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Earned retirement pension for unauthorized worker

Foreign nationals residing in the United States who are unauthorized to work but who are in possession of valid social security numbers contribute to the social security fund. Will these unauthorized workers be able to receive social security benefits when they retire?

Amelia entered the United States on a student visa in 2002. She was offered a job by a US employer and was able to change status to a nonimmigrant H1B visa.

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Amelia was able to lawfully obtain a social security number as an H1B visa worker. After three years, her visa expired and Amelia had fallen “out of status.” She found another job as a caregiver in a health-care facility and worked without employment authorization.

Since she has a social security number, Amelia’s new employer deducted payroll taxes on her wages. In 2016, Amelia will be 65 years old and would like to find out whether she will be able to receive social security benefits upon her retirement. At present, she is still in unlawful status but is planning to return to the Philippines to retire.

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Retired and disabled workers are provided monthly cash benefits if they meet the insured status and certain age requirements.

To qualify for the insured status, the worker must have worked in social security covered jobs and must meet 40 quarters of coverage.

These benefits are given to both US citizens and non-US citizens as long as they meet the eligibility requirements.

For undocumented workers who are paid cash by their employers, definitely, they are not covered by this program and so are those with inaccurate social security numbers unless they are able to prove their true identity.

But for the group of undocumented who pay federal and payroll taxes through wage deduction by their employer, their contributions to the social security program may be clearly traced.

There is a special rule for payment of social security retirement benefits to noncitizens. If the unauthorized worker is present in the United States at the time of retirement, he or she should be in lawful status to receive social security benefits.

In addition, pursuant to the Social Security Protection Act of 2004, the social security number must have been obtained before 2004 to obtain full benefits without need of proving valid employment authorization. Those who obtained their social security number in 2004 onwards must show proof that the earnings were based on authorized employment.

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Amelia will qualify to receive if she can show proof of legal status. Hence, she has to find ways to legalize her stay in the United States to receive the retirement benefits.

If Amelia decides to depart for good and retire in the Philippines, obviously she does not need to show lawful status in the US.

Subject to certain conditions, there will be a possibility for her to receive social security benefits but only after applying for exemption under the “alien nonpayment provision” of the Social Security Act. The Philippines is one of the countries that is considered as a “social insurance country” for purposes of this exemption.

(The author may be reached at [email protected], www.tancinco.com, facebook/tancincolaw, or at [02] 721-1963.)

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TAGS: illegal workers, Immigration, Labor, social security, Social Security Protection Act, Undocumented Immigrants, United States
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