TN 13 (11-06)

A. Introduction

On 8/5/97, P.L. 105-33, the Balanced Budget Act of 1997, amended the 1996 welfare and immigration reform law to allow qualified aliens who were lawfully residing in the U.S. on 8/22/96, and who are blind or disabled, to be eligible for supplemental security income (SSI) benefits, provided all other eligibility requirements are met.

IMPORTANT: If a qualified alien is eligible for SSI benefits based on another exception condition without a time limit (e.g., LAPR with 40 QQs or the military service conditions), then it is not necessary to develop eligibility under the provision described in this section.

The material in this section is organized s follows:

B. Policy—Rules for Eligibility Under This Provision

1. General

Qualified aliens who were lawfully residing in the U.S. on 8/22/96 and who are blind or disabled can be eligible for SSI (assuming all other factors of eligibility are met) regardless of--

• the alien's age; or

• whether onset of blindness or disability occurs before, on, or after 8/22/96; or

• when the SSI application is filed.

See SI 00502.100A.2. for a list of qualified alien categories.

NOTE: This provision applies to SSI aged and non-aged qualified aliens. Qualified aliens who meet this provision's criteria do not have to meet the 40 QQs or the veteran/active duty military exceptions or the other SSI alien eligibility requirements described in SI 00502.100A.3. Also, keep in mind that all SSI claimants who file as aged individuals (or aged spouses) must establish that they are age 65 or older in order to qualify for benefits.

2. Lawfully Residing in the U.S. on 8/22/96

An alien is lawfully residing in the U.S. if he or she is a resident of the U.S. and is "lawfully present" as defined by the U.S. Attorney General in regulations published on 9/6/96.

a. Resident of the U.S.

A U.S. resident is an individual who establishes residency in the U.S. with the intent to continue living within the geographic limits of the U.S.

NOTE: For purposes of the alien eligibility provision described in this section, "resident of the U.S." includes a resident of the continental United States, Alaska, Hawaii, Puerto Rico, Guam, or the Virgin Islands of the United States. However, keep in mind that, unless there is an exception (for example, certain children of military parents stationed abroad (SI 00501.415)), to actually receive SSI benefits an individual must be a resident of the U.S. as defined in GN 00303.720.

A U.S. resident is generally physically present during the period of residency. However, a temporary absence of less than 6 months from the U.S. with no intention of abandoning U.S. residency does not terminate or interrupt the individual's period of U.S. residency. If the resident is absent for more than 6 months, we presume that U.S. residency was abandoned unless the individual presents evidence of his or her intent to resume U.S. residency. The residency development instructions in GN 00303.740 apply in these cases. An alien who is residing in the U.S. must also be "lawfully present" as explained in SI 00502.142B.2.b. to be eligible under the exception condition described in this section.

b. Lawful Presence

In order to be lawfully residing under this provision, the individual must also establish his or her lawful presence in the U.S. on 8/22/96. If the alien was temporarily outside the U.S. on that date, he or she must establish that the Department of Homeland Security (DHS) would or did allow his or her lawful reentry into the U.S. See RS 00204.025 and SI 00502.142C. for who is a lawfully present alien.

C. Policy—Who is a Lawfully Present Alien

In accordance with RS 00204.025, the following categories of aliens meet the definition of "lawfully present" for SSI purposes:

1. Qualified Alien (SI 00502.100A.2.);

   NOTE: Aliens who have been subjected to battery or extreme cruelty as described in SI 00502.116 are not considered to be lawfully present in the U.S. based on that status alone. Instead, use the individual's immigration status on 8/22/96 (not SSA's finding that the battery/extreme cruelty criteria are met) to determine whether he or she was lawfully present in the U.S. on 8/22/96 for purposes of the provision described in this section.

   Aliens paroled under section 212(d)(5) of the Immigration and Nationality Act (INA) for less than 1 year (except for aliens paroled for deferred inspection or exclusion proceedings under section 236(a) of the INA or prosecution in the U.S. under 8 CFR 212.5(a)(3));

2. Aliens inspected and admitted to the U.S. and who have not violated the applicable terms of their status;

3. Most legal nonimmigrant aliens, including visitors, students, fiancées of citizens, and citizens of States in the Compact of Free Association;

4. Aliens with a pending application for political asylum under section 208(a) of the INA, or a pending application for withholding of deportation under section 243(h) of the INA or removal withheld under section 241(b)(3) of the INA, and employment authorization has been granted and such applicants under age 14 who have had an application pending for at least 180 days; and

5. Aliens in the following categories permitted to remain in the U.S. under U.S. law or policy, for humanitarian or other public policy reasons:

   1. Temporary resident status under section 210 or 245A of the INA;

   2. Temporary Protected Status under section 244A of the INA;

   3. Individuals from Cuba or Haiti who meet the requirements of P.L. 99-603, section 202(b) as amended (IRCA). These individuals may or may not be qualified alien “Cuban and Haitian entrants” as defined in the Refugee Education Assistance Act of 1980. See SI 00502.108F.2.

   4. Family Unity beneficiary status under section 301 of P.L. 101-649, as amended;

   5. Deferred Enforced Departure status under a decision made by the President;

   6. Deferred action status under DHS Operations Instructions at OI 242.1(a)(22); and

   7. Spouses and children of U.S. citizens whose visa petitions have been approved and who have pending applications for adjustment of status.

      NOTE: Any alien who had qualified alien status on 8/22/96 and was residing in the U.S. meets the "lawfully residing" criteria.

      IMPORTANT: An alien who did not have qualified alien status on 8/22/96 but who was "lawfully residing" on 8/22/96 may be eligible under this provision if he or she is blind or disabled and is a qualified alien at the time of application for benefits.

      IMPORTANT: For purposes of this provision, a determination that an individual is ineligible for SSI benefits due to absence from the U.S. (N03) (as explained in SI 00501.410) does not preclude a finding of lawful presence in the U.S.

      EXAMPLE: An LAPR alien leaves the U.S. in 8/96 and returns in 4/97. He is readmitted to the U.S. as LAPR. He applies for SSI disability in 5/97 and does not have 40 QQs. He submits convincing evidence that he did not intend to abandon his U.S residence during his period of absence from the U.S.--rent receipts for his apartment for the period of absence. The field office (FO) confirms that the individual was lawfully present in the U.S. on 8/22/96 (that is, DHS did not revoke his LAPR status) based on an adjustment date before 8/22/96 on DHS Form I-551. The FO makes a determination of U.S. residency (per GN 00303.740C.). If the FO determines that the individual did not abandon U.S. residency and was in lawful presence status on 8/22/96, the alien may be eligible for SSI if he is determined to be disabled.

      For development of lawful presence in the U.S., follow the instructions in
      SI 00502.142D. in this section.

D. Procedure - Developing Lawfully Residing in the U.S.

1. Obtain Allegation of U.S. Residence

Ask the individual if he or she was lawfully residing in the U.S. on 8/22/96. If so, request DHS documents showing the individual's immigration status for that date. Develop residence under SI 00502.142B.2.a.

The determination of whether an alien meets the lawful presence requirements is usually based on documents issued by the DHS or information provided by that agency. Follow the procedures in the next two subsections to verify lawful presence on 8/22/96.

2. Verifying Lawful Presence Based on Individual's Immigration Documents

If a qualified alien was a U.S. resident on 8/22/96 and has current (unexpired) immigration documents that were effective on or before 8/22/96, the alien was lawfully present in the U.S. on 8/22/96 and meets the "lawfully residing in the U.S. on 8/22/96" requirement. In such a case, do not request DHS verification of alien status as of 8/22/96.

A qualified alien who was a U.S. resident on 8/22/96, and whose current alien status was granted after 8/22/96, may be able to provide a document (for example, a passport with an I-94 stamp) that shows that:

• the alien was in an earlier status in one of the categories listed in
  SI 00502.142B.2.; and

• the earlier status was granted before 8/22/96.

If such a document conforms to the description in RS 00204.025B. and appears authentic, it establishes lawful presence. If such a document is not available, or the document presented is questionable, follow SI 00502.142C.3.

See RM 10214.100 through RM 10214.170 and SI 00502.115B.1. for immigration information available through the Systematic Alien Verification for Entitlements (SAVE) program.

3. Verifying Lawful Presence By Contacting DHS

• Contact DHS to verify the alien's status on 8/22/96 only if a qualified alien's current DHS status was granted after 8/22/96 and lawful presence cannot be established under the procedures in SI 00502.142C.2.

• Use the G-845 process for this verification. Provide the alien's full name, "A" number, alleged 8/22/96 status, and a photocopy of his or her current immigration document. Attach the G-845 supplement (see exhibit in SI 00502.115G.) to verify status on 8/22/96. Check the box for item 5f in the “complete the following items” on the G-845 Supplement.

• If DHS verifies that the individual was in one of the categories in SI 00502.142C. on 8/22/96, and the residency requirement was met, then the "lawfully residing in the U.S. on 8/22/96" requirement is met. If the individual was not in one of the designated categories (including individuals with no DHS status) on that date, the requirement is not met.

E. Procedure - Processing Initial Claim for Claimant Under Age 65

1. Obtain Medical Decision

Complete all necessary disability forms and forward them to the Disability Determination Services (DDS). If appropriate, make a presumptive disability determination (DI 11055.230 and DI 11055.240). Since the claimant is under age 65, SSI eligibility cannot be determined until a disability decision is made.

NOTE: If the individual is under age 65 and receiving Title II benefits based on a (prior) determination that the individual is disabled, the Title II disability decision can be adopted for purposes of the provision described in this section. Do not adopt a Title II disability decision if the claimant is age 65 or over. For an alien claimant age 65 or older, request a new disability determination from the DDS.

2. Establish Systems Record

Follow current systems instructions pertaining to individuals under age 65 who are filing for SSI based on blindness or disability. Routine processing can be used for both MSSICS and non-MSSICS claims effective 5/11/98, with the following exception: Do not close the MSSICS event prior to receipt of the DDS decision.

IMPORTANT: Leave the case in H80. Otherwise, MSSICS will build an erroneous N13 denial.

3. Case is Medically Allowed

Follow current update procedures if an allowance is returned. MSSICS will process these cases correctly once the Disability Clearance Data (CDIB) screen is completed.

4. Case is Medically Denied

If the case is medically denied, the DDS will release the medical denial notice and post the medical denial code to the Supplemental Security Record (SSR). If the denial is not posted by the DDS, the medical denial code can be keyed into the Denial Code option on the Adjudicative Decision (DADJ) screen (over-key the systems-generated N13 denial).

IMPORTANT: An individual under age 65 must be blind or disabled in order to receive SSI. If the DDS determines the individual is neither blind nor disabled, the individual is ineligible for SSI--based on medical reasons and irrespective of alien status.

F. Procedure - Processing Initial Claim for Claimant Age 65 or Older

Use the following Step-Action chart to determine what development and adjudicative actions are necessary for aged aliens who are seeking eligibility under the condition for qualified aliens who are blind/disabled and were lawfully residing in the U.S. on 8/22/96. This chart includes procedures for aged aliens who--

• Can be paid under the 7- year time-limited provision,

• Need a medical allowance to be eligible,

• Meet the requirements for payments based on presumptive disability/blindness.

See SI 00502.142F. for special procedures for handling aged couples cases under this provision. Refer to SI 00502.142G. for the procedure for post-eligibility cases.

G. Procedure—Special Systems Processing Instructions for Couples Cases

If both members of the couple cannot be adjudicated on the same day, then the configuration of the claim dictates the processing path required:

1. Both Members Are Aged and Both Require Medical Decisions

a. Aged Couple: Initial Application

Input the case according to the following chart:

b. Aged Couple: One Member of Couple is Determined to Be Blind/Disabled—Initial Allowance

Upon receipt of the allowance for the payable spouse:

• T50 the couple record, since the system cannot perform a Special Routine Eliminating Waiting (SREW) computation for an aged couple. One member of the couple would be in C01 status while the other is in H-80. See SM 01701.005 and SM 02101.035 for more information about the SREW computation.

• Manually clear the MSSICS claim per MSOM MSSICS 004.011, if needed.

• Establish an eligible AI with an ineligible spouse (XS) record via 450S input. DO NOT Start Date.

• Include AQ "8" (SM 01005.642) and the appropriate CM code for “AI” (SM 01005.330).

• Follow subsection SI 00502.142G.1c. or SI 00502.142G.1.d. once the decision is received for the waiting spouse.

c. Aged Couple: Claimant in Current Pay - Favorable DDS Decision Received for “Ineligible Spouse” - Post Action

Take the following actions if the ineligible aged spouse is later determined to be blind/disabled, and is thus eligible:

d. Aged Couple: Unfavorable DDS Decision Received for Ineligible Spouse—Ineligible Spouse Not Blind/Disabled—Post Action

If the spouse is medically denied and is therefore an ineligible alien, take the following actions:

• Seed the aged individual with ineligible spouse (AI/XS) record into MSSICS if not already in MSSICS.

• Process the denial for the ineligible spouse through MSSICS. MSSICS will correctly build the N13 denial.

• Record in "Remarks" on the SSR the date and denial code of the DDS decision for the ineligible spouse.

• CAUTION: Do not overkey the N13 denial coding in this situation.

• SDSP does not need to be in the first position. This entry must be present at the time the SD record is initially established to get workload credit.

2. Payable Member is Aged and Eligible Without a Medical Decision, Needed Medical Decision for Spouse Under 65 is Pending

Adjudicate the aged alien as an individual and T33/SD the record when the disability decision is received for the spouse, regardless of whether it is a denial or approval.  Once the record is start dated, any funds due the spouse for a prior period will need to be paid by A-OTP. The aged member can be adjudicated as an allowance while the disability decision is pending for the spouse. This will result in a SREW computation.

3. Disabled Member (Under Age 65) Approved First and Aged Member Still Awaiting Medical Decision

Due to systems limitations with alien cases, set up record as an individual to pay the person currently eligible and then start dated once a decision is received for the second party.

4. Both Members Disabled (and Under Age 65)

Due to systems limitations with alien cases, set up record as an individual to pay the person currently eligible and then start dated once a decision is received for the second party.

H. Procedure - Processing Posteligibility Cases

1. Aliens For Whom Eligibility Determinations Under This Provision May Be Necessary

Consider eligibility under this provision if an alien age 65 or older alleges being blind or disabled and:

• the alien is not a "grandfathered" alien (SI 00502.150 and SI 00502.153);

• the alien was lawfully residing in the U.S. on 8/22/96 (SI 00502.142B);

• the alien is eligible under one of the time-limited categories described in SI 00502.106 (for example, is a refugee or asylee); and

• no medical decision was previously obtained in the case, or the appeal period for a prior medical denial has ended.

2. When to Determine Eligibility Under This Provision

Determine eligibility under this provision:

• At the time a scheduled or unscheduled redetermination is conducted; or

• When the recipient contacts SSA after receiving an SSA-8155 SSI Notice of Planned Action (NPA) to suspend benefits at the end of the 7-year eligibility period. (See SI 00502.106C.3. for Goldberg-Kelly procedures for aged aliens who allege disability or blindness in connection with an appeal of the suspension of benefits under the 7-year rule); or

• When the recipient contacts SSA inquiring about the 7-year time limit before the NPA for the time-limited suspension is sent.

3. Developing Eligibility Under this Provision

Ask the individual whether he or she is blind or disabled. If blindness or disability is alleged, obtain necessary disability forms and forward the forms to the DDS for a medical decision. Follow the applicable systems instructions in SI 00502.142E.1. to input the blindness/disability allegation and establish a systems control for the disability decision.

NOTE: When the instructions in SI 00502.142E.1. are followed, the system will automatically post AER code "8" to the record. This will ensure that the FO gets workload credit for the disability portion of the claim.

Refer to instructions in DI 11055.130 for preparing Form SSA-831-U3. Include the following notation in "Remarks" on the SSA-831-U3: "Title XVI Alien -- Blindness/Disability Alleged -- Systems Limitation." (See "IMPORTANT" in SI 00502.142E.1.a. regarding DDS actions when the SSA-831-U3 is annotated in this way.)

a. Case is Medically Allowed

• Issue SSA-L8166.

  Manually prepare an SSA-L8166, “SSI Important Information," using the DPS. Explain that—

  Although the prior (initial claim award) notice indicated that the individual's eligibility was limited to 7 years, the individual is now eligible to receive SSI benefits without a time limit (assuming all other factors of eligibility continue to be met), and

  This is the case because the individual is blind or disabled and was lawfully residing in the U.S. on 8/22/96.

• Make Systems Input.

  If the case is medically allowed, leave the record as an AI and add the multicategory code (SM 01005.330 or SM 01301.605) to the SSR. The presence of the multicategory code will result in continued eligibility beyond the "7-year" eligibility period.

b. Case is Medically Denied

• Systems Data

  Disability data will be built, as appropriate, on aged alien records in the DISB segment of the SSR. These cases must be denied N13 either through MSSICS or via manual input because the requirements in SI 00502.142B.1. are not met.

• Issue SSA-L8166

  Manually prepare an SSA-L8166 using the DPS. Include the following language in the notice:

  "We looked at your claim to see if you were disabled under our rules. We have decided that you are not disabled under our rules. Detailed information about our decision is shown on the attachment called "Information About the Disability Decision." If you disagree with the disability decision, please read the information later in this notice about filing an appeal."

  Also explain in the SSA-L8166 that the recipient's eligibility can continue--based on his or her current alien status--through the end of the applicable 7-year period. Mail the notice, along with the DDS write-up entitled "Information About the Disability Decision" (see "IMPORTANT" in SI 00502.142E.1.a.) to the individual.

  Since the medical decision is an initial determination, the decision is appealable. The DPS version of the SSA-L8166 has preprinted appeal rights.

I. References

• Basic SSI Alien Eligibility Requirements, SI 00502.100

• Exemption from Alien Provisions for Certain Noncitizen Indians, SI 00502.105

• Time-Limited Eligibility for Certain Aliens, SI 00502.106

• Goldberg-Kelly payments for aged aliens who allege disability/blindness in connection with an appeal of the suspension under the 7-year rule, SI 00502.106C.3.

• General Alien Development, SI 00502.110

• Verification of Alien Eligibility with DHS, SI 00502.115

• Deemed Qualified Alien Status Based on Battery or Extreme Cruelty By a Family Member, SI 00502.116

• Eligibility on the Basis of Receiving SSI Benefits on an Application Filed Before January 1, 1979, SI 00502.120

• Documentary Evidence of Qualified Alien Status, SI 00502.130

• LAPR with 40 Qualifying Quarters of Earnings, SI 00502.135

• Veteran or Active Duty Member of the Armed Forces, a Spouse, or a Dependent Child, SI 00502.140

• Development of Marital Relationships, SI 00502.145

• Qualified Aliens Receiving Benefits on 8/22/96, SI 00502.150

• Readjudication of N13 Denials that Were Based on Alien Eligibility Law in Effect Prior to 8/5/97, SI 00502.152

• SSI Eligibility for Nonqualified Aliens Who Were Receiving SSI on 8/22/96, SI 00502.153

• Individuals Who Received Informal Denials Based on Alien Eligibility Law in Effect Prior to 8/5/97, SI 00502.158

• Due Process Rights under the Goldberg-Kelly ruling, SI 02301.300B.2.

• Alien Systems Input Instructions, MS INTRANETSSI 008.007 for instructions on completing the Alien Data (AALN) screen and SM 01005.630 for instructions on completing the AR field when an 450SI input is transmitted.