TN 15 (05-08)
RS 02610.041 Lawful Presence and the Alien Nonpayment Provisions
Citations:
Section 401 of Welfare Reform
Section 503 of Immigration Reform
Section 202 (t) of the Act
Public Law 104-193
Public Law 104-208
Public Law 105-33
Public Law 108-203
A. Background—Effective Date of Lawful Presence Provisions
Public Law (P.L.) 104-193, “Personal Responsibility and Work Opportunity Reconciliation Act of 1996” (Welfare Reform) and P.L. 104-208, “Illegal Immigration Reform and Immigrant Responsibility Act of 1996” (Immigration Reform) both provide that no monthly Title II benefits may be paid to any alien in the U.S. for any month during which the alien is not lawfully present, as determined by the Attorney General. Therefore, in order to permit payment of TII benefits to an alien in the U.S., the alien must be lawfully present in the U.S. for the entire calendar month. Both laws only affect claimsfiled on or after December 1, 1996. These laws do not affect beneficiaries whose claims were filed prior to December 1, 1996; these instructions do not apply to them.
The Welfare Reform and Immigration Reform Acts did not amend section 202 (t) of the Social Security Act and do not effect payments made outside the U.S.; but they do have an effect on the alien nonpayment provision concerning payments made under Section 202 (t) (1) of the Act on the basis of establishing lawful presence in the U.S. See (RS 02610.020) - Establishing Absence and Presence in the United States (U.S.).
NOTE: Additional insured status requirements must be met for certain Alien Workers under the Social Security Protection Act of 2004 (P.L. 108-203). Section 211 of P.L. 108-203 affects entitlement for the alien worker and any auxiliaries or survivors claiming Title II benefits based on the alien worker's earnings. The lawful presence requirements in (RS 00204.000) – Lawful Presence Provisions, affect whether an alien claimant (NH, auxiliary, or survivor) who is in the U.S. and who has established entitlement to a Title II benefit can receive payment of that benefit. See (RS 00301.102) - Additional Requirements for Alien Workers-Social Security Protection Act of 2004.
B. Presence in the U.S. under Section 202 (t) (1)
Section 202(t) provides, in general, that no benefit may be paid to a non-U.S. citizen or national for any month after the 6th consecutive calendar month he /she has been outside the U.S.
Under section 202(t) (1) (B), we do not consider a person to be “outside the U.S.” until the individual has been outside the U.S. for 30 consecutive days. Therefore, if a person returns to the U.S. for any part of one day before the expiration of the 30-day period, he/she may indefinitely delay the running of the 6-month period.
C. Definition of Lawful Presence in the U.S. Under Welfare Reform
An alien must be lawfully present in the U.S. to receive benefits. No monthly benefits are payable to any alien in the U.S. for any full calendar month during which the alien is not lawfully present. See (RS 00204.030) - Lawful Presence for an Entire Month – Beneficiary is Outside the U.S.
D. Lawful Presence and Entering the U.S.
1. 1 Day Visits
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. for any part of one day every 30 days. It will not, therefore, be necessary to require proof of lawful presence from a beneficiary who establishes presence on any part of one day every 30 days in order to delay the running of the 6 month period.
2. 30 Calendar Days/One Full Calendar Month
Although section 202t (2) is silent with regard to lawful or legal presence in the U.S., continuation of payment in these cases depends upon returning to the U.S. to establish presence. Since Welfare Reform /Immigration Reform clearly mandates lawful alien status for payment of benefits in the U.S., SSA will require that alien beneficiaries returning to the U.S. for 30 days to interrupt a 6 month period of absence and aliens entering the U.S. for 30 days or one calendar month be lawfully present for the requisite period of time. The alien must submit proof of lawful presence, See (RS 00204.025) - Evidence Requirements for Establishing U.S. Lawful Presence and See (RS 00204.050) – FO Postentitlement (PE) Actions on Title 2 Claims Filed December 1, 1996 or Later and Involving the Lawful Presence Requirement.
E. Examples -- Lawful Presence
B is entitled to benefits effective with December 2006. B lives in Mexico and does not meet the 5 year residency requirement.
B must return to the U.S. for 1 full calendar month and be lawfully present in the U.S. in order to be paid benefits while outside the U.S.
B obtains the form I-94 from the Department of Homeland Security (DHS) and enters the U.S on March 5, 2007. and returns to Mexico on May 2, 2007.
Benefits can be paid to B for the first full calendar month she was lawfully present in the U.S., April 2007 under the Title 2 Welfare Reform Provisions. She is considered to be outside the U.S. the month after she leaves on May 2, 2007. Her 6 month period of absence would be June 2007 through November 2007.
Bs benefits are paid from April through November 2007. Her benefits are placed in alien suspense (SJ) effective December 2007 unless she:
Reenters the U.S. one day every 30 days, or
Reenters the U.S. as lawfully present for 30 consecutive days before the end of the 6 month period of absence from the U.S. The six month period ends on November 30, 2007.
B re-entered the U.S. for a 1 day visit on May 26, 2007. She visits the Field Office (FO).
Since B was lawfully present in the U.S. throughout the month of April 2007, she does not have to submit proof of lawful presence in the U.S. for her 1 day visits.
In June 2007, B becomes ill and cannot make the 1 day visit to the FO in June, 2007. Since B has been outside the U.S. for over 30 consecutive days the 6 month period of absence begins in June 2007, the first full month after she left the U.S. on May 26, 2007.
Unless B returns to the U.S. and establishes lawful presence for 30 consecutive calendar days before the end of the 6 month period (November 30, 2007), her benefits will be placed in alien suspense (SJ) effective December, 2007. She will need to provide proof of her lawful presence in the U.S. for the 30 consecutive days in order to break the six month period of absence prior to November 30, 2007.