NAELA News August, 1999 - National Academy of Elder Law ...

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NAELA News ● August 1999 Noncitizen Eligibility For Social Security and Supplemental Security Income Benefits by Ethel Zelenske, Esq. NATIONAL SENIOR CITIZENS LAW CENTER The Balanced Budget Act of 1997 (BBA) 1 included several significant fixes that undo some of the more serious restrictions imposed by the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), 2 which affected noncitizen eligibility for Supplemental Security Income (SSI) and, to a lesser extent, for Social Security benefits. This article provides a brief summary of the current eligibility rules governing noncitizen eligibility for Social Security and SSI benefits after BBA ‘97. I. Social Security Eligibility Title II Social Security benefits are payable only to an “alien who is lawfully present in the United States as determined by the Attorney General” or to noncitizens receiving payment pursuant P A I D to a treaty or totalization agreement. The provision limiting payment applies only to benefits payable based on applications filed on or after December 1, 1996. 3 The limitation applies to dependents as well as to wage earners filing for Title II benefits. The Attorney General issued regulations defining the “lawfully present” provision for Title II purposes. 4 The definition is much broader than the categories of noncitizens eligible for SSI (discussed below) and includes: “qualified aliens” as defined in 8 U.S.C. § 1641; persons who have been inspected and admitted into the United States and have not violated the terms of their status; persons who have been paroled into the United States pursuant to section 212(d)(5) of the Immigration and A D V E R T I S E M E N T Technology & Practice Management Consulting Wondering how to use technology to better manage your elder law practice? GET ADVICE FROM PRACTICING ELDER LAW ATTORNEYS! Services include on-site evaluation of your technology needs, management structure, and recommendations that will result in a more productive practice. See results instantly. Don’t delay – contact us today! Robert B. Fleming, CELA ● 520/622-0400 fleming@elder-law.com Timothy L. Takacs, CELA ● 615/824-2571 ttakacs@tn-elderlaw.com Naturalization Act for less than one year; noncitizens admitted for humanitarian or other public policy reasons (seven categories are listed); and noncitizens who have applied for asylum or withholding of deportation and who have been granted employment authorization. II. Similar to the payment restrictions for Title II benefits, the BBA limits eligibility for Medicare and Railroad Retirement Act benefits to persons “lawfully present” in the United States. 5 Supplemental Security Income Eligibility For SSI, an individual must be a citizen 6 of the United States or a noncitizen in certain, restricted immigrant categories. Since the recent statutory changes have significantly complicated SSI eligibility for noncitizens, the process should be considered in two steps: 1. Step One: The “Qualified Alien” Requirement Since the enactment of PRWORA, all noncitizens are divided into two general categories: (1) “qualified aliens” and (2) everyone else, known as “nonqualified aliens.” As a threshold requirement, a noncitizen must fall into a “qualified alien” (QA) category to be eligible for most federal benefits, including SSI. This requirement must be met before considering any further eligibility requirements. The former SSI category of “persons residing under color of law” (PRUCOL) was eliminated in PRWORA. The “qualified alien” categories are set by statute 7 and include only those noncitizens: (1) lawfully admitted for permanent residence (LAPR); (2) admitted to the U.S. as refugees; (3) granted asylum (asylees); (4) “paroled” into the U.S. for at least one year; (5) granted withholding of deportation; (6) granted “conditional entry”; (7) who are “Cuban/Haitian Entrants”; or (8) who meet the “battered spouse or (continued on page 27) 26
NAELA News ● August 1999 Noncitizen Eligibility For Social Security and Supplemental Security Income Benefits (continued from page 26) child” definition under Department of Justice guidelines. The only nonqualified aliens who continue to be eligible for SSI are those who were “receiving” SSI as PRUCOLs on August 22, 1996. 8 2. Step Two: Which Qualified Aliens Are Eligible for SSI? Being a “qualified alien” alone does not meet SSI eligibility criteria for noncitizens. The immigrant must be a qualified alien and meet one of the five categories as set forth in the PRWORA and the BBA: ● Time-limited exception for refugees, etc. Persons who enter the U.S. as refugees, who are granted asylum, and whose deportation has been withheld under § 243(h) of the Immigration and Nationality Act (INA) are eligible, but only for the first seven (7) years after the date that status is granted. 9 ● Veterans’ exception. An individual “lawfully present” in the U.S. is eligible if he or she is a U.S. veteran with an honorable discharge or who is on active duty. Also eligible are the veteran’s spouse, unremarried surviving spouse, or unmarried dependent child. 10 ● 40 quarters exception. A lawfully admitted permanent resident (LAPR) who entered the U.S. before August 22, 1996 is eligible if he or she (i) has worked 40 “qualifying quarters” (QQ) 11 or can be credited with such quarters and (ii) did not receive any federal means-tested public benefit during any quarter which begins after December 31, 1996. 12 If the LAPR entered the U.S. on or after August 22, 1996, the 40 QQ exception is available only after he or she has resided in the U.S. for 5 years. 13 ● Grandfatherees. Noncitizens lawfully residing in the U.S. and who were “receiving” SSI on August 22, 1996 are eligible indefinitely. 14 The Social Security Administration (SSA) considers this group eligible under the more liberal pre-August 22, 1996 law and rules. Thus, these individuals retain “grandfathering” rights even if benefits terminate for other reasons. 15 SSA uses the same regulation for determining “lawfully residing” as used in establishing Title II eligibility. 16 ● In the U.S. on August 22, 1996 and blind or disabled. Noncitizens “lawfully residing” in the U.S. on August 22, 1996 and who are blind or disabled are eligible. 17 SSA uses the same “lawfully residing” rules described above for Title II benefits. 18 Once the “lawfully residing” requirement is met, the noncitizen is eligible if determined by SSA to be blind or disabled, regardless of onset, age, or date of application. This category can be used for aged noncitizens (65 or over) who were in the United States on August 22, 1996, but were not receiving SSI on that date. The chart below indicates possible categories of SSI eligibility depending on the date of entry into the United States: Conclusion Recent legislation has restricted noncitizen eligibility for Social Security and SSI benefits. While some of the more severe restrictions in the 1996 law were rectified by the 1997 BBA, many immigrants continue to be barred from receiving SSI. To represent noncitizen clients adequately, advocates should be familiar with the current eligibility categories. The National Senior Citizens Law Center is a public-interest law firm that specializes in the legal problems of older people. Their Washington, DC office can be reached at: (202) 289-6976; Fax: (202) 289-7224, and the Los Angeles office at (310) 204- 6015, Fax: (310) 204-0891; e-mail: nsclc@nsclc.org. Endnotes 1. Balanced Budget Act of 1997 (BBA), Pub. L. No. 105-33, 111 Stat. 251. 2. Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), Pub. L. No. 104-193, 110 Stat. 2105. 3. PRWORA, § 401(b)(2). The PRWORA made this provision effective with applications filed on or after September 1, 1996. However, Pub. L. No. 104-208 extended the date to December 1, 1996. 4. 8 C.F.R. § 103.12. 5. Pub. L. No. 105-33, § 5561, 111 Stat. 251, 638, codified at 8 U.S.C. § 1611(b)(3) (Medicare) and 1611(b)(4) (Railroad Retirement benefits). 6. A “citizen” of the United States is a person born in the U.S., Puerto Rico, Guam or the Virgin Islands. Citizenship also may be obtained through naturalization. Persons born in American Samoa, Swains Island, and the Northern Marianas Islands are U.S. Nationals but considered “U.S. citizens” for SSI purposes. 20 C.F.R. § 416.1603. 7. 8 U.S.C. § 1641. 8. Pub. L. No. 105-306, the “Noncitizens Benefit Clarification and Other Technical Amendments Act of 1998.” 9. 8 U.S.C. § 1612(a)(2)(A). 10. 8 U.S.C. § 1612(a)(2)(C). 11. For SSI purposes, earnings from work which are not creditable for Title II purposes may be used. POMS SI 00502.135. 12. 8 U.S.C. § 1612(a)(2)(B). 13. 8 U.S.C. § 1613(a). 14. 8 U.S.C. § 1612(a)(2)(E). 15. POMS SI 00502.100B.1. 16. POMS SI 00502.100A. 17. 8 U.S.C. § 1612(a)(2)(F). 18. POMS SI 00502.142. ELIGIBLE CATEGORIES IF ENTERED BEFORE AUGUST 22, 1996 Time-limited exception for refugees, asylees, etc. Veterans exception 40 quarters exception for LAPRs Receiving SSI on August 22, 1996, i.e., grandfatherees Lawfully residing in U.S. on August 22, 1996 and disabled ELIGIBLE CATEGORIES IF ENTERED ON OR AFTER AUGUST 22, 1996 Time-limited exception for refugees, asylees, etc. Veterans exception 40 quarters exception for LAPRs (after 5 years) 27
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