Can I receive Social Security benefits if I have been deported?

Recently one of my colleagues asked whether his client who had been deported (now called “removal”) could receive Social Security benefits.  I thought this was an intriguing question so I decided to research it.  The answer is generally, “no,” but it depends upon the year in which the removal took place and the section of law that it was under.  Our current law is contained in Section 202(n)(1) of the Social Security Act.  (You will need to scroll down on the page to see the applicable section.)  It basically states that once the Department of Homeland Security notifies the Social Security Administration that an individual has been removed, Social Security will terminate benefits.  Benefits will resume again if and when the individual returns to the United States as a lawful permanent resident.  For most people, this means that means at least a ten year wait abroad.  Of course there also has to be a legal way for the person to return.

Dependants or suvivors of workers fare better.  Even though the individual worker may have been removed, a dependent or a person entilted to survivors benefits may receive the benefits as long as they:  (1) are U.S. Citizens  or (2) presnet in the United States for the entire month(s) after the worker has been removed from the United States.   If you would like to see the actual text of the regulation,  it is contained at 20 C.F.R. Section 404.464.

Generally someone who has worked long enough in the United States to earn Social Security benefits would have been in the United States long enough to have been elgibile for citizenship.    It is a shame that he or she loses benefits (and is removed from the United States)  when both removal and the non-receipt of benefits  could have been potentially avoided had he or she simply applied for citizenship.

Are survivors divorced spouse’s benefits retroactive?

My new motto is to file early and often. It can be detrimental to wait and file for Social Security disability benefits. Perhaps I am being silly by saying “early and often, ” but the point is to file as soon as you can.

I recently saw someone at my law office with a situation that is probably not uncommon. She had been in a long-term marriage. After 40 years, she and her husband divorced. Ten years later, her former husband died. Two years after his death, she applied for survivors retirement benefits.

Surviving divorced spouses may receive Social Security retirement benefits based on the earnings record of their former spouse beginning at age 60 if the marriage lasted ten or more years. I would have thought that my new client would have been able to receive the benefits retroactively from the time of her ex-husband’s death. I learned that Social Security retirement benefits for survivors do not work like that. The furthest one can go back and obtain benefits is for six months prior to the date of death. Thus in my client’s situation, she lost about 1 and 1/2 years of benefits by waiting to file.

The answer is a little different if the surviving spouse is disabled. If the surviving spouse is disabled, he or she can apply for survivors disability benefits at age 50. The surviving spouse has the same burden of proof as any applicant for SSDI to prove disability. In this situation, the surviving divorced disabled spouse can obtain benefits up to one year retroactively. I have attached Section 1513 from the SSA Handbook which lists the retroactive time periods for both types of benefits.

The one important lesson my client’s inquiry taught me was that people should apply for benefits as soon as they able to do so.