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

SSR 89-12

EFFECTIVE/PUBLICATION DATE:12/26/89

20 CFR 404.460 and 404.463

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

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.

iod 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:

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:

n 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:

nefits 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:

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.

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:

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

alien meets one of the following U.S. residence requirements:

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)

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)

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

he 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

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.)

[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.