§ 7.3 Social Security Benefits Under Title II of the Social Security Act

• Library: Rights of Foreign Nationals (OSBar) (2020 Ed.)

§ 7.3 SOCIAL SECURITY BENEFITS UNDER TITLE II OF THE SOCIAL SECURITY ACT

To begin, it is important to note the fundamental difference between Title II Social Security benefits and Supplemental Security Income (SSI). Title II benefits are based on a qualified worker's earnings history and are potentially available to any lawfully present immigrant. SSI, conversely, is a safety-net program for impoverished people who do not meet the earnings history requirement and has far stricter immigrant status requirements. SSI is discussed in § 7.5-1 to § 7.5-2. While SSI benefits are contemplated in public-charge regulations, Title II benefits are not subject to public-charge scrutiny. See § 7.1-2(a)(3).

Social Security benefits provide (1) a monthly payment to "fully insured" persons based on age or disability, (2) a monthly check to the insured person's dependents, or (3) death benefits in the form of a monthly payment to the insured person's surviving spouse and children. See 42 USC § 402. There are no financial eligibility requirements for Social Security; the amount of benefits is determined by the work history of the fully insured person.

To be eligible for Social Security disability benefits under Title II of the Social Security Act (42 USC §§ 401-434), the person must be lawfully present in the United States for all benefits payable on applications filed on or after December 1, 1996. 8 USC § 1611(b)(2); 42 USC § 402(y); Soc Sec Admin, Program Operations Manual System (POMS) RS 00204.010B.1, < https://secure.ssa.gov/apps10/poms.nsf/lnx/0300204010 >). Lawful presence is an expansive concept that includes but goes well beyond the category of "qualified alien." See 8 CFR § 1.3(a).

There are some exceptions to the lawful-presence requirement. For example, individuals who are citizens of countries that have signed bilateral agreements with the United States, called totalization agreements, can receive Social Security benefits based on past employment in the home country and in the United States. See Soc Sec Admin, U.S. International Social Security Agreements, < www.ssa.gov/inter-national/agreements_overview.html >. See § 7.3-2 for more details on exceptions to the lawful-presence requirement.

Under the Social Security Protection Act of 2004 (SSPA) (Pub L 108-203, § 211, 118 Stat 518), for applications based on Social Security numbers issued on or after January 1, 2004, the number must have been valid for work purposes for the applicant to be "fully insured" or...