Identification Number:
EM-18061
Intended Audience:All RCs/ARCs/ADs/FOs/PSCs
Originating Office:ORDP OISP
Title:Clarifying instructions when determining Lawful Presence for payment of title II benefits to Cuban-Haitian Entrants – Instructions Will Follow
Type:EM - Emergency Messages
Program:Title II (RSI)
Link To Reference:See Reference at the end of this EM.
 
Retention Date: June 19, 2019


A. Purpose
This emergency message (EM) provides technicians with clarification on policies regarding lawful presence status and payment of title II benefits for Cuban or Haitian Entrants (CHE) who are ordered removed from the United States (U.S.) but remain in the U.S. on an Order of Supervision. Technicians should follow the guidance in this EM to determine if SSA can pay title II benefits to a CHE.

B. Background
Section 401(b)(2) of the Personal Responsibility Work Opportunity Reconciliation Act of 1996 allows aliens who are lawfully present in the U.S. to receive benefits under title II of the Social Security Act. The Department of Homeland Security (DHS) determines an alien’s lawful presence status, which SSA uses to determine if an alien can be paid title II benefits. CHE is one of the categories of lawfully present aliens and DHS, in accordance with the applicable laws, may permit them to remain in the U.S. for humanitarian or other public policy reasons without enforcing removal.

An alien issued an Order of Removal that is final, non-appealable, and legally enforceable may remain in the U.S. if DHS does not enforce the order through actual physical removal. Although an alien issued such an order remains in the U.S., he or she continues to be removable (i.e., subject to removal but not yet removed). Therefore, DHS places the alien on an Order of Supervision and may or may not authorize him or her to work while remaining in the U.S.

C. Policy on determining the lawful presence status for a citizen or national of Cuba or Haiti
Follow the instructions in POMS section RS 00204.025.B.1.g to determine the evidence required to establish lawful presence status for a citizen of Cuba or Haiti as a CHE for paying title II benefits. If a citizen of Cuba or Haiti does not meet the requirements for CHE status, then he or she may meet another lawful presence category in RS 00204.025.B.

D. Policy on the payment of benefits for a CHE when DHS enforces the Order of Removal
Follow the instructions in POMS RS 02635.001 to determine when to suspend benefits for a CHE that has been removed from the U.S. These instructions only apply once the NH has been physically removed from the U.S. unless the final order of deportation is for grounds of participating in Nazi persecution or committing crimes of genocide.

E. Policy on the payment of benefits for a CHE issued an Order of Supervision after the issuance of
an Order of Removal that is final, non-appealable and legally enforceable
Use the below chart to determine if the CHE is considered lawfully present for title II benefits, if the alien is placed on an Order of Removal that is final, non-appealable, and legally enforceable, that DHS has not enforced and consequently has placed the alien on an Order of Supervision.

REMINDER: Technicians must verify any immigration documents with DHS via the web-based Systematic Alien Verification for Entitlements (SAVE) program.

IF the CHE was a category….And has…Then the alien is considered…
1A or 1Ba valid Employment Authorization Document (EAD) – Form I-766 lawfully present and payable.
1A or 1Bno EADlawfully present and payable.
2A, 2B, or 2C
(see NOTE below)
a valid EADlawfully present and payable.
2A, 2B, or 2C
(see NOTE below)
no EAD (or expired EAD)NOT lawfully present and NOT payable.

NOTE: In accordance with section 501(e) of the Refugee Education Assistance Act (REAA) of 1980, there is no effect on status as a Category 1 (Subcategory A or B) CHE if a citizen or national of Cuba or Haiti is subject to a final, non-appealable and legally enforceable order of removal. However, a citizen or national of Cuba or Haiti with Category 2 (Subcategory A, B, or C) CHE status with a final, non-appealable and legally enforceable order of removal is no longer considered CHE effective with the date the order first became final, non-appealable, and legally enforceable.

F. Examples applying the policy
    1. DHS issues Samuel, a CHE, category 1 alien, an order of removal that is final, non-appealable and legally enforceable and is placed on an order of supervision. The issuance of the final, non-appealable and legally enforceable order of removal with an order of supervision has no impact on Samuel’s title II eligibility status because he is a CHE, category 1 alien. Per section 501(e) of the Refugee Education Assistance Act of 1980, CHE, category 1 alien retains that status regardless of any subsequent changes in immigration status. SSA considers Samuel lawfully present for title II benefits regardless of whether or not he has a valid EAD.
      2. DHS issues Tamara, a CHE, category 2 alien, an order of removal that is final, non-appealable and legally enforceable and is placed on an order of supervision. The issuance of the final, non-appealable and legally enforceable order of removal with the order of supervision does potentially affect Tamara’s title II eligibility. She is no longer a category 2 CHE effective with the date the order first became final, non-appealable, and legally enforceable because DHS issued the order of removal. The DHS web-based SAVE verification should come back as “no immigration status” for this alien. Although this alien has no immigration status, DHS issued her an EAD that is still currently valid, and, as a result, SSA considers Tamara lawfully present. She is eligible for title II benefits.
        3. DHS issues Daniel, a CHE, category 2 alien, an order of removal that is final, non-appealable and legally enforceable and is placed on an order of supervision. The issuance of the final, non-appealable and legally enforceable order of removal with the order of supervision potentially affects Daniel’s title II eligibility. He is no longer a category 2 CHE effective with the date the order first became final, non-appealable, and legally enforceable because DHS issued the order of removal. The DHS web-based SAVE verification should come back as “no immigration status” for this alien. Although this alien has no immigration status and is on an order of supervision, DHS has NOT issued him an EAD, and, as a result, SSA considers Daniel not lawfully present. He is not eligible for title II benefits.
          Direct all program-related and technical questions to your Regional Office (RO) support staff or Program Service Center (PSC) Operations Analysis (OA) staff. RO support staff or PSC OA staff may refer questions, concerns or problems to their Central Office contacts.

          References:
          RS 00204.025 Evidence Requirements for Establishing U.S. Lawful Presence
          RS 02635.001 Effects of Removal (Deportation) on Retirement or Disability Beneficiaries
          EM-18061 - Clarifying instructions when determining Lawful Presence for payment of title II benefits to Cuban-Haitian Entrants – Instructions Will Follow - 12/19/2018