TN 15 (05-08)

RS 02610.020 Establishing Absence and Presence in the United States (U.S.)

A. First full month of absence from the U.S.

Once an alien is outside the United States (U.S.) for 30 consecutive days, the 6 month period of absence from the U.S. is counted from the first day of the first full month of absence. See (GN 00904.200B.1.) - Foreign Claims Development which defines outside the U.S.

NOTE: If a beneficiary has been deported (see RS 02635.001 - Effects of Removal (Deportation) on Retirement or Disability Benefits, no payments can be made while outside the United States since the deportation suspension takes precedence over the alien nonpayment provisions.

B. Examples -- First full month of absence from the U.S.

  1. D left the U.S. on May 1, 2007 and did not return. So, the beneficiary has been outside the U.S. for 30 consecutive days as of June 1, 2007.

    Begin counting the first full month of absence as of June 2007.

  2. D left the U.S. on April 30, 2007 and did not return. So, the beneficiary has been outside the U.S. for 30 consecutive days as of May 31, 2007.

    Begin counting the first full month of absence as of May 2007.

C. Presence in the U.S.

Presence in the U.S. is defined as being physically present in the U.S. It does not mean lawful residence or domicile.

A beneficiary who does not meet an alien exception code or the 5 year residency requirement (if a dependent or survivor) may be paid benefits while outside the U.S. under certain conditions.

The conditions are:

  • Entering the U.S. for any part of one day during the first 30 days of absence from the U.S. (See RS 02610.020D - Establishing Absence and Presence in the United States).

  • Spending 30 consecutive days in the U.S. during the 6 month period of absence; or (see RS 02610.020E - Establishing Absence and Presence in the United States).

  • Staying a full calendar month inside the U.S. after the 6 month period of absence (see RS 02610.041 - Lawful Presence and the Alien Nonpayment Provision and RS 00204.025A - Evidence Requirement for Establishing U.S. Lawful Presence);

See RS 02610.023B Acceptable Evidence of Presence in the United States (U.S.) for Any Part of One Day, 30 Consecutive Days, One Full Calendar Month

D. 6 month period of absence from the U.S.

Aliens who are outside the U.S. for 6 consecutive calendar months are not paid benefits beginning with the 7th month of his/her absence.

A period of absence begins with the first full calendar month after the alien leaves the U.S. When an event takes place outside the U.S. that requires beginning the 6 month period of absence; i.e., a U.S. citizen is expatriated or a child is born to an alien beneficiary, the 6 month period will begin the month after the month the event occurs. See example (RS 02610.020E.3.) below for a newborn child born outside the United States. In addition, for initial claims, you must consider the 6 months prior to the date of entitlement when counting the 6 consecutive month period to determine if the alien nonpayment provisions apply.

E. Examples – 6 month period of absence from the US

  1. D leaves the U.S. on July 1, 2007.

    D’s first full month of absence is August 2007 because she was present in the U.S. on the first day of July.

    D is considered outside the U.S. for the 6 month period of August 2007 through January 2008.

    D is placed in alien suspense (SJ) effective with the 7th month of absence from the U.S. in February 2008.

  2. B leaves the U.S. on June 30, 2007.

    B’s first full month of absence from the U.S. is July 2007.

    B is considered outside the U.S. for July 2007 through December 2007.

    B is placed in alien suspense (SJ) effective with the 7th month of absence from the U.S. in January 2008.

  3. C1 was born in the Philippines on January 9, 2007.

    B2, his mother, does not meet the 5 year residency requirement.

    C1 is entitled to benefits effective 02/2007.

    C1 is considered outside the U.S. for February 2007 through July 2007.

    C1 is placed in alien suspense (SJ) effective with the 7th month of absence from the U.S. in August 2007.

    Although C1 has never been in the U.S., C1 still can be paid benefits for the first 6 months he/she is outside the U.S.

  4. B1 and C2 entered the U.S. on November 30, 2006 and left the U.S. on January 1, 2007.

    B1 and C2 are considered outside the U.S. for the 6 month period of February 2007 through July 2007.

    B1 and C2 are entitled for benefits in June 2007

    B1 and C2 are placed in alien suspense (SJ) effective the 7th month of absence from the U.S. in August 2007.

    Although B1 and C2 were in the U.S. before their date of entitlement, those months can still be counted as the 6 month period of absence. This is because the date of entitlement, June 2007, falls within the 6 month period of absence, February 2007 through July 2007.

  5. Same information as in example #4 except B2 and C1 are entitled to benefits effective September 2007. They did not return to the U.S. to interrupt the 6 month period of absence. B2 and C1 are placed into alien suspense (SJ) effective with the date of entitlement in September 2007. The 6 month period of absence from the U.S. is March 2007 through August 2007.

    NOTE: In initial claims you need look no further back than the 7th month before the date of entitlement when counting the 6 consecutive calendar month period.

    References:

    Child’s Benefits-First Month of Entitlement (MOET) In Life Cases (RS 00203.010B.1.)

    5 Year Residency Requirements For Spouses, Natural Child, Adopted Child and a Parent (RS 02610.030E.1.)

F. Full calendar month

An alien is subject to the alien nonpayment provision after being outside the U.S. for 6 full consecutive calendar months. The alien is placed into suspense (SJ) effective the 7th month of his/her absence from the U.S.

After an alien has been outside the U.S. for 6 consecutive months, the benefits are resumed only when he/she enters the U.S. and is lawfully present for a full calendar month. A full calendar month is defined as 24 hours of each and every day of the period.

Important: Do not confuse the requirement that an alien must spend a full calendar month in the U.S. for resumption of payments from alien nonpayment suspense with the requirement that an alien must spend 30 full consecutive days in the U.S. to interrupt a 6 month period of absence.

For example, February is considered a full calendar month with 28 days. If the alien has been outside the U.S. for 6 consecutive calendar months and is suspended in the 7th month, his/her benefits can be resumed if the entire month of February is spent inside the U.S. However, an alien who is absent from the U.S. for less than 6 consecutive calendar months does not interrupt the 6 month period of absence because there are only 28 days (29 days if a leap year) in February.

NOTE: When an alien who does not meet an alien exception code, moves to another country where benefits can be paid (e.g., a totalization country) his/her benefits will resume beginning with the first full calendar month of residency in that foreign country.

CAUTION: For applications filed on or after December 1, 1996, payments for the full calendar month while physically present in the U.S. will only be made if the beneficiary is lawfully present. See (RS 00204.010) - Lawful Presence Payment Provisions.

G. Examples -- Full calendar month

  1. W, who was lawfully present in the U.S., left the U.S. on August 1, 2006.

    • W is outside the U.S. for 6 months, September through February 2007.

    • W is in suspense (SJ) for the months of March through May 2007.

    • W reenters the U.S. on May 1, 2007 and leaves on July 3, 2007.

    • W is placed into current pay effective June 2007 because this is the first full calendar month she was in the U.S. The month of May does not count as a full calendar month because the alien was not in the U.S. for 24 hours on May 1, 2007.

    • W is paid benefits for June 2007 (her first full calendar month in the U.S.), July 2007 and for the 6 month period of absence from the U.S. for August 2007 through January 2008. Her benefits are placed in suspense (SJ) effective February 2008 unless she:

      • Reenters the U.S. for any part of one day within the next 30 calendar days of July 4 through August 2, 2007 and continues to reenter within every 30 days thereafter; or

      • Reenters the U.S. for 30 consecutive calendar days before the end of the 6 month period of absence which is January 31, 2008.

  2. D1 left the U.S. on October 2, 2006.

    D1 is outside the U.S. for 6 months, November 2006 through April 20, 2007.

    D1 reenters the U.S. on April 21, 2007 and leaves on June 7, 2007.

    D1 does not go into suspense (SJ) in May 2007, the 7th month outside the U.S., because he stayed the full calendar month of May in the U.S. The 6 month period of absence is November 1, 2006 to April 30, 2007. The 30 consecutive days are not considered here because D1 can not do the 30 consecutive days before the end of the 6 month period, April 30, 2007. But, D1 did enter the U.S. on April 21, 2007 and stayed the full calendar month of May 2007. Therefore, DI was in the U.S. for one full calendar month and can be paid benefits beginning in May 2007.

    D1 remains in current pay and will go into suspense (SJ) effective the 7th month of absence from the U.S. in January 2008 unless he:

    • Reenters the U.S. for any part of one day within the next 30 calendar days of June 8 through July 6, 2007 and continues to reenter within every 30 days thereafter; or

    • Reenters the U.S. for 30 consecutive calendar days before the end of the 6 month period of absence which is December 31, 2007.

  3. F1 left the U.S. on January 31, 2006.

    F1 is outside the U.S. for 6 months, February through July 2006.

    F1 is in suspense (SJ) for the months of August 2006 through January 2007.

    F1 reenters the U.S. on January 1, 2007 and leaves March 1, 2007.

    F1 is placed into current pay effective February 2007, the first full calendar month she is in the U.S. The month of January 2007 does not count as a full calendar month because she was not present for 24 hours on January 1, 2007.

    F1 is paid benefits for February 2007 (the first full calendar month she is in the U.S.); March 2007 and April through September 2007 (the 6 month period of absence from the U.S.) Her benefits are placed in alien suspense (SJ) effective October 2007 unless she:

    • Reenters the U.S. for any part of one day within the next 30 calendar days of March 2 through March 31, 2007 and continues to reenter within every 30 days thereafter; or

    • Reenters the U.S. for 30 consecutive days before the end of the 6 month period of absence which is September 30, 2007.

  4. A is citizen of and residing in Estonia since January 9, 2004.

    A is in alien suspense (SJ) because Estonia does not meet an exception to the alien nonpayment provision.

    A moved to Italy effective May 26, 2005 and resides there permanently.

    A is paid benefits effective June, 2005, the first full month of residence in Italy because Italy is a totalization country.

    Same as above except A has returned to Estonia on February 5, 2007.

    Benefits to A are placed in alien suspense for March 2007, the first full calendar month he/she is in Estonia which does not meet an alien exception code.

    NOTE: It is not always necessary for a beneficiary in alien suspense to return to the United States in order to receive payments. A beneficiary may reside in one of the Totalization countries or reside in the United States. See (GN 01701.150) - Alien Nonpayment Exemptions Under Totalization Agreements and (GN 01701.005) - International Social Security (Totalization) Agreements. The United States is defined as one of the 50 States, the District of Columbia, American Samoa, Guam, Puerto Rico, the Northern Marian Islands or the U.S. Virgin Islands per (GN 00303.100B.6.) - U.S. Citizenship.

H. Resumption of benefits

Once the 6 month period of absence is completed and payments are suspended, we cannot resume payments until the alien has returned to the U.S. for 1 full calendar month. We resume payments effective with the first full calendar month the alien is in the U.S. For claims filed on or after December 1, 1996, the alien must be lawfully present in the U.S.

I. Examples -- Resumption of benefits

B is currently in alien suspense on the MBR because she has been outside the U.S. for 6 full consecutive calendar months.

B enters the U.S. on October 10, 2006 and leaves on February 1, 2007.

B’s benefits are resumed effective November 2006, the first full calendar month she was in the U.S.

C1 is currently in alien suspense (SJ) on the MBR because he/she has been outside the U.S. for 6 full consecutive calendar months.

C1 enters the U.S. on May 1, 2007 and leaves on July 30, 2007.

C1’s benefits are resumed effective June 2007, the first full calendar month C1 is in the U.S.

J. 30 consecutive calendar days

Once an alien has been outside the U.S. for 30 consecutive days, the 6 month period of absence begins and is counted from the first day of the first full month of absence.

A return to the U.S. of at least 30 consecutive days causes a break in the 6 month period of absence. When the 6 month period is broken, it does not start again until the alien again leaves the U.S. for at least 30 consecutive days. The 30 consecutive days is defined as 24 hours of each and every day of the period.

NOTE: The 30 consecutive calendar days must be completed before the end of the 6 month period of absence. If an alien left the U.S. on July 15, 2006, the 6 month period of absence would begin August 1, 2006 through January 31, 2007. The alien must complete the 30 consecutive days in the U.S. before the end of January 31, 2007 to continue to receive payments while outside the U.S. The alien cannot come into the U.S. on January 13 and stay 30 consecutive days (January 14 through February 12, 2007) to complete the 30 day stay.

If the alien does not complete the 30 consecutive days before January 31, 2007, the alien’s benefits are placed in alien suspense beginning with February 2007. He/she would have to return to the U.S. to stay for 1 full calendar month because he/she did not interrupt the 6 month period of absence, See RS 02610.020E above.

K. Examples -- 30 consecutive calendar days

  1. C1 left the U.S. on May 26, 2007. The 6 month period would be June 2007 through November 2007.

    C1 reenters the U.S. on September 4, 2007, and stays through October 5, 2007.

    The 30 consecutive calendar days are met, September 5 through October 5 (24 hours of each and every day).

    C1 has interrupted the 6 month period of absence (June 2007 through November 2007) from the U.S. and the benefits can continue to be paid.

  2. C2 left the U.S. on February 4, 2007. C2 entered the U.S. on April 3, 2007 and left on May 2, 2007.

    • The 30 consecutive days are not met. April 4 through May 1 equals 28 days.

    • C2 has not interrupted the 6 month absence from the U.S., March 2007 through August 2007.

    • C2 must reenter the U.S. for 30 consecutive days before the end of the 6 month period of absence from the U.S. to continue to receive benefits while outside the U.S. If C2 does not reenter the U.S. and stay the full 30 days, benefits are suspended effective with the seventh consecutive month of absence in September 2007.

  3. Same information as in example 2 except C2 was notified the 30 consecutive calendar days were not met.

    C2 reenters the U.S. on June 6, 2007 and leaves on July 8, 2007.

    The 30 consecutive calendar days are met, June 7 through July 7, 2007.

    A new 6 month period of absence is counted beginning with the first full calendar month C2 is outside the U.S., August 2007. The new 6 month period is August 2007 through January 2008.

  4. B1 left the U.S. on September 4, 2006.

    B1’s 6 month period of absence begins October 2006 and ends March 31, 2007.

    B1 reentered the U.S. on March 5, 2007 and left on April 7, 2007.

    B1 stayed in the U.S. for 33 consecutive days. Since the 30 consecutive day period is completed in the 7th month of absence from the U.S. (April 2007), benefits cannot be paid to B1 because the 30 consecutive days were not completed before the end of the 6 month period of absence. B1 only completed 26 consecutive days (March 6 through March 31, 2007) before the end of March 31, 2007 and not 30 days as required.

L. One day visits

If an alien establishes presence in the U.S. for any part of one day within every 30 days of absence from the U.S., that presence:

  • Prevents the 6 month period of absence from beginning; and

  • Allows payments to continue to the alien living outside the U.S.

M. Examples -- One day visits

  1. B left the U.S. on July 15, 2006.

    If B reenters the U.S. within the next 30 days, July 16 through August 14, her benefits can continue.

    If B continues to reenter the U.S. once every 30 days, the 6 month period of absence does not begin because she establishes presence in the U.S. to interrupt her absence.

  2. D left the U.S. on March 1, 2007.

    D reenters the U.S. on April 1, 2007.

    D did not reenter within the 30 day period. Since D entered on April 1, 2007, the 31st day, she must spend 30 consecutive days before her 6 month period of absence ends.

N. Additional examples

  1. D6 left the U.S. on November 30, 2006.

    She enters the U.S. for 1 day visits on December 30, 2006, January 29, 2007, February 26, 2007 and March 20, 2007.

    Since D6 has reentered the U.S. at least once every 30 days the 6 month period of absence does not begin.

  2. B6 left the U.S. on September 2, 2006.

    B6 enters the U.S. on October 1, October 30, November 30 and December 30, 2006.

    Her 6 month period of absence begins in November 2006. She visited the U.S. for at least once every 30 days for October 1 and 30th but entered on the 31st day, November 30.

    Therefore, B6 begins her 6 month period of absence beginning November 2006.

    B6 reenters the U.S. on January 31, 2007 and leaves on March 1, 2007.

    Although she spent the full calendar month of February in the U.S., this does not break her 6 month period of absence from the U.S. because she did not spend 30 consecutive calendar days in the U.S. She was here for 28 days or 29 days if it is a leap year.

    B6 reenters the U.S. on March 19, 2007 and leaves on April 19, 2007. She has broken the 6 month period of absence for November 2006 through April 30, 2007 by staying in the U.S. for 30 consecutive days and her payments will continue.

  3. D6 left the U.S. on August 9, 2006.

    Since D6 did not establish presence within the first 30 days of leaving the U.S., August 10 through September 8th, she must stay in the U.S. for 30 consecutive days to break her 6 month period of absence of September, 2006 through February 28, 2007.

    D6 enters the U.S. October 30, 2006 and leaves on November 30, 2006.

    D6 has broken the 6 month period of absence and has stayed for 30 consecutive days in the U.S. (October 31 through November 29).

    D6 enters the U.S. on December 30, 2006, January 29, 2007, February 28, March 30 and April 29, 2007 for 1 day visits.

    Since D6 has entered the U.S. once every 30 days, the 6 month period of absence does not begin.

    D6 does not reenter the U.S. for a 1 day visit after April 30 through May 29.

    She now m