Social Security Benefits for Noncitizens: Current Policy and Legislation

^Pr^ep^ar^{ed f}^o^r^M^e^m^b^ers^an^d^Com^mⁱ^t^t^ees^of^C^ong^r^e^ss

Concerns about the number of unauthorized (illegal) aliens residing in the United States and the
totalization agreement with Mexico have fostered considerable interest in the eligibility of
noncitizens for U.S. Social Security benefits. The Social Security program provides monthly cash
benefits to qualified retired and disabled workers, their dependents, and survivors. Generally, a
worker must have 10 years of Social Security-covered employment to be eligible for retirement
benefits (less time is required for disability and survivor benefits). Most U.S. jobs are covered
under Social Security. Noncitizens who work in Social Security-covered employment must pay
Social Security payroll taxes, including those who are in the United States working temporarily or
without authorization. There are some exceptions. Generally, the work of aliens who are citizens
of a country with which the United States has a “totalization agreement,” coordinating the
payment of Social Security taxes and benefits for workers who divide their careers between two
countries, is not covered if they work in the U.S. for less than five years. Also, by statute, the
work of aliens under certain visa categories is not covered by Social Security.
The Social Security Protection Act of 2004 (P.L. 108-203) requires an alien whose application for
benefits is based on a Social Security number (SSN) assigned January 1, 2004, or later to have
work authorization at the time an SSN is assigned, or at some later time, to gain insured status
under the Social Security program. Aliens whose applications are based on SSNs assigned before
January 1, 2004, may count all covered earnings toward insured status, regardless of work
authorization. The Social Security Act also prohibits the payment of benefits to aliens in the
United States who are not “lawfully present”; however, under certain circumstances, alien
workers and dependents/survivors may receive benefits while residing outside the United States
(including benefits based on unauthorized work).
In June 2004, the United States and Mexico signed a totalization agreement. In early 2007, a copy
of the agreement was made publicly available, but it has not been transmitted to Congress for
review. The agreement has not been finalized. Currently, since Mexico meets the “social
insurance country” definition, a Mexican worker may receive U.S. Social Security benefits
outside the United States. Family members of the Mexican worker must have lived in the United
States for at least five years to receive benefits in Mexico. The agreement does not waive the
requirements that aliens in the United States must be lawfully present to receive benefits in the
United States, and that aliens must have work authorization at some time to gain insured status,
but would allow payment of benefits to alien dependents and survivors who have never lived in
the United States. The Social Security Administration reports that the projected cost of the
agreement would average $105 million annually over the first five years, but the Government
Accountability Office reported that “the cost of [the] totalization agreement ... is highly
uncertain” due to the large number of unauthorized aliens from Mexico estimated to be living in
the United States. This report will be updated as legislative activity occurs or other events
warrant.

Current Policy..................................................................................................................................1
Backgr ound ............................................................................................................................... 1
Social Security-Covered Employment......................................................................................1
Social Security Payment Rules.................................................................................................3
Social Security Protection Act of 2004...............................................................................3
Special Payment Rules for Noncitizens..............................................................................4
Legislative History of Payment Rules for Noncitizens.......................................................7
Tax Treatment of Social Security Benefits................................................................................8
Totalization Agreements............................................................................................................9
Issues ............................................................................................................................................. 12
Perceived Disparate Treatment Under Social Security and Immigration Law........................12
Totalization Agreement with Mexico......................................................................................12
General Accounting Office Study.....................................................................................14
SSA Comment on the GAO Report..................................................................................16
No-Match Letters....................................................................................................................17
No-Match Regulation........................................................................................................19 ^th
Legislation in the 110 Congress Related to No-Match Letters.......................................19
Legislation in the 110^th Congress..................................................................................................20
P.L. 110-161/S.Amdt. 3352 to H.R. 3043...............................................................................20
H.R. 190..................................................................................................................................21
H.R. 332..................................................................................................................................21
S.Amdt. 152 to H.R. 2 (Fair Minimum Wage Act of 2007)....................................................22
H.R. 709..................................................................................................................................22
H.R. 2954................................................................................................................................22
H.R. 4037................................................................................................................................23
H.R. 4192/S. 1269...................................................................................................................23
Social Security Provisions in the Comprehensive Immigration Reform Bills in the
Senate ......................................................................................................................... .......... 23
S. 1639 and S.Amdt. 1415 to the Comprehensive Immigration Reform Act of
2007 (S.Amdt. 1150 to S. 1348)....................................................................................23
S.Amdt. 1195 to the Comprehensive Immigration Reform Act of 2007 (S.Amdt
1150 to S. 1348).............................................................................................................24
S.Amdt. 1847 to S. 1639...................................................................................................24
Table 1. Exceptions to the Alien Nonpayment Provision for Workers and
Dependent s/ Su rvivor s .................................................................................................................. 5
Table 2. Additional Residency Requirement for Alien Dependents/Survivors Outside the
United States................................................................................................................................6
Table 3. Exceptions to the Additional Residency Requirement for Alien
Dependents/Survivors Outside the United States.........................................................................6

Appendix A. Exception Countries.................................................................................................26
Appendix B. Definition of “Lawfully Present”.............................................................................28
Author Contact Information..........................................................................................................29

The Social Security program provides monthly cash benefits to retired and disabled workers and ¹
their dependents, and to the survivors of deceased workers. To qualify for benefits, workers ²
(whether citizens or noncitizens) must work in Social Security-covered jobs for a specified
period of time, among other requirements. Generally, workers need 40 credits (sometimes
referred to as “quarters of coverage”) to become “insured” for benefits (fewer credits are needed
for disability and survivor benefits, depending on the worker’s age). In 2008, a worker earns one
credit for each $1,050 in earnings, up to a maximum of 4 credits for the year (i.e., with annual
earnings of $4,200 or more).
The Social Security program is financed primarily by mandatory payroll taxes levied on wages
and self-employment income. Most jobs in the United States are covered under Social Security
(about 96% of the work force is required to pay Social Security payroll taxes). In 2008, Social
Security-covered workers and their employers each pay 6.2% of earnings up to $102,000 (this
amount is adjusted annually according to wage growth). The self-employed pay 12.4% on net
self-employment income up to $102,000 and may deduct one-half of payroll taxes from federal
income taxes. The following workers are exempt from Social Security payroll taxes:
• State and local government workers who participate in alternative retirement
systems,
• Election workers who earn less than $1,300 per year,
• Ministers who elect not to be covered, and members of certain religious sects,
• Federal workers hired before 1984,
• College students who work at their academic institutions,
• Household workers who earn less than $1,500 per year, or for those under age
18, for whom household work is not their principal occupation, and
• Self-employed workers who have annual net earnings below $400.
In 2006, an estimated 13.9 million noncitizens were in the U.S. labor force comprising ³
approximately 9.2% of the labor force. Aliens who work in Social Security-covered employment

¹^T^h^{e S}^o^ci^al^S^ecu^ri^t^y^p^r^o^g^ramⁱ^s^a^d^mⁱⁿⁱ^st^ered^b^y^t^h^{e S}^o^ci^al^S^ecu^ri^t^y^A^d^mⁱⁿⁱ^st^ratⁱ^oⁿ^(S^S^A^).^S^S^A^al^so^ad^mⁱⁿⁱ^st^{ers t}^h^e
^Su^p^p^lem^eⁿ^t^{al Secu}^rity^In^co^m^e^{(SSI) p}^r^o^g^ra^m^,^a^m^e^ans^-^t^e^s^te^d^eⁿ^titl^e^m^eⁿ^{t prog}^ra^m^.^Elig^ibility^re^quire^m^e^{nts f}^o^r
^noncⁱ^tiz^eⁿ^s^dif^f^e^{r unde}^{r S}^o^cⁱ^a^l^Se^c^u^rity^a^{nd SSI.}^{For m}^o^re^inf^o^rm^a^t^ion^onⁿ^onc^itiz^eⁿ^e^l^ig^ibility^f^o^{r SSI, s}^e^e^CRS
^R^e^por^{t R}^L³³⁸⁰^9,^N^onc^itiz^eⁿ^Eli^g^ibility^f^o^r^Fe^de^r^a^{l Pu}^blic^As^sⁱ^s^t^an^c^e^:^Polic^y^O^v^e^r^vⁱ^e^w^{and Tr}^eⁿ^ds^,^by^{Ruth Elle}ⁿ
^Wa^s^e^m^.
²^An^alieⁿ^is^“^aⁿ^y^pe^r^s^on^not^a^c^iti^z^eⁿ^or^na^ti^ona^l^of^the^Uⁿⁱ^t^e^d^S^t^a^t^e^s^”^a^{nd is}^s^y^nony^m^ous^w^ithⁿ^onc^itizeⁿ^.
^A^lⁱ^eⁿ^s^/^N^oⁿ^cⁱ^tⁱ^zen^{s i}ⁿ^cl^ud^{es t}^h^o^s^{e w}^h^o^{are l}^e^gal^l^y^p^r^esen^t^an^d^t^h^o^s^{e w}^h^o^{are i}ⁿ^vi^o^l^atⁱ^o^{n o}^f^t^h^{e Imm}ⁱ^gratⁱ^oⁿ^an^d
^Na^tiona^lity^Ac^{t (IN}^A⁾^.
³^C^a^lc^ula^tions^pe^r^f^or^m^e^{d b}^y^the^C^ong^r^e^s^sⁱ^ona^{l R}^e^s^e^a^r^c^h^Se^r^v^ic^e⁽^C^R^S⁾^us^ing^t^h^e^a^v^e^r^a^g^e^o^f^the^m^onthly^C^u^r^r^e^nt
⁽^c^onti^nue^d.^..)

must pay Social Security payroll taxes, including those who are in the United States working ⁴
temporarily and those who may be working in the United States without authorization. There are
some exceptions. Generally, the work of aliens who are citizens of a country with which the
United States has a “totalization agreement” (see below) is not covered by Social Security if they
work in the United States for less than five years. In addition, by statute, the work of aliens under ⁵
certain visa categories (such as H-2A agricultural workers, F and M students) is not covered by
Social Security.
Currently, there are no official published data on the amount of money paid into the Social
Security system by aliens, either legal or unauthorized. It is important to note that an alien may be
authorized to be in the United States, but not authorized to work. Therefore, an alien who does ⁶
not have work authorization is not necessarily an illegal alien. The Social Security
Administration (SSA) maintains an “earnings suspense file” that represents an estimated $520
billion in wages that cannot be posted to individual work records because the names and Social
Security numbers (SSNs) on wage reports submitted by employers to SSA (W-2 forms) do not ⁷
match SSA’s records. The mismatched information may be due to typographical or other clerical
errors (such as a misspelled name or an individual’s failure to report a new married name to
SSA), as well as to the use of invalid or stolen Social Security numbers by aliens who are
working in the United States without authorization. There is no official published data on the
amount of wages posted to the earnings suspense file that is directly attributable to aliens who are
working in the United States without authorization based on fraudulent documents. However,
SSA Inspector General Patrick P. O’Carroll stated in testimony before Congress that “we believe
the chief cause of wage items being posted to the [earnings suspense file] instead of an ⁸
individual’s earnings record is unauthorized work by noncitizens.” SSA’s Office of the Chief
Actuary estimates that about 5.6 million unauthorized immigrants are working and paying Social ⁹
Security taxes in 2007.

^(...c^on^tin^ue^d)
^Pop^u^la^tio^{n S}^u^r^v^e^y^s⁽^C^P^S^’^s⁾^f^o^r²⁰⁰⁶^{. T}^h^e^C^P^S^doe^s^not^inc^l^ude^a^v^a^rⁱ^a^b^le^{on im}^mⁱ^g^r^a^{tion s}^t^a^t^us^.
⁴^F^o^r^S^o^ci^al^S^ecu^ri^t^y^p^a^y^r^o^l^l^t^a^xes^t^o^b^e^wⁱ^t^h^h^e^l^d^f^r^o^m^w^a^g^e^s,^a^w^o^rker^m^u^st^p^r^o^vⁱ^d^{e a S}^o^ci^al^S^ecu^ri^t^yⁿ^u^m^b^{er (S}^S^N⁾
^{to h}ⁱ^s^/^he^r^e^m^ploy^e^r^.^Aⁿ^a^lie^{n w}^{ho is}^w^o^r^k^ing^{in t}^h^e^Uⁿ^ite^{d Sta}^t^e^s^w^{ithout a}^u^t^hor^iz^a^tion⁽¹⁾^m^a^y^ha^v^e^aⁿ^SSN^b^ecau^se
^he^/s^he^w^o^r^k^e^d^{in t}^h^e^Uⁿ^ite^d^Sta^t^e^s^le^g^a^ll^y^a^{nd the}ⁿ^f^e^{ll o}^u^{t of}^s^t^a^t^u^s^{; or}⁽²⁾^m^a^y^ha^ve^obtaⁱ^ne^d^aⁿ^S^S^N^f^r^a^uduleⁿ^tly^.
⁵^Mos^t^of^the^s^e^no^nim^m^ig^r^a^{nt v}ⁱ^s^a^c^a^t^e^g^or^ie^s^a^r^e^defⁱ^ne^{d in}^§1⁰¹⁽^a⁾⁽¹⁵⁾^of^the^I^N^A^.^T^h^e^s^e^vⁱ^s^a^c^a^t^egor^ie^s^a^r^e
^c^o^m^m^onl^y^r^e^f^e^r^r^e^{d to by}^the^le^tte^r^a^nd^num^e^r^a^l^tha^t^deⁿ^o^te^s^theⁱ^r^S^ubs^e^c^tio^{n in}^§¹⁰¹⁽^a⁾⁽¹⁵⁾^{, e}^.^g^{., B}^-^{2 to}^ur^is^ts^,^E-²
^tr^e^a^t^y^inv^e^s^t^or^s^,^F-^{1 f}^o^r^e^ig^{n s}^t^u^d^eⁿ^ts^{, H}^-^1B^te^m^por^a^r^y^pr^of^e^s^sⁱ^ona^{l w}^o^r^k^e^r^s^,^J^-^{1 c}^u^ltu^r^a^{l e}^x^c^h^aⁿ^g^e^pa^r^tic^ipaⁿ^ts^,^or^S-⁴
^terro^{rist in}^f^o^rm^an^ts.
⁶^F^o^{r exam}^p^l^e,^an^alⁱ^eⁿ^p^r^esen^tⁱⁿ^t^h^{e Un}ⁱ^t^e^{d S}^t^at^{es on}^{a B-2 t}^o^u^rⁱ^s^t^vi^sa^m^a^y^r^e^m^aⁱⁿⁱⁿ^t^h^{e Uni}^t^e^d^S^t^at^{es f}^o^{r si}^x
^m^onths^{, b}^u^{t is}^not^le^g^a^lly^pe^r^m^itt^e^d^{to w}^o^rk^{. In a}^ddi^tio^{n, t}^h^e^s^p^ous^e^s^of^m^o^s^t^tem^pora^r^y^nonc^itiz^eⁿ^w^o^rk^e^r^s^{do n}^o^t^ha^v^e
^em^ploy^m^e^{nt a}^u^th^oriz^a^tio^{n. F}^o^{r m}^o^re^inf^o^rm^a^{tion o}ⁿ^w^h^ic^{h c}^a^t^e^g^orie^s^of^nonc^itiz^eⁿ^a^r^e^eⁿ^title^d^{to w}^o^rk^{in t}^h^e^Uⁿ^ite^d
^S^t^at^es,^{see CRS}^Rep^o^r^t^RL³¹³⁸¹^,^U^.^{S. I}^m^mⁱ^gr^ati^oⁿ^Polⁱ^c^y^on^Te^m^por^ar^y^A^d^mⁱ^s^sⁱ^oⁿ^s^{, by}^C^h^a^d^C^.^H^a^dda^{l a}ⁿ^{d R}^u^t^h
^Elle^{n W}^a^se^m^.
⁷^A^nnua^lly^{, SSA}^r^e^vⁱ^ew^s^W^-^{2 f}^o^r^m^s^a^{nd c}^r^e^d^its^S^o^cⁱ^a^l^Se^c^u^r^ity^-^c^ov^e^r^e^d^e^a^r^ning^s^{to w}^o^r^k^e^r^s^.^I^f^a^nam^e^or^SSN^{on a}
^W^-^{2 f}^o^r^m^doe^s^not^m^a^tc^{h SSA}^’^s^r^e^c^o^r^d^s^,^the^e^a^rⁿⁱ^ng^s^c^r^e^d^its^g^oⁱⁿ^{to a}ⁿ^e^a^rⁿⁱ^ng^{s suspe}ⁿ^se^f^ile^w^h^ile^SSA^a^tte^m^p^{ts to}
^re^c^onc^ile^the^dis^c^re^pa^nc^y^.^T^h^e^fⁱ^gure^s^how^{n he}^re^re^pre^s^eⁿ^ts^t^h^e^a^m^oun^{t of}^w^a^ge^s^(f^ro^m^{255 m}^illion^w^a^g^e^item^s^{) pos}^te^d
^{to t}^h^e^e^a^r^ning^s^s^u^s^p^eⁿ^s^e^f^ile^thr^o^u^g^h^ta^x^y^e^a^r^2003,^a^s^of^O^c^tobe^r²⁰⁰⁵^.
⁸^Sta^t^e^m^eⁿ^{t of}^the^H^onor^a^b^le^P^a^trⁱ^c^k^P^.^O^’^C^a^r^r^o^l^l^{, I}ⁿ^s^p^e^c^t^or^G^e^ne^r^a^{l, Soc}ⁱ^a^l^Se^c^u^r^ity^A^d^mⁱ^nis^t^r^a^tion,^B^e^f^o^r^e^the
^Subc^om^m^itte^e^{on O}^v^e^r^sⁱ^g^h^{t of}^the^H^ous^e^C^o^m^m^itte^e^{on W}^a^y^s^a^{nd Me}^aⁿ^s^,^Fe^br^ua^r^y^{16, 2}⁰⁰⁶^{. T}^h^e^t^e^s^tⁱ^m^ony^is
^a^v^a^ila^ble^f^r^o^m^the^c^o^m^m^itte^e^w^e^bsite^a^t^ht^tp:/^/w^a^y^sa^ndm^e^aⁿ^s.hou^se^.g^ov^/
^he^a^r^ing^s^.a^s^p^?^f^or^m^m^ode⁼^p^rⁱ^ntf^r^iendly^&^id=⁴⁷¹^{0, v}ⁱ^s^ite^{d J}^une^22,²⁰⁰⁷^.
⁹^Unp^ublis^he^{d e}^s^tim^a^t^e^b^y^SSA^’s^Offⁱ^c^e^of^the^Chie^f^Ac^tua^r^y^.

Workers become eligible for Social Security benefits when they meet the insured status and age ¹⁰
requirements specified in the Social Security Act. They become entitled to benefits when they
have met all of the eligibility requirements and filed an application for benefits. Because Social
Security is an earned entitlement program, there are few restrictions on benefit payments once a
worker becomes entitled to benefits. The Social Security Act does prohibit the payment of ¹¹
benefits to: individuals residing in certain countries; individuals confined to a jail, prison, or
certain other public institutions for commission of a crime; most individuals removed from the ¹²
United States (i.e., deported); aliens residing in the United States unlawfully; and, in some
cases, aliens residing outside the United States for more than six months at a time.
On March 2, 2004, the President signed into law the Social Security Protection Act of 2004 (P.L.
108-203, H.R. 743). Among other changes, P.L. 108-203 restricts the payment of Social Security
benefits (retirement, survivors, and disability benefits) to certain noncitizens who file an
application for benefits based on an SSN assigned on or after January 1, 2004. Specifically, a
noncitizen who files an application for benefits based on an SSN assigned on or after January 1,

2004, is required to have work authorization at the time an SSN is assigned, or at some later time,

to gain insured status under the Social Security program (see Section 214(c) of the Social ¹³
Security Act). If the individual had work authorization at some point, all of his/her Social
Security-covered earnings would count toward insured status. If the individual never had
authorization to work in the United States, none of his/her earnings would count toward insured
status and Social Security benefits would not be payable on his/her work record (i.e., benefits ¹⁴
would not be payable to the worker or to the worker’s family).
A noncitizen who files an application for benefits based on an SSN assigned before January 1,
2004, is not subject to the work authorization requirement under P.L. 108-203. All of the
individual’s Social Security-covered earnings would count toward insured status, regardless of
his/her work authorization status.
The treatment of unauthorized earnings for Social Security purposes is an issue of current
legislative interest. In June 2007, the Senate approved an amendment to the Comprehensive
Immigration Reform Act of 2007 that would preclude earnings credits based on work performed
without authorization in 2004 or later (with respect to individuals who are assigned an SSN in

¹⁰^{In t}^h^e^c^a^s^e^of^disa^bility^be^ne^f^{its, a}^w^o^rk^e^r^{is e}^lig^ible^f^o^{r be}^ne^f^{its whe}ⁿ^he^/s^he^ha^{s m}^e^{t insure}^{d sta}^t^us^re^quire^m^e^nts
^a^{nd e}^s^ta^blis^he^{d a}^pe^rⁱ^od^of^dis^a^bil^ity^.
¹¹^U^.^{S. T}^r^e^a^s^ur^y^De^pa^r^t^m^e^{nt r}^e^g^u^la^tions^or^S^o^cⁱ^a^l^Se^c^u^r^ity^r^e^s^t^rⁱ^c^tio^ns^pr^ohi^bit^pa^y^m^eⁿ^ts^{to i}^ndivⁱ^d^u^a^l^s^liv^ing^{in C}^uba^,
^D^e^m^o^c^r^a^tic^K^a^m^puc^he^a⁽^f^or^m^e^r^l^y^C^a^m^bodia⁾^{, N}^o^r^t^{h K}^o^r^e^a^,^Vie^tⁿ^a^m^a^{nd a}^r^e^a^s^{in the}^f^o^r^m^e^r^Sovⁱ^e^t^Uⁿ^io^{n (}^e^x^c^ludi^ng
^A^r^m^e^nia^,^Es^tonia^,^L^a^tv^ia^{, L}^ithua^nia^,^aⁿ^{d R}^u^s^sⁱ^a⁾^.
¹²^On^{e excep}^tⁱ^oⁿ^w^o^u^l^d^b^e^alⁱ^eⁿ^s^w^h^o^{are rem}^o^ved^oⁿ^st^at^u^s^vi^o^l^atⁱ^oⁿ^s⁽ⁱ^.^e^.^,^rem^o^ved^f^r^o^m^t^h^{e Un}ⁱ^t^e^d^S^t^at^{es b}^ecau^se
^th^ey^{are ille}^g^a^ll^y^p^r^esen^{t, n}^o^t^b^ecau^{se th}^ey^h^a^v^e^co^mmitted^{a crime}⁾^.
¹³^T^h^e²⁰⁰^{4 la}^w^prov^ide^s^e^x^c^e^p^tion^s^{to t}^h^e^w^o^rk^a^u^thoriz^a^tio^{n re}^q^u^ir^em^eⁿ^{t f}^o^{r c}^e^r^ta^{in nonc}ⁱ^tiz^eⁿ^s^(i.e^.^,^no^nc^itiz^eⁿ^s
^w^{ho a}^r^e^a^d^m^itte^{d to the}^Uⁿ^ite^{d S}^t^a^t^e^s^unde^{r a}^{B v}ⁱ^s^a^(f^{or b}^u^sⁱ^ne^s^s^pur^pos^e^s^{) or D}^vⁱ^s^a^(f^{or s}^e^rv^ic^e^as^a^c^r^ew^m^e^m^b^e^r)
^at^t^h^{e t}ⁱ^m^{e q}^u^a^rt^{ers o}^f^co^verag^e^a^r^{e earn}^e^d⁾^.
¹⁴^Bef^o^{re en}^act^m^eⁿ^t^o^f^P^.^L^.¹⁰⁸^-²⁰³^,^al^l^S^o^ci^al^S^ecu^ri^t^y^-co^v^er^ed^earⁿⁱⁿ^g^{s w}^o^u^l^d^c^o^un^t^t^o^w^a^rdⁱⁿ^su^{red st}^at^u^s^regard^l^e^ss
^of^aⁿ^a^lie^n’^s^w^o^r^k^a^u^thor^iz^a^tio^{n s}^t^a^t^us^.

2004 or later). For more information, see the section of the report titled “Legislation in the 110^th

Congress.”
The following table summarizes the treatment of unauthorized earnings for Social Security
purposes under current law.
Treatment of Unauthorized Earnings for Social Security Purposes
^{Current Law}
^•^{The treatme}^{nt of u}^naut^{horized earnings for Social Security p}^urpos^{es differs, depending on}^whe^{n an}^{individual is}
^{assigned a Social Security numbe}^r^{(SSN). Individuals who were assigned an SSN}^{before 2}⁰⁰⁴^are^not^req^{uired to}
^{have aut}^{horization to work in th}^{e United States at any}^{point to q}^{ualify for Social Security benefits.}^Individuals
^{who are assigned a}ⁿ^{SSN in 2}⁰⁰⁴^{or later are re}^{quired to ha}^{ve work aut}^{horization at some point to qualify for}
^benefits.
^{Individuals Assigned an}^{SSN Before 2004}
^•^{All Soc}^{ial Security-covered earnings are c}^{redited for pu}^{rposes of}^{qualifying for}^{benefits, regardless}^{of an}
^individual^{’s work authorization status (an individual is not req}^{uired to have work a}^{uthorization at an}^{y point to}
^{count all earnings}^{for Social Security pur}^poses).
^{Individuals Assigned an}^{SSN in 2004 or Later}
^•^{With respect}^{to bene}^{fit applicati}^{ons based on a}ⁿ^{SSN assigned on}^{or after Ja}^nua^{ry 1,}²⁰^{04, an indiv}^{idual must}
^{have work a}^{uthorization when a}ⁿ^{SSN is assigned, or at any later ti}^{me, to gain insured stat}^{us u}^nder^{the Social}
^{Security program.}

^{If an individual has work a}^uthoriz^{ation at some point,}^all^{of his/her}^Social^{Security-covered earnings}^{count toward}
^{qualifying for}^{benefits (all authori}^{zed and una}^{uthorized earnings).}

^{If an individual never}^{obtains wor}^{k authorization,}^none^{of his/her S}^{ocial Security-covered earnings c}^{ount toward}
^{qualifying for}^benefits.
The treatment of unauthorized earnings for Social Security purposes differs, depending on
whether an individual was assigned an SSN before 2004, or in 2004 or later. The policy with
respect to SSN assignment for noncitizens was changed in late 2003. Noncitizens who are
authorized to work in the United States by DHS can be assigned an SSN. Noncitizens who are not
authorized to work can be assigned an SSN for a valid nonwork reason. Following a regulatory
change that went into effect in late 2003, the only valid nonwork reason for assignment of an SSN
would be if an individual needs an SSN to receive federal, state, or local government benefits to
which he/she has otherwise established entitlement [see 20 C.F.R. 422.104]. Before the regulatory
change, the policy for assignment of nonwork SSNs was less restrictive, and noncitizens could be ¹⁵
assigned an SSN for a variety of nonwork purposes, such as to obtain a driver’s license.
Section 202(y) of the Social Security Act requires noncitizens in the United States to be “lawfully ¹⁶
present” to receive benefits. If a noncitizen is entitled to benefits, but does not meet the lawful

¹⁵^T^h^e^re^g^u^la^{tion is}^a^v^a^ila^ble^oⁿ^t^h^e^SSA^w^e^bs^ite^a^t^http^://w^w^w^.s^s^a^.gov^/O^P_H^o^m^e^/cf^r^20/^422/⁴²^2-0¹⁰⁴^.htm^{, v}ⁱ^s^ite^d
^J^une²²^,²⁰^07.
¹⁶^T^h^e^de^fⁱ^nition^of^“^l^a^w^f^u^ll^y^pr^e^s^ent”^is^pr^ov^ide^dⁱⁿ^A^ppeⁿ^dⁱ^x^B^{. T}^h^e^la^w^f^{ul pr}^e^s^eⁿ^c^e^r^e^quir^e^m^e^{nt w}^a^s^a^dde^{d by}^the
⁽^c^onti^nue^d.^..)

presence requirement, his/her benefits are suspended. In such cases, a noncitizen may receive
benefits while residing outside the United States (including benefits based on work performed in
the United States without authorization) if he/she meets one of the exceptions to the “alien
nonpayment provision” under Section 202(t) of the Social Security Act. Under the alien
nonpayment provision, a noncitizen’s benefits are suspended if he/she remains outside the United ¹⁷¹⁸
States for more than six consecutive months, unless one of several broad exceptions is met.
For example, an alien may receive benefits outside the United States if he/she is a citizen of a
country that has a social insurance or pension system that pays benefits to eligible U.S. citizens
residing outside that country (a “social insurance country”), or if he/she is a citizen or resident of
a country with which the United States has a totalization agreement (see Table 1). If an alien does
not meet one of the exceptions to the alien nonpayment provision, his/her benefits are suspended
beginning with the seventh month of absence and are not resumed until he/she returns to the
United States lawfully for a full calendar month.
In addition, to receive payments outside the United States, alien dependents and survivors must
have lived in the United States for at least five years previously (lawfully or unlawfully), and the
family relationship to the worker must have existed during that time (see Table 2). The law
provides several broad exceptions to the five-year U.S. residency requirement for alien
dependents and survivors. For example, an alien is exempt from the five-year U.S. residency
requirement if he/she is a citizen of a “treaty obligation” country (i.e., if nonpayment would be
contrary to a treaty between the United States and the individual’s country of citizenship), or if
he/she is a citizen or resident of a country with which the United States has a totalization
agreement (see Table 3).
Table 1. Exceptions to the Alien Nonpayment Provision
for Workers and Dependents/Survivors
^{An alien’}^{s bene}^{fits are s}^uspe^{nded if he/she}^{is outside the United St}^{ates for more t}^{han six}^consec^{utive months, u}^nless
^{one of the following exceptions i}^s^met:
^•^{the individual is a citizen of a country t}^{hat has}^{a social insuran}^{ce or pe}^{nsion system}^under^which^be^{nefits are}^paid
^{to eligible U}^.^S^.^{citizens who reside outside that cou}^{ntry (for e}^xam^{ple, Brazil}^{, Finland, Mexico, Phi}^lip^{pines and}
^{Turkey; see}^{Appendix A}^{for a c}^{omplete list of countries)}
^•^{the individual is entitled to benefits on the ea}^rnings^{record of a wo}^{rker who lived in the U}^{nited States for at least}
^{10 yea}^{rs or ear}^{ned at least}⁴⁰^qu^{arters of coverage}^unde^{r the}^U.S.^Social^{Security system (e}^{xception does not}
^{apply if the}^{individual is a citizen}^{of a country}^{that does}^{not provide social insurance or}^pen^{sion syst}^{em payme}^nts
^{to eligible U}^.^S^.^{citizens who reside outside that cou}^ntry)
^•^{the individual is entitled to benefits on the ea}^rnings^{record of a wo}^{rker who}^{had railroad employment covered}
^{by Social Security}
^•^{the individual is outside the United States while in the active military or naval se}^{rvice of the U}^{nited States}

^(...c^on^tin^ue^d)
^P^e^rs^oⁿ^a^l^Re^s^p^oⁿ^sⁱ^b^ility^a^{nd W}^o^rk^O^pport^uni^ty^Re^c^onc^ilia^{tion A}^c^{t of}¹⁹^{96 (}^P^.L^{. 10}^4-¹⁹³^{) a}ⁿ^d^the^I^l^le^g^a^{l I}^m^mⁱ^g^r^a^tion
^Re^f^o^r^m^a^{nd Im}^mⁱ^g^r^aⁿ^{t Re}^s^pons^ib^ility^A^c^{t of}^{1996 (}^P^.L^{. 1}^04-²⁰^8).^{For m}^o^re^inf^o^rm^a^{tion, s}^e^e^the^s^e^c^tion^of^the^re^p^o^rt
^title^{d “}^L^e^g^isla^tiv^e^Histor^y^of^P^a^y^m^eⁿ^{t Rule}^{s f}^o^{r Nonc}^itiz^eⁿ^s.”
¹⁷^“Ou^t^si^d^e^t^h^{e Un}ⁱ^t^e^{d S}^t^at^{es” m}^e^aⁿ^{s ou}^t^sⁱ^d^{e t}^h^{e t}^e^rri^t^o^ri^al^bo^un^d^a^ri^{es o}^f^t^h^{e 5}⁰^S^t^at^es,^t^h^{e Di}^st^ri^ct^o^f^Co^l^u^m^bⁱ^a^,^P^u^ert^o
^Ri^co^,^t^h^{e U}^.^S^.^Vⁱ^rgiⁿ^Isl^aⁿ^d^s^,^G^u^a^m^,^t^h^{e No}^rt^h^e^rⁿ^M^a^ri^an^{a Isl}^aⁿ^d^s^,^an^d^A^m^eri^c^an^S^a^m^o^a.
¹⁸^T^h^e^sⁱ^x^-^m^{onth pe}^rⁱ^od^of^a^b^s^e^nc^e^be^gⁱ^ns^w^{ith the}^fⁱ^r^s^{t f}^u^{ll c}^a^l^e^nda^r^m^{onth f}^o^llowⁱ^ng^the^pe^rⁱ^odⁱⁿ^w^h^ic^{h t}^h^e
ⁱⁿ^dⁱ^vi^du^al^h^a^{s b}^een^o^u^t^si^d^e^t^h^{e U}ⁿⁱ^t^e^d^S^t^at^{es f}^o^{r m}^o^{re t}^h^an³⁰^co^nsecu^tⁱ^v^{e d}^a^y^s^.^If^t^h^{e i}ⁿ^dⁱ^vi^d^u^a^l^ret^u^rn^{s t}^o^t^h^{e Un}ⁱ^t^e^d
^Sta^t^e^s^f^o^r^aⁿ^y^pa^r^t^of^a^day^dur^ing^the³⁰^-^d^a^y^pe^rⁱ^od,^the^30-^da^y^pe^rⁱ^{od s}^t^a^r^ts^ov^e^r^.

^•^{the individual is entitled to benefits on the ea}^rnings^{record of a wo}^{rker who died while in the U.S. military}
^{service or as a re}^{sult of a se}^{rvice-connected disease or injury}
^•^{the non}^payme^{nt of b}^{enefits woul}^{d be contra}^{ry to a treaty o}^bligati^{on of the United States in e}^ffect^{as of August}^1,
¹⁹⁵^{6 (i.e., the individual is a cit}^ize^{n of a treaty}^{obligation country; s}^ee^{Appendix A}^{for a list of cou}^ntries)
^•^{the individual is a citizen or resid}^{ent of a cou}^{ntry with}^which^the^{United States has a totalization a}^{greement (see}
^{Appendix A}^for^{a list of countri}^es)
^•^{the individual was eligible for Soc}ⁱ^{al Security bene}^{fits as of Decem}^b^{er 1}⁹⁵⁶
^Source:^{Section 20}^{2(t) of the So}^{cial Security Act.}
Table 2. Additional Residency Requirement for Alien Dependents/Survivors Outside
the United States
^{In addition to the req}^uirement^{s in}^{Table 1}^{, to receive payme}^nts^{outside the United States, an alien}
^dependent/s^{urvivor m}^ust^{have lived in the United States for at leas}^{t five years (lawfully or u}^{nlawfully) under one}^{of the}
^follow^{ing circumstanc}^es:
^{A spo}^{use, divorced sp}^{ouse, w}^{idow(er), su}^{rviving divorced}^{spouse, or s}^{urviving divor}^ced^{mother o}^r
^father:
^{must ha}^{ve resided in the}^United^{States for at least five years a}^{nd t}^{he spou}^{sal relationship to the wo}^{rker m}^ust
^{have existed du}^{ring that}^time
^{A child:}
^{must ha}^{ve resided in the}^United^{States for at least five years a}^s^th^{e child of the worker; or}
^{the worker a}^{nd the}^{child’s other}^parent^{(if any) eac}^{h mus}^{t have}^{either re}^{sided in the United States f}^{or at least}
^{five years or died while residing in the U}^{nited States}
^{An ad}^{opted child:}
^{must ha}^{ve be}^{en adopted in t}^{he U}^{nited States;}^and
^{lived in the United States with th}^{e worker;}^and
^{received at least half of his or}^her^sup^{port from t}^{he worke}^{r in th}^e^{year before}^{the worke}^{r’s entitlement or death}
^Source:^{Section 20}^{2(t) of the So}^{cial Security Act.}
Table 3. Exceptions to the Additional Residency Requirement
for Alien Dependents/Survivors Outside the United States
^{An alien depende}^nt/su^{rvivor living outside the United States is not}^{subject to t}^{he five-year U.S. residency re}^quireme^nt
^{if one of the following exceptions}^{is met:}
^{the individual was eligible for Soc}ⁱ^{al Security bene}^{fits before}^Jan^uar^{y 1, 1}⁹⁸⁵
^{the individual is entitled to benefits on the ea}^rnings^{record of a wo}^{rker who died while in the U.S. military}
^{service or as a re}^{sult of a se}^{rvice-connected disease or injury}
^{the non}^payme^{nt of b}^{enefits woul}^{d be contra}^{ry to a treaty o}^bligati^{on of the United States in e}^ffect^{as of August}^1,
¹⁹⁵^{6 (i.e., the individual is a cit}^ize^{n of a treaty}^{obligation country; s}^{ee list of countries in}^A^{ppendix A}⁾
^{the individual is a citizen or resid}^{ent of a cou}^{ntry with}^which^the^{United States has a totalization a}^greement,
^{unless othe}^{rwise specified in th}^e^{agreement (see}^{list of countries i}ⁿ^Ap^{pendix A}⁾
^Source:^{Section 20}^{2(t) of the So}^{cial Security Act.}
^Note:^Al^{iens who live abroad may not receive}^paymen^{ts in cou}^nt^{ries to which th}^{e U.S. Treasury}^Department^is
^{prohibited from mailing be}^{nefit c}^{hecks. See}^{Your Payment}^{s While Y}^{ou Are Outside the United States}^(u^pdated
^Janua^{ry 2}⁰⁰^{6) on t}^{he SSA websit}^{e at http://www.ssa.gov/pu}^bs/¹⁰¹^{37.html, visited June}^22,²⁰^07.

When the Social Security program began paying benefits in 1940, there were no restrictions on
benefit payments to noncitizens. In 1956, amid concerns that noncitizens were working in the
United States for relatively short periods and returning to their native countries where they and
their family members would collect benefits for many years, Congress enacted restrictions on
benefits for alien workers living abroad (restrictions did not apply to alien dependents and
survivors). The Social Security Amendments of 1956 (P.L. 84-880) required noncitizens to reside
in the United States to receive benefits and suspended benefits if the recipient remained outside
the United States for more than six consecutive months, with broad exceptions (see Table 1).
In 1983, Congress placed restrictions on benefit payments to alien dependents and survivors
living abroad. The Social Security Amendments of 1983 (P.L. 98-21) made dependents and
survivors subject to the same residency requirement as workers (described above) and further
required that they (or their parents, in the case of a child’s benefit) must have lived in the United
States for at least five years, with broad exceptions (see Table 2 and Table 3).
Several factors led to the enactment of tighter restrictions on benefit payments to alien dependents
and survivors living abroad in 1983, including the large number of dependents that were being
added to the benefit rolls (in some cases under fraudulent circumstances) after workers had
returned to their native country and become entitled to benefits, and difficulties associated with
monitoring the continued eligibility of recipients living abroad.
At the time, the General Accounting Office (GAO, now named the Government Accountability
Office) estimated that, of the 164,000 dependents living abroad in 1981, 56,000 were added to the
benefit rolls after the worker became entitled to benefits. Of that number, an estimated 51,000 (or ¹⁹
91%) were noncitizens. Two years earlier, the Social Security Commissioner stated that SSA
investigators had found evidence that some recipients living abroad were faking marriages and
adoptions and failing to report deaths in order to “cheat the system.” At the time, the
Commissioner stated that such problems were particularly acute in Greece, Italy, Mexico and the
Philippines where large numbers of beneficiaries were residing. He stated further that, in some
countries, “there is a kind of industry built up of so-called claims-fixers who, for a percentage of
the benefit, will work to ensure that somebody gets the maximum benefit they can possibly get ²⁰
out of the system.”
In 1996, Congress enacted tighter restrictions on the payment of Social Security benefits to aliens
residing in the United States. The Personal Responsibility and Work Opportunity Reconciliation ²¹
Act of 1996 (PRWORA) prohibited the payment of Social Security benefits to aliens in the
United States who are not lawfully present, unless nonpayment would be contrary to a totalization ²²
agreement or Section 202(t) of the Social Security Act (the alien nonpayment provision). This

¹⁹^G^e^ne^r^a^l^A^c^c^ountiⁿ^g^O^f^fⁱ^c^e^,^Issue^s^Conc^e^rⁿⁱⁿ^g^S^o^cⁱ^al^Se^c^u^rity^Be^ne^{fits Pa}^{id t}^o^A^lie^ns^{, G}^A^O^/H^R^D^-^83-^32,^Ma^r^c^{h 2}⁴^,
¹⁹⁸^{3, a}^v^a^ila^ble^a^t^http^://a^rc^hiv^e^.g^a^o^.g^ov^/d4⁰^t1^2/¹²⁰⁸⁹^5.^pdf^{, v}ⁱ^site^{d Ju}^ne²²^{, 2}⁰⁰⁷^.
²⁰^{CRS Issu}^{e Brief}^IB8²⁰⁰¹^,^S^o^cⁱ^al^Se^c^u^rity^{: Alie}ⁿ^Be^ne^ficⁱ^a^rie^s^{, by}^D^a^vⁱ^{d K}^o^itz⁽^o^{ut of}^prⁱⁿ^{t; a}^v^a^ila^b^l^e^f^r^o^m^D^a^wⁿ
^N^u^s^c^hle^r^or^A^lis^on^Sis^kⁱⁿ^{on r}^e^qu^e^s^t)^.
²¹^P^.^L^.¹⁰^4-¹⁹³^,^§⁴⁰¹⁽^b)⁽²⁾^.
²²^A^l^so^,^uⁿ^d^e^r^P^R^W^O^RA^,^f^e^d^e^ral^a^g^en^ci^{es t}^h^at^ad^mⁱⁿⁱ^st^{er “}^f^ed^eral^p^u^b^lⁱ^c^b^eⁿ^e^fⁱ^t^s^{” are req}^uⁱ^red^t^o^repo^rt^t^o^t^h^e
^D^e^pa^r^t^m^e^{nt of}^H^o^m^e^la^{nd Se}^c^u^r^ity⁽^D^H^S⁾^inf^o^r^m^a^{tion on a}ⁿ^y^a^lie^{n tha}^t^{is k}ⁿ^o^wⁿ^to^be^uⁿ^la^wf^ully^pr^e^s^eⁿ^{t in t}^h^e^Unite^d
^S^t^at^es.⁽^P^.^L^.¹⁰⁴^-¹⁹³^,^§⁴⁰⁴⁾^.^No^net^h^el^ess,^t^hⁱ^s^requⁱ^r^em^en^t^d^o^e^{s not}^ap^p^l^y^t^o^S^S^A^wⁱ^t^h^resp^ect^t^o^Tⁱ^t^l^{e II o}^f^t^h^{e S}^o^ci^al
^Se^c^u^rity^A^c^{t (Old-Ag}^e^{, Surv}^iv^ors^a^{nd Disa}^bi^lity^Insura^nc^e^P^r^og^ra^m⁾^.^Fe^de^{ral Re}^giste^r^{, v}^o^l.^65,ⁿ^o^.¹⁸⁹^{, Se}^p^t^e^m^be^r^28,
⁽^c^onti^nue^d.^..)

provision became effective for applications filed on or after September 1, 1996. Subsequently, the ²³
Illegal Immigration Reform and Immigrant Responsibility Act of 1996 added Section 202(y) to
the Social Security Act. Section 202(y) of the act, which became effective for applications filed
on or after December 1, 1996, states:
^No^t^wⁱ^t^h^s^tan^dⁱⁿ^g^an^y^o^t^h^e^r^p^r^o^v^isioⁿ^o^f^la^w^,ⁿ^o^m^oⁿ^t^h^l^y^b^eⁿ^e^f^it^uⁿ^d^er^[^T^{itle I}^I^o^f^th^e^So^cial
^Secu^rit^y^A^c^{t] s}^h^{all be pa}^y^a^ble^{to any}^alieⁿⁱⁿ^t^h^{e U}ⁿ^{ited State}^s^f^o^{r any}^m^oⁿ^t^h^du^riⁿ^g^w^h^ic^h
^su^c^h^alienⁱ^sⁿ^o^{t la}^w^f^u^l^l^y^p^r^eseⁿ^{t in}^t^h^{e Un}ⁱ^t^ed^{States as d}^e^t^e^r^mⁱⁿ^e^d^b^y^th^e^A^t^t^o^rⁿ^ey^G^eⁿ^e^r^a^l.
Noncitizens who reside outside the United States are subject to different rules regarding federal ²⁴
income tax treatment of Social Security benefits. U.S. citizens and resident aliens pay federal
income tax on a portion of their benefit if their income exceeds specified thresholds. Specifically,
they pay federal income tax on up to 50% of their benefit if their modified adjusted gross income
(adjusted gross income (AGI) plus tax-exempt interest income plus 50% of Social Security
benefits) is more than $25,000 but no more than $34,000 for a single person, or more than
$32,000 but no more than $44,000 for a married couple filing jointly. They pay federal income
tax on up to 85% of their benefit if their modified AGI is more than $34,000 for a single person or
more than $44,000 for a married couple filing jointly. These thresholds do not apply to married
couples who live together and file separate returns. Currently, about one-third of Social Security
recipients pay federal income tax on their benefits.
Noncitizens who live outside the United States pay federal income tax on their benefits without
regard to these thresholds. Section 871 of the Internal Revenue Code imposes a 30% rate of tax
withholding on the U.S. income of noncitizens who live outside the country (unless a lower rate is
established by treaty) because there is no practical way for the U.S. government to determine the
income of such persons. Under the withholding, noncitizens who reside outside the United States
pay 30% of the maximum taxable amount of Social Security benefits (85%) in federal income
taxes. For example, the tax withholding on an annual Social Security benefit of $12,000 would be ²⁵
$3,060 [($12,000 x 0.85) x 0.30].

^(...c^on^tin^ue^d)
²⁰⁰^{0, pp}^.⁵⁸³^01-⁵⁸³⁰^2.
²³^P^.^L.¹⁰⁴^-²⁰^8,^{§ 50}³⁽^a)^.
²⁴^R^e^sⁱ^de^{nt a}^lieⁿ^is^a^te^r^m^us^e^d^{in t}^a^x^law^.^Aⁿ^a^lie^{n is}^c^o^ns^ide^r^e^d^t^o^be^a^U^.^{S. r}^e^sⁱ^de^{nt f}^o^rⁱⁿ^c^o^m^e^ta^x^pur^pos^e^s^if^he^/s^he
⁽¹^{) i}^s^{a l}^a^w^f^u^l^p^e^r^m^an^en^t^resi^d^eⁿ^t^o^f^t^h^{e Un}ⁱ^t^e^{d S}^t^at^es.^at^an^y^tⁱ^m^e^d^u^rⁱⁿ^{g t}^h^{e cal}^en^d^a^{r y}^ear;⁽²^{) m}^eet^{s t}^h^{e req}^uⁱ^r^em^en^t^s
^o^f^t^h^{e “su}^b^s^t^aⁿ^tⁱ^a^l^p^r^esen^{ce” t}^e^st^;^o^r⁽³⁾^m^a^{kes t}^h^{e f}ⁱ^rst^-^{year el}^e^c^tⁱ^oⁿ^un^d^e^r²⁶^U^.^S^.^C.^§⁷⁷⁰¹⁽^b⁾⁽⁴⁾^an^d²⁶^C^.^F^.^R.
^{§ 3}^01.⁷⁷⁰¹⁽^b)^-⁴⁽^c⁾⁽³⁾^.^Aⁿ^a^lieⁿⁱ^ndivⁱ^d^u^a^l^m^e^e^t^s^the^s^ubs^taⁿ^tia^l^pr^e^s^eⁿ^c^e^te^{st if}^{: (1) the}^a^lie^{n is}^pre^s^eⁿ^{t in}^the^Un^ite^d
^Sta^t^e^s^f^o^r^a^t^le^a^s^{t 31}^da^y^s^dur^ing^the^c^a^l^e^nda^r^y^e^a^r^a^{nd (}²⁾^the^s^u^m^of^the^num^be^r^of^da^y^s^{on w}^h^ic^{h s}^u^c^hⁱ^ndivⁱ^d^u^a^l^w^a^s
^p^r^esen^{t in}^th^{e U.}^S.^d^u^rⁱⁿ^g^th^{e cu}^rr^en^{t y}^{ear an}^d^th^{e tw}^o^p^r^ecedⁱⁿ^g^calen^d^a^{r y}^{ears (}^w^h^eⁿ^m^u^ltip^lied^b^y^th^{e ap}^p^l^icab^le
^m^u^ltip^lier—oⁿ^e^f^o^{r t}^h^{e cu}^rren^t^y^{ear, o}ⁿ^e^-t^hⁱ^rd^f^o^{r th}^{e f}ⁱ^{rst p}^r^ecedⁱⁿ^g^y^{ear, an}^d^oⁿ^e^-six^th^f^o^{r t}^h^{e sec}^{ond pr}^ecedⁱⁿ^{g y}^ear)
^eq^u^a^l^s^o^r^exceed^{s 1}⁸³^d^a^y^s^.^E^v^en^t^h^ou^gh^{an al}ⁱ^eⁿⁱⁿ^dⁱ^vi^d^u^a^l^o^t^h^e^r^wⁱ^s^e^meet^{s t}^h^{e req}^uⁱ^rem^eⁿ^t^{s o}^f^t^h^{e su}^b^s^t^aⁿ^tⁱ^a^l
^pre^s^eⁿ^c^e^te^{st, the}^r^e^a^r^e^cⁱ^rc^um^staⁿ^c^e^s^w^h^eⁿ^aⁿ^a^lie^{n w}^{ill not}^be^c^o^nside^r^e^d^a^re^side^{nt of}^the^Uⁿ^ite^d^Sta^t^e^s^{. A}ⁿ^a^lieⁿ
^w^{ho doe}^sⁿ^o^t^qua^lif^y^unde^{r e}^ithe^r^of^the^s^e^te^s^t^s^w^{ill be}^tre^a^t^e^d^a^s^a^non^re^sⁱ^de^{nt a}^lie^{n f}^o^{r p}^u^rp^os^e^s^of^the^inc^o^m^e^ta^x^.
^[²⁶^U^.^S.C^.^{§ 77}⁰¹⁽^b)^]^.
²⁵^For^m^o^r^e^inf^o^r^m^a^{tion o}ⁿ^the^ta^x^a^tion^of^no^nc^itiz^eⁿ^s^,^s^e^e^C^R^S^R^e^p^o^r^t^R^S²¹⁷³^2,^Fe^de^r^a^{l T}^a^x^a^ti^on^of^Alie^ns^W^o^r^kⁱⁿ^g
^{in t}^h^e^Uⁿ^ite^d^St^ate^s^a^nd^Se^le^c^t^e^d^Le^gis^l^ati^oⁿ^{, by}^Er^ik^a^L^unde^r^.

As shown in Table 1 and Table 3, alien workers and alien dependents/survivors may receive
payments while living outside the United States if they are a citizen or resident of a country with ²⁶
which the United States has a totalization agreement. Section 233 of the Social Security Act
authorizes the President to enter into a totalization agreement with a foreign country to coordinate
the collection of payroll taxes and the payment of benefits under each country’s Social Security
system for workers who split their careers between the two countries. For example, without a
totalization agreement, an individual who is sent by a U.S. company to work in a foreign country
(and his or her employer) must contribute to the Social Security systems in both countries,
resulting in dual Social Security coverage and taxation based on the same earnings. With one
exception (Italy), totalization agreements allow workers (and their employers) to contribute only
to the foreign system if the worker is employed in that country for five or more years, or only to
the U.S. system if the worker is employed in that country for less than five years.
Totalization agreements also allow workers who divide their careers between the two countries to
combine earnings credits under both systems to qualify for benefits if they lack sufficient ²⁷
coverage under either system. While a worker may combine earnings credits to qualify for
benefits under one or both systems, his/her benefit is prorated to reflect only the number of years
the worker paid into each system. The same treatment applies to foreign workers in the United
States.
Totalization agreements are subject to congressional review. Section 233(e) of the Social Security
Act requires the President to submit to Congress the text of the agreement and a report on (1) the
estimated number of individuals who would be affected by the agreement and (2) the estimated
financial impact of the agreement on programs established by the Social Security Act. Section
233(e)(2) of the Social Security Act specifies that a totalization agreement automatically goes into
effect unless the House of Representatives or the Senate adopts a resolution of disapproval within

60 session days of the agreement’s transmittal to Congress.

It should be noted that the provision of Section 233(e)(2) that allows for the rejection of a
totalization agreement upon adoption of a resolution of disapproval by either House of Congress
is an unconstitutional legislative veto. This conclusion is compelled by the holding in INS v.
Chadha, where the Supreme Court struck down a provision in the Immigration and Nationality
Act that gave either House of Congress the authority to overrule deportation decisions made by ²⁸
the Attorney General. The Court declared that a legislative veto constitutes an exercise of
legislative power, as its use has “the purpose and effect of altering the legal rights, duties, and

²⁶^S^o^ci^al^S^ecu^ri^t^y^regu^l^a^tⁱ^oⁿ^s⁽²^{0 C}^.^F^.^R.^§⁴⁰^4.¹⁹²⁸^{) sp}^eci^fy^t^h^at^{a t}^o^t^a^lⁱ^zatⁱ^o^{n agree}^m^en^t^“^m^a^y^p^r^o^vⁱ^d^{e t}^h^at^a^p^e^rsoⁿ
^eⁿ^title^{d t}^o^be^ne^f^{its un}^de^{r title}^II^o^f^the^Socⁱ^a^l^Se^c^u^rity^Ac^t^m^a^y^re^c^e^iv^e^those^be^ne^f^{its w}^h^ile^re^siding^{in t}^h^e^f^o^re^igⁿ
^c^ountr^y^pa^r^t^y^{to the}^a^g^r^e^em^eⁿ^{t, r}^e^g^a^r^d^le^s^s^of^the^a^lie^{n no}^n-^pa^y^m^eⁿ^{t pr}^ov^is^io^n.”
²⁷^T^h^{is a}^pplie^{s t}^o^S^o^cⁱ^a^l^Se^c^u^rity^re^tire^m^eⁿ^{t a}^nd^disa^bili^ty^be^ne^f^its^.^G^e^ne^r^a^ll^y^,^a^mⁱⁿⁱ^m^u^m^of^{40 c}^r^e^d^its^is^r^e^quir^e^{d to}
^qua^lif^y^f^o^{r Soc}ⁱ^a^l^Se^c^u^rity^re^tire^m^eⁿ^{t be}^ne^f^{its. Fe}^w^e^{r c}^r^e^d^its^a^r^e^r^e^quire^d^to^qua^lif^y^f^o^{r disa}^bility^be^ne^f^{its, de}^pe^ndi^ng
^{on t}^h^e^w^o^rk^e^{r’s a}^g^e^a^t^the^onse^t^o^f^the^disa^bility^{. In som}^e^c^a^s^e^s^{, a}^w^o^rk^e^r^m^a^y^qua^lify^f^o^{r disa}^bility^be^ne^f^{its w}^{ith a}
^miⁿⁱ^mu^{m o}^f^sⁱ^x^c^r^e^dⁱ^t^s^.
²⁸⁴⁶^{2 U}^.^S^.⁹¹⁹⁽¹⁹⁸³⁾^{. S}^hor^tly^af^ter^its^de^cⁱ^sⁱ^oⁿⁱⁿ^C^h^ad^ha^{, the}^C^our^{t w}^ithout^opⁱⁿⁱ^oⁿ^a^{nd w}^ith^one^di^s^s^e^{nt s}^u^m^m^a^r^il^y
^a^f^fⁱ^r^m^e^d^low^e^r^c^our^{t o}^pⁱⁿⁱ^ons^tha^t^ha^{d s}^t^r^u^c^k^dow^{n a}^tw^o-^H^ous^e^le^gⁱ^s^l^a^tiv^e^ve^{to pr}^ov^is^ioⁿ^of^the^Fe^de^r^a^{l T}^r^a^d^e
^C^o^m^m^is^sⁱ^{on I}^m^pr^ov^em^eⁿ^ts^A^c^t,^{15 U}^.^S.C^.^§^57a^-¹^{. Se}^e^Uⁿ^ite^{d S}^t^ate^s^Seⁿ^a^te^v.^Fed^e^ra^l^T^r^ad^{e Commissio}ⁿ^{, 46}³^U^.^S.
¹²¹^{6 (}¹⁹⁸³⁾^;^Uⁿ^ite^{d St}^ate^s^H^o^us^e^{of Re}^pr^e^s^eⁿ^tativ^e^s^v.^Fe^de^r^a^{l Tr}^ade^C^o^m^mⁱ^s^sⁱ^on^,⁴^{63 U}^.^S.¹²^{16 (}¹⁹⁸³⁾^.

relations of persons ... outside the legislative branch.”²⁹ Accordingly, the Court invalidated the
disapproval mechanism, holding that Congress may exercise its legislative authority only “in
accord with a single, finely wrought and exhaustively considered procedure,” namely bicameral ³⁰
passage and presentation to the President. Given that the disapproval mechanism in Section

233(e)(2) authorizes the exercise of legislative authority outside the strictures of bicameralism ³¹

and presentment, it is likewise unconstitutional.
Congress has never rejected a totalization agreement. As a result, the fact that the mechanism
under Section 233(e)(2) is unconstitutional has not been an issue. Congressional utilization of the
mechanism in Section 233(e)(2) to reject a totalization agreement could give rise to a judicial
challenge, potentially resulting in an invalidation of the disapproval mechanism and a
determination that the agreement is effective. Specifically, in considering the effect of the
unconstitutional disapproval mechanism, a reviewing court would consider whether the
remainder of Section 233 is valid, or whether the entire statute must be nullified. The Supreme
Court has held that “[u]nless it is evident that the Legislature would not have enacted those
provisions which are within its power, independently of that which is not, the invalid part may be ³²
dropped if what is left is a fully operative law.” In Westcott v. Califano, the court noted that “the
existence of a broad severability clause in the Social Security Act reflects the Congressional wish ³³
that judicial interpretation of the act leave as much of the statute intact as possible.” The
existence of this severability clause, coupled with the fact that the operative provisions of Section
233 would remain fully functional absent the disapproval mechanism in Subsection (e)(2), gives
rise to the likelihood that a reviewing court would invalidate any attempt to utilize the
disapproval mechanism, while giving effect to an otherwise properly executed totalization ³⁴
agreement.
Legislation has been introduced in the 110^th Congress that would amend the congressional review
process for totalization agreements specified in Section 233(e) of the Social Security Act. In
January 2007, Senator Ensign introduced S. 43, the Social Security Totalization Agreement
Reform Act of 2007, and Representative Cubin introduced a companion bill (H.R. 279). Among
other provisions, the bills would require the President to notify each house of Congress of the
intent to enter into an agreement at least 90 calendar days in advance and publish a notice of

²⁹^C^h^ad^ha^,⁴⁶^{2 U}^.^S^.^a^t⁹⁵²^.
³⁰⁴⁶^{2 U}^.^S^.^a^t⁹⁵¹^.
³¹^T^h^e^unc^oⁿ^s^titu^tio^na^lity^of^le^gⁱ^s^l^ativ^e^v^e^{to prov}^is^io^ns^isⁿ^o^te^{d a}^t⁴²^U^.^S.C.^§4³³^(c^odif^y^ing^§233)^{, w}^h^e^r^e^{it is}^f^u^rthe^r
^s^t^a^t^e^d^tha^t^t^h^e^pr^ov^is^ions^of^§2³³⁽^e⁾^a^r^e^sⁱ^m^ila^r^{to th}^os^e^s^t^r^u^c^k^dow^{n in}^I^N^{S v}^.^C^h^ad^ha^.^For^a^c^onsⁱ^d^e^r^a^tion^of
^bic^a^m^e^r^a^lism^a^{nd pr}^e^s^eⁿ^tm^eⁿ^{t r}^e^quir^e^m^e^nts^g^e^ne^r^a^ll^y^,^s^e^e^C^R^S^R^e^por^{t R}^L³⁰²⁴^9,^The^Se^par^atio^{n o}^f^Pow^e^r^s^D^o^c^t^rⁱ^ne^:
^{An O}^v^e^r^vⁱ^e^w^{of its}^R^a^ti^on^ale^a^nd^Applic^ati^oⁿ^,^by^T^.^J^.^H^a^ls^te^a^d^.
³²^B^u^ckl^{ey v.}^V^a^l^e^o^,⁴²^{4 U.}^S^.¹^,¹⁰⁸⁽¹⁹⁷⁶⁾⁽^q^uo^tⁱⁿ^g^C^ham^p^lin^Re^fin^{ing C}^o^{. v}^.^C^o^r^p^or^ati^oⁿ^C^o^m^mⁱ^s^sⁱ^on^{, 28}⁶^U^.^{S. 21}^0,
²³⁴^[¹⁹³²^]⁾^.
³³⁴⁶^{0 F}^.^Su^pp⁷^{37 (}^D^.^Ma^s^s¹⁹⁷⁸⁾^.^Iⁿ^Cal^ifa^no^,^the^c^our^{t w}^a^s^r^e^f^e^r^rⁱ^ng^to^{42 U}^.^S.C^.^§¹³^03,^w^h^ic^{h s}^t^a^t^e^s^{: “}^[ⁱ^]^f^aⁿ^y
^pr^ov^is^io^{n of}^this^c^h^a^p^te^r^,^or^t^h^e^a^pplic^a^tⁱ^{on t}^h^e^r^e^o^f^{to a}ⁿ^y^pe^r^s^on^o^r^cⁱ^r^c^um^s^t^aⁿ^c^e^,^is^he^{ld inv}^a^lid,^th^e^r^e^m^a^inde^r^of^the
^c^h^a^p^te^r^,^aⁿ^{d the}^a^pplic^a^tⁱ^on^of^s^u^c^h^pr^ov^isⁱ^on^to^othe^r^pe^r^s^ons^or^cⁱ^r^c^um^s^t^aⁿ^c^e^s^s^h^a^{ll not}^be^a^f^f^e^c^t^e^d^the^r^e^b^y^.^”
³⁴^{In lig}^ht^of^the^C^ourt’s^ho^ldiⁿ^gⁱⁿ^C^had^ha^{, it}^{is a}^ppa^reⁿ^t^tha^t^aⁿ^y^c^ong^re^ssiona^{l a}^c^tion^ta^k^e^{n to re}^stric^t^{or c}^o^ntr^o^l
^execu^tⁱ^v^{e au}^t^h^o^rⁱ^t^y^t^o^en^t^e^{r i}ⁿ^t^o^t^o^t^a^lⁱ^zatⁱ^o^{n agree}^m^en^t^s^,^o^r^t^oⁱⁿ^valⁱ^d^at^{e an}^y^su^ch^agree^m^en^t^s^,^m^u^st^b^e^acco^m^p^lⁱ^s^h^e^d
^thr^o^ug^{h b}ⁱ^c^a^m^e^r^a^l^pa^s^s^a^ge^a^{nd pr}^e^s^eⁿ^tm^eⁿ^{t to t}^h^e^P^r^e^s^ideⁿ^{t. A}^c^c^o^r^d^ing^l^y^,^c^ong^r^e^s^sⁱ^ona^{l o}^p^tio^nsⁱⁿ^t^h^is^r^e^g^a^r^d^w^ould
^a^ppe^a^r^to^be^lim^ite^{d to}^im^posing^a^dditi^ona^{l re}^quire^m^e^nts^{on t}^h^e^a^d^opti^oⁿ^of^tota^liz^a^tio^{n a}^g^re^e^m^eⁿ^{ts, re}^stric^ting
^au^t^h^o^rⁱ^t^y^t^o^en^t^e^{r i}ⁿ^t^o^s^u^ch^agreemen^t^s^uⁿ^l^{ess app}^r^o^v^ed^b^y^b^o^t^h^C^oⁿ^g^{ress an}^d^t^h^e^P^r^esi^d^ent^on^{a case b}^y^c^a^{se b}^a^si^s,^o^r
^{to pa}^s^s^a^la^w^dis^a^ppr^ov^ing^a^pa^r^tⁱ^c^ula^r^a^g^r^e^em^eⁿ^{t be}^f^o^r^e^or^a^f^te^r^{it is}^fⁱ^na^liz^e^d^{. Se}^e^C^h^ad^ha^,⁴⁶^{2 U}^.^S^.^a^t⁹^51.
^Inf^o^rm^a^{tion o}ⁿ^le^g^a^{l issue}^s^re^g^a^rding^S^ectⁱ^oⁿ²³³⁽^e)(2⁾^o^f^t^h^{e S}^o^ci^al^S^ecu^ri^t^y^A^c^t^p^r^o^vⁱ^d^ed^b^y^T^.^J.^Hal^s^t^ead^,^CRS
^L^e^gⁱ^sla^tiv^e^A^ttorne^y^.

intent in the Federal Register. The measures would require the President to transmit the text of an
agreement, and a report containing specified information, to each house of Congress. An
agreement could go into effect only after a joint resolution approving the agreement is passed by
both houses of Congress and signed into law. The measures would establish periodic evaluation
and reporting requirements to assess the impact of a totalization agreement over time. The
measures would apply to totalization agreements transmitted to Congress on or after January 1,

2007.

Senator Ensign offered an amendment (S.Amdt. 153) to H.R. 2, the Fair Minimum Wage Act of
2007, that is identical to S. 43. The amendment was withdrawn prior to Senate passage of H.R. 2
by a vote of 94-3 on February 1, 2007. On June 5, 2007, Senator Chambliss offered an
amendment (S.Amdt. 1318) to the Comprehensive Immigration Reform Act of 2007 (S.Amdt.
1150 to S. 1348) that is identical to S. 43. No action was taken on the Chambliss amendment
before the measure was withdrawn from Senate floor debate on June 7, 2007.
Since 1978, the United States has entered into totalization agreements with 21 countries (the
effective date for each agreement is shown in Appendix A):
^Au^s^t^ralia,^Aus^t^{ria, B}^e^lgⁱ^u^m^,^C^aⁿ^a^{da, C}^h^{ile, Fi}ⁿ^l^aⁿ^{d, France, Germ}^aⁿ^y^,^{Greece, Irelan}^d,
^Ital^y^,^J^a^pan^,^Sou^t^h^{Korea, L}^uxe^m^bou^rg^{, t}^h^{e Neth}^erlaⁿ^d^s^,^Norw^a^y^{, Po}^r^t^u^g^a^l^,^S^p^aⁱⁿ^,^Sw^e^d^eⁿ^,
^S^w^itzerlan^d^{, an}^{d t}^h^{e United Kin}^g^d^o^m^.
In addition to the 21 totalization agreements currently in effect, the United States signed a
totalization agreement with Mexico on June 29, 2004. After an agreement has been signed, SSA
and its counterpart in the foreign country continue to address implementation issues and may
amend the language. The agreement is then forwarded to the Secretary of State who reviews it in
the context of other international agreements with the foreign country. Next, the agreement is sent
to the President for review, and the President may then transmit the agreement to Congress for
review. To date, the totalization agreement with Mexico has not been transmitted to Congress.
Reportedly, as of May 2007, the agreement is under review at SSA (i.e., SSA has not yet
forwarded the agreement to the Department of State). With respect to other countries, SSA reports
that negotiations on agreements with the Czech Republic and Denmark have been completed, and
that preparations are underway for the signing ceremonies. In addition, discussions are underway ³⁵
on a possible agreement with Poland.
While the specific terms of each totalization agreement may differ, the provisions of a totalization
agreement must be consistent with the Social Security Act. Section 233(c)(4) of the Social
Security Act states: “any such agreement may contain other provisions which are not inconsistent
with the other provisions of [Title II of the Social Security Act] and which the President deems
appropriate to carry out the purposes of this section.” Currently, about $20 million is paid each ³⁶
month to almost 113,000 recipients under U.S. totalization agreements.

³⁵^Iⁿ^f^o^r^m^a^{tion on}^the^s^t^a^t^us^of^a^g^r^eem^eⁿ^ts^tha^t^a^r^e^pe^nd^ing^or^u^nde^r^ne^g^o^tia^tio^{n is}^a^v^a^ila^ble^oⁿ^the^SS^A^w^e^bs^ite^a^t
^http:^//w^w^w^.s^s^a^.g^ov^/ⁱ^nte^r^na^tio^na^l/^s^t^a^t^us^.htm^{l, v}ⁱ^s^ite^{d J}^une²²^{, 2}⁰⁰⁷^.
³⁶^In^Decem^b^e^r^2005,^the^a^v^e^r^a^g^e^m^onthly^be^ne^f^{it pa}^{id un}^de^r^U^.^S.^t^o^ta^liz^a^tion^a^g^r^e^em^eⁿ^ts^w^a^s^$209^f^o^r^r^e^tir^e^d^w^o^r^k^e^r^s
^an^d^$3⁹²^f^o^r^di^sab^l^ed^w^o^r^k^er^s.^S^S^A^,^Soc^{ial Se}^c^u^rity^B^u^lle^tin^,^Aⁿⁿ^ual^St^atis^tic^al^S^u^p^p^le^m^e^{nt 2}⁰⁰⁶^{, t}^a^ble^5.M¹^.

Some believe there is somewhat of a disconnect between how the Social Security and
immigration rules affect unauthorized aliens. Basically, immigration policies are designed to
discourage and punish those unauthorized to work in the United States. On the other hand, under
Social Security rules there are certain circumstances when an unauthorized alien can collect
Social Security benefits. As a result of this perceived inconsistency, some oppose paying Social
Security benefits to such aliens arguing that aliens who violate immigration law should not be
rewarded by receiving Social Security benefits. Others contend that aliens who work in Social
Security-covered employment (i.e., had payroll taxes withheld from their earnings) should be
eligible for benefits whether or not they had employment authorization.
On June 29, 2004, the Social Security Administration announced that a totalization agreement
with Mexico had been signed by U.S. and Mexican government officials. In a press release and
summary document, SSA reports that the agreement would save 3,000 U.S. workers and their
employers approximately $140 million in Mexican payroll taxes over the first five years of the
agreement. In addition, SSA reports that the projected cost to the U.S. Social Security system ³⁷
would average $105 million annually over the first five years. To date, the totalization
agreement with Mexico has not been transmitted to Congress for review.
On January 4, 2007, both Representative Goode and Representative King introduced resolutions
of disapproval (H.Res. 18 and H.Res. 22, respectively) against the Social Security totalization
agreement between the United States and Mexico signed on June 29, 2004, pursuant to Section

233(e)(2) of the Social Security Act. (See related discussion under the “Totalization Agreements” ³⁸

section of the report.)
In addition, Senator Ensign offered an amendment to H.R. 3043 (Departments of Labor, Health
and Human Services, and Education, and Related Agencies Appropriations Act of 2008) that
prohibits the Commissioner of Social Security and the Social Security Administration from using
funds appropriated by the measure to pay the compensation of SSA employees to administer
Social Security benefit payments under a totalization agreement with Mexico that would not
otherwise be payable if there was not a totalization agreement. The Ensign amendment (S.Amdt. ³⁹
3342) was agreed to by a vote of 91-3. Although H.R. 3043 was vetoed by President Bush on

³⁷^T^h^e^SSA^pre^{ss re}^le^a^s^e^a^{nd sum}^m^a^r^y^doc^um^eⁿ^{t a}^r^e^a^v^a^ila^ble^{on the}^SSA^we^bsite^a^t^http^://w^ww^.s^sa^.gov^/pre^ssof^fⁱ^c^e^/
^pr^/^U^Sa^ndMe^x^ic^o-^pr^-^a^lt.^htm^,^vⁱ^s^ite^{d J}^une^22,²⁰⁰⁷^.
³⁸^In^t^h^{e 1}⁰⁹^th^C^ong^r^e^s^s^,^R^e^{p. G}^o^o^d^e^intr^o^duc^e^d^a^c^onc^ur^r^e^{nt r}^e^s^o^l^u^ti^{on (}^H^.C^on^.R^e^s^{. 5}⁰⁾^e^x^pr^e^s^sⁱ^ng^di^s^a^ppr^ov^a^l^by^the
^Coⁿ^g^{ress o}^f^t^h^{e t}^o^t^a^lⁱ^zatⁱ^oⁿ^agreemen^t^wⁱ^t^h^M^e^xi^co^.
³⁹^R^e^c^o^r^d^v^o^te^num^be^r³⁴^7.

November 13, 2007, and the House failed to override the veto,⁴⁰ the provision was included as ⁴¹
§526 of P.L. 110-161, The Consolidated Appropriations Act, 2008.
The announcement in 2004 that an agreement with Mexico had been signed revived a debate that
began in December 2002 following media reports that negotiations were underway on a potential ⁴²
totalization agreement between the United States and Mexico. Among the approximately 7.2
million Mexican-born workers in the U.S. labor force in 2006, approximately 5.6 million (80%) ⁴³⁴⁴
were noncitizens and 1.5 million (20%) were naturalized citizens. The effects of the
totalization agreement with Mexico depend on the specific terms and language of the agreement,
which have not been finalized. The following discussion pertains to the version of the agreement
that SSA released on January 4, 2007, in response to the Freedom of Information Act (FOIA) ⁴⁵
request from the TREA Senior Citizens League.
As in most totalization agreements, the totalization agreement with Mexico would waive the five-
year U.S. residency requirement for alien dependents and survivors to receive benefits outside the
United States (see Table 2 and Table 3). Under current law, an alien worker entitled to Social
Security benefits (based on work performed with or without authorization in the United States)
may receive benefits outside the United States if he/she is a citizen of Mexico, because Mexico
meets the definition of a “social insurance country.” An alien dependent or survivor entitled to
Social Security benefits may receive benefits outside the United States only if he/she had lived in
the United States previously for at least five years (and the family relationship on which benefits
are based existed during that time), unless he/she meets one of several exceptions. The
totalization agreement with Mexico would allow alien dependents and survivors in Mexico who
have never lived in the United States to receive Social Security benefits outside the United States.
As discussed above, Section 202(y) of the Social Security Act prohibits the payment of benefits to
aliens in the United States who are not lawfully present. Although some observers have expressed
concern that a totalization agreement with Mexico could allow unauthorized aliens to receive
payments in the United States, the version of the agreement signed in June 2004 does not waive ⁴⁶
this requirement. Similarly, another concern has been that the totalization agreement would
waive the provision of law that requires an alien whose application for benefits is based on an
SSN assigned in 2004 or later to have work authorization at the time an SSN is assigned, or at any
later time, to gain insured status under the Social Security program (i.e., the alien must have work
authorization at some point to count work credits for insured status purposes). Reportedly, in
2006, SSA sent a diplomatic note to the Mexican government clarifying that the agreement would
not waive the “work authorization” requirement. SSA has not received a response from the
Mexican government. Still others express concern that a totalization agreement with Mexico

⁴⁰^{Roll c}^a^{ll v}^o^te¹¹²²^{. T}^h^e^v^o^te^w^a^{s 27}^{7 to}¹^41.
⁴¹^Sⁱ^gn^edⁱⁿ^t^o^l^a^w^oⁿ^Decem^b^e^{r 2}⁶^,²⁰⁰⁷^.
⁴²^S^ee,^f^o^{r exa}^m^p^l^e,^Joⁿ^a^t^h^an^W^eⁱ^s^man^,^“U.^S^.^S^o^ci^al^S^ecu^ri^t^y^M^a^y^Reach^M^e^xi^co^,^”^Wa^shⁱⁿ^gt^on^P^o^st^,^Dece^m^b^{er 1}⁹^,
²⁰⁰^{2, p.}^A¹^.
⁴³^A^s^dis^c^us^s^e^{d a}^bov^e^,^“^noncⁱ^tiz^eⁿ^s^”^inc^l^ude^a^lie^ns^w^{ho a}^r^e^le^g^a^ll^y^pr^e^s^eⁿ^{t, a}^s^w^e^{ll a}^s^thos^e^w^{ho a}^r^e^una^uth^o^rⁱ^z^e^d^{. T}^h^e
^C^u^r^r^e^nt^Pop^u^la^ti^on^Sur^v^e^y⁽^C^P^S⁾^doe^s^not^inc^l^u^d^e^a^v^a^rⁱ^a^b^le^oⁿ^im^mⁱ^g^r^a^{tion s}^t^a^t^us^.
⁴⁴^C^a^lc^ula^tions^pe^r^f^or^m^e^{d b}^y^C^R^S^us^ing^the^a^v^e^r^a^g^e^of^the^m^onthly^C^PSs^f^o^r²⁰⁰⁶^.
⁴⁵^T^h^e^te^x^t^of^the^U.S.-Me^x^ic^{o to}^ta^lⁱ^z^a^{tion a}^g^re^e^m^eⁿ^{t is a}^v^a^ila^ble^on^the^T^R^EA^Se^nior^C^itiz^eⁿ^s^L^e^a^g^u^e^w^e^bs^ite⁽ⁱⁿ^pdf
^f^o^r^m^a^t^{) a}^t^http://w^ww^.tsc^l.org^/^Ne^w^C^onteⁿ^t/10²⁶⁹⁷^.^a^s^{p, v}ⁱ^site^{d J}^uⁿ^e^22,²⁰⁰⁷^{. T}^h^e^a^g^re^e^m^eⁿ^{t is a}^l^{so a}^v^a^ila^ble^{on t}^h^e
^SSA^w^e^bsite^{(in htm}^l^f^o^rm^a^t^{) a}^t^http://w^ww^.ss^a^.g^ov^/ⁱ^nte^r^na^ti^ona^l/^Ag^re^e^m^eⁿ^t_T^e^x^t^s/^m^e^xⁱ^c^o^.htm^{l, v}ⁱ^s^ite^{d Ju}^ne²²^,
²⁰⁰^7.
⁴⁶^Noⁿ^e^o^f^t^h^{e 2}¹^t^o^t^a^lⁱ^zatⁱ^oⁿ^agreemen^t^s^cu^rren^t^l^yⁱⁿ^eff^ect^{make su}^ch^p^r^o^vⁱ^sⁱ^oⁿ^.

could provide an incentive for unauthorized workers from Mexico to come to the United States.
In addition, given the Social Security system’s projected long-range funding shortfall, some
question the feasibility of adding a potentially large number of recipients to the rolls in the
absence of structural Social Security reform.
Others argue that an agreement (that precludes payments to unauthorized aliens in the United ⁴⁷
States) could be beneficial to the United States and that the cost could be reasonable. They argue
that there could be substantial savings for certain U.S. workers and employers by removing the
burden of double taxation. For example, without a totalization agreement, U.S. citizens and legal ⁴⁸
permanent residents (LPRs) sent by U.S. companies to work in Mexico must contribute to both
the U.S. and Mexican Social Security systems. Moreover, some workers may not qualify for U.S.
or Mexican Social Security benefits because they do not have enough earnings credits under
either system. In addition, proponents of totalization agreements argue that such agreements
remove financial barriers to multinational companies and their employees working in foreign
countries.
In February 2003, the House Committee on Ways and Means and the House Committee on the ⁴⁹
Judiciary asked the General Accounting Office (GAO) to provide information to Congress on
the possible effects of a totalization agreement with Mexico. In a press release dated February 24,
2003, House Ways and Means Social Security Subcommittee Chairman E. Clay Shaw, Jr., and
House Judiciary Committee Chairman F. James Sensenbrenner, Jr., expressed particular interest
in the potential impact of an agreement with Mexico on the Social Security trust funds, given the
large number of noncitizens who may be working in the United States without authorization.
According to the press release, the committee asked specifically for information on the potential
effects of an agreement on workers, beneficiaries, service delivery by the SSA, program finances,
immigration and illegal work by noncitizens.
In September 2003, GAO presented its findings before the House Committee on the Judiciary,
Subcommittee on Immigration, Border Security, and Claims at a hearing titled Should There Be a ⁵⁰
Totalization Agreement with Mexico? and shortly afterward released its report to Congress—⁵¹
Social Security: Proposed Totalization Agreement with Mexico Presents Unique Challenges.
Among the advantages associated with totalization agreements, GAO notes that they foster
international commerce, protect benefits for workers who divide their careers between the United
States and a foreign country, allow multinational companies and their employees to avoid paying
dual Social Security taxes on the same earnings, and enhance diplomatic relations. GAO also

⁴⁷^Jo^el^M^o^w^b^ray^,^“Il^l^e^gal^b^u^t^P^aⁱ^d^?^T^h^{e Qu}^estⁱ^oⁿ^o^f^S^o^ci^al^S^ecu^ri^t^y^f^o^{r M}^e^xi^can^s,^”^Nation^a^{l Re}^vⁱ^e^w^,^J^a^nua^r^y^{27, 20}⁰³^,
^{pp. 22}^-²^3.
⁴⁸^Fore^igⁿ^na^tio^na^{ls m}^a^y^be^a^d^m^itte^{d to}^the^Uⁿ^ite^d^Sta^t^e^s^te^m^pora^r^ily^{or m}^a^y^c^o^m^e^{to liv}^e^pe^rm^aⁿ^eⁿ^tly^{. T}^hose
^a^d^m^itte^{d on a}^pe^rm^aⁿ^eⁿ^{t ba}^{sis a}^r^e^k^now^{n a}^s^im^mⁱ^g^r^aⁿ^{ts or le}^g^a^{l pe}^rm^aⁿ^eⁿ^{t re}^side^nts.
⁴⁹^Sinc^e^t^h^is^s^t^u^d^y^w^a^s^publis^he^d^,^t^h^e^G^e^ne^r^a^l^A^c^c^ounting^O^f^fⁱ^c^e^ha^s^be^eⁿ^r^e^na^m^e^{d the}^G^o^v^e^rⁿ^m^e^{nt A}^c^c^ounta^b^il^ity
^Offⁱ^c^e^.
⁵⁰^T^h^{e S}^e^p^t^em^b^e^{r 1}¹^,²⁰⁰³^h^eariⁿ^{g d}^o^c^u^m^en^t^(S^eri^a^l^No^.⁴⁷^{) m}^a^y^b^e^acces^sed^oⁿ^lⁱⁿ^{e at}^h^t^t^p^:^/^/^j^u^dⁱ^ci^ary.^h^o^u^s^e.^go^v/
^m^e^dia^/^pdf^s^/^pr^inte^r^s^/¹⁰⁸^th^/⁸⁹²^98.^P^D^F^,^vⁱ^s^ite^{d J}^u^ne²²^,²⁰⁰⁷^.
⁵¹^T^h^{e S}^e^p^t^em^b^e^{r 1}¹^,²⁰⁰³^t^e^stⁱ^m^oⁿ^y⁽^G^A^O^-0³^-¹⁰³⁵^T^{) m}^a^{y b}^e^acce^ssed^oⁿ^lⁱⁿ^{e at}^ht^t^p^:^/^/^www^.^g^ao^.^g^o^v^/ⁿ^ew^.ⁱ^t^e^ms/
^d03¹⁰³⁵^t.p^d^f^,^vⁱ^s^ite^{d J}^une²²^{, 2}⁰^{07. T}^h^e^Se^pte^m^be^r^30,²⁰^{03 G}^A^O^r^e^por^{t (}^G^A^O^-^03-⁹⁹³⁾^m^a^y^be^a^ccess^e^d^oⁿ^lⁱⁿ^{e at}
^http:^//w^w^w^.g^a^o^.g^ov^/ⁿ^e^w^.item^s^/^d⁰³⁹⁹^3.^pdf^{, v}ⁱ^s^ite^{d J}^u^ne²²^,²⁰^07.

notes that, because such agreements represent a cost to the U.S. Social Security system,
associated risks should be assessed and mitigated during the negotiation process. Overall, GAO
found that the procedures followed by SSA in the development of the totalization agreement with
Mexico (and all other agreements) are not well documented. GAO goes on to state: “... SSA
provided no information showing that it assessed the reliability of Mexican earnings data and the
internal controls in place to ensure the integrity of information that SSA will rely on to pay Social ⁵²
Security benefits.” Records on which SSA would rely to determine a worker’s (and family
members’) initial and continued eligibility for benefits include birth, death and marriage records.
In addition, GAO found that a totalization agreement with Mexico would increase the number of
Mexican workers and their family members eligible for Social Security benefits for two reasons.
First, Mexican workers who otherwise would not have enough earnings credits to qualify for
benefits in the United States could combine U.S. and Mexican credits to qualify for a partial U.S.
Social Security benefit. Second, more family members in Mexico would qualify for U.S. Social
Security benefits because a totalization agreement generally exempts dependents and survivors
residing outside the United States from the five-year U.S. residency requirement.
In terms of the potential cost of a totalization agreement with Mexico, GAO evaluated a March
2003 cost estimate prepared by SSA’s Office of the Chief Actuary. SSA projects that an
agreement with Mexico would cost $78 million in the first year and $650 million (constant 2002
dollars) by 2050. The cost estimate assumes an initial increase of 50,000 new beneficiaries in
Mexico based on the number of persons (U.S. citizens and others) in Mexico currently receiving
U.S. Social Security benefits and projects that the number of additional beneficiaries under the
agreement would increase to 300,000 over time. SSA projects that the totalization agreement with
Mexico would have a negligible effect on the long-range actuarial balance of the Social Security ⁵³
trust funds.
GAO found that “the cost of a totalization agreement with Mexico is highly uncertain,” even
more so than for previous agreements, because of the large number of unauthorized immigrants
from Mexico estimated to be living in the United States. According to GAO’s assessment, the
base used for the number of initial new beneficiaries in Mexico under a totalization agreement
(50,000) does not take into account the “estimated millions of current and former unauthorized
workers and family members from Mexico and appears small in comparison with those ⁵⁴
estimates.” Furthermore, GAO points out that the cost estimate does not take into account the
potential change in behavior by Mexican citizens under a totalization agreement. GAO notes that
an agreement could provide an additional incentive for unauthorized workers from Mexico to
come to the United States.
In regard to the number of unauthorized immigrants from Mexico currently living in the United
States, GAO cites a range of estimates. For example, the Pew Hispanic Center estimates the
number to be between 3.4 and 5.7 million, while the Urban Institute estimates the number to be
more than 4 million. The federal government estimates that there are about 5 million

⁵²^G^A^O^-^03-¹⁰³^5T^{, p.}^2.
⁵³^SSA^’^s^Ma^r^c^{h 20}^{03 c}^o^s^t^e^s^tim^a^t^e^of^a^tota^liz^a^tion^a^g^r^e^em^eⁿ^t^w^{ith Me}^xⁱ^c^o⁽^a^{nd G}^A^O^’^s^e^v^a^l^ua^tion)^do^not^inc^o^r^p^or^a^t^e
^the^e^f^f^e^c^t^{s of}^P^.^L^.¹⁰⁸^-20³⁽^d^isc^u^sse^{d a}^bov^e⁾^{. How}^e^v^e^{r, SSA}^ha^{s s}^t^a^t^e^d^tha^t^t^h^e^c^o^{st e}^s^tim^a^t^e^{is still}^a^ppro^p^ria^t^e
^f^o^llowⁱ^ng^eⁿ^a^c^t^m^e^{nt of}^the^w^o^r^k^a^u^thor^iz^a^tion^r^e^quir^e^m^e^{nt in}^P.L^.¹⁰⁸^-²^03.^T^o^c^l^a^r^if^y^,^SSA^pr^oje^c^t^{s tha}^t^aⁿ^a^ddi^tio^na^l
⁵⁰^,⁰⁰⁰^w^o^{rkers an}^d^an^addⁱ^tⁱ^oⁿ^a^l¹⁷^,⁰⁰⁰^d^e^p^eⁿ^d^eⁿ^t^{s and}^su^rvi^v^o^r^s^w^o^u^l^d^recei^{ve t}^o^t^a^lⁱ^zed^b^eⁿ^e^fⁱ^t^s^un^d^e^{r t}^h^e
^agree^m^en^t^b^y^t^h^{e en}^d^o^f^t^h^{e f}ⁱ^rst^fⁱ^ve^y^ear^s.
⁵⁴^G^A^O^-^03-¹⁰³^5T^{, p.}^2.

unauthorized immigrants from Mexico living in the United States (as of January 2000) and that
the number is expected to increase by 240,000 each year. According to federal government
statistics, unauthorized immigrants from Mexico make up an estimated 69% of unauthorized
immigrants in the United States. By comparison, the number of unauthorized U.S. immigrants
from all of the other totalization countries combined is estimated at less than 3%.
In regard to the potential number of former unauthorized workers who have returned to Mexico,
GAO points out that fewer than one-third of immigrants from Mexico stay in the United States
for more than 10 years, the minimum number of years of Social Security-covered earnings
generally needed to qualify for Social Security retirement benefits. Given the limited information
regarding the age, work history, Social Security coverage and number of dependents of these
former unauthorized workers, the potential cost of a totalization agreement with Mexico is
considered even more difficult to predict.
As mentioned previously, the SSA cost estimate shows that a totalization agreement with Mexico
would have a negligible effect on the long-range actuarial balance of the Social Security trust
funds. However, a sensitivity analysis performed by SSA at GAO’s request shows that a 25% or
more increase in the number of initial new beneficiaries (i.e., 13,000 or more above the base
estimate of 50,000) would result in a measurable impact on the long-range actuarial balance of
the trust funds. GAO found that error rates in estimating the number of initial new beneficiaries
under previous totalization agreements often exceeded 25%. Based on the large number of
unauthorized workers from Mexico in the United States, GAO considers the estimated cost of a
totalization agreement with Mexico more uncertain than cost estimates for previous agreements.
In its report, GAO states that “a totalization agreement with Mexico is both qualitatively and ⁵⁵
quantitatively different than any other agreement signed to date.”
The Social Security Commissioner and SSA’s Office of the Chief Actuary provided written
comments on a draft of the GAO report. SSA disagreed with the GAO evaluation on a number of ⁵⁶
issues. Specifically, in regard to SSA’s estimate of the number of persons who initially would
receive totalized benefits under the agreement (50,000), SSA maintains that the estimate is “based
on the best available data and includes potential benefits for both documented and undocumented ⁵⁷
workers in the U.S. in the past.” Furthermore, SSA notes that the unprecedented six-fold
increase in this number (300,000 by 2050) takes into account recent increases in immigration and
visas. SSA’s response includes (but is not limited to) the following:
• Not all unauthorized Mexican workers work in Social Security-covered jobs.
Those who are employed on an unofficial basis (i.e., paid cash in the
“underground economy”) do not qualify for benefits (with or without a
totalization agreement) because their earnings are not reported for Social Security
purposes. SSA notes that the percentage of unauthorized workers who could
become eligible for benefits is more limited than GAO suggests, because GAO
does not include this group of workers in their discussion.

⁵⁵^G^A^O^-^03-⁹⁹³^{, p}^.¹⁷^.
⁵⁶^T^h^{e f}^u^{ll text o}^f^S^S^A^{’s co}^mmen^t^{s are p}^r^o^v^id^{ed in}^A^p^p^eⁿ^dⁱ^{x II}^o^f^{the GAO rep}^o^r^t.
⁵⁷^G^A^O^-^03-⁹⁹³^{, p}^.²⁷^.

• GAO found that SSA’s proxy for the number of individuals who initially would
receive totalized benefits under the agreement (i.e., the number of Social Security
recipients currently living in Mexico) seems low and bears no direct relationship
to the estimated number of current and former unauthorized Mexican workers in
the United States and their family members. SSA maintains that this is a
reasonable proxy and points out that the 50,000 Social Security recipients
currently living in Mexico include Mexican citizens who qualified for benefits
based on unauthorized work in the United States.
• GAO points out that the agreement could provide an additional incentive for
unauthorized Mexican workers to come to the United States. In SSA’s view, this
type of behavioral effect would be very small. SSA contends that most Mexican
citizens who come to the United States. to work without authorization are young
and more likely to be motivated by current earnings than the prospect of future
Social Security retirement benefits.
• In evaluating whether the number of Social Security recipients currently living in
Mexico is a reasonable proxy for the number of individuals who initially would
receive totalized benefits under an agreement with Mexico, SSA used
comparison data for Canada, a country with which the United States has had a
totalization agreement for 20 years, because it too is a NAFTA trading partner
and shares a border with the United States. By applying the same ratio of
totalized to non-totalized (fully insured) Canadian beneficiaries to the number of
current non-totalized Mexican beneficiaries, SSA came up with an estimate of
37,000 initial new beneficiaries under the agreement and determined that the
50,000 proxy was reasonable. According to GAO, such comparisons between
Canada and Mexico are problematic because of the much higher estimates of
illegal immigration from Mexico. While SSA acknowledges the large number of
unauthorized Mexican citizens estimated to be in the United States, it contends
that these individuals tend to be young and would become eligible for totalized
benefits well into the future. SSA points out that the purpose of the
Canada/Mexico comparison is to provide a current estimate of totalized
beneficiaries under an agreement with Mexico.
• GAO states that error rates associated with SSA’s projections of new
beneficiaries under previous agreements frequently have exceeded 25%. SSA
acknowledges that for six of the 11 agreements that became effective between
1985 and 1994, the number of individuals receiving totalized benefits in the fifth
year after implementation exceeded their estimates. SSA further points out,
however, that estimates for recent agreements have been high. For example, SSA
overestimated the number of individuals receiving totalized benefits for the four
agreements that became effective between 1992 and 1994. Overall, for the 11
agreements, SSA estimates that their projections have been within 3% of the
actual number.
Over the past few years, a policy change at SSA which substantially increased the number of “no-
match” letters sent to employers has received much attention because of the impact on
unauthorized aliens. In 1994, SSA began sending no-match letters to employers to inform them of
a discrepancy between a W-2 form and SSA’s records. Importantly, as discussed above, receipt of

a no-match letter does not imply that the employee is using a fraudulent SSN; the discrepancy
could be the result of a clerical error. For tax years 1993 through 2000, an employer received no-
match letters only if more than 10 employees had discrepancies and the number of employees ⁵⁸
with mismatches equaled more than 10% of the employer’s workforce.
For the 2001 tax year, SSA implemented a new policy of sending no-match letters to every ⁵⁹
employer with at least one employee with discrepancies on their W-2. For tax year 2000, SSA ⁶⁰
sent out approximately 110,000 no-match letters compared to approximately 950,000 for tax ⁶¹
year 2001. Employers are not required to respond to or act on the letters; however, under the ⁶²
INA employers are subject to penalties for hiring or retaining unauthorized alien workers.
Additionally, the Internal Revenue Service can penalize employers for providing incorrect ⁶³
information on wage forms (W-2’s).
SSA maintained that the letters were sent to employers to ensure that workers are properly
credited with their earnings. Because of the controversy surrounding the increase in the number
of no-match letters, SSA currently sends a no-match letter to an employer only if more than 10
employees have discrepancies and the number of employees affected equals more than 0.5% of ⁶⁴
the employer’s workforce. In 2005, SSA sent 127,652 no-match letters for tax year 2004.
Some argue that SSA should not reduce the number of no-match letters that are sent to employers.
They contend that SSA should coordinate with other agencies to locate unauthorized alien
workers, and that no-match letters can be a tool to help reduce the unauthorized population in the
United States. Additionally, the no-match letters may help employers who do not know that the
employees’ documents are fraudulent but would be liable if they were caught employing
unauthorized aliens.
Others contend that SSA has no immigration-related enforcement powers, and it is not SSA’s job
to enforce laws. In addition, immigration advocates contend that tens of thousands of immigration ⁶⁵
aliens left their jobs or were fired as a result of the letters. They argue that no-match letters do
little to combat unlawful employment as those who use false documents simply find employment
in another company, increasing the risk of workplace exploitation. Additionally, they contend that
some firms may have experienced a loss of revenue caused by worker shortages or by terminated
employees who do not have employment authorization moving to competitors. The letters also
raised concerns that employers were discriminating based on alienage (i.e., that an employer who
received a no-match letter for a noncitizen would fire the noncitizen worker without ascertaining
if they have employment authorization).

⁵⁸^“S^o^cⁱ^a^l^S^ecu^ri^t^y^No^-M^at^ch^L^e^t^t^e^r,^”^In^terp^{reter Relea}^s^es^{, v}^o^l.^80,^A^p^r^{il 7, 2}⁰⁰³^,^pp^{. 5}^08-⁵⁰^9.
⁵⁹^N^o^-^m^a^t^c^h^le^tte^r^s^f^o^r^ta^x^y^e^a^r²⁰⁰^{0 a}^r^e^s^e^{nt i}ⁿ^c^a^l^e^nda^r^y^e^a^r^2001.
⁶⁰^“S^o^cⁱ^a^l^S^ecu^ri^t^y^No^-M^at^ch^L^e^t^t^e^r,^”^In^terp^{reter Relea}^s^es^,^v^o^{l. 80,}^A^p^r^il^7,²⁰⁰³^{, p. 50}^8.
⁶¹^Ma^r^y^B^e^{th She}^r^idaⁿ^{, “}^S^oc^ia^{l Se}^c^u^r^ity^Sc^a^l^e^s^B^a^ck^W^o^r^k^e^r^I^nquirⁱ^e^s^,”^W^a^s^h^ingt^on^Pos^t^,^J^u^ne¹⁸^,²⁰⁰³^{, p}^.^A⁶^{. N}^o^-
^m^a^tc^{h le}^tte^r^s^f^o^r^ta^x^y^e^a^r²⁰⁰^{1 a}^r^e^s^e^{nt in c}^a^l^eⁿ^da^r^y^e^a^r²⁰⁰^2.
⁶²^I^N^A^{§ 274A}^.
⁶³^{26 U}^.^S.C^.^§⁶⁶⁴⁷^.
⁶⁴^Uⁿ^p^ublis^he^d^da^ta^f^r^om^SS^A^.
⁶⁵^She^r^idaⁿ^{, “}^S^oc^ia^{l Se}^c^u^r^ity^Sc^a^l^e^s^B^a^c^k^W^o^r^k^e^r^I^nquirⁱ^e^s^.”

On August 15, 2007, the Department of Homeland Security published a final rule that amends the
regulations relating to the unlawful hiring or continued employment of aliens who lack work ⁶⁶
authorization. The regulation creates “safe-harbor” procedures for employers who receive a no-
match letter to follow, to ensure that DHS would not find the employer guilty of knowingly hiring
or continuing to employ an alien who lacks work authorization (i.e., that the employer had
violated §274A of the Immigration and Nationality Act). Under the rule, the employer has to take
reasonable steps, within 93 days of receipt of the no-match letter, to resolve the discrepancy.
These steps include checking records for clerical errors and, if such errors are found, informing
SSA of the correct information; or asking the employee to confirm the name and SSN, and if they ⁶⁷
are correct, requesting that the employee resolve the discrepancy with SSA.
Although the regulation was to become effective on September 14, 2007, it is not yet in effect. In
a lawsuit filed on August 29, 2007, the American Federation of Labor and Congress of Industrial
Organizations (AFL-CIO), the American Civil Liberties Union (ACLU), and other groups sought
a temporary restraining order (TRO). The plaintiffs allege that inaccuracies in SSA’s database
coupled with the rule will threaten the jobs of those working legally in the United States. On
August 31, 2007, the judge in the U.S. District Court of Northern California set a hearing for
October 1, 2007, and issued a TRO prohibiting SSA from mailing any no-match letters and ⁶⁸
prohibiting the rule from becoming effective. On October 10, 2007, the judge granted a
preliminary injunction stopping the DHS from implementing the regulation, including mailing or
otherwise sending employers SSA no-match letters that were to include DHS guidance letters ⁶⁹
explaining the regulation. On December 5, 2007, the Department of Justice on behalf of DHS
filed an appeal of the injunction; however, the injunction is currently still in effect. DHS has
interpreted the injunction as applying nationwide, and, thus, the regulation has not been ⁷⁰
implemented. In addition, SSA has decided not to mail no-match letters for tax year 2006, ⁷¹
maintaining that it is too late for those letter to aid in the correction of wage reports.

On January 4, 2007, Representative Gallegly introduced H.R. 138, the Employment Eligibility
Verification and Anti-Identity Theft Act. H.R. 138 would require SSA to send a no-match letter to
any employer who submits a combination of a name and SSN that does not match SSA records.
The bill would also mandate that the Secretary of Homeland Security, in consultation with the
Commissioner of SSA, establish a verification system through which employers who receive no-

⁶⁶^Dep^a^rt^m^eⁿ^t^o^f^Ho^m^e^l^aⁿ^d^S^ecu^ri^t^y^,^“S^a^f^e-Harb^o^r^P^r^o^ced^{ures f}^o^{r E}^m^p^l^o^y^ers^W^h^o^Recei^{ve a No}^-M^at^ch^L^e^t^t^e^r,^{” 7}²
^Fe^de^{ral Re}^giste^r⁴⁵⁶¹^{1, A}^u^g^u^s^t¹⁵^{, 2}⁰⁰⁷^{. A}^l^s^o^s^e^e^,^U^.^S.^I^m^mⁱ^g^r^a^{tion a}ⁿ^{d C}^u^s^t^om^s^Enf^o^r^c^em^eⁿ^t,^Partn^e^{rs: S}^a^f^e
^H^a^r^bor^{, a}^v^a^ila^ble^a^t^http^://w^ww^.i^c^e^.^g^o^v^/^pa^rtne^rs/^s^a^f^e^h^a^r^bor/ⁱ^nde^x^.^htm^?^se^a^r^c^h^string⁼^s^a^f^e^-
^ha^r^bor^%²^0A^N^D^%^20r^e^g^ula^{tion, v}ⁱ^s^ite^{d O}^c^tobe^r²²^{, 2}⁰⁰⁷^.
⁶⁷^For^m^o^r^e^inf^o^r^m^a^{tion o}ⁿ^the^r^e^g^u^la^tio^{n, s}^e^e^C^R^S^C^ong^r^e^s^sⁱ^ona^{l D}ⁱ^s^t^rⁱ^but^io^{n Me}^m^o^r^a^ndum^{, “}^N^o-^M^a^tc^{h L}^e^tte^r^s^a^nd
^t^h^{e ‘S}^af^{e Harb}^o^r’^P^r^o^cedu^r^es,^”^b^y^A^lⁱ^s^oⁿ^Sⁱ^skiⁿ^,^avai^l^a^b^l^{e f}^r^o^m^t^h^{e au}^t^h^o^r^.
⁶⁸^Am^e^r^ic^{an Fe}^de^r^a^tⁱ^oⁿ^o^f^L^a^b^o^r^a^{nd C}^oⁿ^g^r^e^s^s^{of I}ⁿ^d^u^s^t^rⁱ^{al O}^r^gaⁿⁱ^z^a^tio^ns^e^t^al^{. v}^.^C^h^e^r^{toff e}^t^al,^NO.³^:⁰⁷^c^v0⁴⁴⁷²^,
^s^{lip o}^p^{. (N}^.D^.Ca^l^{. A}^u^g^u^s^t³¹^{, 2}⁰⁰⁷^).
⁶⁹^Am^e^r^ic^{an Fe}^de^r^a^tⁱ^oⁿ^o^f^L^a^b^o^r^,^e^t^al.^v^.^C^h^e^r^to^{ff, e}^t^al^.^,²⁰⁰⁷^W^L²⁹⁷²⁹⁵^{2 (}^N^.D^.^C^a^{l., O}^c^to^be^r¹⁰^,²⁰⁰⁷⁾^.
⁷⁰^P^e^r^s^ona^{l C}^o^r^r^e^s^p^o^nde^nc^e^w^{ith T}ⁱ^f^f^aⁿ^y^K^e^bode^a^u^x^,^D^H^S^C^ong^r^e^s^sⁱ^ona^{l R}^e^la^ti^ons^{, O}^c^t^obe^r^24,²⁰⁰⁷^.
⁷¹^P^e^rsona^{l C}^o^rre^spo^nde^nc^e^w^{ith K}^itty^Chilc^oa^{t, SSA}^Offⁱ^c^e^o^f^L^e^gⁱ^sla^{tion a}ⁿ^{d C}^ong^re^ssiona^{l A}^f^f^a^irs^,^Nov^e^m^b^e^r^14,
²⁰⁰^7.

match letters can verify an individual’s identity and employment authorization. Beginning six
months after enactment, employers would be required to verify an individual’s identity and
employment authorization through the newly created verification system within three business
days of receiving a no-match letter. If the employer receives a nonconfirmation of the employee’s
identity and employment authorization, the employer would be required to notify the employee in
writing within one day, and the burden would be on the employee to resolve any error in the
verification mechanism within 30 days. After 30 days, the employer would be required to attempt
to verify the employee’s information, and if the employer receives another nonconfirmation,
terminate the employee’s employment.
On March 21, 2007, Representative Myrick introduced H.R. 1627, the Social Security Number
Fraudulent Use Notification Act of 2007. H.R. 1627 would require the Commissioner of Social
Security to notify an individual in writing in cases in which an individual’s Social Security
number is associated with a wage record provided to SSA by an employer (on behalf of an
employee) and the information does not match relevant records maintained by SSA. The
Commissioner would also be required to provide written notification in cases in which an
individual’s Social Security number is otherwise used in a fraudulent manner.

This section includes legislation that would directly alter the treatment of a noncitizen’s earnings ⁷²
for Social Security eligibility and benefit computation purposes. Legislation that may indirectly
affect a noncitizen’s eligibility for Social Security benefits (such as comprehensive immigration
reform legislation or, for example, legislation that would establish enhanced Social Security cards
or new employment eligibility verification systems) is addressed in other CRS reports.
Section 527 of The Consolidated Appropriations Act, 2008 (P.L. 110-161),⁷³ specifies that none of
the appropriated funds can be used to process claims for credit for quarters of coverage based on
work performed under a SSN that is not the claimant’s number which is an offense prohibited ⁷⁴
under §208 of the Social Security Act. Senator Ensign offered this provision as an amendment
(S.Amdt. 3352) to H.R. 3043 (Departments of Labor, Health and Human Services, and Education,
and Related Agencies Appropriations Act of 2008). The Ensign amendment was agreed to by a ⁷⁵
vote of 92-2. Although H.R. 3043 was vetoed by President Bush on November 13, 2007, and the ⁷⁶
House failed to override the veto, the provision was included in P.L. 110-161.

⁷²^T^h^e^tr^e^a^t^m^e^{nt of}^una^ut^hor^iz^e^d^e^a^rⁿ^ing^s^f^o^r^Socⁱ^a^l^Se^c^u^r^ity^pur^p^o^s^e^s^unde^r^c^u^r^r^e^{nt la}^w^w^a^s^e^s^ta^blis^he^{d u}^nde^r^the
^Soc^ia^{l Se}^c^u^r^ity^Pr^ote^c^tio^{n Ac}^t^of²⁰⁰⁴⁽^P^.L^{. 10}^8-2⁰³⁾^{. F}^o^{r m}^o^reⁱⁿ^f^o^r^m^a^{tion, se}^e^the^se^c^tion^of^the^r^e^{port ti}^tle^{d “}^S^oc^ia^l
^Se^c^u^r^ity^P^r^ote^c^tio^{n A}^c^{t of}²⁰⁰^4.”
⁷³^Sⁱ^gn^edⁱⁿ^t^o^l^a^w^oⁿ^Decem^b^e^{r 2}⁶^,²⁰⁰⁷^.
⁷⁴^§2⁰⁸^of^the^S^o^cⁱ^a^l^Se^c^u^rity^Ac^{t spe}^cⁱ^fⁱ^e^s^pe^na^ltie^{s f}^o^{r off}^e^nse^s^inc^l^udi^ng^m^a^kⁱ^ng^f^a^ls^e^st^a^t^e^m^eⁿ^{ts or}^re^pre^s^eⁿ^ta^tions
^t^o^gaiⁿ^{a b}^eⁿ^e^fⁱ^t^f^o^{r w}^hⁱ^c^h^{a p}^e^rsoⁿⁱ^sⁿ^o^t^en^tⁱ^t^l^e^d^;^wⁱ^t^hⁱⁿ^t^eⁿ^t^t^o^decei^v^e^f^u^rnⁱ^s^hⁱⁿ^g^f^a^l^s^{e i}ⁿ^f^o^r^m^atⁱ^oⁿ^t^o^t^h^e
^Co^mmⁱ^ssi^oⁿ^e^{r o}^f^S^S^A^;^an^d^u^sⁱⁿ^g^{a S}^S^N^w^hⁱ^c^hⁱ^s^no^t^t^h^{e i}ⁿ^dⁱ^vi^du^al^{’s t}^o^recei^{ve a b}^eⁿ^e^fⁱ^t^t^o^w^hⁱ^c^h^t^h^{e i}ⁿ^dⁱ^vi^du^alⁱ^sⁿ^o^t
^eⁿ^title^d.
⁷⁵^R^e^c^o^r^d^v^o^te^num^be^r³³^8.
⁷⁶^{Roll c}^a^{ll v}^o^te¹¹²²^{. T}^h^e^v^o^te^w^a^{s 27}^{7 to}¹^41.

Under H.R. 190, introduced by Representative Paul on January 4, 2007, Social Security-covered
earnings paid to noncitizens after December 31, 2007, would not be counted for Social Security ⁷⁷
purposes. Thus, all noncitizens—those who are authorized to work in the United States as well
as those who work without authorization—would be ineligible for future Social Security benefits
unless they have insured status as of December 31, 2007, or they obtain U.S. citizenship and
subsequently gain additional earnings credits under Social Security.
In addition, H.R. 190 would terminate all existing Social Security “totalization” agreements
between the United States and foreign countries. The bill would authorize new “international”
agreements for the purpose of “resolving questions of entitlement to, and participation in, the
Social Security system established by [Title II of the Social Security Act] and the Social Security
system of such foreign country.” These international agreements would be required to take into
account the restriction on earnings credits for noncitizens beginning in 2008, as specified in the
legislation.
H.R. 190 could have important implications for the financial status of the Social Security system,
as well as for workers and their families in terms of eligibility and benefit levels. In addition, it is
not known whether other countries would respond in a similar manner by prohibiting U.S.
citizens who had worked and paid into a foreign Social Security system from receiving benefits
under that system.
H.R. 332, introduced by Representative Carter on January 9, 2007,⁷⁸ would exclude the earnings
of noncitizens who are not authorized to work in the United States from being counted for Social ⁷⁹
Security purposes. The exclusion would apply to all such wages and self-employment income
earned before, on, or after the date of enactment. The bill would require the Commissioner of
Social Security to recompute benefits to the extent necessary to carry out such amendments
(adjustments in benefit payments would apply on a prospective basis).
Because H.R. 332 would prevent aliens from being paid Social Security benefits based on
unauthorized earnings in the United States, it could be argued that the bill would prevent
individuals who violated immigration law from being “rewarded” for their improper behavior,
noting that potential eligibility for Social Security benefits (for themselves and their family ⁸⁰
members) may make illegal migration more attractive. Others contend that, because Social

⁷⁷^Re^p.^P^a^u^lⁱⁿ^tro^duc^e^d^sim^ila^{r le}^gⁱ^sla^{tion i}ⁿ^t^h^e¹⁰⁸^th^C^o^ng^r^e^s^s⁽^H^.R^{. 48}⁹⁾^aⁿ^{d t}^h^e¹⁰⁹^th^Co^ng^re^s^s^(H^{.R. 85}^{8). T}^h^is^bill
^is^a^l^s^o^sⁱ^m^ila^r^{to H}^.^R^.⁵²^{11 i}ⁿ^tr^od^uc^e^d^by^R^e^p.^P^a^ulⁱⁿ^the¹⁰⁹^th^Con^g^ress.
⁷⁸^T^h^is^le^gⁱ^s^l^a^{tion is}^sⁱ^m^ila^r^{to H}^.^R^.¹⁴³⁸⁽ⁱⁿ^tr^o^duc^e^d^by^R^e^{p. R}^ohr^a^b^a^c^h^e^r⁾^a^{nd H}^.^R^.⁴³¹³⁽ⁱ^ntr^o^d^u^c^e^d^by^R^e^p.
^H^uⁿ^t^e^r⁾ⁱⁿ^th^e¹⁰⁹^th^C^ong^r^e^s^s^.^Lⁱ^k^e^wⁱ^s^e^{, S. 211}^7,^intr^od^uc^e^d^by^Se^na^tor^Iⁿ^h^o^f^e^{in the}¹⁰⁹^th^Coⁿ^g^ress,ⁱⁿ^cl^ud^ed^a
^pr^ov^is^io^{n t}^h^a^t^w^ould^ha^v^e^r^e^quir^e^{d n}^onc^itiz^eⁿ^s^to^ha^v^e^a^v^a^{lid Soc}ⁱ^a^l^Se^c^u^r^ity^num^be^r^a^{nd a}^u^th^or^iz^a^t^ion^{to w}^o^r^k^{in t}^h^e
^Unⁱ^t^e^d^S^t^at^{es at}^t^h^{e t}ⁱ^m^{e w}^o^{rk i}^s^p^e^rf^o^r^m^e^dⁱⁿ^co^vered^em^p^l^o^y^men^t^f^o^{r earn}ⁱⁿ^g^{s cred}ⁱ^t^s^t^o^co^un^t^t^o^w^a^rdⁱⁿ^su^re^d^st^at^u^s
^unde^r^the^S^o^cⁱ^a^l^Se^c^u^r^ity^pr^og^r^a^m⁽ⁱ^.e^{., a}ⁿ^y^e^a^r^ning^s^c^r^e^d^its^obtaⁱ^ne^{d w}^h^ile^w^o^r^k^ing^w^{ithout a}^v^a^{lid SSN}^a^{nd w}^o^r^k
^a^u^thor^iz^a^tion^w^ould^not^c^o^uⁿ^{t f}^o^r^pur^pose^s^of^e^s^ta^blishi^ng^e^lig^ibilit^y^f^o^{r Soc}ⁱ^a^l^Se^c^u^rity^be^ne^f^its^{). T}^h^{is prov}^isioⁿ
^w^{ould ha}^v^e^a^pplie^{d t}^oⁿ^onc^itiz^eⁿ^s^w^{ho f}^ile^aⁿ^a^pplic^a^tio^{n f}^o^r^be^ne^f^its^ba^s^e^{d on a}^S^o^cⁱ^a^l^Se^c^u^r^ity^nu^m^b^e^r^a^s^sⁱ^gⁿ^e^d^on
^or^a^f^te^r^J^a^nua^r^y^{1, 2}⁰⁰⁴^.
⁷⁹^A^s^dis^c^us^s^e^{d a}^bov^e^,^aⁿ^a^lie^{n m}^a^y^be^a^u^thor^iz^e^d^t^o^beⁱⁿ^t^h^e^Uⁿ^ite^{d Sta}^t^e^s^,^but^no^{t a}^u^t^hor^iz^e^d^{to w}^o^r^k^.
⁸⁰^T^e^s^tⁱ^m^on^y^of^Ma^tthe^w^J^a^m^e^s^R^e^indl^{, Sty}^l^e^c^r^af^{t I}ⁿ^te^rⁱ^or^s^Iⁿ^c^.^,^be^f^o^r^e^the^Su^bc^om^m^itte^e^{on I}^m^mⁱ^g^r^a^t^ion,^B^o^r^d^e^r
⁽^c^onti^nue^d.^..)

Security is an earned entitlement, workers who pay into the system should receive benefits
regardless of their immigration status. Like H.R. 190 (discussed above), H.R. 332 could have an
important impact on the financial status of the Social Security system and on current and future
recipients. Much of the effect would depend on details that are not specified in the legislation.
On January 23, 2007, Senator Ensign offered an amendment to H.R. 2, the Fair Minimum Wage
Act of 2007, that would tighten restrictions on the use of unauthorized earnings for purposes of
qualifying for Social Security benefits. Under the amendment, all individuals (citizens and
noncitizens) who are assigned a valid Social Security number on or after the date of enactment of
H.R. 2 would be allowed to count only the earnings credits obtained after assignment of a valid
SSN toward insured status under the Social Security program (i.e., any past unauthorized earnings
would not count for purposes of establishing eligibility for Social Security benefits and ⁸¹
determining the amount of benefits payable on a worker’s earnings record). The amendment
was withdrawn prior to Senate passage of H.R. 2 by a vote of 94-3 on February 1, 2007.
H.R. 709, introduced by Representative Gallegly on January 29, 2007, would exclude the
earnings of noncitizens who are not authorized to work in the United States from being counted
for Social Security purposes, among other provisions. Like H.R. 332 (discussed above), the
exclusion would apply to all such wages and self-employment income earned before, on, or after
the date of enactment. The bill would require the Commissioner of Social Security to recompute
benefits to the extent necessary to carry out such amendments (adjustments in benefit payments
would apply on a prospective basis).
Representative Peter King introduced H.R. 2954 on September 11, 2007. H.R. 2954 would
specify that when determining quarters of coverage for a Social Security benefit that individuals
would not be credited with any wages paid for services performed in the United States, or any
self-employment income earned, while the individual (1) was not a citizen or national of the
United States, (2) was not lawfully admitted for permanent residence in the United States, and (3)
was not authorized to be employed in the United States.

^(...c^on^tin^ue^d)
^S^ecu^ri^t^y^,^an^d^Cl^ai^m^s^o^f^t^h^{e Co}^mmⁱ^t^t^{ee o}ⁿ^t^h^{e Ju}^di^ci^ary^,^U.^S^.^Ho^{use o}^f^Rep^r^esen^t^a^tⁱ^v^es,^N^e^w^J^obs^{in Re}^c^e^s^sⁱ^on^an^d^th^nd
^R^eco^{very: Wh}^o^A^r^{e Get}^tⁱⁿ^g^T^h^em^aⁿ^d^Who^A^r^{e No}^t^?^h^earⁱⁿ^g,¹⁰⁹^Cong^.,²^sess.^(M^a^y⁴^,²⁰⁰⁵^),^a^t
^http:^//ju^dicⁱ^a^r^y^.^hous^e^.^g^o^v^/^m^e^dia^/^pdf^s^/^re^indl⁰⁵⁰⁴^05.^pdf^{, v}ⁱ^s^ite^{d J}^u^ne²²^{, 2}⁰⁰⁷^.
⁸¹^T^h^is^a^m^e^ndm^eⁿ^{t is}^sⁱ^m^ila^r^{to S.}^A^m^{dt. 398}^{5 t}^o^S.²⁶¹¹^{, t}^h^e^C^o^m^p^r^e^he^ns^iv^e^I^m^mⁱ^g^r^a^{tion R}^e^f^o^r^m^A^c^{t of}²⁰⁰^6,^{in t}^h^e
¹⁰⁹^th^C^o^ng^r^e^s^s^.^Foll^ow^ing^f^l^oor^d^e^ba^te^{, the}^Se^na^te^a^p^pr^ov^e^d^a^m^o^ti^{on t}^o^ta^ble^the^a^m^e^ndm^eⁿ^{t by}^a^vote^of^50-⁴⁹^,
^pr^e^v^eⁿ^ting^a^dir^e^c^t^v^o^te^{on t}^h^e^s^u^bs^ta^nc^e^of^the^m^e^a^s^ur^e^.^{S. 26}¹¹^w^a^s^pa^s^s^e^{d by}^the^Se^na^te^on^Ma^y^25,²⁰⁰⁶^{. N}^o
^f^u^r^t^he^r^a^c^{tion w}^a^s^ta^k^e^{n on the}^bi^ll.

Introduced by Representative Carter on November 5, 2007, H.R. 4037 would specify that for the
computation of a Social Security benefit, an individual should not be credited with any work
performed while the individual was not a U.S. citizen or national and was illegally in the United
States. The provision would apply to apply to all wages and self-employment income earned
before, on, or after the date of enactment.
S. 1269 was introduced by Senator Inhofe on May 2, 2007. H.R. 4192 was introduced by ^th
Representative Tancredo on November 15, 2007. Similar to several other bills in the 110
Congress, S. 1269 and H.R. 4192 would exclude the earnings of noncitizens who are not
authorized to work in the United States from being counted for Social Security purposes.
S.Amdt. 1150, the bipartisan compromise proposal for immigration reform, was proposed by
Senator Kennedy as an amendment in the nature of a substitute to the Comprehensive
Immigration Reform Act of 2007 (S. 1348). S. 1348, which was introduced by Senate Majority
Leader Reid as the marker for Senate debate on comprehensive immigration reform, is based on ^th
S. 2611, as passed by the Senate in the 109 Congress. The Senate began consideration of
S.Amdt. 1150 to S. 1348 in late May 2007. After several failed cloture votes, the measure was
withdrawn from Senate floor debate on June 7, 2007.
S. 1639, introduced by Senator Kennedy on June 18, 2007, was placed on the Senate calendar on
June 19, 2007. It was debated on the Senate floor, and pulled on June 28, 2007, when cloture was ⁸²
not invoked.
On June 6, 2007, Senator Hutchison offered an amendment (S.Amdt. 1415) to the Comprehensive
Immigration Reform Act of 2007 (S.Amdt. 1150 to S. 1348) that would restrict earnings credits
based on work performed without authorization in 2004 or later, with respect to individuals who
are assigned an SSN in 2004 or later. The Senate agreed to the Hutchison amendment by a voice
vote, on June 6, 2007. The same language is included in S. 1639, as introduced.
Under S. 1639, with respect to an individual who is not a natural-born United States citizen, no
quarter of coverage would be credited for 2004 or later (for insured status and benefit
computation purposes) unless the individual was authorized to work in the United States at the

⁸²^T^h^e^Se^na^te^v^o^te^{d 4}⁶^t^o⁵³^not^to^inv^o^k^e^c^l^otur^e^.⁽^R^e^c^o^r^d^v^o^te^num^be^r²³^5.)

time, as determined by the Social Security Administration (SSA) based on information provided
by the Department of Homeland Security (DHS). S. 1639 would not restrict earnings credits for
unauthorized work performed before 2004.
S. 1639 would maintain the current-law treatment of unauthorized earnings with respect to ⁸³
individuals who were assigned an SSN before 2004. Individuals who were assigned an SSN
before 2004 would not be required to have work authorization at any point to qualify for Social
Security benefits. All Social Security-covered earnings would be credited for purposes of gaining
insured status under the program and computing benefits, regardless of an individual’s work
authorization status.
Under S. 1639, DHS would be required to provide information regarding an individual’s work
authorization status during periods of Social Security-covered employment to SSA for purposes
of determining an individual’s creditable quarters of coverage. DHS and SSA would be required
to enter into an agreement for this purpose no later than 180 days after enactment.
The new rules for individuals assigned an SSN in 2004 or later would be effective with respect to
benefit applications filed on or after 180 days after enactment of S. 1639.
On May 24, 2007, Senator Ensign offered an amendment (S.Amdt. 1195) to the Comprehensive
Immigration Reform Act of 2007 (S.Amdt. 1150 to S. 1348) that would tighten restrictions on the
use of unauthorized earnings for purposes of qualifying for Social Security benefits. The
amendment is substantively the same as the amendment offered by Senator Ensign to the Fair
Minimum Wage Act of 2007 (S.Amdt. 152 to H.R. 2) described above. Senator Ensign offered a
number of other Social Security-related amendments to the Comprehensive Immigration Reform
Act of 2007 that would restrict earnings credits based on work performed before an individual is
assigned a valid SSN or work performed during any period without authorization. No action was
taken on the amendments before the measure was withdrawn from floor debate on June 7, 2007.
On June 21, 2007, Senator Ensign offered an amendment (S.Amdt. 1847) to S. 1639 that would
tighten restrictions on the use of unauthorized earnings for purposes of qualifying for Social
Security benefits. S.Amdt. 1847 would specify that all individuals (citizens and noncitizens) who
are assigned a valid Social Security number on or after the date of enactment of S. 1639 would be

⁸³^Forⁱⁿ^f^o^r^m^a^{tion on}^the^tr^e^a^t^m^e^{nt of}^una^ut^hor^iz^e^d^e^a^rⁿⁱ^ng^s^f^o^r^Socⁱ^a^l^Se^c^u^r^ity^pur^pos^e^s^u^nde^r^c^u^r^r^eⁿ^t^la^w^,^s^e^e^the
^re^{port se}^c^tio^{n tit}^le^{d “}^S^oc^ia^{l Se}^c^u^r^ity^P^r^ote^c^tio^{n A}^c^{t of}²⁰⁰^4.”

allowed to count only the earnings credits obtained after assignment of a valid SSN toward
insured status under the Social Security program (i.e., any past unauthorized earnings would not
count for purposes of establishing eligibility for Social Security benefits and determining the ⁸⁴
amount of benefits payable on a worker’s earnings record). In addition, with respect to an
individual who is not a natural-born U.S. citizen, no quarter of coverage would be counted toward
qualifying for a benefit unless the Social Security Commissioner, based on information provided
by the Secretary of Homeland Security, determines that the individual had work authorization
during that quarter. S.Amdt. 1847 would require the Secretary of Homeland Security to enter into
an agreement with the Social Security Commissioner, within 180 days after enactment of S. 1639,
to provide the information needed to administer this provision. The amendment would be
effective upon enactment of S. 1639.

⁸⁴^T^h^is^pr^ov^is^io^{n is}^sⁱ^m^ila^r^{to S}^.^A^m^dt.³⁹⁸⁵^to^S.²⁶^11,^the^C^o^m^p^r^e^he^ns^iv^e^I^m^mⁱ^g^r^a^{tion R}^e^f^o^r^m^A^c^{t of}²⁰⁰⁶^{, in}^the
¹⁰⁹^th^C^o^ng^r^e^s^s^.^Foll^ow^ing^f^l^oor^d^e^ba^te^{, the}^Se^na^te^a^p^pr^ov^e^d^a^m^o^ti^{on t}^o^ta^ble^the^a^m^e^ndm^eⁿ^{t by}^a^vote^of^50-⁴⁹^,
^pr^e^v^eⁿ^ting^a^dir^e^c^t^v^o^te^{on t}^h^e^s^u^bs^ta^nc^e^of^the^m^e^a^s^ur^e^.^{S. 26}¹¹^w^a^s^pa^s^s^e^{d by}^the^Se^na^te^on^Ma^y^25,²⁰⁰⁶^{. N}^o
^f^u^r^t^he^r^a^c^{tion w}^a^s^ta^k^e^{n on the}^bi^ll.

The following country lists, which are subject to change periodically, are taken from the Code of
Federal Regulations (C.F.R., revised through April 1, 2002) and the Social Security
Administration’s International Program web page.
The following countries meet the “social insurance or pension system” exception in Section

202(t)(2) of the Social Security Act:

^An^ti^gu^{a an}^{d B}^a^rbu^d^a,^A^r^g^eⁿ^tⁱⁿ^a,^Au^s^t^{ria, B}^a^h^a^m^a^s^,^B^a^rbad^os^{, B}^e^lg^ium^,^B^e^{lize, B}^o^li^vⁱ^a,
^B^r^{azil, B}^u^r^kⁱⁿ^{a Faso}⁽^f^o^r^m^e^r^l^y^Up^p^e^r^V^o^lta)^,^Can^a^d^a^{, Ch}^ile,^C^o^l^o^m^bⁱ^a^,^C^o^s^t^a^Rⁱ^c^a^,^Cy^p^r^u^s^,
^C^zech^os^lo^v^a^{kia, Denm}^ark^,^Domⁱⁿⁱ^{ca, Do}^mⁱⁿⁱ^caⁿ^R^e^pu^blic,^Ecu^a^{dor, El Salv}^ador^,^Fⁱⁿ^l^aⁿ^d^,
^Fran^{ce, Gabon}^{, Gren}^{ada, Gu}^at^e^m^{ala, Guy}^aⁿ^a^{, Icelan}^{d, Iv}^ory^C^o^as^{t, J}^a^m^a^{ica, L}ⁱ^e^c^h^t^en^s^t^eⁱⁿ^,
^Lu^x^e^m^bou^rg^{, Malta, Me}^xⁱ^{co, Mon}^{aco, Neth}^erlan^d^s^,^Nicar^ag^u^a^{, Nor}^w^a^y^{, P}^aⁿ^a^m^a^{, P}^e^ru^,
^P^hⁱ^lⁱ^p^pⁱ^ne^s,^P^o^l^a^nd^,^P^o^r^t^uga^l^,^Sa^{n M}^a^rⁱ^no^,^Sp^aⁱ^n,^St^.^C^h^rⁱ^s^t^o^p^h^e^r^aⁿ^d^N^e^vi^s,^St^.^Lucⁱ^a^,
^S^w^eden^{, S}^w^itzerlaⁿ^d^{, T}^rⁱⁿ^{idad an}^{d Tobag}^o^,^T^r^u^s^{t T}^e^rri^tory^o^f^th^{e P}^acifⁱ^{c Is}^lan^d^s
^(Micron^e^sⁱ^{a), T}^u^rk^e^y^{, U}ⁿⁱ^t^{ed King}^do^m^,^W^e^s^t^ern^Sa^m^o^{a, Y}^u^g^o^s^l^av^ia,^Z^a^ire
^{(20 C}^.^F^.^R^.^{§ 40}^4.4⁶³⁾
The following countries meet the “treaty obligation” exception in Section 202(t)(3) of the Social
Security Act:
^Ger^m^any^,^{Greece, Irelan}^{d, Is}^{rael, Ital}^y^,^J^a^pan^,^Neth^erlan^d^s^*
^{(20 C}^.^F^.^R^.^{§ 40}^4.4⁶³⁾
^*^T^reaties^bet^w^eeⁿ^t^h^{e U}ⁿ^ite^{d States}^aⁿ^{d t}^h^{e Net}^h^erlan^d^s^preclu^d^{e th}^{e applicatio}ⁿ^of
^r^e^sid^eⁿ^c^y^r^e^q^u^ir^e^m^eⁿ^ts^f^o^rⁿ^oⁿ^c^itizeⁿ^s^wⁱ^th^r^e^sp^{ect to}^m^oⁿ^t^h^l^y^su^r^vⁱ^v^o^r^b^eⁿ^e^fⁱ^t^s^oⁿ^l^y^.
The following countries meet the “totalization agreement” exception in Section 202(t)(11)(E) of
the Social Security Act. The effective date is shown for each agreement.
^{Australia October}^1,²⁰⁰²
^{Austria November}^1,¹⁹⁹¹
^Belgium^{July 1, 1}⁹⁸⁴
^{Canada August}^1,¹⁹⁸⁴
^{Chile December}^1,²⁰⁰¹
^{Finland November}^1,¹⁹⁹²
^France^{July 1, 1}⁹⁸⁸
^Germa^{ny December}^1,¹⁹⁷⁹
^Greece^September^{1, 1}⁹⁹⁴

^{Australia October}^1,²⁰⁰²
^Ireland^September^{1, 1}⁹⁹³
^{Italy November}^1,¹⁹⁷⁸
^{Japan October}^1,²⁰⁰⁵
^{South Korea}^{April 1, 20}⁰¹
^Luxem^{bourg November}^1,¹⁹⁹³
^{Netherlands November}^1,¹⁹⁹⁰
^Norway^{July 1, 1}⁹⁸⁴
^{Portugal August}^1,¹⁹⁸⁹
^Spain^{April 1, 19}⁸⁸
^{Sweden Janua}^ry^1,¹⁹⁸⁷
^{Switzerland November}^1,¹⁹⁸⁰
^{United Kingdom}¹⁹⁸^5/1⁹⁸⁸^a
^a.^{Provisions that eliminate double taxation became}^{effective Ja}^nua^ry^{1, 19}^85;^{provisions that allow per}^{sons to}
^{use work in}^{both cou}^{ntries to q}^u^{alify for benefits}^{became e}^ffective^Janua^{ry 1,}¹⁹^88.
^Note:^A^g^ree^m^en^t^s^wⁱ^t^h^Au^s^t^rⁱ^{a, B}^e^lg^ium^,^Ger^m^aⁿ^y^,^S^w^edeⁿ^an^{d S}^wⁱ^t^zerlan^d^per^m^{it t}^h^e
ⁱⁿ^divⁱ^d^u^{al to receiv}^e^ben^e^fⁱ^t^s^as^{a depen}^d^en^{t or s}^u^rv^iv^or^w^h^il^{e a}^re^sid^eⁿ^tⁱⁿ^th^o^s^{e co}^uⁿ^t^rⁱ^e^s
^on^l^yⁱ^f^t^h^e^w^o^r^k^{er is}^{a U.S. cit}ⁱ^zen^{or a citizen}^of^t^h^{e coun}^tr^y^of^resⁱ^den^ce.
^A^des^c^ription^aⁿ^{d th}^{e co}^m^p^let^e^tex^t^of^eac^h^ag^ree^m^{ent are av}^{ailable on}^S^S^A^’^s^w^e^bs^{ite at}
^h^t^t^p^:^/^/^w^w^w^.^s^s^a^.^g^ov^/ⁱⁿ^t^erⁿ^a^tⁱ^oⁿ^a^l^/^ag^ree^m^eⁿ^t^_des^c^ri^ptⁱ^oⁿ^s^.^h^t^m^l^,^vⁱ^sⁱ^t^e^{d Ju}ⁿ^e^{22, 2007.}

The following is the definition of the term “lawfully present” aliens for purposes of applying for
Title II Social Security benefits under P.L. 104-193 (the Personal Responsibility and Welfare
Reform Act) as defined in 8 C.F.R. § 103.12.
An alien who is lawfully present in the United States includes:
(1) A “qualified alien” as defined by the Personal Responsibility and Work Opportunity ⁸⁵
Reconciliation Act of 1996 (PRWORA);
(2) An alien who has been inspected and admitted to the United States and who has not violated
the terms of his status;
(3) An alien who has been paroled⁸⁶ into the United States pursuant to Section 212(d)(5) of the act
for less than one year, except: (i) Aliens paroled for deferred inspection or pending exclusion
proceedings under Section 236(a) of the act; and (ii) Aliens paroled into the United States for
prosecution pursuant to 8 C.F.R. § 212.5(b)(3);
(4) An alien who belongs to one of the following classes of aliens permitted to remain in the
United States because the Attorney General has decided for humanitarian or other public policy
reasons not to initiate deportation or exclusion proceedings or enforce departure: (i) Aliens
currently in temporary resident status pursuant to Section 210 or 245A of the INA; (ii) Aliens ⁸⁷
currently under Temporary Protected Status (TPS); (iii) Cuban-Haitian entrants, as defined in
Section 202(b) P.L. 99-603, as amended; (iv) Family Unity beneficiaries pursuant to Section 301
of P.L. 101-649, as amended; (v) Aliens currently under Deferred Enforced Departure (DED); (vi)
Aliens currently in deferred action status pursuant to Service Operations Instructions at OI

⁸⁵^P^R^W^O^R^A^c^r^e^a^t^e^d^the^te^rm^“^qua^lif^ie^{d a}^lie^n,”^a^te^rm^w^h^ic^{h doe}^{s n}^o^t^e^x^{ist in im}^mⁱ^g^r^a^{tion la}^w^,^{to e}ⁿ^c^o^m^p^a^{ss the}
^dif^f^e^r^eⁿ^{t c}^a^t^e^g^orie^s^of^nonc^itiz^eⁿ^s^w^{ho w}^e^re^{not pro}^h^ib^ite^d^by^P^R^W^O^R^A^f^r^o^m^r^ecei^viⁿ^g^fed^e^ral^p^u^b^lⁱ^c^b^eⁿ^e^fⁱ^t^s^.
^Q^u^a^lif^ie^{d a}^lie^ns⁽^note^dⁱⁿ^P^.^L^.¹⁰^4-¹⁹³^§⁴³¹^{; 8}^U^.^S.C^.^§¹⁶⁴¹⁾^a^r^e^de^fⁱ^ne^{d a}^s^:
^{(1) L}^e^g^a^{l P}^e^rm^aⁿ^eⁿ^{t Re}^side^{nts (a}^{n a}^lie^{n a}^d^m^itte^{d f}^o^{r la}^w^f^{ul pe}^r^m^aⁿ^eⁿ^{t re}^side^nc^e^(L^P^R^s));
^{(2) re}^f^u^g^e^e^s^(a^{n a}^lie^{n w}^{ho is a}^d^m^itte^{d t}^o^t^h^e^Unite^d^Sta^t^e^s^u^nde^r^§²⁰⁷^of^the^Im^mⁱ^g^r^a^{tion a}^{nd Na}^ti^oⁿ^a^lity^A^c^t
^(INA^));
⁽³⁾^a^s^y^l^ee^s⁽^a^{n a}^lie^{n w}^{ho is}^g^r^aⁿ^t^e^{d a}^s^y^l^um^unde^r^I^N^A^{§ 20}⁸⁾^;
⁽⁴⁾^aⁿ^a^lieⁿ^w^{ho is}^pa^r^o^le^d^int^o^t^h^e^Uⁿ^ite^{d S}^t^a^t^e^s⁽^uⁿ^d^e^r^I^N^A^{§ 21}²⁽^d)⁽⁵⁾⁾^f^o^r^a^pe^rⁱ^od^of^a^t^le^a^s^{t one}^y^e^a^r^;
⁽⁵⁾^aⁿ^a^lieⁿ^w^hos^e^de^p^o^r^t^a^tio^{n is}^be^ing^w^ithhe^ld^on^the^ba^sⁱ^s^of^pr^o^s^pe^c^tiv^e^pe^r^s^e^c^u^{tion (}^uⁿ^d^e^r^I^N^A^{§ 2}⁴³⁽^h)^or
^{§ 2}⁴¹⁽^b)⁽³⁾⁾^;
^{(6) a}ⁿ^a^lieⁿ^g^r^aⁿ^te^{d c}^o^ndi^tio^na^{l e}ⁿ^try^pursuaⁿ^t^{to INA}^§²⁰³⁽^a)(⁷⁾^{as i}ⁿ^eff^ect^p^rⁱ^o^{r t}^o^A^p^ri^l¹^,¹⁹⁸⁰^;^an^d
^{(7) Cu}^ba^n/Ha^itiaⁿ^eⁿ^traⁿ^{ts (a}^s^de^fine^d^by^P^.^L^.⁹⁶^-4^22).
^{For a}^dis^c^us^sⁱ^on^of^the^dif^f^e^r^e^{nt c}^a^t^e^g^orie^s^of^nonc^itiz^eⁿ^s^,^s^e^e^CRS^Re^{port R}^S²⁰⁹^16,^I^m^mⁱ^gr^at^io^{n a}^{nd N}^a^tur^a^liz^at^ioⁿ
^Fun^dam^eⁿ^t^a^ls^,^by^{Ruth Elle}^{n W}^a^se^m^.^A^dditiona^lly^{, v}ⁱ^c^tⁱ^m^{s of}^tra^f^fⁱ^c^k^ing^(T^-vⁱ^s^a^holde^{rs) a}^r^e^tre^a^t^e^d^a^s^re^f^u^g^e^e^s^f^o^r
^t^h^{e pu}^rpo^s^{e o}^f^recei^viⁿ^g^b^eⁿ^e^fⁱ^t^s^.
⁸⁶^“^P^a^r^o^l^e^”^{is a}^te^rm^{in im}^mⁱ^g^r^a^{tion la}^w^w^h^ic^{h m}^e^aⁿ^{s tha}^t^the^a^lieⁿ^h^a^{s be}^eⁿ^g^r^aⁿ^te^{d te}^m^pora^r^y^pe^r^m^is^{sion t}^o^eⁿ^te^{r a}^nd
^b^e^p^r^esen^tⁱⁿ^t^h^{e Un}ⁱ^t^e^{d S}^t^at^es.^P^a^ro^l^e^d^o^e^sⁿ^o^t^coⁿ^s^tⁱ^t^u^t^e^f^o^rm^al^a^d^mⁱ^ssi^oⁿ^t^o^t^h^{e Un}ⁱ^t^ed^S^t^at^{es and p}^a^ro^l^{ees are}
^re^quire^d^{to le}^a^v^e^w^h^eⁿ^the^pa^ro^le^e^x^pire^{s, or if}^e^lig^ible^{, to}^be^a^d^m^itte^{d in a}^la^w^f^{ul sta}^t^us.
⁸⁷^F^o^r^m^o^r^eⁱⁿ^f^o^r^m^atⁱ^oⁿ^on^TP^S^,^se^{e C}^R^S^R^e^p^o^r^{t R}^S²⁰⁸⁴^4,^Te^m^p^or^a^r^y^Pr^ote^c^t^e^d^St^atus^:^C^u^r^r^e^{nt I}^m^mⁱ^gr^ati^oⁿ^Polⁱ^c^y
^and^I^s^s^u^e^s^{, by}^R^u^th^Elle^{n W}^a^s^e^m^a^{nd K}^a^r^m^a^Es^te^r^.

242.1(a)(22); (vii) Aliens who are the spouse or child of a United States citizen whose visa
petition has been approved and who have a pending application for adjustment of status;
(5) Applicants for asylum and applicants for withholding of removal under Section 241(b)(3) of
the act or under the Convention Against Torture who have been granted employment
authorization, and such applicants under the age of 14 who have had an application pending for at
least 180 days.
An alien may not be deemed to be lawfully present solely on the basis of the Service’s decision
not to, or failure to, issue an Order to Show Cause or solely on the basis of the Service’s decision
not to, or failure to, enforce an outstanding order of deportation or exclusion.
^Da^wⁿ^N^u^sc^h^l^er ^A^l^is^oⁿ^Si^skⁱⁿ
^Specialis^{t i}ⁿ^In^co^m^e^Secu^rit^y^Sp^{ecialist i}ⁿ^I^m^mⁱ^g^r^atioⁿ^P^o^lic^y
^dn^u^s^c^h^l^e^r^@^crs^.^l^o^c.g^o^v^,⁷^-⁶²⁸³^asⁱ^s^kⁱⁿ^@^crs^.^l^o^c.^g^o^v^,^7-⁰²⁶⁰