It is an urban myth that those who work without authorization in the United States will still receive social security benefits. In fact, individuals who worked previously in the United States may need to act to ensure they receive proper credit for the work they performed after they become authorized to work.
The root of this dynamic is the Social Security Protection Act of 2004. President Bush, in an effort to placate his party, pushed for legislation that changed who is eligible for retirement benefits for work performed in the United States. The Protection Act bars payment to non-citizens and their family members unless the individual ever received a social security number authorizing work in the United States or the person worked with a valid B-1 (domestic servant) visa.
This law impacted all social security numbers created after 2004 when the law went into effect. Social security numbers and benefits associated with them remain valid if the Social Security Administration issued its card before the law went into effect.
Now, the law is not an impenetrable wall for everyone. The law rigidly applies to deny benefits to those who always worked without authorization even with a valid card while in the United States after the passage of the law. When a person later obtains authorization to work in the United States, the function of the authorization is to liberate the person’s social security number and to provide retirement benefits accordingly.
It remains unclear whether those who were initially authorized to work; e.g., H visas; and then continued to work after overstaying will have the SSA deny retirement benefits. The reason is that the initial period of admission and issuance of the social security number was a period of authorized employment. The focus is whether the person received his or her number while authorized, or later became authorized.
The Social Security Protection Act seems to permit a person to recover credits for work performed. A common pattern is someone comes to the United States, works without authorization, leaves to consular process with an approved provisional waiver, and then returns with authorization and receives a social security number. This also the same as a B-2 visitor later marrying a citizen of the United States and applying for adjustment of status. The credits earned before the person had authorization could count toward future benefit eligibility.
Of course, this would require the person to show to a representative of the Social Security Administration records of work performed, perhaps which shows a social security number belong to someone else. Historically, the Social Security Administration corrects the records to make sure that no one gets credit for work not performed as much as the person with the new card gets credit for the past. A person presents the previously issued W-2 so the SSA can determine the amounts attributable to the actual worker. The person should also make sure to file appropriate tax returns for this period if not already filed using an ITIN.
There is an element of risk, however, in revealing one’s past conduct to get social security credits. Unauthorized employment often requires more than working without permission – it requires a number possibly belong to someone else to access the workforce. Correcting a record is an acknowledgment before a government actor of the past illegal act. Each person will have to evaluate from him or herself if the value of the credits is worth the risk of potential criminal consequence.
At a minimum, every person who becomes a permanent resident or citizen should have the language “valid with DHS authorization” removed from their card permanently to ensure there is no debate decades later. SSA will not issue a new number; rather, the impacted person will simply receive a clean card.
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