RS 00204.030 Lawful Presence for an Entire Month - Beneficiary is Outside the U.S.
The alien non-payment provision (section 202(t) of the Social Security Act) provides, in general, that aliens outside the U.S. for 6 consecutive calendar months will not be paid benefits beginning with the 7th month of absence, unless the beneficiary meets one of several specific exceptions to the general rule of nonpayment (see RS 02610.001). As explained in section 202(t)(1)(B), we do not consider a person to be “outside the U.S.,” and do not begin counting the 6-month period of absence, until the person has been outside the U.S. for 30 consecutive days.
As a practical matter, this means that a beneficiary may delay indefinitely the running of the 6-month period by returning to the U.S. on any part of 1 day before the elapsing of the 30-day period, since, by doing so, the beneficiary will not technically be “outside the U.S.,” as explained above.
Once the beneficiary has been outside the U.S. for 30 consecutive days, he or she can interrupt the running of the 6-month period if he/she returns to the U.S. for 30 consecutive days before the end of the 6-month period. If the beneficiary does not return to the U.S. for 30 consecutive days before the end of the 6-month period, payments are suspended, and may only be resumed effective with the first full month throughout which the individual is in the U.S.
Even though Public Law (P.L.) 104-193 does not affect payment of benefits made to aliens outside the U.S. under the alien nonpayment provision (section 202(t)), it may affect payment to aliens receiving benefits on the basis of being inside the U.S. but who are physically outside the U.S. and who must return to the U.S. periodically to establish presence in order to continue receiving their benefits as described in A. above.
For claims filed on or after December 1, 1996, an alien beneficiary outside the U.S. who, under the alien non-payment provision, must return to the U.S. periodically to establish presence and thereby assure continuation of his or her benefits, must also be lawfully present in the U.S. for the relevant period of time (30 consecutive days or one full calendar month) in order to receive those benefits.
NOTE: It will not be necessary to require proof of lawful presence from a beneficiary who establishes presence in the U.S. on any part of 1 day every 30 days in order to delay the beginning of the 6-month period. Only an alien who has established lawful presence in the U.S. for the full month before the month he/she left the U.S. can delay the beginning of the 6-month period by returning to the U.S. on any part of 1 day every 30 days. Therefore, we will not require that he/she prove it again.
C. Procedure - establishing lawful presence in the U.S.
1. Acceptable evidence of physical presence in the U.S.
See RS 02610.023 for the types of evidence which may be used to establish an alien's physical presence in the U.S. for 30 consecutive days or one calendar month. Remember, documentary evidence is always preferred to signed statements, and must be requested (and the file documented) before signed statements may be accepted.
As explained in RS 02610.020F, a “full calendar month” means all of the first day of the calendar month through all of the last day of such month. A presence of “30 consecutive days” means presence for 24 hours of each day of a consecutive 30-day period.
2. Acceptable evidence of lawful presence in the U.S.
For individuals who are entitled to benefits based on an application filed on or after December 1, 1996, and who must establish physical presence in the U.S. for 30 consecutive days or one calendar month, explain that they must also establish that they are lawfully present in the U.S. for the subject period.
Only those aliens who meet the definition of lawful presence as shown in RS 00204.025A and who can submit the documentation shown therein may interrupt the running of the 6-month period or have their suspended benefits resumed based on lawful presence of 30 consecutive days or one calendar month in the U.S. Accept any evidence listed in RS 00204.025A as evidence of lawful presence in the U.S. for purposes of interrupting the 6-month period or resuming benefits that have been suspended.
A young spouse beneficiary, who is a Mexican citizen and lives in Mexico with her husband (the insured worker) and two entitled minor children, must return to the U.S. with both children for 30 consecutive days in order to interrupt the running of the 6-month period outside the U.S. and the subsequent suspension of their benefits. Since they are entitled to benefits based on applications filed in March of 1996, they need only establish physical presence in the U.S. They do not need to also establish that they are lawfully present in the U.S. for the 30-day period.
In January 1997, the same spouse files an application for a child born to her and the insured worker in that same month. Since the child was born outside the U.S., the 6-month period begins effective with February 1997 (see RS 02610.001A.2.). The spouse is unable to bring the child to the U.S. until April 1997. Since more than 30 days outside the U.S. have elapsed, the spouse must bring the child to the U.S. for 30 consecutive days to interrupt the running of the 6-month period, which ends on the last day of July 1997 (benefits would be suspended effective August 1997). Because the child was entitled based on an application filed on or after December 1, 1996, the spouse must establish lawful presence for that child only; for the other two children and for herself, she must only establish physical presence in the U.S.