TN 15 (09-01)

A. Policy -- Sponsor-to-Alien Deeming When Sponsors Sign Legally Enforceable Affidavits of Support

Section 213A of the Immigration and Nationality Act (the INA) changed the requirements for a sponsor's affidavit of support of an alien. This section required the Attorney General of the United States to develop a new, legally enforceable version of the affidavit of support. Beginning with 12/19/97, the Immigration and Naturalization Service (INS) has used the new affidavit of support.

NOTE: Aliens whose sponsors sign the new, legally enforceable affidavit of support may be subject to the alien deeming policy. (See SI 00502.200 ff. for instructions on processing sponsor-to-alien deeming cases.)

Section 213A also provided that when an alien is sponsored under the new affidavit and receives any benefits under a means-tested public assistance program, the sponsor who executed the legally enforceable affidavit of support is liable to repay the amount the alien received to the agency that made the payments. Supplemental security income (SSI) is a means-tested public assistance program subject to recovery under the provisions of section 213A.

Upon determination that an alien who is sponsored under the new affidavit of support is receiving SSI payments, the Social Security Administration (SSA) will notify the sponsor of its determination and demand repayment of the full amount of the SSI payments made to the alien. If the sponsor does not indicate a willingness to make repayment, SSA will refer the case to the Department of Justice (DOJ) to pursue court action against the sponsor. Further, if the sponsor fails to comply with the repayment terms established by SSA, SSA will refer the case to the DOJ for action against the sponsor.

SSA will not, however, refer a case to the DOJ when more than 10 years have passed from the month that the sponsored alien last received a SSI payment.

B. Definitions

1. Repayment

Repayment is the return to SSA of an amount equal to the amount of SSI paid by SSA to the sponsored alien.

2. Sponsored Alien

For the purposes of this subchapter, a sponsored alien is one whose sponsor is subject to the provisions of section 213A requiring the execution of a legally enforceable affidavit of support. (See SI 00502.215 for a description of both the legally enforceable and the unenforceable affidavits.)

C. Policy -- Overview of Recovery from An Alien's Sponsor of SSI Payments Made to the Alien

Payment of SSI to a sponsored alien when the alien's sponsor executed a legally enforceable affidavit of support is not an overpayment. There is no overpayment because the funds paid to the alien were correctly paid. Further, payment to a sponsored alien that must be repaid by the sponsor is not considered a payment affected by a delay or failure to report events or changes relevant to eligibility. Therefore, a penalty for delay/failure is not applicable.

Because a correct payment to a sponsored alien is not an overpayment, waiver rules with respect to overpayments do not apply to the requirement that a sponsor must return an amount equal to the amount paid to the alien SSI recipient. However, since the determination that repayment applies is an initial determination, full appeal rights must be provided. (See SI 02220.065D.5.)

NOTE: For each month that the sponsored alien continues to receive SSI, the alien's sponsor is responsible for repaying the SSI benefits to SSA.

D. Procedure

NOTE: The following procedures are to be used in conjunction with those in SI 00502.240-SI 00502.280 to determine whether sponsor-to-alien deeming is applicable.

1. Determination that Repayment by the Sponsor Applies

Follow SI 00502.240G. to determine when to verify that an alien SSI recipient is being sponsored under section 213A. Record the basis for your determination in the file that the sponsor is required to repay SSA the amount of SSI benefits paid to the alien.

2. Notification

Notify the sponsor of your determination that he/she is subject to the new, legally enforceable affidavit of support, and the requirement to repay to SSA the SSI benefits paid to the sponsored alien (see SI 02220.065D.4.a.).

3. Reconsideration of Determination that Repayment by the Sponsor Applies

If the sponsor objects to the determination (i.e., the notice sent per SI 02220.065D.1 and SI 02220.065D.4.a.) that the repayment provisions of section 213A apply to him/her, obtain a Request For Reconsideration (Form SSA-561-U2). Make the reconsideration determination using the same criteria that you used to make the initial determination (see SI 02220.065D.1. and SI 00502.240). Consider any additional evidence/statements. Notify the sponsor of your determination using a Notice of Reconsideration (Form SSA-L8457-CL). Also see SI 02220.065D.4. For appeals beyond the reconsideration level, see SI 02220.065D.5.b.

NOTE: Send a copy of the SSA-561-U2, the SSA-L8457-CL and information/documentation on any subsequent appeal, annotated with both the sponsor's and the alien's Social Security Number, to the Office of Financial Policy and Operations at the address shown at SI 02220.065D.4.a.

4. Repayment of SSI Paid to the Sponsored Alien

NOTE: Because the sponsor, not the alien, is solely liable for repayment, the sponsor cannot use the sponsored alien's SSI benefits to repay the payments made to the alien.

a. Notification

Prepare a SSI Important Information Notice (Form SSA-L8166-SM). Include:

• Your determination that the provisions of section 213A, on the enforcement of the affidavit of support, apply. This determination must, per INS Regulations, include the date of the affidavit of support, the sponsored alien's name, his/her alien registration number, address and date of birth, the months the alien received SSI, and the total amount of SSI received;

• A demand for full repayment within 45 days; and

• That payment is to be made to SSA.

Also include:

• A Payment Stub. Show the sponsor's name and the SSI recipient's Social Security Number.

• A return envelope addressed to the office serving the sponsor.

Mail or FAX a copy of the notice (annotated with the sponsor's name and Social Security Number) to Office of Financial Policy and Operations (OFPO):

SSA

Office of Financial Policy and Operations

2-A-10 East High Rise Building

6401 Security Boulevard

Baltimore, MD 21235-6401

Annotate the envelope: Sponsored Alien Case

FAX 410-965-0384

b. Annotation

Annotate the “Remarks” field or the MSSICS Remarks screen (MSOM MSSICS 023.001 ) that section 213A is applicable. Include the amount to be repaid.

c. Notification

Mail the notice by certified or registered mail, return receipt requested, to the sponsor at his/her last known address.

d. Payment Received

When payment is received:

• Annotate the file.

• Follow Remittance Processing procedures in GN 02403.001, MSOM DMS 003.001 -9 and MSOM DMS 003.001 -10.

• Annotate the “Remarks” field (or MSSICS Remarks screen) that a refund has been received, the amount received and the amount that remains to be repaid. Do not delete the original amount that must be repaid.

The field office will control the repayment. Generally follow the instruction in SI 02220.025.

NOTE: DO NOT post a P-TAC (Manually Computed Overpayment). To prevent excess decisions, remittances of SSI paid to a sponsored alien must not be posted to the Supplemental Security Record (SSR). (See SM 01311.634.)

e. Sponsor Cannot Repay the Full Amount in One Payment

When the sponsor cannot repay the full amount in one payment:

• Allow for repayment over a period of up to 12 months.

• Payments will be made on a regular monthly basis.

• It is not necessary to complete Section II of the SSA-632-BK.

• Give the sponsor a sufficient number of Payment Stubs and return envelopes.

• Set up manual control of the installment payments.

f. Sponsor Does Not Respond

When the sponsor does not respond to a repayment letter within 45 days (plus 5 days for mailing), or the last known address is not a good address, take the following recovery actions:

• Determine whether the sponsor received the letter (e.g., was it returned). If the sponsor did not receive the letter, attempt alternate means of service per SI 02220.065D.4.c. If necessary, follow SI 02220.051 to locate the sponsor; then serve the notice (see SI 00502.280D.24.). You may also contact INS for the sponsor's address. If you are unable to locate the sponsor, stop recovery efforts. Notify OFPO of your decision to stop recover efforts. See SI 02220.065D.4.

• If the sponsor did receive the notice, refer the case to the DOJ for civil recovery action.

g. Sponsor is Delinquent in Repayment

When the sponsor is delinquent in repayment, send a letter stating that payment is past due and demand payment within 10 days. If no response is received, refer the case to the DOJ for civil recovery action.

h. When to Send Information to OFPO

Send Information to OFPO when:

• There is no response to the requests for repayment; or

• The sponsor refuses to repay/cooperate; or

• The case is referred to the DOJ for civil recovery action; or

• There is a final civil judgment against the sponsor.

Notify OFPO at the address in SI 02220.065D.4.a.

i. Final Civil Judgment is Obtained

Mail a certified copy of the final civil judgment against the sponsor to:

Include a cover letter that includes a reference to “Civil Judgments for Congressional Reports under section 213(I)(3) of the Act.”

5. Appeals

a. Waiver of Repayment

Because repayment by the sponsor of SSI received by the sponsored alien is not an overpayment, do not apply overpayment waiver procedures (based on defeat the purpose of the Social Security Act (SI 02260.020), against equity and good conscience (SI 02260.025) or impede effective or efficient administration (SI 02260.030)).

b. Reconsideration/Hearing/etc.

The determination that a sponsor must repay the SSI received by the sponsored alien is an initial determination. Therefore, the sponsor has the same right of appeal as he/she does with any other initial determination. (See SI 02220.065D.1. and SI 02220.065D.2.)

When a request for reconsideration is filed within 60 days of the date of the notice of the initial determination that section 213A is applicable (see SI 02220.065D.3.), stop all recovery efforts. Resume recovery efforts only after making an unfavorable reconsideration determination.

It is not necessary to stop recovery efforts when further appeals--Hearing, Appeals Council, etc.--are requested.