Double check Social Security’s denial of benefits based on your immigration status

Don’t lose hope, at least initially, if Social Security tells you that they are denying you benefits because of your immigration status.  I have seen at least a few occasions when they are wrong so it is worth investigating further.  There are far too many types of immigration status for anyone to keep up with and so it is difficult for Social Security personnel to adjudicate this issue successfully 100% of the time, especially with refugees who may or may not be entitled to SSI depending on when they apply.

If you believe you may be entitled to benefits and wish to research it, I would like to offer two places where you can look online:

  1. My colleague, Tomasz Stasiuk, recently wrote a thorough post on whether non citizens may obtain Social Security SSI benefits.  His post is a great place to start as you can quickly check whether having a certain type of status enables you to obtain benefits.
  2. The National Immigration Law Center publishes a comprehensive chart which they keep updated.  It shows all of the categories and provides short explanations to go with them.  I constantly refer to it whenever I have a question.  They also have a specific chart for California benefit programs that is worth viewing.

Finally, though, you may be one of those people who just doesn’t fall into a neat category.  I currently have a case like this now.  My client entered the United States prior to August 22, 1996, before there was a change in our laws.  She was granted political asylum many years later.  In my opinion, she is a “qualified immigrant” entitled to SSI, but the Social Security Administration disagrees.  We may have to go to a hearing before an Administrative Law Judge to look at the law but I believe there is no issue as to her qualifying based on immigration status.   If you have a situation that does not neatly fall into a box such as this, it would be worthwhile to consult with a California Immigration Lawyer.

Update on immigration issues for Social Security practitioners

Last weekend I gave a presentation along with my colleague, David Wright, at a conference of Social Security practitioners.   The conference was geared towards experienced practitioners who practice in the 9th Circuit (California, Alaska, Hawaii, Arizona, Washington and Oregon.)  Both David and I practice immigration law and Social Security disability law so we spoke about immigration issues that we see in Social Security disability cases.

We discussed how to analyze a case for the immigration issues and what to look for before taking on representation of immigrants.  We discussed some new developments in the law such as the extension of eligibility of SSI to nine years instead of seven for refugees and other humanitarian immigrants.   We reviewed some of the common immigration documents and how to obtain more information about a potential client’s immigration status by doing a FOIA.

A copy of our written article appears on my California immigration lawyer blog here.  I still have 25 booklets referred to in footnote 3  –  “Guide to Selected U.S. Travel and Identity Documents, ”  published by U.S. Immigration Customs and Enforcement.   I would be happy to send them for free to the first 25 people who contact me, as long as the mailing address is in the United States.

Hangin’ out at the Social Security field office

Photo by Fishbowl Collective
Photo by Fishbowl Collective

This past week was a long week.  It seemed long perhaps because I made two trips to two different Social Security field offices,  one in San Francisco and one in Walnut Creek.   This was two too many.   The offices were over-crowded and I experienced long waits.  I try to avoid going to the field office but certified mail and fax did not seem to work, at least in the first case.   They do not answer their phone so I had to appear in person.  In the second case, my clients retained me because their phone calls and submission of information did not seem to be working.   The second case is particularly egregious,  in my opinion.

My client is a child originally from Afghanistan.  She entered the United States as a refugee in 2003  and has some very serious debilitating  medical issues.   She is now a lawful permanent resident of the United States and has applied for her certificate of naturalization because her mother recently became a citizen of the United States.  She has not received her certificate yet.  When she applied for SSI, she was told that she could not receive it because of her legal status.   The Social Security worker told her that she needed to be a citizen of the United States.  At the time I heard this story, I was assisting my client’s mother with her naturalization case and I told my client’s mother that the Social Security office worker was wrong; her daughter was entitled to receive SSI for a period of 7 years because she originally had entered as a refugee.  Indeed, in some circumstances, refugees may now be able to obtain SSI for 10 years if they can show they have a naturalization application pending.

My client and her mother went back to Social Security and submitted a copy of my client’s  green card at least on three occasions.  Still, the worker was insistent that my client submit a copy of her naturalization certificate.  They were completely frustrated.    I accompanied them yesterday.   When we met with the claims representative, she began to tell us the same story that my clients told me – that story being that since my client entered after 1996, she was not entitled to SSI.  I told her that law allows refugees to have SSI for 7 years after admission and that my client was admitted as a refugee less than 7 years ago.   The claims representative then understood and asked for proof of the refugee status and we submitted it.

It seemed so simple and yet it was not.    I found it egrigous because as I learned yesterday, this was the second application my client has filed.  She filed one previously and Social Security denied it claiming she did not have legal status to receive SSI.  (I will have to check  if we can reopen it.)  I do not know what the source of the problem was.  I do not know if  the Social Security worker failed to ask sufficient questions or lacked the training to ask.   Refugee status is not that common but still I would hope that the Social Security worker would inquire of every applicant whether or not he or she entered as a refugee.  I know that my clients do not know the law and only submitted to Social Security what was asked of them.

I am optimistic now that my client’s application will be approved and will look forward to seeing that approval letter.