TN 15 (05-08)

RS 02610.030 5 Year Residency Requirements for Spouses, Natural Child, Adopted Child, and a Parent

A. Spousal Relationships

Spousal relationships include spouses, widows/widowers, divorced spouses, surviving divorced spouses, or surviving divorced mothers or fathers.

1. When the Residency Requirement is Met

An alien entitled to benefits as a spouse, widow/widower, divorced spouse, surviving divorced spouse, or surviving divorced mother or father must meet the following requirement:

  • The alien must have resided in the U.S. for 5 or more years, and

  • The alien must have been in a spousal relationship with the person on whose earnings record the entitlement is based for 5 or more years.

2. Period of Residency

The 5 year period of residence:

  • Does not have to be continuous;

  • Nor does the same spousal relationship need to have existed for the entire period. An alien could have one, two or more of the spousal relationships to the NH during the U.S. residence. For example, the period as the spouse of the NH and a period as the widow/widower of the NH can be combined for the 5 year relationship.

B. Examples -- 5 Year Period of Residency

  1. A and B are citizens of Indonesia. A has lived in the U.S. for 10 years. A and B became entitled to benefits in January 2004 and then moved to Indonesia.

    B resided in the U.S. for 5 years while she was married to the NH.

    A meets the alien exception code of 3 (lived in the U.S. for ten years) and B meets the 5 year residency requirement.

    Payments can be paid indefinitely to B while she is living outside the U.S. in Indonesia

  2. Same as in example 1 except the B resided in the United States for 7 years before she married the NH.

    B and the NH were married and living in the U.S. for 3 years and moved to Indonesia effective April 4, 2007.

    B does not meet the 5 year residency requirement. B did live in the U.S. for 7 years but it was before she married the NH. She must be married to the NH and residing in the U.S. for at least 5 years before she meets the alien nonpayment exception. The B resided in the U.S. for only 3 years while married to the NH.

    Therefore, B is placed in alien suspense (SJ) after her 6 month period of absence from the U.S. (May through October 31, 2007) effective November 2007.

  3. D is a citizen of Argentina born on 02/01/1947.

    D was admitted to the U.S. for permanent residence on 01/15/1967.

    D married the NH on 11/29/1973 in New York City where he died in 1976. D stayed in the U.S. but returned to Argentina to reside permanently in 05/1984.

    D became entitled to widow’s benefits in 02/2007. The deceased NH had 40 QC’s.

    D meets the 5 year residency requirement because she was the wife and later the widow of the deceased NH while residing in the U.S. from 11/29/1973 through 05/1984.

    The period of 01/15/1967 through 11/28/1973 is not counted because the D was not in a spousal relationship with the NH.

  4. Same as example 3, except D returns to reside in Argentina in 1976 after her husband’s death.

    D does not meet the 5 year residency requirement when she becomes entitled in 02/2007.

    Although D resided in the U.S. for more than 5 years from 01/15/1967 through 08/1977, she was not in a spousal relationship with the NH for at least 5 of those years. The spousal relationship lasted 3 years from 1973 through 1976.

C. Remarriage

Remarriage before the completion of the 5 year residency period affects the completion of that period only if entitlement to a particular category of benefit would otherwise be affected.

D. Example -- Remarriage

A surviving divorced spouse remarries before age 60.

He/she did not complete the 5 year residency period with his/her former spouse prior to the remarriage.

The surviving divorced spouse would not be eligible for surviving divorced spouse’s benefits and the residency requirement would not matter because he/she remarried before the age of 60.

However, if the surviving divorced spouse remarried after the age of 60, but before the requirement was met, she could eventually complete the 5 year period, because the remarriage would not affect her potential entitlement to surviving divorced spouse’s benefits.

NOTE: Eligible for benefits means that the individual satisfies all requirements for entitlement to dependent or survivor’s benefits except that the individual has not yet filed an application for benefits.

E. The Natural Child

An alien who is entitled to benefits as the natural child of a living or deceased NH must meet the following requirements:

  • The child must have resided in the U. S. for 5 or more years as the child of the parent on whose earnings record entitlement is based; or

  • The parent on whose earnings record the child is entitled and other parent (if any, See (RS 02610.035) - Determining the Other Parent) must each have either resided in the U.S. for 5 or more years or died while residing in the U.S.

NOTE: The statement, “or Died while residing in the U.S.” refers only to the NH. It was put in the law to enable surviving children who could not meet the 5 year residency on their own, to be deemed to meet it on the account of a deceased NH who was currently insured because the NH did not reside in the U.S. for at least 5 years before his/her death. It does not refer to a parent other than the NH since, by definition, the “other parent” must be a living parent. Therefore, any “other parent” who has died, whether in the U.S., or outside the U.S., would not be considered when deeming the 5 year residency requirement to a child. A parent’s or child’s residence in the U.S. after the NH dies may be counted toward the 5 year period of residence.

F. Examples -- The Natural Child

  1. A lived in the U.S. from 1970 through 2003 and became entitled to benefits in November 2005. A moved to the Philippines and married in January 2006. The A and his young wife have a child on September 10, 2006.

    B2 and C1 become entitled as dependents on A’s earnings record in October 2006.

    B2 cannot receive benefits because she did not reside in the U.S. while married to the NH for 5 years. Her benefit is placed in alien suspense (SJ). B2 would have to stay in the U.S. for a full calendar month to receive benefits, See (RS 02610.001) - Alien Nonpayment Provisions.

    C1 can be paid benefits for the first 6 months he/she is outside the U.S. from October 2006 through March 2007 because C1 is a newborn child. C1’s benefits are placed in alien suspense (SJ) effective April 2007, the 7th month of absence from the U.S. because each parent did not reside in the U.S. for 5 years. Only A resided in the U.S. for 5 years.

  2. NH, a citizen of Mexico, lived in the U.S. from 1963 through 2005 and married in May 1998. His wife, a citizen of Mexico, had been a U.S. resident since June 1990.

    NH and his wife returned to Mexico to live in 2005.

    NH and his young wife have twins in December 2006.

    NH becomes entitled to A benefits in March 2007 and the B2, C1, and C2 file as his dependents.

    B2 can be paid benefits while residing outside the U.S. because she meets the 5 year residency requirement. She was married to the NH while living in the U.S. for over 5 years (1998 through 2005) and the B2 meets the alien exception code of 6 (social insurance country). The period before her marriage to the NH for June 1990 through April 1998 cannot be counted because she was not married to the NH.

    C1 and C2, the twins, can also be paid benefits while residing outside the U.S. because each of their parents meets the 5 year residency requirement.

  3. NH resided in the U.S. from 1980 through June 2004.

    NH was married in April 2003. His wife had been a U.S. resident since July 1995.

    NH, a citizen of the Dominican Republic, and his wife return to reside in the Dominican Republic in July 2004.

    NH and his young wife have triplets in February 2007.

    NH becomes entitled to A benefits in May 2007 and B2, C1, C2, and C3 file as his dependents.

    B2 cannot be paid benefits while residing outside the U.S. because she was not in a spousal relationship with the NH for 5 years while residing in the U.S. Although the B2 resided in the U.S. for a total of 9 years only 1 year of the residence was while married to the NH. B2 is placed in alien suspense (SJ) effective May 2007.

    C1, C2, and C3, the triplets, can be paid benefits effective May 2007 while living outside the U.S. because each of their parents resided in the U.S. for at least 5 years and the children met the alien exception code of 6, social insurance country. It does not matter that the B2’s period of U.S. residence was established before she was in a spousal relationship with the NH for benefits to be payable to the children, but it does apply to her spousal benefits.

G. The Adopted child

In addition to meeting the residency requirement, an adopted child must also have been:

  • An alien who is entitled to benefits as the adopted child of a living or deceased NH must meet the residency requirement in one of the following ways: The child must have resided in the U.S. for 5 or more years as the adopted child of the NH on whose earnings record entitlement is based; or

  • The NH on whose earnings record the adopted child is entitled and the other parent, if any, (see RS 02610.035—Determining the Other Parent) must each have either resided in the U.S. for 5 or more years or died while residing in the U.S.

In addition, the adopted child must meet the following requirements:

  • The child must have been adopted within the U.S. by the NH on whose earnings record the child ‘s entitlement is based; and

  • The child must have lived in the U.S. with and received one half support from the NH for a period beginning prior to the child’s attainment of age 18 of at least one year immediately before the month in which the NH became eligible for retirement insurance benefits (RIB) or disability insurance benefits (DIB) or died, whichever comes first or, if the adopted parent has a period of disability which continued until he/she became entitled to RIB or DIB or died, the year before the month in which that period of disability began.

The requirement “adopted in the U.S.” Is material to continuing eligibility for payment outside the U.S. The adoption decree or other documentary evidence must state that the adoption occurred in the U.S. An amended birth certificate that is issued after an adoption is not documentary evidence that can be used to prove that the adoption occurred in the U.S.

NOTE: A parent’s or child’s residence in the U.S. after the NH dies may be counted toward the 5 year period of residence.

References:

One Half Support, Corroborating Statement and Other Evidence (RS 01301.165)

Other Sources of Support Evidence and Information (RS 01301.180)

Determining One Half Support (RS 01301.185)

One Half Support Child Dependency Cases (RS 01301.206)

Child in Care (RS 01310.000)

H. Examples -- The Adopted Child

  1. NH entered the U.S. for permanent residence in 1975.

    NH returned to the Philippines in 2006 and adopted a child born in 2004 in the Philippines.

    NH became entitled to A benefits in April 2007 and the adopted child, C1, was entitled as a dependent.

    C1 does not meet an exception to the alien nonpayment provisions because the child was adopted outside the U.S. and did not meet the 5 year residency requirement. Therefore, payments can not be paid to C1 while outside the U.S. effective April 2007.

  2. NH entered the U.S. for permanent residence in 1991.

    NH returned to live in Bermuda in January 2007.

    NH adopted a child born in Bermuda in December 2003. The child was also adopted in a Florida court but never lived with the A in the U.S.

    The child remained in Bermuda.

    NH became entitled to A benefits in January 2007 and C1, his adopted child, was entitled as a dependent.

    C1 does not meet an exception to the alien nonpayment provision even though C1 was adopted in the U.S. This is because C1 did not live with the A in the U.S. and receive one-half support from the NH in the year immediately before the month in which the worker became eligible for benefits.

I. Parent Beneficiary

An alien who is entitled to parent’s benefits must meet the following requirements:

  • The alien parent must have resided in the U.S. for 5 or more years; and

  • The alien parent must be a parent of the NH on whose earnings record he/she is entitled to benefits.

NOTE: A parent’s or child’s residence in the U.S. after the NH dies may be counted toward the 5 year period of residence.

References:

Parent’s Benefits One-Half Support (RS 00209.010)

Determining One Half Support (RS 01301.185)

J. Example -- Parent Beneficiary

F2, the deceased NH’s mother, became entitled to benefits in April 2007, the month the NH died.

The NH and both parents were admitted to the U.S. as permanent residents in 1980.

The NH’s father became ill and the father and mother returned to Panama in 1987. The NH’s father died in 1988 and the NH’s mother was readmitted to the U.S. in July, 1989.

F2 lived with the NH in the U.S. until September 1991 and then she moved back to Panama.

F2 meets the 5 year residency requirement since she lived in the U.S. for a total of 5 years during which she met the definition of a parent.

NOTE: A parent’s or child’s residence in the U.S. after the NH dies may be counted toward the 5 year period of residence.


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RS 02610.030 - 5 Year Residency Requirements for Spouses, Natural Child, Adopted Child, and a Parent - 01/09/2012
Batch run: 01/09/2012
Rev:01/09/2012