TN 3 (06-94)

SI 01320.910 Aliens Not Subject to Sponsor-to-Alien Deeming

Citations:

Social Security Act, Section 1614(f)(3), as amended; Section 1621.

Regulations, 20 CFR 416.1160(a)(3); 416.1166a(d)

SI 01320.910--Cross-refer to SI 00502.240D.

A. Introduction

Sponsor-to-alien deeming does not apply to all aliens. Aliens may be excluded from sponsor-to-alien deeming by any of the following:

  • statute; or

  • because they are not lawfully admitted to the U.S. for permanent residence (LAPR); or

  • because they do not have a sponsor; or

  • because the sponsor is the alien's eligible or ineligible spouse or a parent whose income is otherwise considered in determining the alien's SSI eligibility or payment amount.

B. Policy — excluded from deeming by statute

1. Alien has Refugee Status

Sponsor-to-alien deeming does not apply to refugees admitted to the U.S. under one of the following three sections of the Immigration and Nationality Act (INA):

  • Section 203(a)(7), effective before 4/1/80; or

  • Section 207(c)(1), effective after 3/31/80; or

  • Section 212(d)(5), paroled refugees.

SI 00501.420 B.2. provides instructions for identifying aliens admitted under these provisions.

Aliens admitted under the above categories whose status later changes to LAPR are not subject to sponsor-to-alien deeming even if they have a sponsor.

2. Aliens Granted Asylum Status

Sponsor-to-alien deeming does not apply to aliens granted political asylum by the Attorney General of the United States.

Aliens granted political asylum whose status later changes to lawfully admitted for permanent residence are not subject to sponsor-to-alien deeming even if they have a sponsor.

SI 00501.420 B.2. provides instructions for identifying aliens granted political asylum.

3. Alien Becomes Blind or Disabled After Admission to the U.S.

If an alien becomes blind or disabled (at any age) after lawful admission to the U.S. as a permanent resident, sponsor-to-alien deeming stops effective with the month the alien's disability or blindness begins.

4. Alien First Filed for SSI Before 10/1/80

Sponsor-to-alien deeming does not apply to any alien who filed for SSI prior to 10/1/80. It does not matter if the prior SSI claim was approved or denied.

If an alien filed before 10/1/80 but with drew his/her claim, the alien can be subject to sponsor-to- alien deeming because we treat a withdrawn application as though it were never filed.

If an alien filed before 10/1/80 but voluntarily terminated his/her eligibility, the alien is not subject to sponsor-to-alien deeming because a voluntary termination does not void the application.

C. Policy - excluded from deeming for other reasons

1. Certain Aliens Who are Permanently Residing in the U.S. Under Color of Law

Aliens who are permanently residing in the U.S. under color of law (PRUCOL) are not subject to sponsor- to-alien deeming. (SeeSI 00501.420 and SI 00501.425 for PRUCOL information.)

For example, many aliens legalized under the Immigration Reform and Control Act (IRCA) are not permanent residents and, therefore, are not subject to sponsor-to-alien deeming. However, they may become subject to deeming if they become LAPR. See exceptions in SI 01320.5002.

2. Aliens Not Required to Have Sponsors

Aliens admitted to the U.S. under one of the statuses below are never required to have a sponsor. Therefore, sponsor-to-alien deeming does not apply to the following:

  • Aliens granted LAPR status under section 249 of the INA. These aliens are sometimes called “registry” applicants (see SI 00501.440B.6.). The admission code on Form I-151 or I-551 (Alien Registration Receipt Cards) for aliens in this category is Z03, Z33, or Z66.

  • Applicants for permanent residence who are Amerasians or relatives of Amerasians and the admission codes are described below:

     

DescriptionI-551Code
An Amerasian born in Vietnam between January 1, 1962 and January 1, 1976;AM-1 or AM-6
The spouse or child of an Amerasian as above;AM-2 or AM-7
The mother of an unmarried Amerasian, her spouse and/or child;AM-3 or AM-8
A person who has acted as the parent of an Amerasian and his/her spouse and /or child.AM-3 or AM-8
  

NOTE: Amerasians with admission codes other than those shown above are subject to sponsor-to-alien deeming.

  • Applicants for adjustment under the Cuban/Haitian provisions of section 202 of IRCA (see SI 00501.440 C.2.). Aliens seeking adjustment under this provision would have an I-94 coded CH6.

3. Alien's Sponsor is Deemor in Same Household

If the alien's sponsor is the alien's ineligible spouse or parent living in the same household as the alien, sponsor-to-alien deeming does not apply. Instead, the regular spouse-to-spouse or parent-to-child deeming rules apply.

In any month the alien is not subject to deeming from the ineligible spouse or parent (e.g., the alien and sponsor/spouse live in separate households), the sponsor-to-alien deeming rules apply.

4. Alien's Sponsor is Eligible Spouse

If the alien's sponsor is an eligible spouse, the sponsor-to-alien deeming rules do not apply. Instead, the alien and the sponsor/spouse are treated as members of an eligible couple.

If the eligible couple separates, sponsor-to-alien deeming applies beginning with the month after the month of separation.

NOTE: SSI payments and the income used to determine them are included in sponsor-to-alien deeming. See SI 01320.940.

5. Alien's Admission Promoted by an Organization

An alien whose admission to the U.S. was due solely to promotion by an organization is not subject to sponsor-to-alien deeming.

While we do not deem from an alien's sponsoring organization, any cash or in-kind receipts received by an alien from an organization must be considered under the normal SSI income counting rules.

NOTE: The term “sponsor” does not include, for deeming purposes, an organization such as the congregation of a church or a service club.

If an alien whose admission was promoted by an organization is also sponsored by an individual, sponsor-to-alien deeming applies from the individual.

6. Alien's Admission Promoted by an Employer

An alien whose admission as a permanent resident is based on a guarantee of employment from an employer who does not sign an affidavit of support is not subject to sponsor-to-alien deeming from the employer.

If the alien whose employment is guaranteed is sponsored by a different individual who signs an affidavit of support, sponsor-to-alien deeming applies from the latter individual.

7. Alien's Sponsor Dies

Deeming from a sponsor ends effective with the month following the month of the sponsor's death; i.e., the month the sponsor dies is the last month in which sponsor-to-alien deeming applies.

If the alien has more than one sponsor, deeming continues from the remaining sponsor(s).

8. Sponsorship Cannot be Established Through DHS Records

If there is no evidence that an affidavit of support (or similar document) was filed with the DHS in connection with the alien's application for permanent residence, sponsor-to-alien deeming does not apply.

D. Procedure

1. Aliens Excluded from Deeming by Status

If sponsor-to-alien deeming does not apply because of the alien's status (e.g., a refugee under section 207(c)(1) of the INA), copy or certify the alien's documentation of status for the file.

2. Aliens Excluded from Deeming Because Blind or Disabled After Admission

  1. Initial Claims

    If an alien alleges a date of onset of blindness or disability after his /her date of admission as a permanent resident, pursue a disability determination unless the alien will be denied for a non-medical reason. (See SI 01320.910B. and SI 01320.910C. for aliens excluded from sponsor-to-alien deeming.)

    Follow the instructions in DI 11055.130 for annotating the Form SSA-831-U3 (Disability Determination and Transmittal).

    • Alien is Over Age 65

      If payment is possible using the sponsor-to-alien deeming rules and the individual is aged, adjudicate the application as an aged claim and obtain the disability decision postadjudicatively.

    • Alien Under Age 65

      If payment is possible using the sponsor-to-alien deeming rules and the individual alleges blindness or disability, classify the claim as “blind” or “disabled” and hold the case for a final disability decision.

      If the requirements for presumptive disability payments are met, initiate the presumptive payments and then hold the case for the final disability decision. Do not deem income or resources from the sponsor for the months of presumptive disability payments.

    • Alien is Ineligible Unless Blindness/Disability Onset is After Date of Admission for Permanent Residence

      Classify the claim as “blind” or “disabled” (regardless of the age of the alien) and defer development of the claim until you receive a medical decision.

      If the alien is found to be blind/disabled with an onset date later than the date the alien is admitted for lawful permanent residence and sponsor-to-alien deeming is on the record, remove the deemed income beginning with the later of:

      • the month of effective filing; or

        the month of onset.

  2. Posteligibility Situations

    If an alien alleges blindness or disability after being found eligible as an aged alien subject to sponsor-to-alien deeming, do not obtain a new application. Develop the blindness/disability issue and submit the development to the Disability Determination Services (DDS).

    If the DDS establishes a date of onset after the date the alien is admitted for lawful permanent residence, use DDS's written determination to document the exclusion from sponsor-to- alien deeming. Remove any deemed income beginning with the later of:

    • the month of effective filing; or

    • the month of onset.

3. Aliens Excluded from Deeming Due to Filing for SSI Prior to 10/1/80

Document this exclusion with some record of the prior claim, e.g., a prior supplemental security income record, a copy of the prior application, a copy of the alien's award or denial notice, or a microfiche.

4. Exclusion Because Other Deeming or Eligible Couple Rules Apply

Document this exclusion with evidence of spouse-to-spouse or parent-to-child deeming, or the alien's status as a member of an eligible couple. (The file should already contain this evidence.)

If the alien and the sponsor/eligible spouse separate or a sponsor/ ineligible parent leaves the household, apply the policy in SI 01320.910C.3. and SI 01320.910C.4.

5. Exclusion Because Alien's Admission Promoted by an Organization

Verify that the alien's admission was promoted by an organization by contacting DHS.

6. Exclusion Because Alien's Admission Promoted byan Employer

Verify that