by Geri Kahn and David Wright[2]
This past year has held mixed results for immigrants and their ability to access Social Security benefits. It is now more important than ever to go through an analysis of your potential client's immigration status before taking on representation. This article will review this analysis. It will also discuss some of the developments, the good, indifferent and ugly, in the field of immigration law that affect our clients.
It is crucial that the very first questions you ask a potential client concern their immigration status. The questions you should ask are as follows:
We are providing everyone who attends the conference with a booklet published by U.S. Immigration and Customs Enforcement entitled, "Guide to Selected U.S. Travel and Identity Documents." It contains the common immigration documents past and present issued by United States and Citizenship Services ("USCIS") and the former Immigration and Nationalization Service ("INS")[3] Take a look at the booklet if you are unsure about what the documents are that your client is showing you.
If your client presents you with any document that is expired, there may be a chance that he or she is either out of status or had a temporary status. If you are not sure what the status of your client is, consult an immigration attorney.
Once you determine your client's immigration status, you should consult the excellent chart, "Immigrant Eligibility for Federal Programs," prepared by the National Immigration Law Center (NILC). You can find the chart here: http://www.nilc.org/pubs/guideupdates/tbl1_ovrvw-fed-pgms-rev-2008-10-01.pdf
Do not undertake representation unless your client falls into a qualified category on the chart and has the immigration documentation to prove it. If your client swears up and down that he or she is in valid legal immigration status and you wish to help him or her obtain the proof of that, you may take the following steps.
PLEASE NOTE: There is anecdotal evidence to suggest that people who have criminal convictions which render them removable (deportable) and who have tried to renew their green cards may be placed in removal proceedings. Likewise, people who have done FOIAs and who were out of status may come to the attention of USCIS by filing the FOIA. You should exercise caution before telling your client to renew a green card or file a FOIA.
There have been some "good" developments this past year in the field of immigration law.
Effective October 1, 2008, Congress passed an extension of SSI for certain humanitarian immigrants. Previously, certain permanent residents could receive SSI for seven years. They would then be cut off of SSI unless they were citizens of the United States (or had worked for 40 quarters). Due to delays caused by USCIS in processing naturalization applications, Congress passed a law extending the time period from seven years to nine years in which people could continue collecting SSI even if they were not yet citizens. This law is set to expire in October 2011. The purpose of the law was specifically to assist those people who had applied for citizenship but who had not received it due to delays caused by USCIS. The law has helped take some of the pressure off the elderly who were having difficulties in passing the citizenship exam.
The Social Security Administration (SSA) issued an internal policy memo explaining how the law should be administered. The policy is called "Emergency Message 08105SEN. The Emergency Message is supposedly contained in POMS SI 00502.107, but as of the date this article is written, it is not available on the SSA's website.
You can find out more about the law by reading, "A Guide to the New and Temporary SSI Extension Law for Humanitarian Immigrants," published by NILC and available here:
http://www.nilc.org/immspbs/ssi/ssi-extension-faq-nontech-2008-11.pdf
Yes, this is good news! We have to celebrate when we can. We are no longer experiencing the delays we spoke about last year when people were waiting 1-4 years after filing for citizenship to become U.S. Citizens. USCIS has developed a new policy regarding adjudication of background checks and now most cases are taking an average of six months from start to finish.
Last year a group of plaintiffs who were losing their SSI due to USCIS' failure to timely adjudicate their naturalization applications sued USCIS because the delays were preventing them from becoming citizens within the seven year limit. USCIS entered into a settlement agreement in the lawsuit. This settlement agreement is known as the "Kaplan settlement," from the lawsuit title, Kaplan v. Chertoff, et al.
As part of the settlement, USCIS agreed to expedite the processing of green card applications or naturalization applications if the applicants are receiving SSI and are in danger of losing it within one year. Expedite means that they will request an accelerated FBI name check and conduct an interview sooner.
Last year we spoke a bit about the naturalization exam and exceptions to having to take and pass the English, history and civics portion of the exam.
This year USCIS started administering a new naturalization exam. It contains many of the same questions as the old exam but with some new ones added. For instance, the new exam is more politically correct. There is one question about famous American women and one question about Native Americans. The new exam also covers a little geography. It does not seem to be any harder or easier than the old one.
The English language and history and government requirements are waived for persons who are physically or developmentally disabled or have a mental impairment. [4] A medical doctor, osteopath, or clinical psychologist "experienced in diagnosing" these disabilities must complete a USCIS form called a "Medical Certification for Disability Exceptions" (more commonly known by the form number - N-648) that is filed with the naturalization application. [5]
This year there is a new N-648. You can find the form on the USCIS website: http://www.uscis.gov/portal/site/uscis.
There are some good changes to the form which on the surface would seem to make it easier for a person to be granted a waiver. First, the form asks whether a state or a U.S. government agency has made a determination on any disability the applicant is claiming on the form. Presumably USCIS will give some credence to a Social Security decision. The form also breaks down the opinion a doctor must give into sections, first the diagnosis and then the nexus between the impairment and the inability to learn English, civics, and history.
Despite the new form, adjudication remains very inconsistent. There are differences between officers and offices. N-648s with diagnoses which are more understandable to a lay person seem to pass easier. A diagnosis of depression on the N-648, even if well documented, is hard to win.
The ugly is not good. This year there are two proposed rules, which, if they go into effect, will adversely affect the limited resources of the Social Security Administration.
It is currently our law that an employer must verify the employment eligibility of their employees using Form I-9. Once the employee completes his or her part of the form, the employer looks at the employee's documents which establish the right to work and then the employer completes the form. The employer keeps the form at the place of employment. The process takes a few minutes and it is over.
There is now an additional electronic verification system called, "E-Verify." E-Verify is an internet based system operated by the Department of Homeland Security in cooperation with the Social Security Administration that permits participating employers to electronically verify the employment eligibility of their newly hired employees. The Department of Homeland Security claims that more than 69,000 employers use E-Verify and that over 4 million employment eligibility queries were run in fiscal year 2008.
It is currently a voluntary system but it was supposed to become mandatory on January 15, 2009 for employers who hire federal contractors. Many people would like to see it mandatory for all employees. A group of plaintiffs sued the Department of Homeland Security and now the deadline for mandatory verification of federal contractors has been extended to February 20, 2009.[6]
Beginning in 1994, the Social Security Administration ("SSA") started sending out "no-match" letters to employers and/or employees when they found a discrepancy between a Social Security number ("SSN") and W-2, including typographical errors, unreported name changes, inaccurate or incomplete employer records or misuse of a SSN.
In August 2007, the Department of Homeland Security issued a rule which indicated that U.S. Customs and Immigration Enforcement ("ICE") could use the receipt of a no-match letter as evidence that the employer had "constructive knowledge" that the employee who was the subject of the letter was not authorized to work. The 2007 rule included "safe harbor" provisions that the employer needed to follow in order to avoid penalties and fines under the Immigration and Nationality Act.
Multiple plaintiffs sued the Department of Homeland Security against implementing this rule and in October 2007, the Court issued an injunction against implementation. In March 2008, the Department of Homeland Security issued a supplemental rule which did not make substantive changes from the 2007 rule. The preliminary injunction remained and continues to remain in effect. There may be a decision on the injunction soon. Briefs for and against a motion to vacate the injunction are due by the end of February. The Court may set a hearing after that.
Both E-Verify and the no-match rule are quite controversial. The reason we list them here though is because both programs rely on the integrity of Social Security data and we all know how reliable that is! If both rules are implemented, Social Security will be inundated with requests from unhappy workers wanting the SSA to fix their data. People who are not currently using the services of the SSA will be at their offices and on the phone. As far as the authors know, Social Security has not allocated (nor do they have) additional resources to use for this kind of work.
Perhaps even more alarming is that the mission of the Social Security Administration changes into a law enforcement agency should these two rules become effective. The SSA was never set up to collect data on immigrants. For instance, they have no way of knowing when someone becomes a citizen unless someone tells them. And their data was not meant to be used for the enforcement of immigration laws. Yet, this is all about to change, for the worse.
[1] A copy of this article is posted on www.californiaimmigrationlawyerblog.com. The article on the blog is hyperlinked so you may access the links directly from the article. There are also supplemental policy memos linked to the posted article.
[2] Geri Kahn is an attorney in private practice in Benicia and in San Francisco, CA. She practices both Immigration and Nationality Law and Social Security Disability Law. David Wright is an attorney in private practice in San Francisco, CA. He also practices both Immigration and Nationality Law and Social Security Disability Law. The authors wish to thank Morgan Hangartner, staff attorney at Jewish Family & Children's Services, for his review of the article and comments about N-648 adjudication.
Copyright (c) 2009 Geri Kahn and David Wright
[3] If did not attend the conference, please call or email Geri Kahn (www.gerikahn.com) and she will send you a copy of the booklet. If you want more than one copy, you may order them directly from U.S. Immigration and Customs Enforcement.
[4] 8 U.S.C. §1423(b)(1); 8 C.F.R. §312.2(b)(1)
[5] 8 C.F.R. §312.2(b)(2)
[6] We will provide an update at the conference.