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Immigration & Social Security Benefits

September 22, 2010 by Thomas Geygan

            A person who is not a USC is prohibited from receiving Social Security payments if s/he has been outside U.S. for more than 6 months unless the person’s country has a Social Security or pension system that reciprocates for USCs (Totalization Agreements). Social Security Act §202(t)(1), 42 U.S.C. §402(t). 71 No. 4 Interpreter Releases171–72 (Jan. 24, 1994); Taylor v. Barnhart, 399 F.3d 891, 894–95 (8th Cir. 2005) [totalization agreement with UK that could be construed to provide disability benefits to illegal person in U.S. is trumped by subsequently enacted statutes requiring lawful presence to receive benefits]; Dragan v. Heckler, 1985 U.S. Dist. LEXIS 18961 (D.D.C.)[rejected effort to totalize pension payments from a nonagreement country]. Countries that have totalization agreements and thus allow payments abroad are: Austria, Australia, Belgium, Canada, Chile, France, Finland, Germany, Greece, Ireland, Italy, Japan, Luxembourg, Netherlands, Norway, Portugal, South Korea, Spain, Sweden, Switzerland, and United Kingdom. In addition to these countries we also have reciprocal agreements with Albania, Bosnia, Czech Republic, Hungary, Macedonia, Slovak Republic and Uruguay.

        SSA publishes a guide discussing whether and how individuals can receive payments when they are outside the U.S. See www.ssa.gov/pubs/10137.html#countries. With a few exceptions, Social Security restrictions prohibit sending payments to individuals in Cambodia, Vietnam, or areas that were in the former Soviet Union (other than Armenia, Estonia, Latvia, Lithuania, and Russia). 

        Aliens who are deported under INA §241(a), removed as inadmissible for EWI, or removed under 237(a) (except for failure to maintain status, and smuggling) lose their Social Security benefits after notice to Secy. of HHS by the AG unless the persons are subsequently readmitted as LPRs. Social Security Act §202(n), 42 U.S.C. §402(n). The SSA had to receive notice that the person was deported or removed under certain exceptions (i.e., failure to maintain status or smuggling) before Mar. 3, 2004 to retain benefits. 20 C.F.R. §404.464(a). Flemming v. Nestor, 363 U.S.603 (1960); Smart v. Shalala, 9 F.3d 921 (11th Cir. 1993) [rejected PRUCOL status as basis for benefits]; 65 No. 43Interpreter Releases 1167, 1169 (Nov. 7, 1988); 68 No. 22 Interpreter Releases 718 (June 17, 1991).

        NIVs May Be Excluded from Social Security Coverage—A student (F, M, J and Q) enrolled and regularly attending classes in a school, college, or university is exempt from Social Security and Medicare taxes. 26 U.S.C. §3121(b)(10). Nonresident aliens in F, J, M and Q status are exempt from Social Security and Medicare taxes on services performed to carry out the purpose of their status. These exemptions do not apply to residents or aliens in derivative status. 26 U.S.C. §3121(b)(19). Social Security exclusion from coverage provided by 20 C.F.R. §404.1036 is overridden by the tax law defining nonresidents. 26 U.S.C. §7701(b).

       Eligibility of Children—Even if a person is ineligible himself to receive Social Security benefits, his or her children may be eligible if they are USCs (e.g., in the case of someone who is deported but has earned benefits, the USC children may be able to get those benefits if they are still living in the U.S.).

Filed Under: Immigration

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