Each person on the number holder’s (NH’s) record must be a United States citizen or lawfully present alien in order to be paid benefits while in the U.S. and if the filing date is on or after 12/1/96. A person’s U.S. citizenship or alien status does not affect payment of benefits to another person entitled on the same record.
A suspension of a worker’s monthly title II and title XVIII benefits to the NH under this provision does not cause a suspension of auxiliary benefits. Thus, in applying the maximum family benefit provisions, a benefit subject to suspension under the U.S. citizenship/lawful presence requirement is considered the same as if it were payable. See the examples below:
The benefits of a person in the U.S. who is not a U.S. citizen or lawfully present alien count toward the family maximum on a wage earner's record even though payment to that person is suspended. Thus, if an auxiliary's benefits are suspended for failure to be lawfully present in the U.S., we do not readjust the benefit rates of other auxiliaries on the record (see GN 02603.040B for exceptions to the deduction-before-reduction provision).
EXAMPLE 1: NH Suspended, Auxiliary Can Remain in Pay
R., an alien, is married to P., who is also an alien. They lawfully enter the U.S. on January 15, 1997. R. is admitted to the U.S. as a nonimmigrant whose visa expires in August 1997. P. is lawfully admitted for an indefinite period. We begin paying R. retirement benefits on his own earnings record in April 1997, based on an application filed in March 1997. R.'s spouse is entitled to monthly benefits on R.'s Social Security record and we also begin paying her benefits effective with April 1997. R.'s lawful presence ends effective with August 1997, i.e., the month his visa expires. We stop his benefits effective with August 1997 because he is no longer lawfully present in the U.S. P. continues to receive benefits on her husband's earnings record, even though his benefits have been suspended. We may begin paying R. benefits again if his alien status changes or he leaves the U.S. subject to the alien non-payment provisions in RS 02610.000. (See RS 00204.025A for rules that apply when a person’s lawful presence status changes.)
EXAMPLE 2: Family Maximum Case, One Auxiliary Suspended
The NH, Q., and her husband, M., and 4 minor children entered the United States on 1/13/96 as parolees under section 212(d)(5) of the INA. As such, Q., M. and the 4 children are lawfully present in the U.S. Q. became disabled on 1/24/2001. She filed for title II benefits for herself, her husband, and the four children on 2/17/2001. Q., M., and Q.’s 4 children became entitled to disability and auxiliary benefits beginning 7/2001 as follows:
The Family Maximum is $500.00.
The NH’s PIA is $300.00.
$500.00 minus $300.00 equals an “aux max” of $200.00, to be divided between M. and the four children. Each auxiliary gets $40.00 per month. The total disbursed to the family is $500.00.
M.’s parole expired on 10/15/2001. Therefore, he is not lawfully present beginning 10/15/2001. His benefit of $40.00/month is suspended beginning 10/2001. However, benefits to the four children remain at $40.00/month for each child, since M. is still entitled on the record, and his suspension does not permit redistribution of the auxiliary maximum. Thus, beginning 10/2001, the total to the family is reduced to $460.00: the $300.00 to the NH for the PIA, plus 4 times the auxiliary benefit of $40.00 each (computed for 5 auxiliaries), which equals $160.00. $300.00 plus $160.00 equals $460.00.