TN 15 (05-08)

RS 02610.025 5 Year Residency Requirement for Alien Dependents/Survivors Outside the United States (U.S.)

Citations:

Social Security Act – 202 (t)

Social Security Act – 202 (t) (11)

A. Policy

In 1983 the Social Security Act was amended (P.L. 98-21) section 340 to include an additional provision regarding the payment of Social Security benefits to aliens outside the U.S. Section 202(t)(11) of the Social Security Act requires that certain non-U.S. citizen dependent and survivor beneficiaries who are first eligible for Social Security Benefits after December 1984, must have resided in the U.S. for at least 5 years as the spouse, widow/widower, child, or parent of the NH, in order to receive U.S. benefits while outside the U.S.. See RS 02610.030 - 5 Year Residency Requirements for Spouses, Natural Child, Adopted Child, and a Parent

Beginning in January 1985, the alien nonpayment provision requires that certain alien beneficiaries entitled to dependent or survivor benefits must meet a U.S. residency requirement in addition to meeting exceptions:

  • Code 3 – Number Holder (NH) has 10 years residence;

  • Code 4 – NH has 40 Quarters of Coverage (QC’s);

  • Code 6 – Citizen of a Social Insurance Country

  • Code 7 – Railroad Service

  • Code 9 – Beneficiary in Military Service

These exceptions have two-tiers and both tiers must be met. For the first tier the alien must meet an alien exception code. For the second tier, the alien’s dependents or survivors must meet the 5 year residency requirement.

This requirement precludes paying benefits to dependents and survivors outside the U.S. unless:

  • Dependents or survivors have resided in the U.S. for a period of at least 5 years during which time the relationship with the NH as a spouse, widow/widower, child or parent has existed.

  • The beneficiaries are children who cannot satisfy the requirement on their own but are deemed to meet it if both parents meet it, See (RS 02610.020) - Establishing Absence and Presence in the United States (U.S.) and (RS 02610.035A.) - Determining the Other Parent.

EXAMPLES:

  1. A dependent/survivor who is a citizen of a social insurance country must also meet the 5 year residency requirement.

  2. A dependent/survivor who is entitled on the earnings record of a NH who has 40 QCs must also meet the 5 year residency requirement.

B. Beneficiaries not affected by the 5 Year Residency Requirement

The 5 year residency requirement does not apply to the:

  • Dependent/survivor beneficiary who was or could have been initially eligible for benefits on any earnings record before January 1, 1985;

  • This includes beneficiaries who became initially eligible for one type of benefit on a particular earnings record after December 31, 1984 but who were previously eligible for a different type of benefit on the same earnings record before January 1, 1985.

    EXAMPLE:

    B2 was entitled before January 1, 1985, was terminated when last child attained age 16 in November 1982, and is now re-entitled as a D in October 2006.

    It is not necessary that the NH was actually entitled or died prior to January 1, 1985. It is the eligibility of the NH and the dependent/survivor that is controlling.

  • Dependent/survivor entitled on the record of a NH who died in the U.S. military service or as a result of a service connected disease or injury;

  • Dependent/survivor who is a citizen of a Treaty country. See (RS 02610.010) - Exceptions to Alien Nonpayment.

  • Dependent/survivor who is a citizen or resident of a country with which the U.S. has a totalization agreement, except to the extent provided by such agreement, See (RS 02610.025C.) - 5 Year Residency Requirements for Alien Dependents and Survivors Outside the U.S.

The Australian and Denmark Totalization agreements provide for the following exceptions:

  • Citizens of Australia who live in a non-totalization country must meet the 5 year residency requirement. See (GN 01743.145A.) - Exception to Section 202(t)(11) Alien Nonpayment Provisions Under the Australian Agreement.

  • Citizens of Denmark who live in a non-totalization country must meet the 5 year residency requirement. See (GN 01747.145A)--Exception to Section 202(t)(11) Alien Nonpayment Provision under the Danish Agreement for Dependents and Survivors.

C. Procedure for Totalization Countries

Use this procedure when the residency requirement does not apply to a resident or citizen of a totalization country.

  • See (GN 01701.005) - International Social Security (Totalization) Agreements.

  • See (RS 02640.001) - Determining Citizenship.

  • Assume residence in a country if there is evidence of birth in that country and the individual alleges residence and currently uses an address in that country.

  • If documentary evidence of residence is necessary (e.g., a native born Turkish citizen alleges residence in Germany), follow the general guidelines described in (GN 01702.230) - Evidence of Residence.

  • In some countries (i.e., Germany, Belgium, and Switzerland) residents must register with local authorities and are provided with a registration card. This is excellent proof of residence; request it where appropriate.

D. Periods of residency

A period of residency for a dependent/survivor is defined as the following:

  • Continuous 5 year period in the U.S.; or

  • Separate periods of time in the U.S. totaling 5 years.

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

Do not use the following as a period of residency for a dependent/survivor:

  • 1 day visits;

  • 30 consecutive days; or

  • 1 full calendar month.

The 5 year residency requirement is not satisfied by accumulating a number of periods of “presence” in the U.S. (e.g., for shopping or visiting relatives). The evidence of residency must support an enduring and close attachment to the U.S. for at least 5 years.

E. Examples:

  1. The dependent/survivor is a citizen of Mexico, a social insurance country which meets the alien exception code of 6.

    The dependent/survivor must also meet the 5 year residency requirement to receive payments while residing outside the U.S.

  2. The dependent/survivor is a citizen of Singapore, a country which can meet the alien exception code of 3 for the NH residing 10 years in the U.S. or the alien exception code of 4 for the NH meeting 40 QC’s.

    The NH has 40 QC’s, but not 10 years residency in the U.S. The dependent/survivor meets the exception code of 4.

    The dependent/survivor must also meet the 5 year residency requirement to receive payments while residing outside the U.S.

  3. The dependent/survivor is a citizen and resident of Japan, a Treaty country.

    The dependent/survivor does not have to meet the 5 year residency requirement because he/she is a citizen and resident of a treaty country which meets the alien exception code of 5.

    Payments can be made to the dependent/survivor while residing outside the U.S. indefinitely.

  4. The dependent/survivor is a citizen and resident of Samoa.

    The NH died in January 1984 at the age of 64. Although he was fully insured at age 62, he elected not to file for retirement benefits because he was still working. The NH’s widow received E benefits effective with January 1984. The E benefits terminated in March 1986.

    The NH’s widow filed for D benefits in January 2004 at the age of 63. Her date of birth is April 1, 1940.

    The 5 year residency requirement does not apply to the widow because she filed for benefits before January 1985. The widow meets the alien exception code of 6 for social insurance country.

  5. Same situation as above except that the widow does not file for D benefits until March 2005.

    The 5 year residency requirement still does not apply to the widow because she was eligible for benefits as an E before January 1985.


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RS 02610.025 - 5 Year Residency Requirement for Alien Dependents/Survivors Outside the United States (U.S.) - 01/06/2012
Batch run: 01/06/2012
Rev:01/06/2012