Representing Disabled and Immigration Clients in MA and RI
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FAQ

Things You Should Know Before You Apply for Social Security Disability Benefits

If you have suffered a bodily injury, or have been diagnosed with a debilitating physical or mental health related medical condition, and are unable to continue working, you may be eligible to apply for certain financial and medical benefits through the Social Security Administration. The application process to obtain benefits is quite complex and can be intimidating, especially for someone who is already struggling with a serious injury or medical condition. This article focuses on addressing some of the most common questions asked by clients when they are applying for Social Security Disability Benefits.

How many forms of Social Security disability exist?

You may be surprised to learn that there are a myriad of different disability benefit programs managed by the Social Security Administration. In fact, there are at least five major forms of benefits you could potentially access through Social Security. Here is an overview of the five major disability programs.

  1. Disability Insurance Benefits (SSDI) – This is the type of benefits most commonly applied for by individuals through the Social Security Administration. To be eligible, or be “insured”, you must have a record of working five out of the last ten years and are now disabled.
  2. Disabled Widow’s and Widower’s Benefits – These benefits are available to individuals who have become disabled after losing their insured spouse and they are at least 50 years of age or older. 
  3. Disabled Adult Child Benefits – These benefits are available to a disabled adult child who is (i) over the age of 18; (ii) unmarried; (iii) became disabled before the age of 22;  and (iv) one of the child’s parents receives Social Security benefits or is deceased. 
  4. Supplemental Security Income Disability Benefits (SSI) These benefits are available to disabled individuals who are struggling financially. The big distinction between supplemental security income benefits and other disability benefits is that it does not matter whether an individual has worked in the past or not. 

Supplemental Security Income-Child’s Disability Benefits – These benefits are available to minors under the age of 18. To be eligible, the children must have a severely limiting physical and mental condition, or conditions. Additionally, there are restrictions for an applicant’s household income. Basically, if the child’s parents or guardians make over a certain amount, the child would be ineligible for benefits. 

Who is eligible for Social Security disability benefits?

To be eligible for Social Security disability benefits, there needs to be documented evidence that you are suffering from a permanent or long-term (i.e. 12 months or longer) illness or injury  that prevents you from working.

My doctor said I am disabled, but Social Security denied me. How is that possible?

If your doctor told you that you should not work, but your disability benefits application is denied, do not give up hope. This is quite common. Many applicants encounter this situation, where they have a letter from their doctor stating they should not return to work, but are nonetheless denied benefits by Social Security.

The issue that often arises is the content of the letter supplied by the doctor. For example, the letter may advise the patient not to go back to their current work, but it makes no mention of whether the patient is unable to perform any other type of work. This is extremely important in the context of a disability benefits application. Why? Because even if you are unable to go back to your previous employment, Social Security may not approve your benefits application if it is possible you could perform other work duties that may be less physically and or mentally demanding.

How does Social Security decide if I am disabled?

When deciding whether an applicant is disabled, the Social Security Administration utilizes a multi-step process addressing five key questions.

  1. Are you working?
  2. Is your condition “severe”?
  3. Is your condition found in, and as described in, their list of disabling conditions?
  4. Can you do the work you did previously?
  5. Can you do any other type of work?

How long does it take to make a decision?

When you apply for disability benefits, do not expect a quick turnaround by Social Security. For example, on average, a determination for an initial disability claim can take between four to six months, or longer depending on the agency’s current backlog. If that was not bad enough, many initial disability applications are denied. You can appeal such a denial by requesting a reconsideration of the initial application denial of benefits, but that will usually also take at least another three or four months in which to receive a determination.

Who reviews and makes the decision on my disability benefits application or request for reconsideration appeal?

The Social Security Administration will send your disability benefits application to a state agency that is empowered to review and make decisions regarding benefit applications. A vocational-disability examiner and a medical expert or experts will be assigned to your case, and they will send you a packet of detailed questionnaires to complete regarding your daily activities, symptoms and treatment of specific health conditions, and your work history. They will contact your doctors to obtain medical records and completed disability questionnaires, and at times information from your former employers, all of which they will then review. There are also instances where the state agency will request that you undergo a medical examination performed by a specialist that they hire (You will not have to pay for this examination, and transportation will be provided if you need it). These examinations are often ordered because you have insufficient treatment of your own in which to document your conditions, or your doctors are not providing information to the agency in a timely or complete manner.

It is prudent to contact an experienced Social Security disability benefits attorney early on in the application process to discuss ways to strengthen your case. Many Social Security disability attorneys will actually file the application for you.

If Social Security decides that I am disabled, what types of benefits can I receive?

If you are deemed disabled, the types of benefits you may receive include monthly cash payments and insurance to cover your medical expenses.

How much would I get if I became disabled?

The Social Security Administration utilizes a formula when calculating your available benefits. For Social Security Disability Insurance benefits (SSDI), the agency will likely use your Average Indexed Monthly Earnings (AIME) and Primary Insurance Amount (PIA) to calculate your disability benefits. For example, in 2020, the average benefit amount through the Social Security Disability Insurance program is $1,258 per month. For Supplemental Security Income (SSI), the benefit amounts vary by state of residence and household composition, income and assets.

Can some of your family members get benefits, too?

Yes, it is possible for your loved ones to be eligible for disability benefits if you are awarded SSDI (there are no family benefits available through SSI), if they rely on your income (i.e. dependent minors). For example, if your spouse becomes disabled and is approved for disability benefits, you may also be eligible to receive benefits if you are age 62 or older, or you are caring for a child who is under the age of 16 (or if your child is also disabled).

If you are the parent of a child and you are collecting disability benefits, your child may also be eligible for benefits if they are under the age of 18 and unmarried, or 19, unmarried and still attending high school.

Speak to an Experienced Social Security Disability Benefits Lawyer Today

As you can see, the disability benefit application process is complex and there are many pitfalls that can delay an individual’s ability to obtain benefits. This is why it makes sense to have an experienced and knowledgeable attorney on your side who can help you navigate the process. As a former staff attorney with the Social Security Administration, Sara J. Frankel knows the law and how the system works from an inside perspective. Contact us today, we can help!

Conditional Permanent Residency or Conditional GREEN CARD

What is a conditional “green card”?

If you are an immigrant married to a US citizen or permanent resident and were married for less than two years when you applied for and were granted permanent residency, your “green card”  will expire after 24 months.

Having a conditional “green card” or conditional permanent residency (your card will say “CR1”) means that you have to apply to have the conditional status removed from your residency before the end of the two year period. To do this, you must again document that you have a genuine, or “bona fide” marriage. After you go through this process, you will be eligible to receive a permanent “green card”, which can be renewed every 10 years.

Can I renew a conditional permanent resident card?

If your marriage was less than 2 years old at the time your residency was granted, you were given “conditional” residence. Your conditional status will expire in only 2 years.

You may be asking why the “green cards” issued in these circumstances are only valid for 2 years. This is because unfortunately, many people try to take advantage of the marriage-based visa system by entering into fraudulent marriages in order to obtain permanent residency. Therefore, marriages of less than two years duration at the time of filing for permanent residency, are under greater suspicion of not being genuine or “bona fide”. The conditional permanent resident process allows for greater scrutiny of these marriages. 

It is important to realize that applying to have the condition removed is not technically a renewal. Your conditional “green card” can not be renewed. Instead, the conditions are removed and a 10-year “green card” is then issued. The distinction is important because the process of removing conditions is different from the process of renewing an expiring 10-year “green card”, and requires very different documentation.

How do I apply to lift the condition on my permanent residency (“green card”)?

Here are the steps you need to take to file for a 10-year permanent resident card (If you are residing overseas for military or authorized governmental purposes, there are additional requirements to those listed below):

  1. File Form I-751, the Petition to Remove Conditions, no more than 90 days before your CR1 conditional permanent resident card expires. You must file it within that 90-day window because forms filed too early or too late will be denied. You have to complete and sign this form together with your spouse, as it is a joint petition (with certain limited exceptions).
  2. Provide similar evidence to that which you already gave USCIS in your original application for conditional permanent residency to prove your marriage is real or “bona fide”. However, this should not be the same documentation you provided previously, it should be new evidence from the past two years of conditional residency. You can use a wide variety of documentation, such as new pictures together, joint financial documents, insurance policies, and or retirement plans naming each other as beneficiaries, birth certificates of any children you have had together, etc.
  3. Include a photocopy of the front and back of your conditional “green card” and the appropriate filing fee (currently $680) with your application.

The forms, documentation, and filing fee must then be filed (by mail) with the appropriate USCIS office.

How do I prove my marriage is real? What counts as evidence of a “bona fide” marriage?

If you  or your spouse wants to apply for a “green card”, you must submit Form I-130, Petition for Alien Relative and evidence of a bona fide marriage to the US Citizenship and Immigration Services (USCIS)

Evidence of Cohabitation

When you submit Form I-130, there are different pieces of evidence you must include to prove that your marriage is bona fide (or made in good faith). One aspect of this is evidence that you and your spouse live together, also known as evidence of cohabitation. The USCIS considers evidence of cohabitation a good indication that a marriage is legitimate, because most married couples live together.

But how are you supposed to prove that you and your spouse live together? Here are some examples of documents you can provide as evidence:

  • Deed to property showing both names
  • Mortgage or loan documents showing both names
  • Lease agreement showing both names
  • Driver’s licenses or IDs showing the same address
  • Bank statements showing the same address
  • Voided or canceled checks showing the same address
  • Utility bills showing the same address (electricity, water, gas, trash, cable, internet, cell phone, etc.)
  • Property insurance agreements, statements, or cards showing the same address
  • Health and life insurance statements showing the same address

Evidence of Raising Children Together

The USCIS also considers having or raising children together evidence of a legitimate marriage. Whether you and your spouse had a child together, adopted a child, or are raising children from a previous relationship, evidence of this can help you obtain a “green card”.

If you are providing the USCIS with evidence that you and your spouse are raising children together, you can submit the following:

  • Birth certificates showing both spouses as parents
  • Adoption certificates showing both spouses as parents
  • Evidence of a relationship with children or step-children (photos, vacation itineraries, school records, affidavits from friends, family, and teachers)
  • Medical records evidencing an ongoing pregnancy
  • Evidence showing the non-related parent as an emergency contact for a step-child on school records, doctor’s records, etc.

Evidence of Commingling of Finances

Often, married couples combine their finances to some extent. The USCIS considers commingling your finances evidence of a bona fide marriage, so you can submit financial documents as evidence.

You do not need to have completely combined your finances with your spouse to show financial commingling. Here are some examples of financial documents you can submit to show a degree of financial interdependence:

  • Bank statements for joint checking, savings, and credit card accounts
  • Voided and canceled checks for joint accounts
  • Statements for joint loans or loans where one spouse is a co-signer for the other spouse
  • Copies of bank statements from separate accounts and canceled checks showing that you share jointly in your financial responsibilities and big purchases (for example, if each spouse pays half of the rent from a separate account or if each spouse paid one half toward the purchase of a car)
  • Joint health, life, property, and auto insurance agreements, statements, and cards
  • Utility bills showing both names (electricity, water, gas, trash, cable, internet, cell phone, etc.)
  • Tax returns filed as married showing both names
  • Documents showing joint ownership of real property, cars, or investments
  • Life insurance policies, wills, and trusts, designating your spouse as a beneficiary

Evidence of Intimacy

Whether you and your spouse are newly married or have been together for years, the USCIS wants to see evidence that you and your partner share life experiences together as a married couple would. Proving evidence of intimacy may sound difficult, but it is actually quite simple for most bona fide couples.

Here are some ways you can provide evidence of intimacy to the USCIS:

  • Photos from the couple’s wedding, honeymoon, vacations, family dinners, holidays, etc. (Recommendation: List the names of any other individuals in the photos as well as the approximate date and location.)
  • Travel itineraries and hotel bookings from joint vacations or trips
  • Photos from joint vacations or trips, particularly trips to visit family members
  • Tickets to events you both attended or plan to attend
  • Receipts for any gifts you have purchased for each other
  • Cards from friends and family congratulating you on your wedding, anniversary, or other joint life events
  • Evidence that each spouse has met or communicated with the other spouse’s parents and relatives such as photos, letters, cards, or emails
  • Phone and text message records showing that you and your spouse communicate on a regular basis
  • Social media records such as screenshots of Facebook pages, posts and Twitter messages that show you spending life events together

Affidavits

Another way to prove that your marriage is genuine is to ask people who are close to you and your spouse for an affidavit attesting to the authenticity of your marriage. You can ask for an affidavit from friends, family members, neighbors, and employers. These affidavits do not need to be long or perfectly written; they simply need to show that people in your life recognize you and your spouse as a bona fide couple.

What should you expect during a I-751 interview at USCIS?

Technically, every I-751 applicant who wishes to change their conditional residence status is supposed to attend an in-person interview with the USCIS.

However, in reality, the USCIS will waive the need for an interview and most couples will not have to attend. This decision is made on a case-by-case basis, dependent on your situation and the quality of your I-751 submission. 

The USCIS is looking for evidence of a bona fide marriage during this process. They may call you and your spouse in for a joint interview, or they may call the applicant in alone if a waiver is requested.

The USCIS requires an interview for 4 reasons:

  1. To determine whether your marriage is/was made in good faith
  2. To investigate potential inadmissibility. This happens if you or your spouse has a criminal record or did not disclose another issue when filing the I-751 form.
  3. To evaluate other eligibility grounds (including abuse)
  4. You and your spouse were chosen at random for an interview

If you and/or your spouse are called in for an interview by the USCIS, you should prepare thoroughly for the occasion. If you can, find and bring other documents or evidence of the legitimacy of your marriage. For the best chance to do well during this interview, contact an experienced immigration attorney to help you prepare.

What do I do if the USCIS denied my Petition to Remove Conditions?

After you submit your I-751 Petition to Remove Conditions, you will receive a letter in the mail from the USCIS stating whether you were approved or denied. If your I-751 Petition was denied, the USCIS will also provide a reason for their decision and a Notice to Appear (NTA) in immigration court to begin removal proceedings.

If your petition was denied, you will be placed in deportation. However, you must still attend your hearing. You can also use this hearing as a second chance to establish the legitimacy of your case. With an excellent immigration attorney at your side, you may have the chance to change your status.

Common reasons you may have been denied for I-751 are:

  • Inadequate evidence of a bona fide marriage: If the USCIS does not believe that you provided enough evidence to prove that your marriage was made in good faith, your petition could be denied.
  • Incorrect filing: If you do not adhere to the strict time frame when filing your I-751 petition, you could be rejected. This includes filing too early as well as too late. If you file too early, you will be rejected. If you file too late, your petition will be denied and you will begin the deportation process.
  • You are not qualified for a change in status: The USCIS has strict rules governing who is qualified to change their residence status. If you committed marriage fraud or immigration violations, your petition will be rejected. If you have a criminal record, you may also be denied.

If the USCIS denies your I-751 petition, you will no longer have lawful residency in the United States. This means you cannot work or travel, and may not be able to continue living in this country. 

Because of this, it is very important to submit a well-polished, robust I-751 petition with plenty of evidence of your bona fide marriage.