SSR 72-27: SECTIONS 228 (OF SOCIAL SECURITY ACT) AND 103 OF SOCIAL SECURITY AMENDMENTS OF 1965. -- SPECIAL AGE 72 AND HOSPITAL INSURANCE BENEFITS -- 5 YEARS CONTINUOUS RESIDENCE REQUIREMENT

20 CFR 404.374(a)

SSR 72-27

Held, for purposes of determining whether a person is an alien lawfully admitted for permanent residence who has resided in the United States continuously during the 5 years immediately preceding the month in which she files application for special age-72 payments under section 228 of the Social Security Act, or for hospital insurance benefits under section 103(a) of the Social Security Amendments of 1965, it is not necessary that the 5 years of residence occur after admission for permanent residence; the requirement is satisfied by such admission, however recent, if the applicant has "continuous residence" in the United States during the 5 years immediately preceding the month in which the application is filed.[1]

W, an alien, age 77, filed application in August 1970, for hospital insurance benefits pursuant to the provisions of section 103(a) of the Social Security Amendments of 1965, and for the special age 72-or-over cash benefits provided under section 228 of the Social Security Act. To qualify for benefits under either (or both) of these sections of the law, an individual must (in addition to satisfying other requirements not here in question) be a resident of the United States and either (1) a citizen of the United States or (2) an alien lawfully admitted for permanent residence who has resided in the United States continuously during the 5 years immediately preceding the month in which he files application for such benefits. Advised by the Social Security Administration that her application was disallowed because she could meet neither (1) nor (2) above, W has protested, alleging that she was in fact a continuous resident of the United States during the 5 years immediately preceding August 1970, the month in which she filed her application; and further, that she had been lawfully admitted for permanent residence prior to the filing of her application.

The facts show that W was first admitted to the United States in April 1964 on a nonimmigrant visa to live with her daughter and son-in-law. Upon entry she was issued a Form I-94 (Arrival Departure Record). In February 1965 her son-in-law, who was in the U.S. Navy, was transferred to a U.S. Naval Station outside the United States. W accompanied them, the whole family remaining outside this country until January 1967. Upon their return to the United States, W was registered with the Immigration and Naturalization authorities and was admitted on February 20, 1967, as an immigrant. She has remained in the U.S. since that date.

It is not here disputed that W is an alien. The issue to be resolved, however, is whether she can qualify for benefits under section 103 or section 228, cited supra, as "an alien lawfully admitted for permanent residence who has resided in the United States . . . continuously during the 5 years immediately preceding the month in which he files application . . . ."

It is clear that this provision contains not one, but two requirements, the requirement of admission for permanent residence being separate and distinct from the requirement for 5 years of U.S. residence. The law does not require 5 years of U.S. residence after admission for permanent residence; the only requirement is "continuous residence" during the 5 years immediately preceding the month in which the application is filed. Thus, an individual may fulfill the 5-year residence requirement and qualify for hospital insurance and the special age-72 payments even though his status has only recently been adjusted to "lawfully admitted for permanent residence."

Although W was not "lawfully admitted for permanent residence" in April 1964, when she was issued a nonimmigrant visa, this fact does not affect her entitlement to benefits since she attained this status in February 1967, prior to the filing of her application.

The only remaining question is whether the claimant was in fact a continuous resident of the United States during the 5 years immediately preceding the month in which she filed her application. Generally, a person becomes a resident when he first arrives in the United States and establishes a home here, and his intent upon arrival may be an important factor. However, the character of his initial admission into the United States does not, of itself, determine whether he is a resident; i.e., he may be a resident even though not admitted for permanent residence, and he could at a later date meet the 5-year residence requirement even though initially admitted as a tourist or visitor. The "intent" of a person is important in establishing the fact of residence, and it is clear in the instant case that the claimant did in fact "intend" to make her permanent home and to live her remaining years with her daughter and son-in-law. The evidence shows that in April 1964, at the age of 71 she disposed of all her personal effects in France and arrived in the United States with only a suitcase. While not admitted for permanent residence, W did become a resident of the United States upon her arrival in 1964.

Having established a residence here, resident status continues until the individual departs from the United States with the intention of residing elsewhere and abandoning U.S. residency. A temporary absence from the United States, however, such as a temporary visit abroad, with no intention to abandon residence in the United States, does not terminate or interrupt a period of residence in the United States. Thus, as indicated in the headnote to Social Security Ruling 68-65a, CB 1968, p. 201, periods of temporary absence from the United States after an alien has established residence in the United States, may be included in the period of 5 years' continuous residence immediately preceding the month in which he files application for hospital insurance under section 103(a) of P.L. 89-97 (Social Security Amendments of 1965) but only if the evidence shows he intended to retain a United States residence throughout the period beginning with his departure and ending with his later return to the United States.

Since all evidence indicates that W intended to make her permanent home with her daughter and son-in-law, it is understandable that she accompanied them when they were temporarily outside the United States. Just as it would be unreasonable to assume that her daughter and son-in-law intended to abandon their U.S. residency, it is equally unreasonable to assume that the claimant intended to abandon her U.S. residency. Accordingly, the claimant's temporary absence from the United States did not terminate or interrupt her period of residence, even though it occurred before she was admitted for permanent residence.

It is accordingly held, that W is an alien lawfully admitted for permanent residence who had resided in the United States continuously during the 5 years immediately preceding the month in which she filed her application for benefits, thereby satisfying the requirements for entitlement to hospital insurance benefits in section 103(a) of the 1965 amendments, and the requirements for entitlement to Special Age-72 benefits in section 228(a)(3) of the Social Security Act.


[1] The same rule applies for purposes of determining whether a person meets the residence requirements for eligibility to enroll for supplementary medical insurance, in those cases where application for enrollment is pursuant to section 1836(2)(A) of the Act.


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