TN 15 (05-08)

RS 02610.005 Types of Payments Affected by Alien Nonpayment

A. Alien Nonpayment’s Effect on the Number Holder (NH)

The following benefits are subject to suspension under the alien nonpayment provisions:

• Retirement Benefits (RIB);

• Disability Benefits (DIB):

• Health (HI) and Supplemental Medical Insurance (SMI) Benefits; and

  Even though an alien has established HI/SMI entitlement to these benefits, payment for services or treatments will not be made, even if the service or treatments are received in the United States (U.S.) if the alien has been absent from the U.S. for 6 full calendar months before the month of treatment or service. This may not apply if the alien was in the U.S. during the entire month in which treatment was received, See (HI 00805.007) - SMI Eligibility for Foreign Residents and (RS 00204.010) - Lawful Presence Payment Provisions.

  NOTE: Under Title II Welfare Reform Provisions, Title XVIII payments will not be made if the beneficiary is not lawfully present in the U.S. throughout the mont

B. Alien Nonpayment’s Effect on Dependents/Survivors Benefits

1. Initial Claims

A claimant may choose not to pursue a formal claim for benefits after he/she is advised that no benefits are payable while he/she remains outside the U.S. Appeal rights can only apply to a formal determination on alien suspension.

When a number holder (NH) is in alien nonpayment suspense, benefits that are payable to his/her spouse and/or children on the NH’s Earnings Record (ER) for that month are not affected. Separate alien nonpayment determinations are made for each alien beneficiary.

NOTE: A Lump Sum Death Payment (LSDP) is not payable if the NH was in alien nonpayment for the month before death because of his/her absence from the U.S. When the LSDP is not payable because of the alien nonpayment provisions, disallow the claim.

1. Do not discourage potential claimants from filing an application where it appears that the 5 year U.S. residency requirement or an alien exception may not be met.

2. If extensive development is necessary for entitlement of the dependent/survivor, even though payment outside the U.S. would not occur, explain fully to the claimant the effect of his/her filing. If the claimant decides not to file an application:

   • Send a 6 month closeout notice per (GN 00204.010A.5.) - Protective Filing, if a protective filing has been established; or

   • Secure a signed statement on a SSA-795 to close out the claims lead. See (GN 00202.020B.) - Processing Leads.

2. Family Maximum is involved

1. The suspension of a dependent/survivor benefit under the alien nonpayment provision does not result in an increase in the benefit amount to other beneficiaries on the same record. A benefit suspended due to alien nonpayment is used to compute benefits the same way as if it were payable.

   Be sure to advise potential claimants who may be subject to the alien nonpayment provisions, about the possible reduction to the family’s benefit.

   EXAMPLE:

   C1, C2, C3 and C4 are receiving survivor benefits. C1 and C2 are US citizens. C3 and C4 are residents and citizens of Mexico and do not meet the 5 year residency. See (RS 02610.025) - 5 Year Residency Requirements for Alien Dependents/Survivors Outside the U.S. The Family Maximum (FMAX) on the case is $1000.00. Each child’s monthly benefit amount is $250.00. C1 and C2’s monthly benefit amount would not increase to $500.00 because benefits are not payable to C3 and C4 because they are in alien suspense.

2. Claimant decides to file - If a beneficiary who resides outside the US establishes a presence inside the U.S. that presence will interrupt the running of a 6-month period of absence. Under these circumstances, it would be advantageous for the beneficiary to file a claim because of the possibility of visiting the U.S. to be paid benefits. See (RS 02610.020) - Establishing Absence and Presence in the United States.

   If the beneficiary inquires about his/her right to make such visits: (1 day, 30 consecutive calendar days or one full calendar month) to the U.S. to be paid benefits:

   • Explain that he/she must submit documentary evidence related to the visits;

   • Suggest the various types of evidence which are acceptable, See (RS 02610.023) – Acceptable Evidence of Presence in the U.S. for Any Part of One Day, 30 Consecutive Days, One Full Calendar Month; and

   • Explain that failing to interrupt the 6 month period of absence, and/or the failing to submit documentary evidence related to the visits, can result in a loss of benefits.

3. Claimant decides to file and it may be disadvantageous to the single family unit (SFU).

   Obtain a written or oral statement from the claimant indicating that he/she wishes to pursue his/her claim, and that he/she understands the results of the action. The statement can be documented via:

   • An SSA-795, Statement of Claimant or Other Person; or

   • The Remarks (RMKS) screen in the Modernized Claims System (MCS).

   Use this language as a guide:

   “It has been explained to me that I cannot receive any Social Security payments outside the U.S. because I do not meet the 5 year residency requirement of the alien nonpayment provision. Even though my entitlement may mean the payment of reduced family benefits, I wish to pursue my claim for benefits.”

4. Claimant decides not to file.

   If a protective writing has been established, See (GN 00204.010A.5.) - Protective Filing.

5. Discussing withdrawal.

   • Discuss withdrawal with the beneficiary, only if he/she and the dependent/survivor whose benefits would be reduced live in the same household; See (GN 00206.001) - When to Discuss Withdrawal (W/D).

   • Make certain that the applicant/beneficiary understands that if he/she withdraws the application and later decides to claim benefits, he/she must file a new application which may not cover the same period.

3. Work

a. Annual Earnings Test (AET)

When charging the NH’s excess earnings:

• Include all beneficiaries, even those in alien nonpayment suspension, in the computation.

• The alien nonpayment provisions are a suspension event and not a deduction or a termination event.

The employment or self employment of an insured NH whose benefit is in alien nonpayment suspense cannot affect dependent benefits otherwise payable to his/her spouse or children on the E/R for that month.

Exception: Dependent benefits can be suspended if the DIB beneficiary fails to accept Vocational Rehabilitation (VR) services even when the DIB is in suspense due to the alien nonpayment provision.

b. Readjusted Rates

The Social Security Independence and Program Improvements Act of 1994 (P.L. 103-296) repealed the facility-of-payment provision for benefits paid for months after 12/95; See (GN 02603.010) - Readjustment Procedures General.

Nonpayment of monthly benefits due to the alien nonpayment provisions has no effect on the amount of another person’s benefit (i.e., no adjustment for the family maximum benefits is made), See (GN 02603.020A.) - Deductions-Before Reductions and (GN 02603.040B.) - Readjusted Rate Exclusions.

The benefits of the dependent/survivor in alien nonpayment suspense is not increased during the readjusted rate period. No action is taken to increase the rates payable to the remaining beneficiaries unless one of the beneficiaries is no longer subject to alien suspense.

C. Readjusted Rates effective January 1996

EXAMPLES:

Survivor case, Single Family Unit (SFU):

PIA: $330.50

MAX: $597.40

Original Benefit (OB): $247.80

MBA: $199.10 (rounded down)

MOE: 01/2007

Foreign work is involved (over 45 hours per month)

1. E is the worker; C1 and C2 are both in alien nonpayment suspense:

• E is not paid benefits while working; and

• C1 and C2’s rates of $199.10 are not increased because of the alien nonpayment provisions.

2. E is the worker and C1 is no longer in alien nonpayment suspense but C2 is in alien nonpayment suspense:

• E is not paid benefits while working; and

• C1 is paid $247.80; and

• C2’s benefit is not increased and remains at $199.10 in alien nonpayment suspense.

D. Readjusted Rates Before January, 1996

Same example as shown above except the MOE is 01/90, the OB is $247.90 and the MBA is rounded up to $199.20:

1. E is the worker; C1 and C2 are in alien nonpayment suspense:

• E is paid $97.40 (C1 and C2’s total OB $495.80 minus $398.40 total C1 and C2 MBA); and

• C1 and C2’s rates remain the same $199.20 each.

2. E is the worker and C1 is no longer in alien nonpayment suspense but C2 is in alien nonpayment suspense:

• E is paid $48.70 ($247.90 OB minus $199.20 MBA); and

• C1 is paid $199.20; and

• C2 remains in alien nonpayment suspense with a rate of $199.20.

E. Workers Compensation

When dependent benefits have been suspended due to the alien nonpayment provisions, they are nevertheless included in the total family benefits when computing worker’s compensation offset, See (DI 52150.005) - Total Family Benefits (TFB).

F. Reference

Child’s Benefits – Deductions and Nonpayment Provision (RS 00203.030)