TN 15 (05-08)
RS 02610.039 Establishing the 5 Year Residency Requirement
It is important to distinguish between United States (U.S.) “residency” as a requirement for the payment of benefits outside the U.S., See (RS 02610.025) - 5 Year Residency Requirement for Alien Nonpayment Dependents/Survivors Outside the United States, and the concept of “presence” in the U.S., which may allow beneficiaries, including those who cannot satisfy the 5-year “residency” requirement, to nevertheless receive their benefits while they are outside the U.S. under the alien nonpayment provisions legislation.
Residence in the U.S. means living within the territorial boundaries of the United Sates, a U.S. Territory or Commonwealth. These include:
The 50 States,
The Territories of Alaska and Hawaii prior to January 3, 1959, and August 21, 1959, respectively, when they became states,
The District of Columbia,
The U.S. Virgin Islands,
The Commonwealth of Puerto Rico as of January 1, 1951,
Guam and American Samoa, as of September 13, 1960, and
The Commonwealth of the Northern Mariana Islands as of January 1, 1987.
B. Residency VS Presence in the U.S.
Do not confuse residency with presence in the U.S.
Residency refers to a factual place of domicile in the U.S., with the beneficiary demonstrating the intent to live here. It is usually demonstrated by evidence that indicates that the individual is an active participant in the U.S. economy and has a strong economic and social attachment to the U.S.
Presence, on the other hand, simply means that a person is physically in the U.S., and it requires no intent to remain here beyond the one day visit, 30 consecutive days or 1 full calendar month necessary for the continuance/resumption of benefits under the alien nonpayment provision, See (RS 02610.041D.) - Lawful Presence and Entering the U.S.
The 5-year U.S. residency requirement cannot be satisfied by accumulating a number of periods of “presence” in the U.S. (e.g., for shopping or visiting relatives). Evidence of residency must support an enduring and close attachment to the U.S. for at least 5 years.
Determine when a period of residence begins and ends according to (RS 02610.010B.) - Exceptions to Alien Nonpayment.
NOTE: Actual physical presence in the U.S. (as defined in (GN 00303.100B.6.) - U.S. Citizenship) is necessary to establish U.S. residence. Residence outside the U.S. (e.g., on an American military base), even if prolonged, will not count toward satisfying the 5-year residency requirement.
D. Documenting Residency
Always prepare a special determination, See (GN 01010.360) - Special Determination - General Adjudication, to support the decision that a beneficiary has or has not resided in the U.S. for 5 years.
Obtain as much as possible of the following evidence to establish an alien’s residence:
Official Visa or passport;
Entry or reentry permits;
U.S. driver’s license;
Evidence of home ownership;
Evidence that the beneficiary has signed a rental lease for an apartment;
Utility bills addressed to the beneficiary;
Evidence of regular employment or business ownership;
Employer’s statements showing that the recipient worked on several days a week or evidence showing that the claimant worked one or two hours several days weekly;
Summary Earnings Query (SEQY) or Detail Earnings Query (DEQY) as proof of earnings;
Evidence of volunteer activity showing regular and frequent performance;
Proof of membership in a church or in a fraternal or social organization;
Proof of regular and frequent participation in social programs such as vocational rehabilitation (.e.g. Meals-on-Wheels), or evidence that the claimant regularly received services from a social agency;
Medical or dental records; or
Signed statements from individuals (such as a landlord who provided lodging for the claimant) who had first-hand knowledge of the claimant’s residence in the U.S.
NOTE: Since these statements are likely based on memories of events long passed, they should be solicited and accepted only after all attempts at securing other types of documentary evidence have been exhausted.