TN 46 (05-12)

Citations:

Social Security Act §1614(a)(1)(B)

Regulations 20 CFR 416.1618

Use the information in this section when you need to make a Permanent Residence Under Color of Law (PRUCOL) determination under the pre-1996 immigration reform Supplemental Security Income (SSI) eligibility rules. See information on “SSI eligibility for nonqualified aliens who were receiving SSI on 8/22/96 - 1998 “Grandfathering” legislation SI 00502.153.

A. Background on PRUCOL provision

The permanent residence under color of law (PRUCOL) provision applies to supplemental security income (SSI) applicants or recipients. It is not a factor in benefits under title II. PRUCOL applies to individuals who are neither U.S. citizens nor aliens lawfully admitted for permanent residence; i.e., aliens who entered the United States (U.S.) either:

• Lawfully in a status other than lawful permanent residence; or

• Unlawfully.

1. Authority for PRUCOL

Section 1614(a)(1)(B) of the Social Security Act, as interpreted by the courts in Berger v. Secretary, HHS, specifies the categories of aliens considered PRUCOL and, therefore, eligible for SSI if they meet all other requirements.

2. Continuous residence

Section 249 of the Immigration and Nationality Act (INA) allows the Department of Homeland Security (DHS) to establish lawful admission for permanent residence for aliens who meet certain conditions. It applies to aliens who entered the U.S. and have continuously resided here since before January 1, 1972. PRUCOL based on continuous residence in the U.S. parallels section 249 provision used by the DHS. However, we make our continuous residence findings solely for the purpose of determining the eligibility of a claimant for SSI. They are not in any way binding on DHS or any other agency and do not mean that the individuals are eligible for U.S. citizenship.

B. Policy for what is PRUCOL

1. Definition based on Berger v. Secretary

Aliens who are PRUCOL and who may be eligible for SSI include any alien who is residing in the United States with the knowledge and permission of the DHS and whose departure from the United States the DHS does not contemplate enforcing. We will consider an alien in a particular category as one whose departure the DHS does not contemplate enforcing if:

1. It is the policy or practice of the DHS not to enforce the departure of aliens in such category; or

2. Based on all the facts and circumstances in that particular case, it appears that DHS is otherwise permitting the alien to reside in the United States indefinitely.

2. Categories of aliens who meet the PRUCOL definition

We list the categories of aliens who may meet the PRUCOL definition below:

1. Aliens admitted to the United States pursuant to section 203(a)(7) of the Immigration and Nationality Act (INA) as conditional entrants:

   • Documents: DHS form I-94 bearing the stamped legend “REFUGEE-CONDITIONAL ENTRY” and a citation of the section of the INA.

   • Section 203(a)(7) of the INA was made obsolete by the Refugee Act of 1980 (Public Law (P.L.) 96-212) and replaced by section 207 of the INA effective April 1, 1980 (see SI 00501.420B.2.j.).

2. Aliens paroled into the United States pursuant to section 212(d)(5) of the INA, including Cuban/Haitian Entrants:

   • Paroled into the United States for public interest reasons and not granted legal residence status.

   • Given temporary status until DHS makes a determination of his or her admissibility, at which time DHS may grant another status.

   • Documents: I-94 indicating INA granted parole to the bearer pursuant to section 212(d)(5) of the INA. Cuban/Haitian Entrants have an I-94 with the legend “Cuban/Haitian Entrant (Status Pending) Reviewable January 15, 1981. Employment authorized until January 15, 1981.”

3. Aliens residing in the United States pursuant to an order of Supervision under section 242 of the INA:

   • Found deportable; however, certain factors exist which make it unlikely that DHS would enforce departure. Factors include: age, physical condition, humanitarian concerns, and the availability of a country to accept the deportee.

   • DHS requires periodic reports from these aliens. DHS will initiate action to remove the alien if there are no eliminating factors preventing deportation.

   • Documents: I-220B.

4. Aliens residing in the United States pursuant to an indefinite stay of deportation:

   • Found to be deportable, but DHS may defer deportation indefinitely for humanitarian reasons.

   • Documents: Letter or an I-94.

5. Aliens residing in the United States pursuant to an indefinite voluntary departure: Documents: Letter or an I-94 granting the alien voluntary departure for an indefinite time period.

6. Aliens approved for an immediate relative petition and their families covered by the petition, who are entitled to voluntary departure (under 8 CFR 245.2(a)(2)(vi)) and whose departure DHS does not contemplate enforcing:

   • The immediate relatives of an American citizen filing for an I-130 petition for issuance of immigration visa on their behalves. (An immediate relative for DHS purposes is: husband, wife, father, mother, or child (unmarried and under 21).)

   • With the approval of this petition and the preparation of a visa, this will allow the alien to remain in the United States permanently.

   • Documents: I-94 and, or an I-210 letter indicating departure on a specified date (usually 3 months from date of issue). DHS expects the alien's visa to be available within this time. If it is not, DHS will grant extensions until the visa is ready. Also indicated on these documents is the authorization for employment.

7. Aliens filing applications for adjustment of status pursuant to section 245 of the INA that DHS accepts as “properly filed” (within the meaning of 8 CFR 245.2(a)(1) or (2)), and whose departure the DHS does not contemplate enforcing:

   • Filed for lawful permanent resident status.

   • Documents: I-181 or stamping passports with either of the following, “adjustment application” or “employment authorized during status as adjustment applicant.”

8. Aliens granted stays of deportation by court order, statute or regulation, or by individual determination of DHS pursuant to section 106 of the INA, 8 CFR 243.4, or DHS Operations DHS instruction 243.3 whose departure DHS does not contemplate enforcing:

   • Found to be deportable, but DHS may defer deportation for a specific period of time due to humanitarian reasons.

   • Documents: Letter or a copy of the court order or an I-94.

9. Aliens granted asylum (political, religious, etc.) pursuant to section 208 of the INA:

   • Generally granted to aliens who would be otherwise deported; however, effective with the Refugee Act of 1980, INA may grant asylum to an alien if it is determined that the alien is a refugee.

   • Asylum may terminate if the U.S. Attorney General determines that the alien is no longer a refugee due to a change in the circumstances in the alien's country.

   • Documents: I-94 and a letter.

10. Aliens admitted as refugees pursuant to section 207 of the INA or section 203(a)(7) of the INA:

    • Effective April 1, 1980.

    • Documents: I-94 identifying refugees under section 207 of the INA.

11. Aliens granted voluntary departure pursuant to section 242(b) of the INA or 8 CFR 242.5 whose departure DHS does not contemplate enforcing:

    • Awaiting a visa.

    • Documents: I-94 or an I-210 which indicate a departure within 60 days. There may be an extension if the visa is not ready within the time allotted.

12. Aliens granted deferred action status pursuant to DHS operating DHS instructions:

    • Similar to aliens residing in the U.S. under an order of supervision (SI 00501.420B.2.c.) except there have been no formal deportation proceedings initiated.

    • Documents: I-210 or a letter indicating a deferral of the alien's departure. The Regional Commissioner, DHS makes the determination, and it is relatively rare.

13. Aliens who entered and have continuously resided in the United States since before January 1, 1972 (June 30, 1948 for determinations made prior to November 6, 1986). See policy in SI 00501.425 for continuous residence.

14. Aliens granted suspension of deportation pursuant to section 244 of the INA whose departure the DHS does not contemplate enforcing:

    • Found deportable, meeting several factors including a period of continuous residence and filing an application for DHS to suspend deportation in an effort to have DHS grant lawful permanent resident status.

    • Documents: Letter or order from the immigration judge and an I-94 with employment authorized for 1 year. An alien granted lawful permanent residence will have an I-551 or I-151.

15. The withholding of aliens deportation pursuant to 243(h) of the INA:

    • DHS initiated deportation proceedings, but they withheld deportation because of conditions similar to those leading to a granting of refugee status; i.e., fear of persecution if returned to the alien's home country. (However, DHS may deport the alien to another country.)

    • Documents: Order from an immigration judge showing that the court withheld deportation.

16. Aliens legalized under the Immigration Reform and Control Act of 1986 (IRCA):

    • Lawful temporary resident status (LTR) - Aliens in this status have unlawfully and continuously resided in the U.S. since before January 1, 1982 and applied for adjustment of status to LTR during the 12-month period beginning May 5, 1987; or are nationals of certain countries that were provided or allowed to continue in extended voluntary departure status during the 5-year period ending November 1, 1987, and have continuously resided in the U.S. since before July 21, 1984.

    • LTR's may have an I-766 (Temporary Resident Card) with an annotation that grants the status pursuant to section 245 of the INA.

    • The apprehension of aliens between November 6, 1986 and May 4, 1987 were subject to special DHS rules. If such aliens met the prima facie criteria for legalization, they were not deported; but granted a status which allowed them to remain in the U.S. and also required them to file for legalization by June 3, 1987. An I-94 was given to aliens with their fingerprints and a security counterfoil. An I-94 was given to the LTR's with the code W following the departure number. Such aliens are subject to the routine PRUCOL rules. An I-94 was given to special agricultural workers with the code S following the departure number. See GN 00303.420.

    • Aliens who applied for legalization but who have not received LTR status from DHS by the time they file for SSI (that is, they present an I-766A) are considered applicants and are subject to the guidelines in SI 00501.420D.1. They may meet PRUCOL under SI 00501.420B.2.q.

    See SI 00501.440 for a complete discussion of the IRCA provisions.

17. Any other aliens living in the U.S. with the knowledge and permission of the DHS and whose departure that agency does not contemplate enforcing:

    • Aliens in this category may be in a status not listed above but, based on information from DHS; we may find them to be PRUCOL.

    • Such aliens may have any of the documentation listed above or other DHS forms or letters which indicate that the aliens meet PRUCOL.

    • Examples include, but are not limited to: permanent nonimmigrants and aliens granted extended voluntary departure for a specific time due to conditions in their home country. See GN 00303.400B.

3. Categories of aliens who do not meet the PRUCOL definition

None of the PRUCOL categories listed in SI 00501.420B.2. allows SSI eligibility for:

• Nonimmigrants,

• Aliens statutorily prohibited from being PRUCOL, see SI 00501.420D.2., or

• Applicants for a status other than applicants listed in SI 00501.420B.2.g., or who meet SI 00501.420B.2.q.

4. Silva Letter

A letter that identifies the holder as a member of the class in Silva v. Levi is evidence of PRUCOL for any period before June 10, 1987, unless DHS revoked it. PRUCOL status based on a Silva letter ends no later than June 9, 1987.

C. Policy for verification

1. Application for status change

If an alien has filed an DHS application for a change in status, the filing is not sufficient basis for a finding of PRUCOL. Contact with DHS is necessary to verify whether the alien is residing in the United States (U.S.) with the knowledge and permission of DHS and whether DHS contemplates enforcing the alien's departure. See SI 00501.430.

2. Continuous residence

Develop PRUCOL based on continuous residence (see SI 00501.420B.2.m. in this section) per SI 00501.425. DHS verification is not required if you can establish continuous residence in the U.S. since before January 1, 1972.

An absence from the U.S. of 6 months or less does not terminate or interrupt continuous residence for PRUCOL purposes.

3. Enforcement of departure assumptions

DHS makes the following assumptions determining whether or not they will contemplate enforcing departure based on the expiration date of the DHS documents presented by the individual:

a. Status valid indefinitely

Assume that DHS does not contemplate enforcing the departure of a claimant if the document he or she presents indicates that DHS is allowing the claimant to remain in the U.S. indefinitely.

b. Status valid for at least 1 year (but not indefinite)

Assume that DHS does not contemplate enforcing the departure of any alien who presents an unexpired document which indicates that DHS is allowing him or her to remain in the U.S. for at least 1 year. That is, the document is valid for at least 1 year from the date of issuance. The assumption does not apply if the document has expired, see SI 00501.430B.

c. Status valid for less than 1 year

If a claimant presents a document which indicates that DHS is allowing him or her to remain in the U.S. less than 1 year, make no assumptions about whether DHS contemplates enforcing departure. Verify status with DHS, see SI 00501.430 before adjudication.

D. Policy for PRUCOL-related provisions

1. Sponsor-to-alien deeming

Sponsor-to-alien deeming can apply to certain aliens found eligible based on PRUCOL if DHS adjusts their status to LAPR. See SI 01320.900. The law provides that sponsor-to-alien deeming does not apply to aliens in categories SI 00501.420B.2.a., SI 00501.420B.2.i., and SI 00501.420B.2.j. in this section. Also, sponsor-to-alien deeming does not apply to aliens in category m. because aliens in that category are never required to have sponsors.

2. Temporary protected status

Section 244A of the INA permits aliens granted temporary protected status (TPS) to temporarily remain and work in the United States during the period in which such status is in effect. Statutory law prohibits aliens in TPS PRUCOL consideration while in that status. We will deny SSI applicants in TPS for failure to establish citizenship or alien status. SSI recipients granted TPS are ineligible effective with the first full month in that status. Aliens whose TPS period ends may meet PRUCOL no earlier than the day after TPS ends.

TPS is available only to nationals of certain designated foreign states. You can find the countries currently designated for TPS on the USCIS website at: www.uscis.gov. If the U.S. Attorney General designates other foreign states for TPS, DHS may grant nationals of those foreign States TPS in the future.

3. American Baptist Church class members

In December 1990, the DHS entered into a settlement agreement in the case of American Baptist Church v. Thornburg. This case was a class action brought on behalf of aliens from El Salvador and Guatemala seeking asylum in the United States. While that settlement provided protection from deportation, it did not provide TPS for the class members and, therefore, they are not subject as a class to the statutory exclusion from PRUCOL based on TPS. However, if a Salvadoran class member files for and DHS grants TPS; the statutory exclusion from PRUCOL would apply to that individual. Process applications filed by class members under existing DHS instructions unless information indicates the granting of TPS for the alien.

E. Procedure for Temporary protected status

1. Documents

Verify that DHS granted an alien TPS based on his or her documents as follows:

a. TPS employment authorization document

Aliens authorized to work based on TPS will carry an employment authorization document (EAD), I-766B, with the alien's fingerprint and annotated with either “section 274(a).12(a)(12)” or “section 274(a).12(c)(19).”

EAD’s ordinarily do not have to be renewed and TPS status may continue after the date shown on the document if DHS extends the TPS designation for the foreign State.

EXCEPTION: EAD’s for nationals of El Salvador is valid for 6 months. The alien must then reapply to retain TPS status. DHS issues Salvadoran nationals who reapply and continue to meet the TPS requirements new documents; therefore, the date of issue of the TPS document may not reflect the date initially granting the status.

b. No TPS employment authorization document

Aliens who are not authorized to work (children under age 14), or who were authorized based on conditions other than their TPS status (certain aliens previously issued an EAD in connection with an application for asylum) will not be issued an I-766B with the TPS annotation.

They will carry an I-94 stamped with an open-faced TPS stamp. The endorsement on the I-94 will be “Registered for Temporary Protected Status under section 302 IMMACT90,” or, for nationals of El Salvador, “Registered for Temporary Protected Status under section 303 IMMACT90.”

c. Verification with DHS

Accept the validity of the TPS documents described in SI 00501.420E.1.a. and SI 00501.420E.1.b. without DHS verification.

If SSI eligibility is at issue for periods prior to the issue date of a document (i.e., an alien from El Salvador may have reapplied after a prior TPS period expired) or the alien alleges that he or she is no longer in TPS status, verify the period of TPS status with DHS in accordance with SI 00501.430C. Annotate item 7 of G-845 (Document Verification Request): “If alien has TPS under section 244A, show date status was initially granted (and ends, if applicable) in item 18.”

EXCEPTION: Do not verify TPS for a period prior to the issue date of the document if TPS could not precede the issue date, e.g., the date that DHS granted TPS to a Salvadoran national is so recent that reapplication would not be a requirement by the issue date, or the alien is a national of a State other than El Salvador, see SI 00501.420D.2.

2. Initial claims

Explain to the applicant that under the law establishing TPS, we cannot consider persons in that status PRUCOL. Allow the system to issue the automated denial notice for not being a citizen or eligible alien.

3. Posteligibility processing

a. Notices and Due Process

Apply Goldberg/Kelly procedures if ongoing eligibility is lost. Provide a manual notice of planned action and an overpayment notice as discussed in SI 02301.307.

Explain the period of ineligibility due to TPS in any manual notice using the following points:

• An individual can receive SSI only if he or she is a United States citizen, an alien lawfully admitted for permanent residence, or an alien otherwise permanently residing in the United States under color of law;

• An alien in temporary protected status is not permanently residing in the United States under color of law and cannot get SSI; and

• The individual cannot get SSI (or is overpaid SSI) for mo(s)/ yr because beginning mo/yr DHS allows him or her to stay in the United States under temporary protected status.

b. Overpayments

Consider the possibility of without fault for overpayments, which result from failure to report the change to TPS, see SI 02260.015.