Immigration and Nationality Law

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February 27, 2009

Update on immigration issues for Social Security practitioners

Posted by Geri Kahn under Health, Immigration and Nationality Law, Refugees, SSI, Social Security Disability Law, Social security | Tags: , |
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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.

 

February 18, 2009

Can someone who has TPS receive SSDI for a disability?

Posted by Geri Kahn under Health, Immigration and Nationality Law, SSDI, Social Security Disability Law, Social security | Tags: |
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I recently received a question as to whether a person can collect SSDI (Social Security Disability Insurance) if he or she has the immigration status of  Temporary Protected Status (“TPS”) and becomes disabled.  At first I did not think so because TPS is a temporary status.   Generally speaking, non-immigrants are not able to collect much in the way of public benefits.  However, as I researched further, I found out to my surprise that people who have valid TPS  may collect SSDI.

TPS  is granted by the United States Attorney General  to nationals of certain countries when they cannot return to their country due to an ongoing armed conflict, environmental disaster, or other extraordinary and temporary conditions.   The following countries are currently designated for TPS:  El Salvador, Nicaragua, Burundi, Honduras, Somalia and Sudan.

Persons on TPS are granted work authorization.  As long as they have worked lawfully  (with a  Social Security number valid for work purposes), worked in jobs in which Social Security taxes (FICA) were deducted, and have sufficient earnings, they  may collect SSDI.  The key is whether there are sufficient earnings.  My colleague, Jonathan Ginsberg,  publisher of the Social Security Disability blog explains this concept well on his post, “Have You Worked Enough to Qualify for Disability.”  Mr. Ginsberg writes:

“In order to be “fully insured” for disability, you need to have at least 20 credits in your account within the last ten years (fewer credits may be required for workers in their teens or twenties). It is possible to earn a maximum of 4 credits per year. Over ten years, therefore, you can earn a maximum of 40 credits (4 x 10). If you have earned 20 credits during the ten years prior to the onset of your disability (when you stopped working), you are insured for disability purposes.”

As each TPS program varies in length,  it may possible for some nationals of certain countries to have sufficient earnings to collect at this time.  But as Mr. Ginsberg notes, it is not sufficient to have worked for a number of years; a person has to work and earn a certain amount in order to be credited for that work.   Mr. Ginsberg has published the amounts needed in his post, “Have you Worked Enough to Qualify for Disability.”

It may be complicated to figure out eligibility, but it is well worth the time.   I would be curious to know how many people with TPS apply for SSDI.  My guess is that most people who are eligible do not know about it.

 

February 7, 2009

Hangin’ out at the Social Security field office

Posted by Geri Kahn under Health, Immigration and Nationality Law, Refugees, SSI, Social Security Disability Law, Social security | Tags: , , , , |
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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.

 

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