Social Security Benefits and Unauthorized Alien Workers

Social Security Benefits and Unauthorized Alien Workers

February 6, 2018
Social Security Benefits and Unauthorized Alien Workers
“Are unauthorized alien workers eligible for Social
determine the amount of benefits payable. In some cases,
Security benefits?” This In Focus addresses the frequently
the Social Security Administration (SSA) cannot post
asked question in a summary format. A more detailed
earnings to individual work records because the names and
discussion is provided in CRS Report RL32004, Social
SSNs on W-2 forms submitted by employers to SSA do not
Security Benefits for Noncitizens. An alien is “any person
match SSA’s records. The mismatched information may be
not a citizen or national of the United States” and is
due to clerical errors, as well as the use of invalid or stolen
synonymous with noncitizen and foreign national. The
SSNs by aliens working in the United States without
terms are used interchangeably here. Note that an alien may
authorization. In such cases, SSA posts the earnings to its
be authorized to be in the United States, but not authorized
Earnings Suspense File (ESF). The ESF has accumulated
to work. Therefore, an alien who does not have work
more than $1.5 trillion in wages and 360 million wage
authorization is not necessarily illegally present (i.e., an
items for tax years 1938 through 2016. In tax year 2016
unauthorized alien). For example, an alien present in the
alone, SSA posted about 8.9 million wage items,
United States on a B-2 tourist visa may remain in the U.S.
representing $98 billion in wages. The ESF represents
for six months, but is not legally permitted to work.
earnings on which Social Security payroll taxes have been
paid, and, potentially, earnings on which Social Security
Summary
benefits may not be payable.
Concerns about the number of unauthorized aliens
(sometimes referred to as “illegal” aliens) residing in the
Lawful Presence Requirement for Beneficiaries
United States have fostered considerable interest in the
In 1996, Congress prohibited the payment of Social
eligibility of noncitizens for U.S. Social Security benefits.
Security benefits to aliens in the United States who are not
Social Security provides monthly cash benefits to qualified
lawfully present. The lawful presence requirement was
retired or disabled workers, their dependents, and the
added by the Personal Responsibility and Work
survivors of deceased workers. In general, among other
Opportunity Reconciliation Act of 1996 (P.L. 104-193) and
eligibility requirements, a worker must have 10 years of
the Illegal Immigration Reform and Immigrant
Social Security-covered employment to be eligible for
Responsibility Act of 1996 (P.L. 104-208). Depending on
retirement benefits. To qualify for disability and survivor
the circumstances, alien workers, their dependents, and
benefits, less time in covered employment is required.
survivors may receive Social Security benefits while
residing outside the United States (including benefits based
Most U.S. jobs are covered under Social Security. As a
on unauthorized work).
result, noncitizens authorized to work in the United States
are eligible for a Social Security number (SSN).
Work Authorization Requirement
Noncitizens who work in Social Security-covered
Before 2004, noncitizens were not required to have work
employment must pay Social Security payroll taxes,
authorization to qualify for Social Security benefits.
including those in the United States working temporarily or
Noncitizens could qualify for benefits based solely on
without authorization. Unauthorized aliens working and
unauthorized work.
paying Social Security taxes may be fraudulently using
another person’s SSN, for example.
In an effort to limit the crediting of earnings from
unauthorized work for purposes of qualifying for Social
There are some exceptions. In general, the work of aliens
Security benefits, Congress passed a work authorization
who are citizens of a country with which the United States
requirement for certain noncitizens as part of the Social
has a totalization agreement is not covered if they work in
Security Protection Act of 2004 (P.L. 108-203). Certain
the United States for fewer than five years. (Totalization
noncitizens must have authorization to work in the United
agreements allow for the coordination of Social Security
States at some point to qualify for Social Security benefits.
payroll taxes and benefits for workers who divide their
Specifically, an alien whose application for benefits is
careers between the United States and a foreign country.) In
based on an SSN assigned January 1, 2004, or later must
addition, by statute, the work of aliens under certain visa
have work authorization at the time an SSN is assigned, or
categories is not covered by Social Security (e.g.,
at some later time, to qualify for Social Security benefits
noncitizens who work under the F, J, M, Q, and H-2A visa
(with some exceptions).
categories are exempt from Social Security payroll taxes).
The work authorization requirement does not apply to an
Earnings Suspense File
alien whose application for benefits is based on an SSN
Earnings in Social Security-covered employment (i.e.,
assigned before January 1, 2004. Such individuals may
earnings on which Social Security payroll taxes are paid)
qualify for benefits without having had authorization to
allow workers to qualify for Social Security benefits for
work in the United States at any point.
themselves and their eligible family members and
https://crsreports.congress.gov

Social Security Benefits and Unauthorized Alien Workers
Can Noncitizens Qualify for Social
(including benefits based on work performed in the United
Security Benefits for Themselves and
States without authorization) if he or she meets one of the
Their Family Members Based on
exceptions to the alien nonpayment provision [Social
Unauthorized Work?
Security Act, §202(t); 42 U.S.C. §402(t)].
There are certain circumstances under which noncitizens
who work in the United States without authorization can
Noncitizens Residing Outside the U.S.
qualify for Social Security benefits for themselves and their
When the Social Security program began paying benefits in
eligible family members (see text box). Current law with
1940, there were no restrictions on benefit payments to
respect to crediting earnings from unauthorized work for
noncitizens. Congress placed restrictions on benefit
Social Security eligibility and benefit computation purposes
payments to alien workers living abroad as part of the
becomes of interest when Congress considers legislation to
Social Security Amendments of 1956 (P.L. 84-880) and to
legalize all or part of the unauthorized population residing
alien dependents and survivors living abroad as part of the
in the United States.
Social Security Amendments of 1983 (P.L. 98-21).
Alien Nonpayment Provision
Treatment of Earnings Based on Unauthorized Work
Under the alien nonpayment provision, a noncitizen’s
The treatment of earnings differs, depending on when a
benefits are suspended if he or she remains outside the
noncitizen is assigned a Social Security number (SSN).
United States for more than six consecutive months.
However, there are a number of exceptions that allow
Noncitizens Assigned an SSN Before 2004 *
noncitizens to receive benefits while residing outside the
With respect to benefit applications based on an SSN assigned
United States indefinitely. For example, an alien may
before 2004, the individual is not required to have work
receive benefits outside the United States if he or she is a
authorization at any point. All Social Security-covered earnings
citizen of a country that has a social insurance or pension
are credited for purposes of qualifying for benefits, regardless of
system that pays benefits to eligible U.S. citizens residing
the individual’s work authorization status.
outside that country (such as Mexico). If an alien does not
Noncitizens Assigned an SSN in 2004 or Later *
meet one of the exceptions, his or her benefit payments are
With respect to benefit applications based on an SSN assigned
suspended beginning with the seventh month of absence
on or after January 1, 2004, the individual must have work
and are not resumed until he or she returns to the United
authorization when an SSN is assigned, or at any later time, to
States lawfully for a full calendar month. In addition, to
qualify for Social Security benefits. [Social Security Act, §214 and
receive payments outside the United States, alien
§223; 42 U.S.C. §414 and §423]
dependents and survivors must have lived in the United

States for at least five years previously (lawfully or

If the individual has work authorization at some point, all of
unlawfully), and the relationship to the worker must have
his or her Social Security-covered earnings (from
existed during that time. There are a number of exceptions.
authorized and unauthorized work) count toward qualifying
For example, the U.S. residency requirement does not apply
for benefits.
if the alien is a citizen or resident of a country with which

If the individual never obtains work authorization, none of
the United States has a totalization agreement (such as
his or her covered earnings count toward qualifying for
Canada).
benefits.
* Policy Regarding SSN Assignment for Noncitizens
Related Statistics from SSA
Noncitizens authorized by the Department of Homeland
In 2013, SSA’s Office of the Chief Actuary (OCACT)
Security to work in the United States can be assigned an SSN.
estimated that about 3.1 million unauthorized aliens were
Noncitizens not authorized to work can be assigned an SSN for
working and paying Social Security payroll taxes in 2010.
a valid nonwork reason. Under regulations in effect since late
2003, the only valid nonwork reason for assignment of an SSN
Of those, SSA estimated that 0.6 million had temporary
would be if a noncitizen needs an SSN to receive federal, state,
work authorized at some point in the past and overstayed
or local government benefits to which he or she has otherwise
their terms of admittance (e.g., visas); 0.7 million obtained
established entitlement (20 C.F.R. §422.104). Previously, the
fraudulent birth certificates at some point and used these
policy for assignment of nonwork SSNs was less restrictive;
noncitizens could be assigned an SSN for a variety of nonwork
birth certificates to obtain an SSN; and 1.8 million used an
purposes, such as to obtain a driver’s license.
SSN that did not match their name (i.e., fraudulently used
another person’s SSN). OCACT estimated that $13 billion
Can Noncitizens in the U.S. Receive
in payroll taxes were from unauthorized immigrant workers
Social Security Benefit Payments If They and their employers in 2010. In addition, OCACT estimated
Are Not Lawfully Present?
that 3.9 million unauthorized workers worked in the
“underground economy,” for an estimated total 7.0 million
No. The Social Security Act requires noncitizens to be
unauthorized workers in 2010. (Source: SSA, OCACT,
lawfully present to receive benefit payments while in the
Actuarial Note, Number 151, Effects of Unauthorized
United States [Social Security Act, §202(y); 42 U.S.C.
Immigration on the Actuarial Status of the Social Security
§402(y)]. The term lawfully present alien for purposes of
Trust Funds, April 2013.)
the Social Security program is defined in 8 C.F.R. §1.3.
Audrey Singer, Coordinator, Specialist in Immigration
If a noncitizen is entitled to benefits, but does not meet the
lawful presence requirement, his or her benefits are
Policy
suspended. In such cases, a noncitizen may receive benefits
William R. Morton, Analyst in Income Security
while residing outside the United States indefinitely
IF10820
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Social Security Benefits and Unauthorized Alien Workers

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https://crsreports.congress.gov | IF10820 · VERSION 3 · NEW