alien (see SI 00502.280D).
4. Document the File
Prepare a Report of Contact (either SSA-5002 or DROC screen) to document the file with your determination on the indigence exception (including the facts you considered in making that determination, and the basis for resolution of any questionable or conflicting evidence) and the amount of income and resources charged to the alien.
5. Notice Requirements
Because the system is unable to determine that deeming is suspended under the indigence exception, a manual notice is required. Suppress the automated notice (see SM 01005.535 or SM 01301.675) and prepare a manual notice including the language in SI 00502.550B.
6. System Input/Annotate the Supplemental Security Record (SSR)
Since no deeming computation is necessary, MSSICS can process new version affidavit cases if deeming is suspended under the indigence exception. (See MSOM MSSICS 008.016 for completion of the AALN screen.) Post any chargeable income and resources under current procedures.
Annotate the Remarks field of the SSR "DEEMING EXCEPTION--INDIGENCE," followed by the month and year in which the deeming exception is effective in the case (see SM 01301.841). For MSSICS processing, enter this remark via the CRMK screen (MSOM MSSICS 023.003).
Set a manual redetermination diary (RT diary) (see SI 02305.022A.6.) on the SSR with a maturation date near the end of the exception period so that the alien can be recontacted BEFORE the exception period ends. In MSSICS, the RT diary is set after you enter a “Y” in the INDIGENCE APPLIES field and the appropriate month and year for the DATE ESTABLISHED on the second page of the AALN screen. You may update an RT diary and the date per diary instructions in MSOM BUSSR 002.019, Update Diaries (UDIA). Since a complete picture of the alien’s income, resources and living arrangements is necessary to determine if the indigence exception continues to apply, a full redetermination is needed.
7. Processing Affected Cases When Exception Ceases to Apply
Resume deeming the sponsor’s income and resources effective with the month following the last month for which the exception applies. Suppress the automated notice and issue a manual SSA-L8155, Notice of Planned Action, explaining the reason for the resulting change in the alien’s eligibility or payment amount. (See SI 00502.550C for notice language to include in your notice.)
E. Procedure -- Notifying Immigration And Naturalization Service That Deeming Exception Is In Effect
If sponsors do not provide basic support to the immigrants they bring into the United States, the sponsors may be sued by the sponsored immigrants and by SSA for the amount of SSI paid to the immigrants. (See SI 02220.065 for repayment procedures.) DHS is tracking the failure of sponsors to adequately support those sponsored. Therefore, the Immigration Reform Act of 1996 requires SSA to report to DHS every case where the indigence exception applies.
When you make a determination that the indigence exception applies, notify DHS about the determination. Copy and complete the referral sheet in SI 00502.280I and attach a copy of the indigence determination (required in SI 00502.280E). Send to: Office of Program and Regulation Development
U.S. Citizenship and Immigration Services
20 Massachusetts Ave. NW
Washington, DC 20529
Also send a copy of the DHS notification to: OISP, OBDS (Indigence Case)
Social Security Administration
6401 Security Blvd.
Baltimore, MD 21235-6401
Mrs. Smith, an alien whose sponsor has executed a new version affidavit, files an SSI claim on 2/18/98. During the initial claims interview, Mrs. Smith alleges that her sponsor gives her only $350 a month in cash and no other support. The sponsor verifies her allegation. Mrs. Smith has no other income. The field office (FO) determines that the criteria for the deeming exception for indigence are met because she doesn’t live with her sponsor and her income is less than the FBR.
Effective with the first month of eligibility, 2/98, deeming is suspended for 12 months. Assuming there is no change in the amount of cash received from the sponsor, Mrs. Smith is charged with $350 cash support (type "S" unearned income) for the months of 2/98 through 1/99. The claims representative (CR) sets a redetermination diary to review the case before 1/99.
Effective 2/1/99, deeming is applied under the new version affidavit rules (SI 00502.240) unless Mrs. Smith continues to meet the exception.
Same as above, but in 12/98, at the time of a FO-initiated recontact with Mrs. Smith, the FO learns that her circumstances have not changed (i.e., the sponsor is providing her with only $350 cash support). If sponsor deeming were reinstated, the resulting decrease in her income would leave her indigent.
Sponsor deeming is suspended for a second 12-month period. The second 12-month period begins on 2/1/99. The CR sets a new diary to review the case before 1/00.
Mr. Brown, an alien whose sponsor has executed a new version affidavit, files an SSI claim on 2/18/98. His sponsor was recently laid off from work, and the sponsor’s only income is a small unemployment compensation check. His sponsor has limited resources. Even with sponsor deeming in effect, Mr. Brown is eligible for SSI.
During a post-eligibility interview in 7/98, Mr. Brown alleges that for the past 2 months, the only support he has received from his sponsor has been in the form of a checking account set up by the sponsor for Mr. Brown’s use. Every month, his sponsor deposits $250 into the account. This is the only money available to Mr. Brown to meet his living expenses. Mr. Brown submits checking account statements showing that the checking account was established on 5/28/98. The FO contacts his sponsor for a corroborating statement and determines that the criteria for the deeming indigence exception are met.
Effective 6/1/98, deeming is suspended for 12 months. Mr. Brown is charged with $250 in unearned income (type "S") beginning 6/98.
If Mr. Brown's sponsor finds employment before the end of the 12-month period and is able to meet all Mr. Brown's needs, deeming remains suspended until 12 months have elapsed. The additional support his sponsor provides (either as cash or ISM) is input as Mr. Brown's income (as cash contributions or ISM, not as deemed income).
Monthly Wage Reporting, SI 00820.143
Posting Income Entries in Non-MSSICS Initial Claims, SM 01005.170 through SM 01005.200
Posting Income Entries in Non-MSSICS Post-eligibilty Events, SM 01305.101 through SM 01305.335
Posting Resource Entries in MSSICS, SI 02305.100
Posting Resource Entries in Non-MSSICS Initial Claims, SM 01005.205 through SM 01005.215
Posting Resource Entries in Non-MSSICS Post-eligibility Events, SM 01305.400 through SM 01305.415
H. Exhibit--DHS Notification
TO : Office of Program and Regulation Development
U.S. Citizenship and Immigration Services
20 Massachusetts Ave, NW
Washington, DC 20529
SUBJECT: Determination Under Section 421(e) of the Personal Responsibility and Work
Opportunity Reconciliation Act of 1996
SSA has initiated payment of Supplemental Security Income (SSI) in the following case. We have determined that the absence of, or reduction in, SSI benefits would result in the alien being indigent (i.e., unable to obtain food and shelter).
Attached is a copy of our determination of indigence, which contains the facts in this case.
SSA Office Address:_______________________________________
(Name and Title)
cc: OISP, OBDS (Indigence Case)
Social Security Administration
6401 Security Blvd.
Baltimore, MD 21235-6401