TN 18 (08-04)

Citations:

Section 211 of Public Law 108-203, 42 USC 414, 42 USC 423

A. Introduction

The Social Security Protection Act of 2004 (“SSPA,” or Public Law 108-203) was signed into law on March 2, 2004. Under Section 211 of this legislation, certain alien workers must meet additional requirements to be fully or currently insured and to establish entitlement to benefits based on the alien's earnings. This law applies to Title II benefits and Medicare based on End-Stage Renal Disease (ESRD).

The instructions on the SSPA are organized as follows:

B. Policy — provisions of Section 211 of the SSPA

1. Who is subject to Section 211 of the SSPA?

Section 211 of the SSPA applies to an alien worker whose Social Security Number (SSN) was first assigned on or after January 1, 2004. For the purposes of this provision of the SSPA, an “alien worker” is a worker who is not a U.S. citizen or national of the U.S. as defined in GN 00303.120.

NOTE: An alien worker whose SSN was assigned before January 1, 2004 is exempt from the requirements of Section 211 of the Social Security Protection Act, even if the SSN was not “work authorized.”

Although these provisions apply directly to certain alien workers, they can also affect the entitlement of any person seeking a benefit on the record of an alien who is subject to this law. For example, if an alien worker must be disallowed under Section 211 of the SSPA, a child claiming benefits on that record would also be disallowed, regardless of the child's citizenship or immigration status. See RS 00301.102F.6. for an example of an ESRD claim for a child who is affected by this provision.

2. Overview - what are the requirements of Section 211 of the SSPA?

Under Section 211 of the SSPA, an alien worker whose Social Security Number (SSN) was originally assigned on or after January 1, 2004, must meet one of the following additional requirements to be fully or currently insured and in order to establish entitlement to any Title II benefit or ESRD Medicare based on the alien worker's earnings:

1. The alien worker must have been issued an SSN for work purposes at any time on or after January 1, 2004. (See RS 00301.102.B.4. for more information); OR

2. The alien worker must have been admitted to the U.S. at any time as a nonimmigrant visitor for business (B-1) or as an alien crewman (D-1 or D-2). (See RS 00301.102B.5. for more information.)

IMPORTANT: If an alien worker whose SSN was originally assigned 01/01/04 or later does not meet either of these additional requirements, then the worker is not fully or currently insured. This is true even if the alien worker appears to have the required number of QCs in accordance with the regular insured status provisions found elsewhere in this subchapter. Entitlement based on the alien worker's earnings is precluded. Disallow all claims for benefits based on the alien worker's earnings in accordance with the procedure in Step 18 in RS 00301.102D. See RS 00301.102F.2. for an example of a deceased alien worker who never had an SSN for work purposes or admission as a B-1/D-1/D-2 nonimmigrant.

3. SSN originally assigned on or after January 1, 2004

a. General

Section 211 of the SSPA applies for Title II and ESRD Medicare claims filed on the account of an alien worker who was originally assigned an SSN on or after January 1, 2004.

See Steps 4 and 5 in RS 00301.102D. for how to determine when the SSN was originally assigned based on the NUMIDENT entries.

See RS 00301.102F.3. for an example of when this law does not apply because the alien worker's SSN was first assigned before 01/01/04.

b. Special considerations for determining when an SSN was originally assigned

Additional development may be necessary in order to determine when an SSN was originally assigned in the following unusual situations:

• “Wrong Number SS-5”

  In a “wrong number SS-5” case, SSA erroneously issued the alien worker an SSN with another person's SSN instead of assigning the alien worker his/her own SSN (see RM 10220.350). If an alien worker could have legitimately been assigned an SSN before 1/1/2004, the worker is exempt from the requirements of section 211 of the SSPA.

• “Scrambled Earnings”

  For the purpose of these instructions, a “scrambled earnings” case occurs when one person intentionally worked under another person's SSN, unlike the “wrong number SS-5” scenario. In some scrambled earnings cases, a person assumes the identity of the rightful NH, obtains an SSN using documents showing the true NH's identity, and works under the true NH's name and SSN (i.e., identity fraud is at issue). In other cases, a person works under his/her own name but uses another person's SSN. Resolve scrambled earnings in accordance with RM 03870.048 and MSOM EM 010.002 .

  For the purpose of determining whether an alien worker's SSN was originally assigned on or after 1/1/2004, go by the SSN, if any, that was properly assigned to the alien worker based on his/her own true identity. Section 211 of the SSPA applies if the alien worker's own SSN was assigned on or after 1/1/2004 or if he/she has not yet been assigned an SSN based on his/her true identity.

  See RS 00301.102F.4. for an example of a case involving scrambled earnings.

• “New SSN” Assigned

  In certain situations, a worker who was originally and properly assigned one SSN may be assigned a “new” SSN in accordance with RM 10220.005, RM 10220.105, or RM 10220.200 as appropriate. In this situation, the assignment of the original (i.e., the first) SSN rather than the new SSN is used to determine whether the alien worker's SSN was originally assigned on or after 1/1/2004. If the alien worker's original SSN (i.e., the first SSN) was assigned on or after 1/1/2004, then Section 211 of the SSPA applies.

• SSN Applied for Before 1/1/2004, But SSN Date of Assignment Unclear

  For any case in which the alien worker applied for an SSN before 1/1/2004 but it is unclear from the record whether the SSN was assigned 1/1/2004 or later, contact the Regional Office for guidance.

4. Alien worker was issued an SSN for work purposes on or after January 1, 2004

a. General rule

An alien worker who was properly issued a valid SSN for work purposes at any time on or after January 1, 2004 meets the “work SSN” requirement of the SSPA. The SSN for work purposes can be issued in connection with the current claim. In general, SSA issues an SSN for work purposes to an alien who has permission to work in the U.S. from the Department of Homeland Security (“DHS,” formerly the Immigration and Naturalization Service.)

NOTE: See RM 10215.200 if a special indicator on the NUMIDENT is present or may be applicable. Contact your regional office for guidance.

b. Alien without work SSN is currently work authorized or had work authorization at time of death

An alien worker who does not have an SSN card for work purposes is nevertheless considered to meet the “work SSN” requirement of Section 211 of the SSPA if he/she meets one of the following profiles:

• Alien worker does not have an SSN, but is currently authorized to work in the U.S.; or

• Alien worker has/had an SSN, but not for work purposes (i.e., a “nonwork SSN”); and is currently authorized to work in the U.S.; or

• Deceased alien worker never had an SSN, but he/she had work authorization at the time of death; or

• Deceased alien worker had an SSN, but not for work purposes (i.e., a “nonwork SSN”); and he/she had work authorization at the time of death.

If an alien worker meets one of these profiles, take appropriate action to assign an SSN to him/her and issue an SSN card for work purposes, as appropriate. See Steps 7-9 in RS 00301.102D. for adjudicating these claims under Section 211 of the SSPA. Refer to the “alternative scenario” in RS 00301.102F.2. for an example that illustrates this policy.

c. Which covered earnings may be used to determine insured status?

If the alien was ever issued a valid SSN for work purposes on or after January 1, 2004, then all of his/her covered earnings may be used to determine insured status, regardless of the alien's current or prior immigration classification and/or work authorization status.

d. Which insured status test(s) must be met?

Section 211 of the SSPA does not change which insured status test(s) apply. Therefore, insured status for an alien worker who has/had an SSN for work purposes is determined based on the usual insured status test(s) described elsewhere in this subchapter. For example, a retired alien worker with an SSN for work purposes must still have enough QCs to meet fully insured status. Refer to RS 00301.101B. for a chart of the applicable insured status test(s) for each type of benefit.

NOTE: It is possible that an alien worker who meets this “work SSN card” requirement under Section 211 of the SSPA will not meet the applicable insured status test(s) according to the rules found elsewhere in this subchapter. See Step 17 in RS 00301.102D. for processing an insured status disallowance in this situation.

e. Changes in the alien worker's immigration/work authorization status

The requirement for having an SSN for work purposes is met if the alien NH was properly issued a “work SSN card” at any time on or after January 1, 2004, regardless of his/her prior or current immigration/work authorization status. The following table shows three common scenarios where the “work SSN card” requirement is met:

NOTE: An alien worker does not meet the “work SSN” requirement if he/she has worked in the U.S. without authorization from the U.S. immigration authority (i.e., illegally) using someone else's SSN, but never had a valid SSN card for work purposes based on his/her own immigration documentation and identity.

f. Where to find more information about “work SSN” issues

• See Step 6 in RS 00301.102D. for how to tell from the NUMIDENT record whether the alien NH was issued an SSN card for work purposes on or after January 1, 2004.

• See RS 00301.102F.1. for an example of entitlement based on this provision.

• See RS 00301.102F.4. for an example involving entitlement of a work-authorized alien who had entered the U.S. as an undocumented alien.

• See RM 10201.055 for more information about SSN cards issued for work purposes.

5. Alien worker was admitted to the U.S. as a B-1, D-1, or D-2 nonimmigrant

a. General

In general, a “nonimmigrant” is an alien who is admitted to the United States on a temporary basis. To meet the B-1/D-1/D-2 nonimmigrant requirement of Section 211 of the SSPA, an alien worker must have been admitted to the U.S. at any time in one of the following Department of Homeland Security (DHS) nonimmigrant categories:

• “B-1,” a visitor for business; or

• “D-1,” an alien crewman serving in a capacity required for normal operations on board a vessel or aircraft, who departs from the United States with the vessel or aircraft on which he/she arrived or another vessel or aircraft; or

• “D-2,” an alien crewman serving in a capacity required for normal operations on board a vessel or aircraft, who departs from Guam with the vessel on which he/she arrived.

Alien crewmen (D-1 and D-2) are temporarily admitted to the U.S. for up to 29 days at a time, with no extensions.

b. Which covered earnings may be used to determine insured status?

If the alien was ever admitted to the U.S. as a B-1, D-1, or D-2 nonimmigrant, then all of his/her covered earnings may be used to determine insured status, regardless of the alien's current or prior immigration classification and/or work authorization status.

c. Which insured status test must be met?

Section 211 of the SSPA does not change which insured status test(s) apply. Determine insured status using the applicable test(s) found elsewhere in this subchapter for an alien worker who never had a SSN for work purposes but meets the requirement for status as a B-1/D-1/D-2 nonimmigrant. For example, a D-1 worker disabled at age 46 must still have enough QCs to meet fully insured status and 20/40. Refer to RS 00301.101B. for a chart of the applicable insured status test(s) for each type of benefit.

NOTE: It is possible that an alien worker who meets the “B-1/D-1/D-2 nonimmigrant requirement” under Section 211 of the SSPA will not meet the applicable insured status test(s) according to the rules found elsewhere in this subchapter. See Step 17 in RS 00301.102D. for processing an insured status disallowance in this situation.

d. Where to find more information about insured status for B-1, D-1, and D-2 nonimmigrants

• See Steps 10-14 in RS 00301.102D. for how to determine whether the alien worker has or had status as a B-1, D-1 or D-2 nonimmigrant.

• Refer to Step 16 d., in RS 00301.102D. for a listing code when awarding benefits based on status as a B-1/D-1/D-2 nonimmigrant.

• Refer to Step 18 in RS 00301.102D. for disallowance processing if insured status based on having a work SSN or B-1/D-1/D-2 nonimmigrant status is not met.

• See RS 00301.102F.5 for an example of a former D-1 alien worker who is entitled based on this provision.

• See Steps 11 and 12 in RS 00301.102D. and RS 00301.102F.7. for a special procedure to be used for B-1 truck drivers from Canada.

C. Policy — interaction between section 211 of the SSPA and other provisions affecting payment/entitlement of aliens

1. Lawful presence under welfare reform (RS 00204)

1. Section 211 of P.L. 108-203 affects entitlement for the alien worker and any auxiliaries or survivors claiming Title II benefits based on the alien worker's earnings.

2. The lawful presence requirements in RS 00204.000 affect whether an alien claimant (NH, auxiliary, or survivor) who is in the U.S. and who has established entitlement to a Title II benefit can receive payment of that benefit.

These two provisions operate independently of each other. The following are some of the possible scenarios involving the lawful presence provisions and Section 211 of the SSPA:

2. Alien nonpayment and removal provisions

The Social Security alien nonpayment and removal provisions operate independently of Section 211 of the SSPA. Thus, an alien worker who is subject to and meets the requirements of Section 211 of the SSPA may be entitled to benefits under Title II, but benefits must be suspended:

• Under Section 202(t) of the Social Security Act if he/she has been outside the United States for 6 calendar months and does not meet an exception to the alien nonpayment provisions (RS 02610.000); or

• Under Section 202(n) of the Social Security Act if he/she was removed from the United States under certain sections of the Immigration and Nationality Act (RS 02635.000).

3. Totalization agreements

U.S. totalization agreements do not override the additional requirements in section 211 of the SSPA. Therefore, if:

• The alien worker's SSN was originally assigned on or after 1/1/2004; and

• He/she is a national of a totalization agreement country,

then the alien worker must meet one of the additional insured status requirements under Section 211 of the SSPA in order to be fully or currently insured and for anyone to establish entitlement to any Title II benefits, including U.S. totalized benefits, based on the alien worker's earnings.

NOTE: If the alien worker does not meet the requirements of Section 211 of the SSPA, the other country which is party to a totalization agreement may use the worker's title II coverage to determine eligibility for and amount of a benefit under the other country's system.

D. Procedure — development and determinations under section 211 of the SSPA

Use the step-action chart in this subsection to determine whether the alien worker meets the requirements of Section 211 of the SSPA and whether an alien worker who does not have an SSN can be assigned a number in connection with the current claim.

IMPORTANT: Verify the claimant's and the alien worker's identity in accordance with GN 00203.020 before determining whether the worker meets the requirements of Section 211 of the SSPA. (Establishing identity is required for all cases, not just cases involving Section 211 of the SSPA.)

NOTE: For the purpose of this chart, the term “claimant” may refer to the worker or a person claiming benefits as an auxiliary or survivor.

E. Procedure — disallowance notices

Follow RS 00301.102E.1 to prepare a manual disallowance notice when the alien worker does not meet the requirements of Section 211 of the SSPA.

Follow RS 00301.102E.2. to prepare a manual disallowance notice with the appropriate paragraph(s) when:

• The alien worker meets the requirements of Section 211 of the SSPA; but

• He/she does not meet the applicable insured status test(s) for the type of benefit being sought; and

• The disallowance cannot be processed via MCS/EC.

1. Disallowance - alien worker does not meet requirements of SSPA 04

Use the Document Processing System (DPS) to prepare a manual disallowance notice when the alien worker does not meet the requirements of Section 211 of the SSPA. Follow these steps:

1. Under the “Initial Claim” menu select the template titled “Disallowance - Title II misc. reason.”

2. Select the first optional paragraph titled “Disallowed under Section 211 of the SSPA of 2004 (DSL008).”

3. Use the MADCAP disallowance paragraphs in RS 00301.102E.2. below from NL 00720.190, as appropriate.

2. Disallowance — alien worker does meet the requirements of SSPA 04 but is not insured — MCS/EC exclusion applies

Use DPS to prepare a manual notice when the alien worker does meet the requirements of Section 211 of the SSPA but he/she does not meet the applicable insured status test(s) for the type of benefit being sought and the disallowance cannot be processed via MC/EC. Follow the steps:

1. Under the “Initial Claim” menu select the template titled “Disallowance - Title II misc. reason.”

2. Use the MADCAP disallowance paragraphs below from NL 00720.190, as appropriate.

F. Examples

1. Alien worker has prior but not current work authorization

Lucinda P. was first assigned her SSN and was issued an SSN card for work purposes on 2/13/2004 based on temporary work authorization from DHS as an L-2 (nonimmigrant spouse of an alien corporate executive). The temporary work authorization expired on 2/12/2005. She files for RIB on 3/25/2005. At the time of filing for RIB, she is a legal alien as an L-2 nonimmigrant, but does not have current authorization to work in the U.S. Since Lucinda's SSN was first assigned on or after January 1, 2004, we must determine whether she meets one of the requirements for entitlement under Section 211 of the SSPA.

SSPA: Since Lucinda was properly issued a valid SSN card for work purposes, she is exempt from the prohibition on entitlement under Section 211 of the SSPA, even though she is not currently authorized to work in the U.S. However, Lucinda must meet fully insured status (RS 00301.105) in order to be entitled to RIB. All of her covered earnings may be used to determine fully insured status, regardless of her current immigration status or status at the time she earned the QCs.

Lawful Presence: As an L-2 nonimmigrant, Lucinda is lawfully present in the U.S. (see RS 00204.025B.8). Therefore, if she meets all of the requirements for entitlement to RIB, she can receive payment of her benefit.

2. Deceased alien undocumented worker without SSN — treatment of survivors

John W. entered the U.S. without being inspected by the immigration authorities (i.e., he was an undocumented alien). He worked in the U.S. for 12 years without authorization from the U.S. immigration authorities (DHS, formerly INS). He paid FICA taxes on all of his earnings, which are covered earnings for Social Security purposes. John W. died on 3/15/04. His widow, who is lawfully residing in the U.S., and their minor U.S. citizen children filed for survivor's benefits on 3/20/04. The deceased worker was never assigned an SSN.

Prior to the enactment of the SSPA, the Social Security field office would have assigned an SSN to John W. posthumously since the widow and minor surviving children appeared eligible for survivor's benefits. That is, per RM 10225.080, SSA would have assigned an SSN to John W. as a deceased undocumented alien worker because (1) the survivors would have been found eligible for a Federally funded benefit—the Title II Social Security survivor's benefits—and (2), an SSN (for the worker) was a requirement for receiving that benefit.

However, under the SSPA, since John W. was never assigned an SSN when he was alive and any posthumously assigned SSN would have to have been assigned on or after 01/01/2004, we must determine whether John W. met one of the requirements under Section 211 of the SSPA:

• Was he ever assigned an SSN and issued an SSN card for work purposes, (RS 00301.102B.4.) or could he be assigned a “work authorized” SSN posthumously (RM 10225.080)?; or

• Was he ever admitted to the U.S. as a B-1, D-1, or D-2 nonimmigrant (RS 00301.102B.5.)?

In this case, John W. did not meet either requirement. Therefore, John W. does not meet insured status because he did not meet one of the alternative insured status requirements of Section 211 of the SSPA. This is true even though it appears that he has enough QCs for currently or fully insured status. All entitlement based on John W's earnings is precluded.

Since all entitlement based on John W.'s earnings is precluded under Section 211 of the SSPA, his survivors cannot be entitled on his record. SSA would not posthumously assign an SSN to him merely to process the denial of benefits (see RM 10225.080). Therefore, the alien worker's widow and the surviving children must be disallowed using the “abandoned claim” procedures described in Step 18d of RS 00301.102D.

Alternative Scenario: If John W. had work authorization status at the time of his death, but had never been assigned an SSN or issued an SSN card for work purposes, the insured status requirements of section 211 of the Social Security Protection Act of 2004 would be met. See RS 00301.102B.4.b. In this case, determine whether or not he has enough QCs to meet insured status in accordance with Step 15 in RS 00301.102D. If John W. had enough QCs to meet insured status, and all other requirements for the survivors' entitlement were met, then we would assign an SSN to John W. posthumously and process an award for the survivor claim in accordance with Step 16 in RS 00301.102D.

3. Undocumented alien worker whose SSN was assigned before 1/1/04, never had “work SSN” or admission as nonimmigrant

Yelena entered the U.S. as a tourist on 4/13/93. Her tourist nonimmigrant status expired 10/12/93; but she stayed on in the U.S. after that date without permission from DHS. Thus, after 10/12/93, Yelena is in the U.S. as an undocumented alien. While in the U.S., she had a daughter, Camille, who is a U.S. citizen by birth. Yelena worked without authorization from the DHS (formerly INS) under Camille's SSN for 10 years.

Yelena became disabled on 11/02/2003. She filed for DIB benefits for herself and child's benefits for Camille on 11/13/2003. Yelena can be entitled to DIB benefits based on primary evidence of wages, resolution of the scrambled earnings, and evidence that she met all factors of entitlement, including DIB insured status. Section 205(c)(2)(F) of the Social Security Act requires a person to have an SSN as a condition for receipt of Title II benefits. If no such number has been assigned, the claimant must apply for an SSN.

SSA assigned an SSN for nonwork purposes to Yelena on 12/31/2003 in accordance with RM 10211.500 since (1) she was found eligible for a Federally funded benefit (Title II DIB) and (2) having an SSN is a requirement for receipt of that benefit. Since Yelena is entitled to DIB, Camille can be entitled to child's benefits based on Yelena's earnings record.

SSPA: Since Yelena's SSN was assigned before 01/01/2004, she does not have to meet one of the insured status requirements in Section 211 of the SSPA (see RS 00301.102B.4. or RS 00301.102B.5.) in order to establish entitlement for herself or Camille. See Step 5 in RS 00301.102D.

Lawful Presence: However, since Yelena is an alien who filed for benefits on or after 12/01/96, she must meet the lawful presence requirement in RS 00204.010 and EM 98-002 dated 1/7/98 in order to receive payment of the DIB benefit to which she is entitled. Since Yelena is not in any immigration status that is considered lawfully present, her DIB benefits must be suspended effective with the first MOET. Camille's benefits are not suspended since she is a U.S. citizen.

4. SSN assigned on or after 1/1/2004: alien NH has “work SSN,” prior status as undocumented alien

Distaff entered the U.S. without inspection (i.e., he was an undocumented alien) on 4/16/97. He worked without authorization from DHS for several years in covered employment using his brother's name and SSN. He applied for admission as a lawfully admitted permanent resident alien (LAPR) and was granted LAPR status on 3/13/04. Gustav applied for an SSN on 4/27/04 and was assigned an SSN and issued an SSN card for work purposes on 5/12/04. He became disabled on 6/22/04. Gustav, his wife and children applied for Title II benefits on 6/30/04. The children are U.S. citizens; the wife is LAPR.

Gustav's own SSN was originally assigned on or after 1/1/04; therefore, we have to determine whether he meets the requirements of Section 211 of the SSPA. Since Gustav had been issued an SSN card for work purposes on 5/14/04, he meets the requirements of Section 211 of the SSPA (See Step 6 in RS 00301.102D.). Therefore, determine whether Gustav meets DIB insured status (RS 00301.120) using all of his covered earnings, including wages and/or self-employment income earned while he worked illegally under his brother's SSN. Take the necessary corrective action to move Gustav's earnings as an undocumented alien from his brother's record and/or the suspense file to the earnings record for his own SSN. (See RM 03870.045, for how to resolve scrambled earnings. Refer to RM 03816.016B. and RM 03870.048 for documentation needed to transfer earnings from the incorrect record to the correct record.)

All of Gustav's covered earnings may be used to establish QCs and to determine insured status. If Gustav meets the applicable insured status test(s), process an award in accordance with Step 16 in RS 00301.102D. If he does not meet the insured status test(s), process an insured status disallowance in accordance with Step 17 in RS 00301.102D.

NOTE: Gustav's wife and children can be entitled if he is entitled to benefits. Also, Gustav and his wife must meet the lawful presence requirement if they are in the U.S. (See RS 00204.010.)

5. SSN assigned on or after 1/1/2004: alien NH never had work SSN, has prior status as D-1 alien crewman

Kismet, a former D-1 alien, has worked as a flight attendant for Paradise Blue Airlines for several years. She has never been assigned an SSN, nor was she ever issued an SSN card for work purposes. She turned age 62 on 03/22/05 and filed for RIB. According to Steps 10 and 13 c in RS 00301.102D, Kismet alleged that she has many prior periods of status as a D-1 “alien crewman” nonimmigrant. She surrendered her most recent I-95A&B the last time she was in the U.S., in November of 2004. Therefore, she has no current immigration document that is indicative of D-1 status. Kismet listed her periods of D-1 status in accordance with Step 13 c in RS 00301.102D. as follows:

The adjudicator prepared a Form G-845 in accordance with Step 13d of RS 00301.102D requesting DHS to verify Kismet's status as a D-1 alien crewman and attached the list of her alleged periods of status as D-1 nonimmigrant. The SSA adjudicator indicated on the Form G-845 that positive DHS verification was needed for only one period of nonimmigrant status. DHS verified Kismet's most recent alleged period of D-1 status (Step 14 in RS 00301.102D.). Therefore, Kismet meets the requirements of Section 211 of the SSPA.

The SSA adjudicator obtained the necessary evidence of Kismet's wages from her employers, including Paradise Blue Airlines. (All of her earnings are in the suspense file since she does not have an SSN). The adjudicator determines that Kismet meets fully insured status based on all of her covered earnings (Step 15 of RS 00301.102D.). In addition, the adjudicator determined that she meets all of the other requirements for entitlement to RIB.

Since Kismet can be entitled to benefits, SSA assigned her an SSN, issued an SSN card for nonwork purposes, and awarded benefits in accordance with Step 16 in RS 00301.102D. In addition, the adjudicator moved Kismet's wages from the suspense file to the record for her newly assigned SSN based on acceptable evidence of wages.

6. ESRD claim for U.S. citizen minor child: parent is undocumented alien, neither parent has an SSN

Rocky and Oksana entered the U.S. in 1990 without inspection from the immigration authorities (i.e., as undocumented aliens). Oksana never worked outside the home. While in the U.S., Oksana gave birth to a child, Jessica. Since Jessica was born in the U.S., she is a U.S. citizen by birth. Rocky and Oksana were never assigned SSNs. Rocky worked steadily at many low paying jobs to support his family.

In February 2004, doctors diagnosed Jessica with ESRD. The hospital social worker helped Rocky and Oksana file for ESRD Medicare benefits for Jessica. Under the existing Medicare rules, a minor child can be entitled to Medicare for ESRD if the parent is fully or currently insured (see HI 00801.201). The SSA adjudicator identified earnings in the suspense file for Rocky that would normally give him more than 40 QCs.

To determine whether Jessica can get Medicare based on ESRD, the adjudicator must determine whether her parent, Rocky, meets fully or currently insured status. To do this, the adjudicator must first determine whether Rocky (an alien worker) is subject to Section 211 of the SSPA. Refer to Step 5 in RS 00301.102D. Since Rocky did not have an SSN as of 01/01/2004, and any SSN that might eventually be assigned to him would be assigned after 01/01/2004, Rocky is subject to Section 211 of the SSPA.

Next, the adjudicator must determine whether Rocky meets the requirements of Section 211 of the SSPA in accordance with Steps 6 through 14 in RS 00301.102D. Since Rocky was never issued an SSN card for work purposes nor was he ever admitted to the U.S. as a B-1/D-1/D-2 nonimmigrant, he does not meet the requirements of the SSPA. Therefore, under Section 211 of the SSPA, Rocky does not meet fully or currently insured status, even though he has enough covered earnings that would have given him more than 40 QCs. Because Rocky does not meet an insured status requirement under the Section 211 of the SSPA, the ESRD claim for Jessica must be disallowed. (Refer to Step 18, RS 00301.102D.).

NOTE: Jessica's own citizenship or alien status does not affect whether she can be entitled to ESRD Medicare benefits based on her father's record.

7. Canadian B-1 — commercial truck driver

Cyril Connolly drove a truck for Chansons Roulantes, Ltd., a Canadian music-box distribution company. He delivered hand-made music boxes to WorldMart stores across the border in the U.S. once a week. Under DHS policy, commercial truck drivers from Canada are allowed to enter the U.S. as B-1 visitors for business without any immigration documentation. Therefore, Cyril was waived through inspection at the border. He has no immigration documentation for his current or prior admissions as a Canadian truck driver, nor was he ever assigned an SSN. Cyril's employer filed W-2s reporting his U.S. covered employment (i.e., the work he performed while driving the truck in the U.S.).

Cyril retired on 6/15/04 and is lawfully present in the U.S. Since Cyril has no SSN as of January 1, 2004, he is automatically subject to Section 211 of the SSPA. Also, since Cyril was never issued an SSN card for work purposes, the only way he can be entitled to a Title II benefit is if he was ever admitted to the U.S. as a B-1, D-1, or D-2 nonimmigrant and meets the applicable insured status test(s).

Because of the unique DHS policy of not issuing any immigration documents to B-1 Canadian truck drivers, SSA must take a different approach to determine whether these workers meet the requirements for insured status under Section 211 of the SSPA. Therefore, in accordance with Steps 11 and 12 of RS 00301.102D., the adjudicator obtained a written statement from Cyril's former employer, Chansons Roulantes, Ltd., confirming that he drove a truck and made deliveries to U.S. customers and the approximate dates of employment. (The adjudicator also obtained documentary evidence of earnings at this time.) Cyril submitted his Canadian birth certificate to establish that he is a Canadian citizen (see RM 10211.075). His U.S. covered earnings are in the suspense file since he has never been assigned an SSN.

Based on the written statement from the employer and evidence of Canadian citizenship, establish B-1 nonimmigrant status for Cyril. Since he had been admitted to the U.S. as a B-1, D-1, or D-2 nonimmigrant, Cyril meets the requirements of Section 211 of the SSPA. Therefore, determine whether he has meets insured status in accordance with Step 15 of RS 00301.102D.

Under the usual insured status test, Cyril needs 40 QCs to meet fully insured status for RIB.

• If Cyril has enough QCs based on all of his covered earnings to meet fully insured status for RIB and all other requirements for entitlement, assign him an SSN and issued an SSN card for nonwork purposes in accordance with RM 10211.075 and RM 10211.600. Process an award in accordance with Step 16 in RS 00301.102.D.

• If Cyril does not have enough QCs using all of his covered earnings to meet fully insured status for RIB, disallow the claim in accordance with Step 17 in RS 00301.102D. In this scenario, since Cyril is not entitled to a Federally funded benefit, he cannot be assigned an SSN or issued a nonwork SSN card. Since he cannot be assigned an SSN, use the “abandoned claim” procedure in Step 17c., second bullet, to process the disallowance.

8. Alien assigned nonwork SSN/issued nonwork SSN card before 1/1/2004

Catherine, age 18, entered the U.S. as a nonimmigrant on 02/14/00. She was a legal alien not allowed to work. While in the U.S., Catherine applied for a driver's license from the State of Pennsylvania on 04/03/00. At that time, the State of Pennsylvania required a person to have an SSN in order to issue a driver's license. To meet the State's requirement, she applied for an SSN on 04/05/00. SSA's enumeration procedures in place at the time allowed for the assignment of an SSN and issuance of an SSN card for nonwork purposes to an alien who applied for a driver's license from a State that required an SSN for driver's licenses. In keeping with this policy, SSA assigned her an SSN and issued her an SSN card for nonwork purposes on 6/12/00.

(NOTE: SSA changed this policy on 10/27/2003: needing an SSN to obtain a driver's license is no longer a valid reason for assigning an SSN/issuing an SSN card for nonwork purposes. See RM 10211.600.)

Even though she was not authorized to work in the U.S., Catherine began to work in this country without DHS authorization. Her wages were covered for Social Security purposes. Catherine's nonimmigrant status expired on 8/13/00. She remained in the U.S. as an undocumented alien and continued to work without DHS authorization. On 4/15/04, Catherine became disabled. She filed for DIB on 5/21/04.

SSPA and Insured Status: Since Catherine's SSN was first assigned before 1/1/2004, she is exempt from the requirements of Section 211 of the SSPA (see Step 5 of RS 00301.102D). This is true even though she is an undocumented alien who is not allowed to work in the U.S. Based on her covered earnings, Catherine met special insured status for disabled workers under age 31.

Lawful Presence: Catherine's DIB benefits must be suspended since she is not lawfully present in the U.S. See RS 00204.010.

G. References