SSR 89-12

EFFECTIVE/PUBLICATION DATE:12/26/89

SSR 89-12: SECTION 202(t) NONPAYMENT OF BENEFITS -- ALIEN BENEFICIARIES OUTSIDE THE UNITED STATES; RESIDENCY REQUIREMENTS FOR DEPENDENTS AND SURVIVORS

20 CFR 404.460 and 404.463

(This supersedes SSR 87-13, CE 1987, p. 43.)

Whether alien persons otherwise entitled to retirement, survivors, and disability benefits under sections 202 and 223 of the Act may be paid such benefits for months in which they are outside the United States depends upon several factors, including the citizenship status and the countries in which they reside. This ruling summarizes the provisions of section 202(t) of the Social Security Act, as amended, concerning restrictions on payments of benefits to alien beneficiaries outside the United States and residency requirements for dependents and survivors. It also lists the countries which have been found, as of December 31, 1988, to meet the requirements of section 202(t)(2)(A) and (B); the countries which do not meet the requirements of section 202(t)(2)(A); and the countries which meet the requirements of section 202(t)(2)(A) only.

Citizens or nationals of the United States otherwise entitled to retirement, survivors, or disability insurance benefits under sections 202 and 223 of the Social Security Act may continue to receive their benefits while outside the United States, subject generally to the same conditions as beneficiaries who are in the United States, and subject further to the provisions of section 203(c) and (d) of the Social Security Act (concerning deductions which may be required for noncovered remunerative activity outside the United States) and to regulations of the Department of the Treasury governing the payment of U.S. checks and warrants abroad.

However, whether benefits are payable to alien beneficiaries outside the United States (including persons who have lost or given up their United States citizenship) depends, in addition, on the applicability of the alien nonpayment provisions contained in section 202(t) of the Act, as amended.

ALIEN NONPAYMENT PROVISIONS

Section 202(t) of the Act provides in effect that, subject to exceptions discussed below, monthly retirement, survivors, and disability insurance benefits may not be paid to an alien beneficiary for any month which occurs (1) after he has been outside the United States throughout 6 consecutive calendar months and (2) before the first calendar month throughout which he has been in the United States. For purposes of the preceding sentence, after an alien beneficiary is outside the United States for any period of 30 consecutive days, he is deemed to be "outside the United States" continuously until he has returned to and remained in the United States for 30 consecutive days. Thus, an alien beneficiary who meets none of the exceptions must either return to the United States at least every 30 days, or for 30 consecutive days during each 60-month period, in order to continue to draw benefits.

No lump-sum death payment may be made on the earnings record of an alien worker who dies outside the United States if that worker could not by reason of section 202(t) be paid benefits for the month before the month of his death.

Section 202(t)(10) of the Act provides that, notwithstanding any other provision of title II, benefits will not be paid to an alien for any month beginning July 1968 which he resides in a country to which the mailing of U.S. Government checks has been prohibited by the Treasury Department pursuant to 31 U.S.C. 3329(a) and 3330(a). Such prohibition is currently in effect in the following areas:

People's Republic of Albania

Democratic Kampuchea (formerly Democratic Cambodia)

Republic of Cuba

Democratic People's Republic of Korea (North Korea)

Socialist Republic of Vietnam

German Democratic Republic (East Germany)

Soviet Sector of Berlin, Germany

The Social Security Amendments of 1967 (P.L. 90-248, section 162(c)(3)) provide (in the case of an alien residing in a restricted country) that payment of any accrued benefits which are being withheld by the Treasury Department on June 30, 1968, may not exceed an amount equivalent to the last 12 months' benefits. Such payment may be made only to the entitled individual, or, if he is deceased, only to a person entitled to monthly benefits on the same earnings record as the deceased for the month in which he died. In no case can such payments be made until the payee is in an unrestricted area.

EXCEPTIONS TO ALIEN NONPAYMENT PROVISIONS

An alien beneficiary may, however, receive his benefits no matter how long he remains outside the United States, if sections 202(t)(10) above or 202(n) (which concerns the effect the deportation of an old-age insurance beneficiary has on the payment of benefits) are not applicable, and any of the following exceptions are met:

A. The beneficiary was, or could upon filing application have become, entitled on the same earnings record to a monthly benefit for December 1956, under section 202 of the Act; or

B. The worker on whose earnings record the benefit is based had been in service covered by the Railroad Retirement Act of 1937 or 1974 which was treated as employment covered by the Social Security Act pursuant to section 5(k)(1) of the Railroad Act of 1937 or section 18(2) of the Railroad Retirement Act of 1974; or

C. The beneficiary is outside the United States while in the active military service of the United States; or

D. The beneficiary is entitled as a survivor on the earnings record of a worker who either (1) died while in the military service of the United States, or (2) died as a result of a disease or injury incurred or aggravated in the military service of the United States, and he was discharged or released from such service under conditions other than dishonorable; or

E. The withholding of benefits would be contrary to an existing treaty obligation in effect on August 1, 1956, between the United States and the country of which the beneficiary is a citizen.

The Secretary has determined that the Treaties of Friendship, Commerce, and Navigation between the United States and the following seven countries constitute "treaty obligations" within the meaning of exception (E) above:

Germany, Federal Republic of (West Germany)

Greece

Ireland (Republic of)

Israel

Italy

Japan

The Netherlands (with respect to survivors benefits only)

The effect of this determination is that alien beneficiaries who are citizens of these countries will not be denied the benefits for which they are qualified (subject to the limitations noted with respect to the Netherlands), regardless of the duration of their absence from the United States.

F. The beneficiary is a citizen of a country which the Secretary of Health and Human Services has found to have in effect a social insurance or pension system of general application which pays periodic benefits (or their actuarial equivalent) on account of old-age, retirement, or death (section 202(t)(2)(A)) and such benefits are payable without restriction to otherwise eligible citizens of the United States while outside that country, regardless of the duration of their absence (section 202(t)(2)(B)); or

G. The worker on whose earnings record the benefits is based either resided in the United States for a period or periods of time aggregating 10 years or more or acquired at least 40 quarters of coverage under the Social Security Act before the month for which the benefit is payable.

Under section202(t)(4) of the Act, however, exception (G) above is not available for any month after June 30, 1968, to an alien outside the United States who is a citizen of a country which (1) has in effect a social insurance or pension system of general application which pays periodic old-age, retirement or death benefits, bur does not pay such benefits to otherwise qualified U.S. citizens while outside the country; or (2) has no social insurance or pension system of general application, if at any time within five years prior to January 1968 (or the first month thereafter for which his benefits are subject to suspension because of absence from the United States), payments to individuals residing in the country were withheld by the Treasury Department under 31 U.S.C. 3329(a) and 3330(a).

Under section 202(t)(11) of the Act, the exceptions in (B), (C), (F), and (G) above will not apply to an alien who is initially entitled to a dependent's or survivor's benefit after December 31, 1984, unless the alien meets one of the following U.S. residence requirements:

(a) For an alien entitled as a child --

(1) (i) the child must have resided in the United States for five or more years as the child of the parent on whose earnings record entitlement is based; or

(ii) the child's parent on whose earnings record the child is entitled and the other parent, if any, must each have either resided in the United States for five or more years or died while residing in the United States; and

(2) if entitled on the basis of an adoptive relationship, the child must have --

(i) been adopted within the Unite States by the worker on whose earnings the child's entitlement is based; and

(ii) have lived in the United States with the worker and received at least one-half support from the worker for a period, beginning prior to the child's attainment of age 18, of at least 1 year immediately before the month in which the worker died or became eligible for old-age benefits, disability benefits, or a period of disability which continued to entitlement to old-age or disability benefits.

(b) For an alien entitled as a spouse, divorced spouse, or surviving divorced spouse, such individual must have resided in the United States for five or more years while in a spousal relationship with the person on whose earnings the entitlement is based. The dependent's or survivor's spousal relationship can be that of wife, husband, widow, widower, divorced wife, divorced husband, surviving divorced wife, surviving divorced husband, surviving divorced mother, surviving divorced father, or, over that period of time, the spousal relationship may be based on a combination of two or more of these categories.

(c) For an alien entitled as a parent, the parent must have resided in the United States for five or more years as a parent of the person on whose earnings record the entitlement is based.

These United States resident requirements do not apply if the alien is a citizen or resident of a country with which the United States has a Social Security totalization agreement in force (see section 233 of the Act), except to the extent provided by that agreement.

LISTS OF COUNTRIES ON WHICH DETERMINATIONS HAVE BEEN MADE

To date, the Secretary has made the following determinations under exception (f) above, notices of which have been published in the Federal Register. As additional determinations are made, they will also be published in the Federal Register:

List 1 -- Countries Which Have Social Insurance or Pension Systems Qualifying Under Section 202(t)(2)(A) and (B)

Antigua and Barbuda (beg. Nov. 1981)

Argentine (effective July 1968)

Austria (except from January 1958 through June 1961)

Bahamas, Commonwealth of (beg. Oct. 1974)

Barbados (beg. July 1968)

Belgium (beg. July 1978)

Belize (beg. Sept. 1981)

Bolivia

Brazil

Burkina Faso (beg. Oct. 1960) (formerly Upper Volta)

Canada (beg. July 1966)

Chile

Colombia (beg. Jan. 1967)

Costa Rica (beg. May 1962)

Cyprus (beg. Oct 1964)

Czechoslovakia (beg. July 1968)

Denmark (beg. April 1964)

Dominica (beg. Jan. 1978)

Dominican Republic (beg. Nov. 1984)

Ecuador

El Salvador (beg. Jan. 1969)

Finland (beg. May 1968)

France (beg. June 1968)

Gabon (beg. June 1964)

Grenada (beg. April 1983)

Guatemala (beg. Oct. 1978)

Guyana (effective Sept. 1969)

Iceland (beg. Dec. 1980)

Ivory Coast

Jamaica (beg. July 1968)

Jordan (effective May 1980)

Korea, South (effective Jan. 1988)

Liechtenstein (effective July 1968)

Luxembourg

Malta (beg. Sept. 1964)

Mexico (beg. March 1968)

Monaco

Nicaragua (beg. May 1986)

Norway (beg. June 1968)

Panama

Peru (beg. Feb. 1969)

Philippines (beg. June 1960)

Poland (beg. March 1957)

Portugal (beg. May 1968)

San Marino (beg. Jan. 1965)

Spain (beg. May 1966)

St. Christopher and Nevis (beg. Sept. 1983)

St. Lucia (beg. Aug. 1984)

Sweden (beg. July 1968)

Switzerland (beg. July 1968)

The Netherlands (beg. July 1968)^[1]

Trinidad and Tobago (beg. July 1975)

Trust Territories of the Pacific Islands (Micronesia) (beg. July 1976)

Turkey

United Kingdom

Venezuela (effective Jan. 1978)

Western Samoa (beg. Aug. 1972)

Yugoslavia

The effect of inclusion under List 1 is that, beginning January 1957, unless otherwise specified, beneficiaries who are citizens of such countries may be paid benefits (subject to the limitations previously noted with respect to aliens who are initially entitled to dependent's or survivor's benefits after December 31, 1984) regardless of the duration of their absence from the United States.

List 2 -- Countries Which Have No Social Insurance or Pension Systems Qualifying Under Section 202(t)(2)(A)

Afghanistan

Australia

Bangladesh

Bhutan

Botswana

Burma

Burundi

Cameroon

Cape Verde Islands

Central African Republic

Chad

Congo Republic (Brazzaville)

Ethiopia

Fiji

Gambia

Ghana

Haiti

Honduras

India

Indonesia

Kenya

Laos

Lebanon

Lesotho

Liberia

Madagascar

Malawi

Malaysia

Mali

Mauritania

Mauritius

Morocco

Nepal

Nigeria

Pakistan

Senegal

Sierra Leone

Singapore

Solomon Islands

Somali Republic

South Africa, Republic of

Sri Lanka (formerly Ceylon)

St. Vincent and the Grenadines

Sudan

Swaziland

Taiwan, Republic of

Tanzania

Thailand

Togo

Tonga

Tunisia

Uganda

Yemen

"Stateless" Individuals

The effect of inclusion under List 2 is the citizens of such countries may not receive benefits while outside the United States (under the conditions set out in the third paragraph of this ruling) unless they can qualify under one of the following exceptions: (A), (B), (C), (D), or (G) above. (The exceptions in (B), (C), and (G), however, are subject to the limitations previously noted with respect to aliens who are initially entitled to dependent's or survivor's benefits after December 31, 1984.)

List 3 -- Countries Which Have a Social Insurance or Pension System Which Meets Requirements of Section 202(t)(2)(A) ONLY

Bulgaria

Hungary

Iran

Iraq

Libya

New Zealand

Niger

Paraguay

Rumania

Saudi Arabia (effective March 1987)

Seychelles, Republic of

Suriname

Union of Soviet Socialist Republics (incl. Estonia, Latvia, and Lithuania)

Uruguay

Zaire

Zambia

The effect of inclusion under List 3 is that citizens of such countries may not receive benefits while outside the United States (under the conditions set out in the third paragraph of this ruling) unless they can qualify under one of the following exceptions: (A), (B), (C), (D) above, or with respect to benefits for months before July 1968, under exception (G) above. (The exceptions in(B) and (C), however, are subject to the limitations previously noted with respect to aliens who are initially entitled to dependent's or survivor's benefits after December 31, 1984.)

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^[1] Prior to this date, alien beneficiaries who were citizens of the Netherlands could, under the "treaty obligation exception" in section 202(t)(3) of the Act, receive only survivor benefits while outside the United States.

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