TN 2 (12-04)

Citations:

Social Security Act as Amended in 1996, Section 202(y)

Public Law – P.L. 104-193; P.L. 104-208; P.L.105-33

Regulations 8 CFR 103.12

A. Background

On August 22, 1996, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA or Public Law 104-193) was signed into law. Section 401(a) of the Personal Responsibility Act places restrictions on the payment of benefits to aliens in the U.S. under title II of the Social Security Act. Section 401(b)(2) of PRWORA, however, provides an exception allowing any alien eligible for benefits under title II of the Social Security Act to be paid when he/she is “lawfully present in the United States as determined by the Attorney General.” The Attorney General defined the phrase “lawfully present in the United States” for purposes of paying title II benefits in regulations published on September 6, 1996 by the Department of Homeland Security (previously known as the Immigration and Naturalization Service). Under the Department of Homeland Security regulation, there are five broad categories of lawfully present aliens, including “qualified aliens” as defined in section 431(b) of PRWORA.

On September 30, 1996, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA or Public Law 104-208) was signed into law. Section 503 of IIRIRA added section 202(y) to the Social Security Act. The new law repeated the lawful presence requirement found in PRWORA, but changed the effective date from September 1^st to December 1, 1996.

These instructions also include changes brought about by passage of Public Law 105-33, the Balanced Budget Act of 1997 (referred to as the Balanced Budget Act). That act added Cuban-Haitian entrants, as defined in the Refugee Education Assistance Act of 1980, to the list of categories of aliens who are lawfully present in the U.S. The Balanced Budget Act also included Medicare Parts A and B to insured and uninsured individuals among the benefit payments affected by the lawful presence requirement. This POMS transmittal also clarifies policy to indicate that for SSA’s purposes in applying the U.S. lawful presence requirement, the definition of the U.S. is, in effect, the same as the definition found in the Immigration and Nationality Act (INA).

B. Policy requirements for payment as a U.S. citizen or lawfully present alien

1. Who may be paid benefits under the rule?

• We will pay monthly title II and title XVIII benefits to a claimant/beneficiary who is present in the U.S. and who is a U.S. citizen, U.S. national, or lawfully present alien as determined by the Attorney General. This includes claimants in the U.S. filing for benefits under a totalization agreement.

• Under this provision, in order to pay benefits, we must have evidence in our records establishing that the beneficiary is a U.S. citizen, U.S. national or, in the case of an alien, is lawfully present in the U.S. for an entire calendar month.

NOTE: For the purpose of the U.S. lawful presence provision, a person who is a U.S. citizen, U.S. national, or an alien lawfully present in the U.S. for any part of a given day, is considered to be a U.S. citizen, U.S. national, or an alien lawfully present in the U.S. for that entire day.

REFERENCES: See RS 00204.010B.9. for instructions for an alien beneficiary arriving in the U.S. See RS 02610.020F for the definition of the phrase “entire calendar month.” See RS 00204.015 for instructions on establishing U.S. citizenship. See RS 00204.020 for instructions on establishing an alien’s U.S. lawful presence.

IMPORTANT: The lawful presence/citizenship requirements are factors affecting payment of benefits, but they are NOT factors of entitlement.

2. When does the U.S. citizenship/lawful presence provision apply?

The rule applies to applications filed December 1, 1996 or later. To determine the title II application filing date, see instructions in GN 00204.007B. To determine if a claim is being filed on or after December 1, 1996, use the earliest protective filing date. See GN 00204.025 for instructions on open applications.

3. What types of benefits does the rule apply to?

The lawful payment provisions apply to retirement, survivors or disability benefits. This rule also applies to payments made for Medicare services rendered.

EXCEPTION: The U.S. citizenship/lawful presence payment provision does not affect payment of:

• Lump sum death benefits, and

• Title II benefits paid outside the U.S. (See RS 02610.000 for provisions affecting payments to non-U.S. citizens abroad and RS 02635.000 for provisions affecting deported workers.)

4. What happens to benefit payment if a beneficiary is in the U.S. but is not a U.S. citizen or lawfully present alien?

• Payment to a claimant entitled to monthly title II and title XVIII benefits who meets all factors of entitlement will be suspended for any month that he/she is in the U.S. but has not established his/her U.S. citizenship/lawful presence for a full calendar month.

• Payment of monthly title II and title XVIII benefits for periods of retroactive entitlement that fall prior to 12/1/96 will be suspended if the title II and title XVIII application was filed 12/1/96 or later.

• Payments to a title II and title XVIII beneficiary suspended retroactively for failing to establish U.S. citizenship or lawful presence are overpayments subject to the rules of due process. Action to recover the overpaid amount will be taken in accordance with normal recovery procedures. The overpaid person must be given notice of the overpayment, the proposed recovery action, and the right to reconsideration, waiver, personal conference, or a different rate of adjustment (or refund by installment). (See GN 02201.001 for an explanation of processing overpayments.)

• Section 5561 of the Balanced Budget Act (BBA) prohibits payment for Medicare services rendered to an alien who is not lawfully present in the U.S. It is important to differentiate between the U.S. lawful presence requirement prohibiting “payment” for Medicare services rendered to an alien who is not lawfully present in the U.S. and policy in HI 00801.191D.2. indicating that there is no U.S. residency requirement for determining Medicare “eligibility.” Process a Medicare claim, including an End-Stage Renal Disease (ESRD) claim if all factors of entitlement are met, but the U.S. lawful present requirement is not met. CMS is responsible for not paying Medicare services rendered to an alien who is not lawfully present in the U.S.

5. How does the rule affect a person if he/she subsequently becomes entitled to benefits on another earnings record or dually entitled?

Evidence of U.S. citizenship or lawful presence as an alien is required for claimants in the U.S. filing new or subsequent claims December 1, 1996 or later. A claimant filing an application December 1, 1996 or later that will result in his/her dual-entitlement is required to establish U.S. citizenship or lawful presence to receive the additional benefit for which the new application is filed. However, we can use SSA systems records to establish the claimant’s U.S. citizenship under certain circumstances per instructions in RS 00204.020.

EXAMPLE: A widow began receiving benefits on a deceased wage earner's record in 1994. She did not need to establish her U.S. citizenship or lawful presence in order to receive payment because she filed an application before December 1, 1996. In January 2001, she became entitled to a higher retirement benefit on her own record. Because she filed an application after December 1, 1996, she must provide evidence of U.S. citizenship or in the case of an alien, lawful presence in order to receive payment of the retirement benefit. If she is unable to prove her U.S. citizenship/lawful alien status, we will ask her to consider withdrawing the retirement benefit claim unless she must file because of SSI entitlement. If she withdraws the claim, we will continue to pay her the widow's benefit as long as she continues to meet all factors of eligibility. We will tell her to let us know right away if she becomes a U.S. citizen, if her alien status changes, or if she leaves the U.S. so that we can decide if the retirement benefit is payable. If she does not withdraw the retirement benefit claim, and she is unable to provide evidence of U.S. citizenship/lawful presence, we will process her retirement benefit claim and suspend payment of that benefit assuming she meets all factors of eligibility for the retirement benefit. Payment of her widow's benefit will continue even if she does not prove her U.S. citizenship/lawful presence because she filed that claim prior to December 1, 1996.

6. How does the rule affect a person if his/her benefits are converted from one benefit category to another?

A person does not need to provide evidence of United States citizenship or lawful presence if his/her benefits are converted from one benefit category to another and no new application is filed. This is so even if the person had to provide evidence of citizenship or alien lawful presence for the earlier benefit category; i.e., if the effective filing date for the earlier benefit category was 12/1/96 or later. (See RS 00207.005 for instructions on benefit conversions involving widow’s benefits.) Of course, if the person is in a temporary alien status, reverification of status may be necessary.

NOTE: Examples of forms that are not applications for benefits include the SSA-1724 (Claim for Amounts Due in the Case of a Deceased Beneficiary), the SSA-25 (Certificate of Election for Reduced Spouse's Benefits), and the SSA-4111 (Certificate of Election for Reduced Widow(er)'s Benefits). Claimants filing using these forms are not required to provide evidence of U.S. citizenship/lawful presence.

EXAMPLE: An unreduced spouse who had a child in care was entitled prior to December 1, 1996. The spouse elects a reduced benefit now that he/she no longer has a child in care. He/she may be paid these benefits without establishing U.S. citizenship/lawful presence because this is a conversion of a benefit from one category to another that does not require a new application be filed.

7. What happens to benefits if a person’s U.S. citizenship or alien lawful presence status changes during a given month?

A change in an alien's lawful presence status could affect his/her right to receive benefit payments. The claimant/beneficiary is responsible for obtaining and giving us information about changes in his/her U.S. citizenship or lawful presence status. (See GN 00203.005 for reporting instructions for title II claims.) Use the following table to see how a change in an alien's lawful presence status during a given month will affect his/her payment of monthly title II and title XVIII benefits:

NOTE: For the purpose of the U.S. lawful presence provision, a person who is a U.S. citizen, U.S. national, or an alien lawfully present in the U.S. for any part of a given day, is considered to be a U.S. citizen, U.S. national, or an alien lawfully present in the U.S. for that entire day. When a claimant’s status changes from one lawful presence category to another, the periods of lawfully present must be contiguous. If there is any break in lawful presence between the periods, the lawfully present requirement isn’t met for that month.

8. How does the rule affect other people receiving benefits on the number holder’s earnings record?

• Each person on the number holder’s (NH’s) record must be a United States citizen or lawfully present alien in order to be paid benefits while in the U.S. and if the filing date is on or after 12/1/96. A person’s U.S. citizenship or alien status does not affect payment of benefits to another person entitled on the same record.

• A suspension of a worker’s monthly title II and title XVIII benefits to the NH under this provision does not cause a suspension of auxiliary benefits. Thus, in applying the maximum family benefit provisions, a benefit subject to suspension under the U.S. citizenship/lawful presence requirement is considered the same as if it were payable. See the examples below:

• The benefits of a person in the U.S. who is not a U.S. citizen or lawfully present alien count toward the family maximum on a wage earner's record even though payment to that person is suspended. Thus, if an auxiliary's benefits are suspended for failure to be lawfully present in the U.S., we do not readjust the benefit rates of other auxiliaries on the record (see GN 02603.040B for exceptions to the deduction-before-reduction provision).

EXAMPLE 1: NH Suspended, Auxiliary Can Remain in Pay

R., an alien, is married to P., who is also an alien. They lawfully enter the U.S. on January 15, 1997. R. is admitted to the U.S. as a nonimmigrant whose visa expires in August 1997. P. is lawfully admitted for an indefinite period. We begin paying R. retirement benefits on his own earnings record in April 1997, based on an application filed in March 1997. R.'s spouse is entitled to monthly benefits on R.'s Social Security record and we also begin paying her benefits effective with April 1997. R.'s lawful presence ends effective with August 1997, i.e., the month his visa expires. We stop his benefits effective with August 1997 because he is no longer lawfully present in the U.S. P. continues to receive benefits on her husband's earnings record, even though his benefits have been suspended. We may begin paying R. benefits again if his alien status changes or he leaves the U.S. subject to the alien non-payment provisions in RS 02610.000. (See RS 00204.025A for rules that apply when a person’s lawful presence status changes.)

EXAMPLE 2: Family Maximum Case, One Auxiliary Suspended

The NH, Q., and her husband, M., and 4 minor children entered the United States on 1/13/96 as parolees under section 212(d)(5) of the INA. As such, Q., M. and the 4 children are lawfully present in the U.S. Q. became disabled on 1/24/2001. She filed for title II benefits for herself, her husband, and the four children on 2/17/2001. Q., M., and Q.’s 4 children became entitled to disability and auxiliary benefits beginning 7/2001 as follows:

The Family Maximum is $500.00.

The NH’s PIA is $300.00.

$500.00 minus $300.00 equals an “aux max” of $200.00, to be divided between M. and the four children. Each auxiliary gets $40.00 per month. The total disbursed to the family is $500.00.

M.’s parole expired on 10/15/2001. Therefore, he is not lawfully present beginning 10/15/2001. His benefit of $40.00/month is suspended beginning 10/2001. However, benefits to the four children remain at $40.00/month for each child, since M. is still entitled on the record, and his suspension does not permit redistribution of the auxiliary maximum. Thus, beginning 10/2001, the total to the family is reduced to $460.00: the $300.00 to the NH for the PIA, plus 4 times the auxiliary benefit of $40.00 each (computed for 5 auxiliaries), which equals $160.00. $300.00 plus $160.00 equals $460.00.

9. How does the rule affect aliens arriving in the U.S.?

• Alien beneficiaries arriving in the U.S. are subject to the alien U.S. lawful presence payment provisions (section 202(y) of the Social Security Act) beginning with the first month they stay in the United States for an entire calendar month. They must prove lawful presence in the U.S. during that entire month in order to receive benefits in the U.S.

• For the purpose of the lawful presence requirement, lawful alien status obtained on a given day of a month is effective for that entire day. Furthermore, lawful alien status terminating on a given day of a month is still in effect for that entire day. This means that alien beneficiaries who obtain lawful status on the first day of the month and continue to be lawfully present in the U.S. through at least the last day of such a month are lawfully present for that month. Do not confuse the requirement that alien beneficiaries must be lawfully present in the U.S. for an entire month in order to be paid benefits with the requirement that alien beneficiaries arriving in the U.S. whose benefits have been suspended under the alien non-payment provision (section 202(t) of the Social Security Act) must be physically present in the U.S. for an entire calendar month, i.e., all of the first day of the month through all of the last day of such month, in order to have benefits reinstated. (See the example in RS 00204.010B.9. showing an alien beneficiary in the U.S. who is lawfully present for a given month but whose benefits are suspended for that month because he/she is not physically present in the U.S. for the entire calendar month, i.e., all of the first day through all of the last day of such month, as required by the alien nonpayment provisions.)

  EXAMPLE: A Dominican citizen files an application for spouse's benefits in the Dominican Republic in January 1997, with a first month of entitlement in February 1997. She has never lived in the U.S. Since she cannot meet the 5-year U.S. residency requirement (see RS 02610.025 for instructions regarding residency requirement for alien dependents and survivors outside the U.S. under the alien nonpayment provisions), her benefits are suspended, i.e., LAF equals SJ, in February 1997. She must return to the U.S. for a full calendar month in order to begin receiving her benefits.  (See RS 02610.020 for instruction regarding establishing absence and presence in the U.S.) Moreover, under the lawful presence provision, she must be lawfully present in the U.S. for the entire calendar month in order for her benefits to begin. The spouse beneficiary obtains a Form I-94 from the Department of Homeland Security and enters the U.S. on March 1, 1997. She returns to the Dominican Republic on May 2, 1997. She is lawfully present in the U.S. throughout the entire month of March 1997. This is so because her lawful status obtained on the first day of the month is effective for that entire day, and she continued to be lawfully present in the U.S. through at least the last day of March 1997. However, her benefits remain suspended for March, i.e., LAF equals SJ, because she was not physically present for the entire month of March, i.e., all of the first day through all of the last day of March, as required under the alien non-payment provisions.  Since she was lawfully and physically present for the entire month of April 1997, her benefits will be payable effective April 1997 through November 1997. (She left the U.S. on May 2, 1997, and the 6 full calendar month period of absence began June 1997.) Her benefits will be suspended effective December 1997, unless she can interrupt the running of the 6-month period. (See the instructions in RS 02610.020A.1. for determining a break in the 6-month period.) To determine a 6 full consecutive calendar month period, look no further back than to the last day of the 7th month before the first month of entitlement.

• Aliens who are receiving benefits abroad because they meet an exception to the alien non-payment provisions (section 202(t) of the Social Security Act) are not subject to benefit suspension for unlawful visits to the U.S. that last less than a full calendar month. (See instructions in RS 02610.041D for aliens who visit the U.S.)

• Aliens who return to the U.S. within 6 months of a previous departure to avoid future nonpayment under the alien non-payment provisions may also be required to establish lawful presence in the U.S. If they leave the U.S. for more than 30 days but less than 6 months, they can interrupt the running of the 6-month period for which payment can continue abroad under the alien non-payment provisions by returning to the U.S. and staying for at least 30 consecutive days.  However, they must prove physical and lawful presence in the U.S. during that entire 30-day period. (See RS 02610.041C.3.)

• Aliens who have established lawful presence in the U.S. for the entire calendar month before their departure from the U.S. can interrupt the running of the 6-month period under the alien non-payment provisions by returning to the U.S. on any part of 1 day every 30 days. Since lawful presence was established prior to their initial departure, it is not necessary to require proof of lawful presence each time they return to the U.S. to interrupt a 30-day period of absence. (See RS 02610.041C.2. for a further explanation of this provision.)

  REFERENCES: See RS 02610.041 for an explanation of the relationship between the alien non-payment provisions and U.S. lawful presence provisions. See RS 02610.023. for acceptable evidence of an alien's physical presence in the U.S. See RS 00204.050 for FO instructions when changing an alien beneficiary’s foreign address to a domestic address.

10. How does the rule affect alien beneficiaries leaving the U.S.?

Aliens whose benefits are suspended because they do not meet the U.S. lawful presence provisions may have their benefits resumed effective with the first entire calendar month they remain outside the U.S., subject to the alien non-payment provisions under section 202(t) of the Social Security Act.

REFERENCES: See RS 02610.041 for an explanation of the relationship between the alien non-payment provisions and the U.S. lawful presence provisions. See RS 00204.010C.3. for the definition of an “entire calendar month.” See RS 00204.050 for FO instructions when changing an alien beneficiary’s domestic address to a foreign address.

NOTE: Regardless of his/her status under section 202(t), an alien who has been removed (deported) from the United States under certain provisions of the Immigration and Nationality Act may be subject to nonpayment of his/her title II retirement or disability benefits under section 202(n) of the Social Security Act. (See RS 02635.001 for an explanation of deportation/removal provisions, and also, how they may affect the auxiliary/survivor benefits of an NH who has been removed.)  See the exception to payment of monthly title II benefits cited in RS 00204.025A that apply when an alien is removed (deported) and returns to the U.S., and is again subject to the lawful presence payment requirements. (See RS 00204.025B.1.f. for evidentiary rules for an alien with deportation withheld under 241(b)(3) of the INA or under section 243(h) of the INA as in effect prior to April 1, 1997.)

 EXAMPLE: Mary is an alien who becomes entitled to retirement benefits based on an application filed in October 2000. However, since she cannot establish proof of lawful presence in the U.S., her benefits are suspended effective November 2000, her initial month of entitlement. She reports a change of address to the FO in January 2001, indicating she will leave the U.S. permanently on January 10, 2001.

Mary is no longer subject to the lawful presence requirements as of February 2001, the first full calendar month during all of which she is outside the U.S. She will have to complete an SSA-21 (see GN 00205.170) to determine whether benefits may be paid to her outside the United States under the alien non-payment provisions (see RS 02610.000). Under those provisions, aliens can usually receive benefits for at least 6 calendar months after the month they leave the United States. Generally, we start to measure this 6-month period beginning with the month after the month an alien leaves the United States. We would start counting Mary's 6-month period of absence in February 2001.

11. What definition of the U.S. is used to determine when an alien, i.e., not a U.S. citizen/national, is considered “in the United States” for the purpose of applying the U.S. lawful presence requirement?

An alien is in the U.S. for the purpose of applying the U.S. lawful presence requirement based on the definition of the U.S. in the Immigration and Nationality Act (INA). The INA defines the U.S. as the continental United States, Alaska, Hawaii, Puerto Rico, Guam, and the Virgin Islands of the U.S.

IMPORTANT: A person in American Samoa, Swain's Island, or the Northern Mariana Islands is NOT subject to the U.S. lawful presence requirement. American Samoa, Swain's Island, and the Northern Mariana Islands, although treated as part of the U.S. for certain Social Security purposes (including the alien non-payment provisions), are not included in the definition of the U.S. under the INA. The definition of the U.S. under the INA is functionally controlling when applying the U.S. lawful presence payment provision.

REFERENCE: See RS 02610.041 for an explanation of the relationship between the alien non-payment provisions under section 202(t) and the U.S. lawful presence provisions under section 202(y) of the Social Security Act.

C. Definitions

1. “Alien Lawfully Present in the United States”

For title II purposes, this means the categories of aliens the Attorney General determined meet the exception to nonpayment of monthly title II benefits under section 401(B) of the Personal Responsibility Act. (See RS 00204.025 for the categories of aliens who are lawfully present in the U.S.)

2. United States citizen

This means a person who is:

• Born in the U.S. and at the time of birth is subject to U.S. jurisdiction (which does not include children born in the U.S. to foreign diplomats); or

• Born outside the U.S. to a U.S. citizen parent or parents and who derives his/her U.S. citizenship from the U.S. citizen parent(s); or

• Naturalized after birth. (See GN 00303.100B.1. and GN 00303.100B.2. for the definition of categories of naturalized citizens.)

  NOTE: See GN 00303.120 for a complete description of who is a U.S. citizen.

3. United States national

This means a person who was born in American Samoa or Swain's Island. For SSA purposes, a U.S. national is functionally equivalent to a U.S. citizen.