Periods of temporary absence from the United States after an alien has been lawfully admitted for permanent 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 benefits 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.
Claimant, an alien, who became 65 years of age before 1968 and was neither entitled to monthly benefits under section 202 of the Social Security Act nor to railroad retirement benefits, filed an application for hospital insurance benefits under section 103(a) of P.L. 89-97 on December 23, 1965. The evidence established that claimant was lawfully admitted to the United States for permanent residence on October 27, 1955; that she left for a visit to Australia in October 1961 after having obtained from the Immigration and Naturalization Service a re-entry permit valid for 1 year, which permit was later extended for 1 additional year to October 22, 1965; that she returned to the United States on October 12, 1964, having been granted a returning resident visa by a United States Consul in Australia; and that when she departed for Austria she left most of her personal property in the United States and throughout her absence she maintained a savings account jointly with her daughter in the United States. Held, evidence establishes claimant intended to retain her United States residence throughout her absence and thus that her absence was only temporary, so that she may be considered to have resided in the United States continuously for 5 years immediately preceding the date of her application within the meaning of section 103(a) of P.L. 89-97. Further held, since all other requirements of section 103(a) were met, claimant is deemed, for purposes of section 226 of the Act and thus she is entitled to hospital insurance benefits under section 226 of the Act.
This case is before the Hearing Examiner pursuant to an Order of the Appeals Council of the Bureau of Hearings and Appeals, dated April 28, 1967, remanding the case for the purpose of holding a hearing and rendering a recommended decision in connection with claimant's entitlement to Hospital Insurance benefits under the Social Security Act. The claimant was not present, but her daughter as her duly appointed representative was present and participated in such hearing.
The claimant, on December 23, 1965, filed an application for Hospital Insurance entitlement, alleging that she was born in Hungary, not a citizen of the United States but that she had been a resident of the United States since October 1955. The claimant was informed by the Bureau of Retirement and Survivors Insurance that her application had been denied because she had not resided in the United States continuously for the five year period immediately preceding the month in which she filed her application. The claimant requested reconsideration of that determination and was informed that after reconsideration the initial disallowance was correct and in accordance with the law and regulations.
The general issue before the Hearing Examiner is whether the claimant based upon her application filed on December 23, 1965, is entitled to Hospital Insurance benefits under the provisions of the Social Security Act, as amended. This is dependent upon whether or not the claimant has resided in the United States continuously during the five years immediately preceding the month in which she filed her application.
Section 226 of the Social Security Act, as added by Section 101 of Public Law 89-97 (the Social Security Amendments of 1965), provides, in pertinent here, that:
(a) Every individual who—(1) has attained the age of 65, and (2) is entitled to monthly insurance benefits under section 202 or is a qualified railroad retirement beneficiary, shall be entitled to hospital insurance benefits * * * for each month for which he meets the conditions specified in paragraph (2), beginning with the first month after June 1966 for which he meets the conditions specified in paragraphs (1) and (2).
Although the claimant had attained age 65 at the time of filing her application she was not entitled to monthly insurance benefits and was not a qualified railroad retirement beneficiary and therefore, does not meet the requirements of section 226(a) of the Act. However, under section 103(a) of P.L. 89-97, a person who is not entitled to a monthly insurance benefit under section 202 may nevertheless become entitled to hospital insurance benefits if certain requirements are met.
Section 103(a) provides as pertinent here:
(a) Anyone who—
(1) has attained the age of 65,
(2) (A) attained such age before 1968 * * *.
(3) is not, and upon filing application for monthly insurance benefits under section 202 of the Social Security Act would not be, entitled to hospital insurance benefits under section 226 of such Act xxxx * * *.
(4) is a resident of the United States (as defined in section 210(i) of the Social Security Act), and is (A) a citizen of the United States or (B) an alien lawfully admitted for permanent residence who has resided in the United States (as so defined) continuously during the 5 years immediately preceding the month in which he files application under this section, and
(5) has filed an application under this section in such manner and in accordance with such other requirements as may be prescribed in regulations of the Secretary, shall * * * be deemed, solely for purposes of section 226 of the Social Security Act, to be entitled to monthly insurance benefits under such section 202 for each mont, beginning with the first month in which he meets the requirements of this subsection * * *
The claimant was lawfully admitted to the United States as a permanent resident on October 27, 1955. In October 1961 she went to Australia where she remained until sometime in October 1964 when she returned and resumed living with her daughter in New York. As the claimant is not a citizen of the United States, the Bureau of Retirement and Survivors Insurance disallowed her application because she began her period of permanent residence in the United States in October 1964, and consequently, had not resided continuously for 5 years in the United States during the 3 years of absence between 1961 and 1964. Further, photocopy of a bank account shows first deposit was in July of 1964 and the entire account was withdrawn in July of 1966, and which account was in the name of her daughter in trust for the claimant, also; a so-called "visit" out of the country for an extended period (over 6 months) cannot be generally considered a temporary visit in the absence of strong evidence of an intent to maintain a residence in this country.
Under the guides as set down by Social Security Ruling 67-20, C.B. 1967, p. 95, in considering a period of residence, a person is a resident of the United States if he is making his home in the United States. Actual physical presence is an important factor in establishing a residence. However, an individual may still be a resident even though he is temporarily absent from the United States, intending to return to a home in this country and does later return, the temporary absence does not interrupt the period of residence in the United States. However, if the visit is for any extended period e.g., more than 6 months, it could not generally be considered a temporary visit in the absence of a strong showing to the contrary, such as maintaining a house or apartment in this country, paying United States Income Taxes for the period of his absence, departing with a re-entry permit (emphasis underlining supplied) or performing other similar acts showing his intention to retain a residence in the United States.
Claimant's daughter testified that her mother, the claimant, came here as a permanent resident in 1955; that claimant lived with her, opened an account in the [X] Savings and Loan Association and which account was in their joint names because claimant could not read or write English; that her mother left for Australia the latter part of October 1961, to visit her two sons and to attend the contemplated marriage of one of the grandchildren. During her stay in Australia she stayed with one of the sons. The daughter insisted that prior to her mother's leaving, she had written to the Immigration Department to extend her mother's right to come back as she explained that any alien could leave the country and return without a re-entry permit but if they left the country for over a year and intended to return, a re-entry permit was required. She submitted a letter from the Immigration service to corroborate that the re-entry permit was granted and had been forwarded to the American consulate in Australia on October 23, 1961. When her mother left for Australia she only took clothes with her to stay for a few months and left most of her clothing and personal belongings in her room. There was also submitted evidence of an account in the [Y] Savings Bank opened on July 6, 1964. Claimant has lived with her for the past several months. Upon her return from Australia she lived with her grandchild for convenience sake but as her daughter now has a 5 1/2 room apartment there is room for her.
Information now before the Hearing Examiner and not before the Bureau of Retirement and Survivors Insurance disclosed that the applicant and her daughter were the joint owners of a savings account in the [X] Savings and Loan Association, opened on September 28, 1959 and canceled on July 2, 1964; that the daughter opened up an account in trust for the claimant on July 6, 1964, in the [Z] Savings Bank after the daughter gave up her farm; that in July 1966 the account was transferred to the [Y] Savings Bank, closer to where the claimant and her daughter now reside.
Information obtained from the Immigration and Naturalization Service indicates claimant was admitted to the United States as a permanent resident on October 27, 1955, and she left for Australia in October 1961 at which time she was issued a re-entry permit which was valid for 1 year. [This] re- entry permit was extended during her absence from this country and upon her arrival here on October 12, 1964, was in the possession of a returning resident visa issued by [an] American Council [in] Australia, establishing the claimant's intention to retain a residence in the United States throughout the 3 year period she was visiting in Australia.
After careful consideration of the entire record, the Hearing Examiner makes the following findings:
It is the recommended decision of the Hearing Examiner that the claimant based upon her application filed on December 23, 1965, is entitled to Hospital Insurance benefits under the provisions of section 226 of the Social Security Act, as added by section 101 and pursuant to section 103(a) of Public Law 89-97 (of the Social Security Amendments of 1965).[*]
[*]After careful consideration of the entire record, on November 14, 1967, the Appeals Council adopted the hearing examiner's recommended decision and made it the decision of the Appeals Council. [Ed.]