Illegal Aliens Eligible for Social Security Benefits

Annie was an ethnic Chinese born in Malaysia who had legally emigrated to the U.S. decades ago. She entered my law office with her mother, who clutched a well-worn copy of a Chinese language book called What You Need to Know About Life in America that is eventually encountered by most immigration lawyers.

Annie knew her mother had no legal basis to remain in the U.S. She had overstayed her tourist visa and had never applied for any type of immigration benefit beyond that, though she had managed to remain for years, working off the books and going undetected by the INS.

Annie had brought her mother to my office not for an immigration matter, but for retirement planning. She had one question, "What do I have to do to qualify her for SSI?"

SSI, or Supplemental Security Income, is a federal cash benefit program for persons 65 or older, or those who are blind or have a disability. SSI payments are generally unavailable to most people already receiving Social Security benefits, though an individual may be able to receive both if combined household income and resources fall within the SSI limits. Besides cash payments, persons who are eligible for SSI are automatically eligible for most state-administered Medicaid programs.

SSI is funded through the payroll taxes of Americans. But you don't have to be an American to receive SSI payments. Like food stamps, Medicaid and almost every other form of social insurance that America has developed to help its citizens, SSI is targeted by people from other countries as a tool to materially improve their lives without work.

The 1996 Welfare Reform Act may have erected barriers to a non-citizen's eligibility for SSI, but it did not come close to ending it. The very group Congress sought to make ineligible for SSI, people who may have entered the U.S. illegally but through a series of happy accidents permanently reside here under color of law ("PRUCOL" aliens), has been able to hold on to SSI eligibility through a combination of lawyering and lobbying.

What You Need to Know About Life in America was first published in Taiwan in the late 1980s. It provided readers with a step-by-step guide on how to come to the U.S. and apply for public assistance, including SSI. It figured prominently in the debate that led up to the 1996 Welfare Reform Act, and most thought that the book, and what it stood for, would go away with the act's restrictions on public assistance for non-citizens.

The book, however, is still around, frequently in photocopied form, and has been edited to reflect the new realities of public assistance for non-citizens. Like its readers, What You Need to Know About Life in America hasn't gone away; it has just changed its tactics.

"PRUCOL" aliens are people who have either entered the U.S. illegally or who have overstayed their visa, but who the INS has decided not to remove from the U.S. One may wonder how it is possible for the INS to know that an alien is in the U.S. illegally and make an affirmative decision to not remove that person, but built into the Immigration and Nationality Act is an "escape hatch" that permits any immigration judge to indefinitely withhold an order of removal for any alien whose removal from the U.S. would create great hardship. Though that person will probably never have legal immigration status, he is entitled to several forms of public assistance.

But PRUCOL aliens are not nearly the major threat to social security. The Bush administration has reportedly completed a draft of a treaty between the U.S. and Mexico that will give the Mexican government at least $345 billion in Social Security payments for Mexicans who have worked in the U.S. legally and illegally. The treaty, which is unique in that it provides a foreign government Social Security money even for those of its citizens who have worked illegally in America, may be timed to coincide with the 2004 elections.

If the draft treaty becomes law, it will dismantle the chief provision of the 1996 Welfare Reform Act, a law which has saved U.S. taxpayers $72 billion since inception, because it will give Social Security payments to illegal aliens and legal aliens who have not paid into our payroll tax system for the requisite 10 years.

There are other assaults to Social Security. For years, local Social Security offices have issued Social Security cards to illegal aliens if one was requested in connection with an application for a state driver's license. Social Security Administration employees and supervisors, like Yolanda Vargas in Texas and Andrea Turner in New Jersey, have been caught selling Social Security cards to illegal aliens, who use them later in life to apply for benefits.

Most federal agencies regard a person whose immediate relative has just petitioned her into the country as a PRUCOL alien, and therefore someone potentially eligible for public assistance. So it was that Annie filed a petition for her mother, who had never paid taxes. She was paroled into the U.S., stopped working and started receiving her check about 14 months later.

Matt Hayes began practicing immigration law shortly after graduating from Pace University School of Law in 1994, representing new immigrants in civil and criminal matters.  He teaches at Berkeley College, and is author of The New Immigration Law and Practice, a textbook to be published by West Legal Publications in October, 2003.

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