TN 20 (04-10)

SI 00502.301 Supplemental Security Income (SSI) Extension for Elderly and Disabled Refugees Act

A. Background for P.L. 110-328, the SSI extension for Elderly and Disabled Refugees Act

On September 30, 2008, the President signed into law “The SSI Extension for Elderly and Disabled Refugees Act” (P.L. 110-328). This legislation will sunset September 30, 2011. Aliens subject to the 7- year limit on SSI eligibility (SI 00502.106, Time Limited Eligibility for Certain Aliens) may be eligible to receive up to a three or two year benefit extension under this legislation if:

  • SSA suspended or terminated the alien’s benefits between August 22, 1996, and September 30, 2008, or

  • the alien received benefits on October 1, 2008, or later, or

  • the alien never received SSI in the past and filed a new application on or after October 1, 2008, and the alien meets all applicable SSI eligibility requirements.

This legislation temporarily extends benefits up to:

  • three years to aliens subject to the 7-year time limit on SSI eligibility who verifies he or she is pursuing citizenship. To verify the effort to pursue citizenship, the alien must prove that he or she has:

    1. a pending citizenship application, or

    2. an approved citizenship application and is waiting to be sworn in as a U.S. citizen.

Aliens, whose benefits would otherwise terminate, may continue to receive benefits until September 30, 2011.

  • two years to aliens subject to the 7-year time limit on SSI eligibility who:

    1. do not qualify for the three year benefit extension,

    2. are subject to the 7-year time limit on SSI eligibility, OR is a victim of human trafficking (SI 00502.111),

    3. sign a good faith declaration, see SI 00502.301C.2. in this section, and

    4. meet one of the following criteria:

      1. have been a lawful permanent resident (LPR) for less than six years (as of October 1, 2008) and that status has not been abandoned, rescinded, or terminated through removal proceedings; or

      2. has applied for status adjustment to become LPR within four years from the date he or she began to receive SSI and such application is still pending; or

      3. is a Cuban/Haitian entrant, as defined in section 501(e) of the Refugee Education Assistance Act of 1980 (SI 00502.108, SSI Eligibility for Cuban/Haitian Entrants); or,

      4. has had his or her deportation withheld by the Secretary of Homeland Security under sections 243(h) of the Immigration and Nationality Act (INA) or whose removal is withheld under Section 241(b)3 of such Act; or

      5. has not attained age 18 as of October 1, 2008, (i.e., one born after 10/01/90); if the individual attains age 18 while this legislation is in effect, he or she must undergo the standard age-18 redetermination for continued disability following instructions in DI 33025.075 or,

      6. has attained age 70 (if the alien attains age 70 AFTER October 1, 2008, he or she may be eligible for the extension beginning the month after the month the alien attains age 70, but no earlier if his or her eligibility is based on this age).

    Aliens, whose benefits would otherwise terminate, may continue to receive benefits for two additional years or until September 30, 2011, whichever occurs first.

    REMINDER: Aliens admitted as Amerasians are qualified LPRs and while eligible for the extension, they must meet the requirements shown in this section.

B. Policy on the two-year benefit extension

1. Aliens whose benefits SSA suspended or terminated during August 22, 1996, through September 30, 2008

The two-year benefit extension applies to qualified aliens who SSA suspended or terminated because their 7-year eligibility period expired during August 22, 1996, to September 30, 2008. After determining eligibility for an extension, SSA will pay benefits for two additional years beginning October 1, 2008, or whenever the claimant meets all requirements for eligibility, whichever is later. SSA will pay extended benefits for two years or until September 30, 2011, whichever occurs first. SSA will not pay benefits under the extension after September 30, 2011.

2. Aliens receiving benefits on September 30, 2008 or later

The two-year benefit extension applies to qualified aliens whose benefits SSA did not suspend as of September 30, 2008. After determining eligibility for an extension, SSA will pay extended benefits from October 1, 2008, for up to two years or until September 30, 2011, whichever occurs first. Effective October 1, 2011, the time limit reverts to 7-year.

3. New applications on or after October 1, 2008

New applicants who never received SSI before may qualify under P.L. 110-328. These individuals could be paid up to two years, not to exceed September 30, 2011. They could be potentially eligible for the extension if they file an SSI application between October 1, 2008, and September 30, 2011. New applicants must attain their status on September 2004, or earlier to be eligible for any possible extension. The additional two years or fraction thereof is only payable through September 30, 2011. For additional information see SI 00502.305.

C. Policy for the effort to pursue citizenship

1. Three-year benefit extension

To qualify for the three-year benefit extension, either:

  • the alien must have a pending citizenship application, or

  • the United States Citizenship and Immigration Service (USCIS) must approve the alien for naturalization and the alien is waiting to be sworn in as a U.S. citizen.

EXAMPLE: An alien files for the extension on October 1, 2008. He or she does not have a pending naturalization application with USCIS. If the alien meets all the criteria in SI 00502.301A in this section for the two-year benefit extension, SSA will pay the alien SSI benefits for an additional two years until September 30, 2010.

On May 4, 2009, the alien files a citizenship application and provides SSA with the corresponding proof via a DHS Form I-797, Notice of Action. The SSA technician verifies the pending application by using Case Status Online (CSOL) on the USCIS website. CSOL confirms that the application is pending. SSA extends the alien’s SSI eligibility until September 30, 2011.

IMPORTANT: The extension does not apply to current U.S. citizens because they are not subject to the 7-year eligibility period affected by this law. Therefore, if the alien attained citizenship prior to October 1, 2008, he or she is not eligible for the three year extension. However, a naturalized U.S. citizen whose benefits ceased may be eligible again for SSI if he or she files a new application. If he or she previously received SSI benefits, and is within their 12-month suspension period, they may be eligible without the need for a new application.

2. Two-year benefit extension

To qualify for the two-year benefit extension, any individual age 18 or older as of October 1, 2008, who does not qualify for the three-year benefit extension must sign a declaration under penalty of perjury stating that he or she has made a good faith effort to pursue U.S. citizenship.

3. Naturalization applications – requirements and denials

a. Policy for naturalization examination

SSA considers the citizenship application as pending if the alien fails the naturalization examination due to lack of proficiency in civics or English language and the alien:

  • applies for a remedial examination, or

  • files a new N-400 application.

FOs must verify the status of the application using the I-797 that the alien provides. An alien can take the citizenship examination and English proficiency twice; at an initial examination and at a remedial examination.

b. Policy for naturalization denials

If the USCIS denies a citizenship application, the alien is no longer eligible for the three-year benefit extension on eligibility explained in SI 00502.301A in this section. However, the alien may remain eligible for the two-year benefit extension if he or she meets the eligibility criteria specified in SI 00502.301A. in this section.

c. Procedure for determining good faith after the USCIS denies a citizenship application

If the FO finds out that the USCIS denied the citizenship application and it is no longer pending, the FO must develop whether the alien meets the two-year benefit extension criteria in SI 00502.301A in this section. If the alien is eligible and is over age 18 as of October 1, 2008, the FOs must ask the individual to sign a good faith declaration. The alien eligibility for the extension will expire when the alien’s two years are up, as long as the two-year period does not extend beyond September 30, 2011. The two-year eligibility will include the period paid when the citizenship application was pending.

EXAMPLE: An alien SSI recipient 7-year eligibility expired on November 12, 2008. He filed for naturalization immediately thereafter on November 13, 2008, and provided SSA with an I-797 receipt confirming such pending application. On June 30, 2009, the alien receives a notice from USCIS stating the USCIS denied his citizenship application for failing to meet the good moral character determination. The alien comes into the SSA FO with the denial notice. The SSA technician will have the alien sign a good faith declaration and SSA will continue benefits until the two-year benefit extension expires on November 12, 2010. SSA stops benefits as of December 1, 2010.

IMPORTANT: If the alien does not meet the eligibility criteria, benefits must stop and SSA must process the overpayment (if any) according to overpayment procedures in SI 02201.005.

4. Good faith declaration

The good faith declaration states: “It is my intention to become a citizen of the United States if and when I am permitted by law to do so. And that I have made a good faith effort to pursue United States citizenship by filing and pursuing timely application for naturalization, lawful permanent residence, and/or such other benefit under the immigration laws that may lead to United States citizenship.”

The declaration language is overprinted onto an SSA-795-OP-1 (Statement of Claimant or Other Person) and is available through the Forms Inventory Control System (FICS). The overprinted SSA-795 also contains the penalty clause and the privacy act statement. You can download the form using this link: http://ofsm.ssahost.ba.ssa.gov/ and reproduce it locally as needed. An exhibit of the form is in SI 00502.306. Electronic versions can be used by inserting the declaration language shown above onto a DPST in MSSICS.

5. Kaplan, et al. v. Chertoff, et al., CV 06-5304 (Kaplan class action settlement)

The USCIS, the Federal Bureau of Investigation (FBI) and the Social Security Administration (SSA) have entered into a settlement agreement in a national class action, Kaplan, et al. v. Chertoff, et al. This class action challenged alleged delays by the government in adjudicating immigration applications for adjustment of status (Form I-485) and naturalization (Form N-400) for those individuals who are receiving or have received SSI benefits and the resulting actual or potential cut-off of SSI benefits. The settlement agreement took effect March 5, 2008, and will remain in effect until February 5, 2011.

As part of the settlement agreement, SSI non-citizen claimants (potential, current or former claimants) who contact SSA concerning their SSI benefits should receive the following information:

  • The availability of USCIS expedited processing of naturalization (N-400) applications;

  • The availability of expedited processing of adjustment of status (I-485) applications; and

  • The ability to apply for a fee waiver.

Inform the alien SSI claimant subject to time-limited SSI eligibility that if he or she has a pending I-485 or N-400, he or she (or his or her representative) may call USCIS toll free at 1-800-375-5283 or 1-800-767-1833 (TTY) and request expedited processing:

  • in writing; or

  • by going to the local USCIS office; or

  • at the time, the alien files an I-485 or N-400.

If the alien SSI claimant has not yet filed an I-485 or N-400 application, the claimant may apply for a fee waiver and expedited processing when they file the application. If the claimant mails the application, instruct the claimant to write the word “KAPLAN” on the outside of the mailing envelope. Advise the claimant to keep a record of their request.

Notify the alien SSI claimant subject to time-limited SSI eligibility that he or she can learn more about applying for a fee waiver by:

  • contacting USCIS toll free at 1-800-375-5283 or 1-800-767-1833 (TTY),

  • contacting his or her local USCIS office, or

  • by visiting the USCIS website at http://www.uscis.gov/feewaiver

    or

http://www.uscis.gov/naturalization

The alien SSI claimant may also seek advice about getting his or her immigration case expedited or fee waivers from Kaplan class counsel at Community Legal Services, Philadelphia, PA, by calling toll-free, 1-800-889-4369.

IMPORTANT: Be aware that “Expedite” does not mean that background checks or the adjudication of an application will be completed by a certain date, nor does “Expedited Processing” guarantee approval of an application. This is contained in the Kaplan agreement stipulations and we do not want to create a false expectation on the part of the applicant. Do not make assurances or assumptions on the expedited processing. Tell the applicant that all questions or inquiries regarding the Kaplan settlement and their pending immigration applications must be directed to USCIS.

D. Process of reinstatements under past interim instructions

1. Aliens who SSA suspended or terminated prior to October 1, 2008

SSA screened aliens whose benefits terminated from August 22, 1996, through September 30, 2008, and who asked for an extension under P.L. 110-328 to determine if they met the preliminary criteria for the extension, including SSI non-alien eligibility requirements. If eligible, SSA reinstated the aliens under interim instructions. However, SSA processed the reinstatements without obtaining the good faith declaration described in SI 00502.301C.4. in this section, and without assessing continued disability. FOs must re-contact aliens in this category to verify their eligibility for the extension.

NOTE: Many of the aliens suspended or terminated prior to October 1, 2008, may not have applied for reinstatement. Central Office (CO) sent notices to as many claimants as SSA could identified, informing them of the potential for extended benefits and asking them to contact SSA to set up an appointment with their local field offices. For a copy of that notice, see SI 00502.306. Since CO may not have sent notices to all potentially eligible aliens, you should develop for eligibility the extended benefits for any claimant you have contact with who was previously eligible for SSI under a time-limited alien category.

2. Aliens whose 7-year eligibility period ended as of October or November 2008

CO previously provided lists to the Regions of beneficiaries whose benefits were scheduled to end in October and November 2008. SSA manually reinstated benefits to these aliens through force due procedures under the interim processes and instructions. However, SSA processed the reinstatements without verifying eligibility for the extension, without obtaining the good faith declaration described in SI 00502.301C.4. in this section, and without assessing continued disability. FOs must re-contact aliens in this category to verify their eligibility for the extension.

3. Aliens whose 7-year eligibility period ended on or after December 1, 2008

Effective December 1, 2008, CO suppressed the suspensions for expiration of the 7-year period and SSA continued payments without verifying eligibility for the extension, without obtaining the good faith declaration described in SI 00502.301C.4. in this section, and without an assessing continued disability. FOs must contact aliens in this category to verify their eligibility for the extension. FOs received a list of the aliens in their service areas who they must contact.

E. Instructions for 800 number agents

If National 800 Number Network (N8NN) sites receive inquiries from the public due to the SSI Extension for Elderly and Disabled Refugees Act, follow the instructions in the following chart when addressing these inquiries.

IF the caller …

THEN…

Wants general information about “The SSI Extension for Elderly and Disabled Refugees Act”.

Use the information in “Background” and “Policy” (SI 00502.301A. and SI 00502.301B. in this section) for responding to the alien.

Is an alien who has never received SSI, alleges that he or she would be eligible for SSI due to this legislation, and wants to file.

Make an appointment to file following normal operating instructions in the Teleservice Center Operating Guide (TSCOG) and the Customer Help Information Program (CHIP).

Is an alien who indicates that his or her eligibility for SSI benefits will be terminated and the 7-year time limit expires in one month or less from today’s date.

Send a DW01 (MSSICS case) or MDW (non-MSSICS case) to the FO. Advise the FO that the alien wants “The SSI Extension for Elderly and Disabled Refugees Act” provisions applied to his or her case. Advise the alien that the FO will contact him or her.

Is an alien who indicates that his or her eligibility for SSI benefits will be terminated and the 7-year time limit expires in more than one month from today’s date.

Advise him or her to contact the FO one month before the termination date. Also, provide the alien with the local FO address and business telephone number.

Is an alien whose SSI eligibility was suspended or terminated from August 22, 1996, through September 30, 2008, the 7-year time limit has expired, and the alien wants SSI benefits reinstated.

Send a DW01 (MSSICS case) or MDW (non-MSSICS case) to the FO, and explain that the alien wants “The SSI Extension for Elderly and Disabled Refugees Act” provisions applied to his or her case, and annotate the date that the alien’s SSI eligibility was terminated or suspended on the DW01 or MDW, and advise the individual that the FO will contact him or her.

Is an alien who first decided not to pursue citizenship in good faith and received a denial letter, and now changed his or her mind and wants benefits reinstated

Send a DW01 (MSSICS case) or a MDW (non-MSSICS case) to the FO explaining the situation. Annotate the date the alien alleged termination or denial occurred. Refer the alien to the FO and have him or her bring all pertinent immigration a