Identification Number:
CJB 08-04 REV
Intended Audience:All ODAR Hearing Level Personnel
Originating Office:ODAR Office of the Chief Administrative Law Judge
Title:Avoiding Legal Errors Based on Outdated Non-Disability Regulations
Type:Chief Judge Bulletins
Program:Title II (RSI); Title XVI (SSI)
Link To Reference:See References at the end of this CJB.
 
Retention Date: Indefinite

Re: Outdated Non-Disability Regulations

We are revising CJB 08-04, issued on June 6, 2008, to correct the entry for 20 C.F.R. § 416.1222, pertaining to property essential for self-support and are reissuing the CJB with the corrections. The corrections provide that as of May 1, 1990, SSA excludes from countable resources property essential for self-support that is used in a trade or business, represents government authority to engage in income producing activity, or is the personal property of an employee used at work, irrespective of the individual’s equity in the property and the property’s rate of return (i.e., for this property, the $6,000/six percent rule no longer applies). See POMS SI 01130.501.

The CJB is reissued as follows:

Outdated Regulations
Superseding Statutes
Summary of Statutory Changes and When They Went into Effect
20 C.F.R. § 404.363Section 202(d)(4) of the Act, 42 U.S.C. § 402(d)(4)In determining whether a child is “dependent” on the step-parent, the Act now eliminates “living with” the step-parent as an alternative to the child’s receipt of at least half of his or her support from the step-parent.

Effective for child’s insurance benefits that would begin after June 1996 were child’s benefit eligibility established. See Pub. L. 104-121, §§ 104(a)(1), (2), 110 Stat. 847, 851.

20 C.F.R. § 404.468 Sections 202(x)(1)(A)(i)-(v) and 202(x)(1)(B)(i)-(iv) of the Act, 42 U.S.C. §§ 402(x)(1)(A)(i)-(v) and 402(x)(1)(B)(i)-(iv)(1) There is no payment of monthly Title II benefits to individuals who are inmates of publicly funded institutions confined by a court order in connection with a verdict or finding that they are--

    guilty but insane, with respect to a criminal offense,

    not guilty of the offense by reason of insanity,

    incompetent to stand trial on the offense, or


in connection with a similar verdict or finding based on similar factors (mental disease, defect, or incompetence).

Moreover, any person so confined will be treated as remaining confined until he or she is released from the care and supervision of the institution or until the institution no longer meets his or her basic living needs.

Effective for benefits payable in or after February 1995. See Pub L. 103-387, §§ 4(a), (b), 108 Stat. 4071, 4076.

(2) No requirement exists any longer that the confinement stem from a criminal offense that is punishable by more than one year (or is a felony).

Effective for confinements beginning on or after April 1, 2000. See Pub. L. 106-170, §§ 402(b)(1), (2), 113 Stat. 1860, 1908.

(3) No benefits may be paid to sexual offenders who remain confined by court order to a public institution upon completion of their criminal term because of a finding that they are sexually dangerous or a sexual predator, or because of a similar finding.

Moreover, any person so confined will be treated as remaining confined until he or she is released from the care and supervision of the institution or until the institution no longer meets his or her basic living needs.

Effective with respect to benefits for months in or after December 1999. See Pub. L. 106-170, §§ 402(d)(1)-(3), 113 Stat. 1860, 1909.

(4) No monthly benefits may be paid to a person--


    fleeing prosecution, or custody or confinement after conviction, under the laws of the place from which the person flees:
          for a crime or attempted crime that is a felony under the foregoing laws,

          or, in jurisdictions that do not define crimes as felonies, for a crime (or attempted crime) punishable by death or more than a year in prison, regardless of the actual sentenced imposed, or

    who has violated a condition of probation or parole imposed under Federal or State law.

The Commissioner shall pay the benefits that have been or would be withheld under the foregoing provisions if a court of competent jurisdiction has:

    found the person not guilty of the criminal charge,

    dismissed the charges related to the criminal offense,

    dismissed the person’s arrest warrant for the criminal offense, or

    issued any similarly exonerating order (or taken any similarly exonerating action), or


if the person was erroneously implicated in the criminal offense due to identity fraud.

Moreover, for good cause shown based on mitigating circumstances, the Commissioner may pay the person the benefits that have been or would be withheld under the foregoing provisions if the Commissioner determines that:


    the offense for the fleeing individual, or the offense underlying the probation or parole, was non-violent and not drug-related, and

    for an individual charged with violating a condition of probation or parole, the action resulting in violation of the condition of probation or parole was also non-violent and not drug-related.


These provisions are effective for Title II benefits payable for months in or after January 2005. See Pub. L. 108-203, §§ 203(a), (d), 118 Stat. 493, 509-510, 511
20 C.F.R. § 416.1222Section 1613(a)(3) of the Act, 42 U.S.C. § 1382b(a)(3)All property essential to self-support that:

is used in a trade or business; or

is the personal property of an employee used at work; or

represents government authority to engage in income producing activity

is excluded from countable resources effective May 1, 1990, irrespective of the amount of the individual’s equity in the property and the rate of return that the property produces (i.e., for the types of property above, the $6,000/six percent rule no longer applies).

Effective May 1, 1990. See Pub. L. 101-239, §§ 8014(a), (b), 103 Stat. 2106, 2465; POMS SI 01130.501

20 C.F.R. § 416.1246Section 1613(c) of the Act, 42 U.S.C. § 1382b(c), for SSI and Optional State Supplementary benefitsIf an individual or his or her spouse disposes of resources for less than the fair market value at any time on or after the “look-back” date, he or she will be ineligible for SSI and Optional State Supplement benefits, if any, beginning with the first day of the first month in or after which the resources were disposed of for less than fair market value that does not occur in any other such period of ineligibility. The period of ineligibility will continue for the number of months specified below.

The “look-back” date is the date 36 months before the application date or, if later, the date the individual or spouse disposed of resources for less than the fair market.

The number of months that the individual will remain ineligible for SSI and Optional State Supplementary benefits will equal the total cumulative uncompensated value of the resources disposed of divided by the maximum monthly SSI benefit plus the amount, if any, of the maximum State Supplementary benefits that would otherwise be payable, rounded to the nearest whole number, but no greater than 36 months.

However, in some instances, there is no period of benefit ineligibility for a transfer of resources to a trust, as provided for in Section 1613(c)(1)(B) of the Act.

Moreover, the individual will not be ineligible for benefits based on disposal of resources by the individual or spouse if:


    the resource disposed of is a home and title to the home is transferred to the spouse of the transferor or to certain other designated relatives, under the circumstances described in Section 1613(c)(1)(C)(i);

    the resources are transferred to or from the transferor’s spouse or to another for the sole benefit of the transferor’s spouse, or are transferred to a trust under the circumstances specified in Section 1613(c)(1)(C)(ii);

    A satisfactory showing is made to the Commissioner that—

        the individual who disposed of the resources intended to dispose of them for fair market value, or for other valuable consideration,

        the individual who disposed of the resources transferred the resources exclusively for a purpose other than to qualify for benefits,

        all resources transferred for less than fair market value were returned to the transferor, or

        denial of eligibility would work an undue hardship, on the basis of the Commissioner’s criteria for undue hardship.

For a resource held in common tenancy, in joint tenancy, or in similar arrangements, the resource (or the affected portion of the resource) is considered to have been disposed of when any action is taken, either by the individual or another person, that reduces or eliminates the individual’s ownership or control of the resource.

When a transfer by a spouse of the individual results in a period of ineligibility for the individual, the Commissioner will apportion the period of ineligibility (or any applicable portion of the period) between the individual and the spouse if the spouse becomes eligible for benefits.

Effective for disposals made on or after December 14, 1999. See Pub. L. 106-609, Title II, Subtitle A, §§ 206(a), (c), 113 Stat. 1822, 1834-1837.

20 C.F.R. § 416.1339Sections 1611(e)(4)(A)-(C), 42 U.S.C. §§ 1382(e)(4)(A)-(C)No monthly benefits may be paid to a person--

    fleeing prosecution, or custody or confinement after conviction, under the laws of the place from which the person flees,
        for a crime or attempted crime that is a felony under the foregoing laws, or

        in jurisdictions that do not define crimes as felonies, for a crime (or attempted crime) punishable by death or more than a year in prison, regardless of the actual sentenced imposed, or

    who has violated a condition of probation or parole imposed under Federal or State law.

The Commissioner shall pay the benefits that have been or would be withheld under the foregoing provisions if a court of competent jurisdiction has

    found the person not guilty of the criminal charge,

    dismissed the charges related to the criminal offense,

    dismissed the person’s arrest warrant for the criminal offense, or

    issued any similarly exonerating order (or taken any similarly exonerating action), or


if the person was erroneously implicated in the criminal offense due to identity fraud.

Moreover, for good cause shown based on mitigating circumstances, the Commissioner may pay the person the benefits that have been or would be withheld under the foregoing provisions if the Commissioner determines that:


    the offense for the fleeing individual, or the offense underlying the probation or parole, was non-violent and not drug-related, and

    for an individual charged with violating a condition of probation or parole, the action resulting in violation of the condition of probation or parole was also non-violent and not drug-related.


These provisions are effective for SSI benefits payable for months in or after January 2005. See Pub. L. 108-203, §§ 203(b)(1), (d), 118 Stat. 493, 510, 511
20 C.F.R. §§ 404.310, 404.315, 404.320, 404.330, 404.335, 404.339, 404.350, 404.370, and 404.381 may be outdated, to the extent that they pertain to the title II benefit eligibility of aliens.

Further, as to SSI benefits, 20 C.F.R. §§ 416.202(b)(2) and (3), 416.1615-416.1619, 416.1166a, and 416,1204 are also outdated

As to Title II benefits, see, in particular, 8 U.S.C. § 1611(b)(2); 8 C.F.R. § 103.12

As to SSI benefits, see 8 U.S.C. §§ 1601 et seq., and the pertinent statutory and regulatory provisions cited therein. See, also the Links to References above. .

Aliens who are not “qualified aliens,” within the terms of 8 U.S.C. § 1641, are generally ineligible for Federal benefits, but may nonetheless be entitled to benefits under title II of the Act.

Under 8 U.S.C. § 1611(b)(2), an individual who is not a “qualified alien” will still be eligible for benefits under title II if:


    nonpayment of title II benefits would contravene a totalization agreement under Section 233 of the Act,

    nonpayment of title II benefits would violate Section 202(t) of the Act, or

    the alien’s title II benefit entitlement is based on an application filed in or before August 1996.


Additionally, individuals who are not “qualified aliens” may still be eligible for benefits under title II of the Act if they are otherwise “lawfully present in the United States,” within the terms of 8 C.F.R. § 103.12. (See the block below for an additional limit to title II eligibility under this scenario.)

Pursuant to 8 U.S.C §§ 1641(b) and (c), “qualified aliens” include:


    aliens lawfully admitted for permanent residence under the INA,

    aliens granted asylum under Section 208 of the INA,

    refugees admitted to the U.S. under Section 207 of the INA,

    aliens paroled into the U.S. under Section 212(d)(5) of the INA for at least a year,

    aliens whose deportations have been withheld under the provisions cited in 8 U.S.C. § 1641(b)(5),

    aliens granted conditional entry pursuant to § 203(e)(7) of the INA as in effect before April 1, 1980,

    aliens who are “Cuban and Haitian entrant[s],” within the terms of Section 501(e) of the Refugee Education Assistance Act of 1980, Pub. L. 96-422, 94 Stat. 1799 (1980), and

    aliens who satisfy the battery or extreme cruelty criteria identified in 8 U.S.C. § 1641(c).


Even “qualified aliens” are generally ineligible for SSI, under either 8 U.S.C. § 1612 or 1613.

Specifically, under 8 U.S.C. § 1612, “qualified aliens” are ineligible for any “specified program” identified in § 1612(3). SSI benefits and optional State Supplementary benefits fall within the category of “specified programs” (along with food stamps). However, the general statutory ban on SSI eligibility does not apply to aliens who--


    are lawfully admitted to the U.S. for permanent residence under the INA and have:
        worked 40 qualifying quarters of coverage, as defined in title II of the Act, or can be credited with such qualifying quarters, under 8 U.S.C. § 1645, and

        in the case of any such qualifying quarter for any period beginning after December 31, 1996, did not receive any Federal means-tested benefit, under 8 U.S.C. § 1613, during any such period;

    lawfully reside in any State and are
        veterans who satisfy the criteria of 8 U.S.C. § 1612(a)(2)(C)(i),

        on active duty, other than active duty for training, in the Armed Forces of the United States,

        the spouses or unmarried dependent children of any individuals described in a or b above, or

        the unremarried spouses of any deceased individuals described in a or b above, provided that their marriages met the requirements of 38 U.S.C. § 1304;

    lawfully resided in the U.S. on August 22, 1996, if—
        they were receiving SSI on that date, or

        they are blind or disabled, under Sections 1614(a)(2) and (3) of the Act, respectively;

    are—
        American Indians born in Canada to whom Section 289 of the INA applies, or

        members of an Indian tribe defined in 25 U.S.C. § 450b(e); or

    received SSI benefits—
        for months after July 1996 based on an application filed before January 1, 1979, and

        with respect to whom, the Commissioner lacks clear and convincing evidence that the aliens are ineligible for SSI benefits as a result of 8 U.S.C. § 1612.

Moreover, aliens who qualify as refugees or asylees under the criteria specified in 8 U.S.C. § 1612(a)(2)(A) are exempt from the ban on SSI eligibility for the applicable seven-year period identified in § 1612(a)(2)(A).

Further, under § 1613, a “qualified alien” who entered the U.S. on or after August 22, 1996, is, with certain exceptions specified in §§ 1613(b) and (d), ineligible for any Federal means-tested public benefit (such as SSI) for a period of five years beginning on the date of the alien’s entry into the U.S. with “qualified alien” status. The above-referenced exceptions apply to—


    aliens granted asylum under Section 208 of the INA,

    refugees admitted to the U.S. under Section 207 of the INA,

    aliens whose deportations are being withheld under the provisions cited in 8 U.S.C. § 1613(b)(1)(C),

    aliens who are “Cuban or Haitian entrant[s],” within the terms of Section 501(e) of the Refugee Education Assistance Act of 1980, Pub. L. 96-422, 94 Stat. 1799 (1980),

    aliens admitted to the U.S. as Amerasian immigrants, under 8 U.S.C. § 1612(a)(2)(A)(i)(V), and

    aliens who lawfully reside in any State and who are

        veterans satisfying the criteria of 8 U.S.C. § 1613(b)(2)(A),

        on active duty (other than active duty for training) in the Armed Forces of the United States,

        the spouses or unmarried dependent children of any individuals described in a or b, above, or

        the unremarried spouses of any deceased individuals described in a or b, above, provided that the marriage met the requirements of 38 U.S.C. § 1304.

For “qualified aliens” who are not per se ineligible for SSI under 8 U.S.C. §§ 1612 and 1613, 8 U.S.C. § 1631 modifies Section 1621 of the Act and 20 C.F.R. §§ 416.1166a and 416.1204 by extending sponsor-to-alien income and resource deeming beyond the month of the third anniversary of an alien’s admission into the U.S. and by eliminating exemptions from deeming that some aliens had previously enjoyed under Section 1621 of the Act.

Specifically, notwithstanding Section 1621, 8 U.S.C. § 1631 provides that in determining an alien’s SSI eligibility and amount of SSI benefits, the alien’s income and resources will be deemed to include the income and resources of the sponsor and sponsor’s spouse, if any, until the alien


    achieves U.S. citizenship; or

    has--

        worked 40 qualifying quarters of coverage, as defined under 213(a)(2) of the Act, or can be credited with those qualifying quarters under 8 U.S.C. § 1645, and

        for any qualifying quarter creditable for any period beginning after December 31, 1996.

However, 8 U.S.C. § 1631(e) establishes a special indigence exception to deeming. Moreover, 8 U.S.C. § 1631(f) establishes special rules for aliens who have been battered or subjected to extreme cruelty in the U.S., under which the aliens may be exempt from sponsor-to-alien deeming during one or more of the periods designated in §§ 1631(f)(1) and (2), provided that the individuals responsible for the battery or cruelty do not reside in the same households or family eligibility units as the aliens who were battered or subjected to extreme cruelty.

The provisions of 8 U.S.C. § 1631 concerning sponsor-to-alien deeming apply to any determination of an alien’s SSI eligibility and benefit amount made on or after August 23, 1996. See 8 U.S.C. § 1631(d)(1).

Also, under 8 U.S.C. § 1631(c), whenever an alien must reapply for SSI benefits, SSA must review the income and resources that may be deemable from the sponsor or sponsor’s spouse, if any, under § 1631(a), to the alien.

20 C.F.R. §§ 404.110 , 404.120, and 404.130, insofar as those regulations concern fully insured, currently insured, and disability insured status for non-citizens or nationalsSections 214(c) and 223(a)(1)(C) of the Act, 42 U.S.C. §§ 414(c) and 423(a)(1)(C).Sections 214 and 223 of the Act prohibit paying title II benefits to individuals who are not United States citizens or nationals if they are not authorized to work in the United States.

Effective for benefit applications based on Social Security account numbers issued on or after January 1, 2004. See Pub. L. 108-203, Sections 211(a)-(c), 118 Stat. 493, 518.

All program related and technical questions should be directed to your Regional Office (RO) Support Staff. RO support staff may refer questions or problems to their Headquarters contacts.

References
Sections
202(d)(4), (x)(1)(A), (x)(1)(B); 214(c); 223(a)(1)(C), 1611(e)(4)(A)-(C), and 1613(a)(3), (c) of the Social Security Act (Act). See, also: