Author: Barbara Weiner

On September 30, 2008, then President Bush signed the “SSI Extension for Elderly and Disabled Refugees Act” (“Extension Act,” Public Law 110-328). The legislation temporarily extends the eligibility of elderly and disabled refugees, asylees and various other groups of humanitarian based immigrants for Supplemental Security Income (SSI) from seven years to nine years. The time limit will automatically go back to seven years on September 30, 2011.  It has taken the Social Security Administration (SSA) over six months to issue guidance to local SSA offices about how to implement the Act and to send notices to potentially eligible immigrants whose SSI was terminated between August 22, 1996, the date of the enactment of PRWORA (the Personal Responsibility and Work Opportunity Reconciliation Act, P.L. 104-193), and October 1, 2008, the effective date of the Extension Act. See POMS SI 00502.107.

The Extension Act

The Extension Act amends 8 U.S.C. § 1612(a)(2) by adding sub-paragraph “M” [8 USC § 1612(a)(2)(M)] to the provision of PRWORA that established the seven year limit on the SSI eligibility of refugees and other humanitarian immigrants.  This restriction has been in place since August of 1996.  Pursuant to PRWORA, elderly and/or disabled immigrants under the following categories are eligible for SSI only during the first seven years after attaining their humanitarian based immigration status:

  • Refugees;
  • Asylees;
  • persons granted withholding of deportation or removal;
  • Amerasians;
  • Certified Victims of Trafficking, and
  • Cuban/Haitian entrants as defined in Section 501(e) of the Refugee Education Assistance Act of 1980 (see POMS SI 00502.108B).

Most other classifications of legal immigrants, including lawful permanent residents, were made completely ineligible for SSI by the provisions of PRWORA unless they became U.S. citizens.  The Extension Act now provides some immigrants whose SSI benefits were terminated because of the seven year limit an additional two years of benefits, through September 30, 2010. The continuation of benefits into a third year, through September 30, 2011, will be granted to immigrants who have an application for citizenship pending when their two years of extended benefits expire.

The legislative struggle to extend the limited eligibility of refugees and other humanitarian-based immigrants (hereinafter refugees) has been carried on for many years.  The solution offered by the Extension Act is a limited one at best, and complicated to administer.  It leaves its beneficiaries at risk of losing their benefits again at the expiration of the two year extension because of an inability to obtain U.S. citizenship, often because of their age or disabilities.

Eligibility Requirements for the Two Years of Extended SSI Benefits

To be eligible for the two year extension, the refugee must have lost his or her SSI benefits at some point between August 22, 1996, and October 1, 2008, solely because of the expiration of the seven year time limit.  In addition, unless the refugee is under the age of 18, (s)he must also sign a declaration of good faith effort to pursue United States citizenship “…by filing and pursuing timely applications for naturalization, lawful permanent residence, and/or such other benefit under the immigration laws that may lead to United States citizenship.” (See SI 00502.107K.1 for a copy of the form declaration.)  The declaration was drafted in cooperation with the Department of Homeland Security.  Since it has only now been issued, those that have already begun to receive SSI under the two year extension but who have not yet signed this declaration will be called into the local SSA office to do so.

Most refugees will be ineligible for the two year extension if they have been lawful permanent residents for six years or more and do not yet have an application for citizenship pending.  A refugee excluded under this provision should file an application for citizenship immediately.  Unfortunately, retroactive SSI benefits will not go back to the effective date of the extension (October 1, 2008) but will only be retroactive to the date the application for citizenship was filed.

Refugees who are not yet lawful permanent residents but have an application for lawful permanent resident status pending will be ineligible for the extension unless the application for permanent status was filed within four years of their first beginning to receive SSI benefits. (Refugees and asylees are eligible to apply for lawful permanent resident status within one year of entering the United States as a refugee or being granted asylum.)

The following individuals are exempt from these two restrictive provisions:

  • Refugees who were under 18 on October 1, 2008, or who are 70 years or older (the extended benefits can only go back to the date the individual turned 70 if that occurred after October 1, 2008);
  • Cuban/Haitian entrants;
  • Those granted withholding of deportation or removal, since individuals in this category are ineligible to apply for permanent resident status and hence are also barred from applying for citizenship; and
  • Refugees with an application for citizenship pending.

All refugees eligible for the extension will get at least two years of extended benefits.  Those with applications for citizenship pending at the expiration of their two years of extended benefits will continue to receive benefits until September 30, 2011.

Assessment of Continued Disability and Financial Eligibility During Extension Period

Refugees who applied for the extension before the issuance of the May 2009 Guidance were reinstated under interim procedures that required them to prove they met the immigration related requirements of the extension and were still financially eligible for SSI.  The reinstatement, however, was done without obtaining their declaration of good faith effort to pursue citizenship and without an assessment of continued disability.  They will be recontacted to verify these aspects of their eligibility for the extension.

With respect to continued disability, refugees who were manually reinstated and who are 55 or older will be presumed to continue to be disabled.  For refugees under 55, if the medical re-exam diary date is still in the future, they too will be assumed to continue to be disabled.  Those whose re-exam diary dates have matured and who indicate that their conditions are the same or worse will be eligible for continued benefits without the need for further documentation.  A refugee who indicates his or her condition has improved will have to submit to a continuing disability review but will continue to receive benefits while the review is pending. If the refugee was entitled for benefits as a child and is now over 18, the “age 18 redeterminaton” will be initiated.

Refugees whose benefits had been scheduled to end during October or November of 2008 were manually reinstated without having to apply for the extension or verifying their eligibility.  The suspension of benefits was suppressed by SSA for all refugees whose benefits were scheduled to terminate after December 1, 2008, because of the seven year limit.  Individuals in both groups will be called in to SSA to verify that they meet the immigration related requirements of the extension and to sign the declaration of good faith.  SSA has directed that for both these groups, continuing disability will be presumed unless the individual received benefits as a disabled child and is now over 18 years old.  For these recipients, an age 18 redetermination must be initiated.

In the overwhelming majority of cases, refugees seeking extension benefits will be those whose benefits were terminated some time in the past and who are not currently receiving benefits.  These will be individuals to whom notice by SSA alerting them to their potential eligibility for continued benefits has recently been sent.  If eligible, their benefits should be reinstated effective October 1, 2008, or as of the date that they meet all eligibility factors, whichever is later.  The guidance actually says whichever date is earlier but this is inconsistent with the provisions of the Extension Act, since there can be no earlier reinstatement date than October 1, 2008.  See POMS SI 00502.107G.

SSA has instructed the local offices to determine eligibility for extension benefits pursuant to the following procedures:

  • Determine if the refugee is in one of the immigration categories covered by the Extension Act;
  • If yes and the individual’s record is in terminated status, obtain the evidence necessary to establish eligibility based on income and resources;
  • If the refugee is 55 or older, assume he or she continues to be disabled and reinstate payments;
  • If the refugee is under 55 and the re-examination diary date is still in the future, assume the individual is disabled and reinstate payment;
  • If the re-examination date has passed, ask the immigrant if his or her disability continues (SSA Form 455); if the answer is “yes,” reinstate benefits;
  • If the refugee indicates that there has been improvement in his or her medical condition or the refugee received benefits as a disabled child and is now over 18, payments are to be reinstated and a disability review initiated.

New Applicants

Because the Extension Act in effect substitutes “nine years” for “seven years” in the language limiting the SSI eligibility of refugees, refugees who are within nine years of having attained their status are eligible to apply for SSI if they are now elderly, blind or disabled, even if they have never received SSI benefits in the past.  These will be refugees who turned 65 years old or became blind or disabled after their seven year window of eligibility for SSI benefits had already passed. (According to its provisions, the Extension Act appears to exempt new applicants who have a citizenship application pending from this nine year limit, but according to the POMS, the “within 9 years of attaining status” limit is applicable even if the refugee has a citizenship application pending.)

The same restrictions and exemptions outlined above that apply to applicants for the two years of extended benefits apply to new applicants. However, refugees applying for SSI based on disability or blindness will first have to be determined eligible before benefits can be paid.  Unless new applicants have citizenship applications pending, their SSI benefits will terminate nine years from the date they initially attained their humanitarian based status or September 30, 2011, whichever comes first.

If you have questions or require further information, contact Barbara Weiner at (518) 462-6831, extension 104, or at bweiner@empirejustice.org.  In anticipation of a conference call in early August with representatives of the Social Security Administration about the effectiveness of SSA’s outreach notice to elderly and disabled refugees and other humanitarian based immigrants whose SSI benefits were terminated, Barbara is anxious to hear from advocates about whether the notices being sent out under these new provisions are actually reaching people.

And thanks to Barbara for this thorough and comprehensive summary of these very significant but very complicated changes!