A Little Good News from Social Security, Maybe, Later This Year

By David North on February 16, 2011

Maybe, just maybe, the Social Security Administration might do something useful about illegal aliens and Social Security benefits, later this year.

The title of its announcement is not very exciting: "Additional Insured Status Requirements for Certain Alien Workers (2882P)"

But what it says has at least some promise.

Later this year the SSA will issue, for comment, proposed regulations regarding just which aliens are eligible to collect Social Security benefits. In addition to the usual requirements, such as 40 quarters of covered work for most retirees, there is an extra one for aliens who received their Social Security number since January 1, 2004.

"One requirement is an assignment of an SSN and authorization to work in the United States." An alternative requirement deals only with a handful of crewmen on visiting, foreign-flag merchant ships.

If one does not meet the proposed new requirements, one can be denied benefits, even though otherwise eligible.

There is a Delphic quality to the operative clause, just quoted. That one would need an SSN to secure these benefits is pretty obvious, and it is well known that in the not-too-distant past some illegal aliens obtained legitimate SSNs when they should not have done so.

But just what does "authorization to work in the United States" mean? How is that defined? Does it include aliens, for example, who are in the midst of deportation hearings, and who have secured an Employment Authorization Document (EAD) from DHS? Or does it just pertain to aliens who have secured a more permanent authorization, such as a Green Card?

How about aliens who are now in illegal status, but who had formerly been in one of the government's many non-immigrant worker programs that require FICA payments, such as H-1Bs, and who obtained an SSN legitimately during that process?

Presumably all that will be spelled out in the regulation-writing process in which there will be intense pressures from the immigration bar and, probably, from Hispanic organizations, to define the terms of the exclusion in ways that will exclude few potential beneficiaries.

There is another lurking problem as well, and my conversation with the SSA employee assigned to the case was not particularly reassuring. After I was told that the timing of the proposed regulation was not known, and that SSA was not now receiving comments, I asked whether any such regulation would be trumped by one of those Totalization Treaties that the SSA promotes from time to time.

These treaties have a sensible purpose, of seeing to it that a worker who has worked in two nations' retirement systems has an opportunity to merge all of his or her pension benefits; otherwise someone who had 39 quarters of coverage, for instance, in each of two nations, would get nothing in benefits, rather than getting benefits based on the 78 quarters of paying retirement taxes.

The underlying trouble, of course, is in the fine print, and a draft Totalization Treaty with Mexico that emerged seven years ago was regarded by some critics as a total give-away to Mexican nationals. (See, for example, the reaction at the time of U.S. Border Control, an advocacy group.)

In my conversation with the SSA employee I asked if there might be a danger that any proposed SSA regulation could be swept away by such a treaty; there was a pause, and I continued "you know, of course, that treaties trump laws, and laws trump regulations, and what you are working on is a regulation."

The silence that followed from the other end of the phone line either suggested that the bit of fundamental civics was news to the staffer, or, more charitably, that he simply did not want to comment on the situation. He did say that the Totalization Treaties were the task of another part of the SSA and he was sure that the regulations part would be in touch with the treaties part.

He did check his computer screen and informed me (which was not news to me) that at the moment there is no Totalization Treaty with Mexico.

Even if a useful regulation along these lines is, in fact, published, and even if no treaties interfere, the benefits of such a regulation would be a lesser drain on the Social Security Fund but probably not much impact on illegal migration per se. Very few would-be migrants from Mexico would be discouraged from crossing illegally by the ultimate prospect of no Social Security checks in retirement; the prospect of getting some American wages in the next week or so is the spur to illegal immigration.

Further, given the way the government works, even if such a regulation were created it is fairly clear that no one would deliberately use the new rules – as we should – to discourage further illegal immigration. The creation of a strong propaganda machine on the other side of the border, designed to discourage illegal entries, does not seem to be in the cards.

Someone could pay teenagers to hand out pamphlets to pregnant women crossing through the ports-of-entry, pamphlets that said in vivid Spanish "having a baby in the U.S. will not let the child file papers for his mother FOR 21 YEARS." Similar pamphlets dealing with NO SOCIAL SECURITY BENEFITS FOR ILLEGALS could – but won't – be distributed to all working age people crossing at the same ports.

If and when the SSA does print the proposed regs on this subject, CIS will inform our readers.