Are Social Security Benefits Available to An Alien?

A potential client comes into the office and inquires about obtaining disability benefits under the social security system. He tells you he is an alien. Does he have the ability to obtains benefits?
The Social Security Administration (SSA) provides 2 types of benefits for disabled individuals. To determine whether you qualify for Title II benefits (SSDI) rather than Title XVI of benefits (SSI) depends upon your employment history. The test to see if you qualify based upon your disability is the same for both type of benefits.

The first issue to determine is the workers status. If he is neither a citizen nor a permanent resident, the worker may be entitled to receive SSDI if he can show that he is lawfully present in the United States and meets certain other criteria. (8 U.S.C. § 1611(b)(2)).¹

Most foreign workers in the United States who work and pay taxes on their wages are covered under the U.S. Social Security program and therefore potentially qualify for disability benefits. This is true even if they are not citizens or permanent residents..

The next consideration is the worker's earnings or lack of earnings. In order to be eligible for SSDI there is a basic concept – you must have worked and paid Social Security taxes. Payment of such taxes earns the worker social security “credits”. A worker can earn a maximum of up to 4 “credits” in a year. As a thumbnail, a worker needs to have worked 5 of the past 10 years to obtain the right to apply for SSDI benefits, in other words having worked and earned sufficient credits within the requisite number of years, the worker has earned an “insured status”. ( 20 CFR § 404 contains the regulations for SSDI benefits.)

What if the worker has not achieved an insured status? Then consideration turns to SSI benefits. The first issue is the worker's status. To be eligible for SSI benefits a worker needs to be a resident of the United States (§ 416.1603), and—

(1) A citizen or a national of the United States (§ 416.1610);
(2) An alien lawfully admitted for permanent residence in the United States (§ 416.1615);
(3) An alien permanently residing in the United States under color of law (§ 416.1618)²; or
(4) A child of armed forces personnel living overseas as described in § 416.216.

In addition the worker must qualify under 20 CFR § 404.202 , i.e. he is (1) Aged 65 or older;
(2) Blind; or (3) Disabled.

Lastly, since SSI is a safety net program there be income and property limitations that need be considered because they may reduce or eliminate the right to receive a full payment or any payment.

This is a complicated area of the law, especially when SSI benefits are involved.  It is a necessity to have the assistance of an attorney.

1 8 U.S. Code § 1611 - Aliens who are not qualified aliens ineligible for Federal public benefits

(a) In general

Notwithstanding any other provision of law and except as provided in subsection (b) of this section, an alien who is not a qualified alien (as defined in section 1641 of this title) is not eligible for any Federal public benefit (as defined in subsection (c) of this section)....

(b) Exceptions

(1) Subsection (a) of this section shall not apply with respect to the following Federal public benefits:

(A) Medical assistance under title XIX of the Social Security Act [42 U.S.C. 1396 et seq.] (or any successor program to such title) for care and services that are necessary for the treatment of an emergency medical condition (as defined in section 1903(v)(3) of such Act [42 U.S.C. 1396b (v)(3)]) of the alien involved and are not related to an organ transplant procedure, if the alien involved otherwise meets the eligibility requirements for medical assistance under the State plan approved under such title (other than the requirement of the receipt of aid or assistance under title IV of such Act [42 U.S.C. 601 et seq.], supplemental security income benefits under title XVI of such Act [42 U.S.C. 1381 et seq.], or a State supplementary payment). …...

(2) Subsection (a) of this section shall not apply to any benefit payable under title II of the Social Security Act [42 U.S.C. 401 et seq.] to an alien who is lawfully present in the United States as determined by the Attorney General, to any benefit if nonpayment of such benefit would contravene an international agreement described in section 233 of the Social Security Act [42 U.S.C. 433], to any benefit if nonpayment would be contrary to section 202(t) of the Social Security Act [42 U.S.C. 402 (t)], or to any benefit payable under title II of the Social Security Act to which entitlement is based on an application filed in or before August 1996.

(3) Subsection (a) of this section shall not apply to any benefit payable under title XVIII of the Social Security Act [42 U.S.C. 1395 et seq.] (relating to the medicare program) to an alien who is lawfully present in the United States as determined by the Attorney General and, with respect to benefits payable under part A of such title [42 U.S.C. 1395c et seq.], who was authorized to be employed with respect to any wages attributable to employment which are counted for purposes of eligibility for such benefits....

2  § 416.1618. When you are considered permanently residing in the United States under color of law.

(a) General. We will consider you to be permanently residing in the United States under color of law and you may be eligible for SSI benefits if you are an alien residing in the United States with the knowledge and permission of the Immigration and Naturalization Service and that agency does not contemplate enforcing your departure. The Immigration and Naturalization Service does not contemplate enforcing your departure if it is the policy or practice of that agency not to enforce the departure of aliens in the same category or if from all the facts and circumstances in your case it appears that the Immigration and Naturalization Service is otherwise permitting you to reside in the United States indefinitely. We make these decisions by verifying your status with the Immigration and Naturalization Service following the rules contained in paragraphs (b) through (e) of this section....