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.

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.

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.

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

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  the alien must have a pending citizenship application, or

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  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. They do 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, they are not eligible for the three year extension. However, a naturalized U.S. citizen whose benefits ceased may be eligible again for SSI if they file a new application. If they previously received SSI benefits, and are within their 12-month suspension period, they may be eligible without the need for a new application.

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 they have made a good faith effort to pursue U.S. citizenship.

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 InForm 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.

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:

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

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

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  The ability to apply for a fee waiver.

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

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  in writing; or

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  by going to the local USCIS office; or

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  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 they can learn more about applying for a fee waiver by:

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

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  contacting their local USCIS office, or

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  by visiting the USCIS website and reviewing the fee waiver

  or naturalization information.

The alien SSI claimant may also seek advice about getting their 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.

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.

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.

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.