Social Security Benefits for Noncitizens
Released: 2016-11-17T00:00:00

Current Policy

Background

The Social Security program provides monthly cash benefits to retired or disabled workers and their dependents, and to the survivors of deceased workers. To qualify for benefits, workers (whether citizens or noncitizens) must work in Social Security-covered jobs for a specified period of time, among other requirements. Generally, workers need 40 earnings credits (also referred to as "quarters of coverage") to become "insured" for benefits (fewer credits are needed for disability and survivor benefits, depending on the worker's age). In 2017, a worker earns one credit for each $1,300 of covered earnings, up to a maximum of four credits for the year (i.e., with annual earnings of $5,200 or more).

Social Security-Covered Employment

The Social Security program is financed primarily by mandatory payroll taxes levied on wages and self-employment income. Most jobs in the United States are covered under Social Security (about 94% of the work force is required to pay Social Security payroll taxes). In 2017, Social Security-covered workers and their employers each pay 6.2% of earnings up to $127,200 (this amount is increased annually according to average wage growth if a Social Security cost-of-living adjustment is payable). The self-employed pay 12.4% on net self-employment income up to $127,200 and may deduct one-half of payroll taxes from federal income taxes. The following workers are exempt from Social Security payroll taxes:

State and local government workers who participate in alternative retirement systems. Election workers who earn less than $1,800 in 2017. Ministers who elect not to be covered, and members of certain religious sects. Most federal workers hired before 1984. College students who work at their academic institutions. Household workers who earn less than $2,000 in 2017, or those under age 18 for whom household work is not their principal occupation. Self-employed workers who have annual net earnings below $400. Noncitizens who work under the F, J, M, Q, and H-2A visa categories.

In 2014, an estimated 14 million noncitizens were in the U.S. labor force comprising approximately 8.9% of the labor force. Foreign nationals who work in Social Security-covered employment must pay Social Security payroll taxes, including those who are in the United States working temporarily and those who may be working in the United States without authorization. There are some exceptions. In general, the work of aliens who are citizens of a country with which the United States has a "totalization agreement" (see below) is not covered by Social Security if they work in the United States for less than five years. In addition, by statute, the work of aliens under certain visa categories (such as H-2A agricultural workers, F and M students) is not covered by Social Security.

An alien may be authorized to be in the United States, but not authorized to work. Therefore, a foreign national who does not have work authorization is not necessarily illegally present (i.e., an unauthorized alien). The Social Security Administration (SSA) maintains an Earnings Suspense File that tracks wages that cannot be posted to individual work records because the names and Social Security numbers (SSNs) on W-2 forms submitted by employers to SSA do not match SSA records. As of October 2016, through tax year 2014, the Earnings Suspense File included about 346 million wage items representing about $1.3 trillion in wages. The mismatched information may be due to typographical or other clerical errors (such as a misspelled name or an individual's failure to report a new married name to SSA), as well as the use of invalid or stolen SSNs by aliens who are working in the United States without authorization.

In 2013, the SSA Office of the Chief Actuary (OCACT) estimated that about 3.1 million unauthorized aliens were working and paying Social Security taxes in 2010. Of those 3.1 million unauthorized foreign national workers, SSA estimated that 0.6 million had temporary work authorized at some point in the past and overstayed their terms of admittance (e.g., visas); 0.7 million obtained fraudulent birth certificates at some point and used these birth certificates to obtain an SSN; and 1.8 million used an SSN that did not match their name (i.e., fraudulently used another person's SSN). OCACT estimated that $13 billion in payroll taxes were from unauthorized immigrant workers and their employers in 2010.

Social Security Payment Rules

Workers become eligible for Social Security benefits when they meet the insured status and age requirements specified in the Social Security Act. They become entitled to benefits when they have met all of the eligibility requirements and filed an application for benefits. Because Social Security is an earned entitlement program, there are few restrictions on benefit payments once a worker becomes entitled to benefits. The Social Security Act does prohibit the payment of benefits to individuals residing in certain countries; individuals confined to a jail, prison, or certain other public institutions for commission of a crime; most individuals removed from the United States (i.e., deported); aliens residing in the United States unlawfully; and in some cases, aliens residing outside the United States for more than six months at a time.

Social Security Protection Act of 2004

On March 2, 2004, President George W. Bush signed into law the Social Security Protection Act of 2004 ( P.L. 108-203 , H.R. 743 ). Among other changes, P.L. 108-203 restricts the payment of Social Security benefits to certain noncitizens who file an application for benefits based on an SSN assigned on or after January 1, 2004. Specifically, a noncitizen who files an application for benefits based on an SSN assigned on or after January 1, 2004, is required to have work authorization at the time an SSN is assigned, or at some later time, to gain insured status under the Social Security program. If the individual had work authorization at some point , all of his or her covered earnings count toward insured status (and for benefit computation purposes). If, however, the individual never had authorization to work in the United States, none of his or her covered earnings count toward insured status (and therefore benefits would not payable based on his or her work record).

A noncitizen who files an application for benefits based on an SSN assigned before January 1, 2004, is not subject to the work authorization requirement under P.L. 108-203 . All of the individual's Social Security-covered earnings are counted toward insured status (and for benefit computation purposes), regardless of his or her work authorization status.

The treatment of earnings based on unauthorized work for Social Security purposes is often an issue when Congress considers legislation to legalize all or part of the unauthorized population residing in the United States. For example, the most recent example of a comprehensive immigration reform bill ( S. 744 as passed by the Senate in the 113 th Congress) contained provisions that would have prohibited most persons legalized under the bill from counting earnings obtained before the person legalized toward insured status under the program or for benefit computation purposes. In addition, in the 114 th Congress, H.R. 1996 would prohibit those who received work authorization under the Deferred Action for Childhood Arrivals (DACA) program from receiving SSNs and receiving Social Security benefits.

The following table summarizes the treatment of earnings based on unauthorized work for Social Security purposes under current law.

Assignment of Social Security Numbers to Noncitizens

The treatment of earnings based on unauthorized work for Social Security purposes differs, depending on whether an individual was assigned an SSN before 2004, or in 2004 or later. The policy with respect to SSN assignment for noncitizens was changed in late 2003. Noncitizens authorized by DHS to work in the United States can be assigned an SSN. Noncitizens not authorized to work can be assigned an SSN for a valid nonwork reason. Following a regulatory change that went into effect in late 2003, the only valid nonwork reason for assignment of an SSN would be if an individual needs an SSN to receive federal, state, or local government benefits to which he or she has otherwise established entitlement (see 20 C.F.R. §422.104). Before the regulatory change, the policy for assignment of nonwork SSNs was less restrictive, and noncitizens could be assigned an SSN for a variety of nonwork purposes, such as to obtain a driver's license. (For more information on the assignment of SSNs to noncitizens, see " Social Security Cards and Noncitizens " section.)

Special Payment Rules for Noncitizens

Section 202(y) of the Social Security Act requires noncitizens in the United States to be "lawfully present" to receive benefits. If a noncitizen is entitled to benefits, but does not meet the lawful presence requirement, his or her benefits are suspended. In such cases, a noncitizen may receive benefits while residing outside the United States (including benefits based on work performed in the United States without authorization) if he or she meets one of the exceptions to the alien nonpayment provision under Section 202(t) of the Social Security Act. Under the alien nonpayment provision, a noncitizen's benefits are suspended if he or she remains outside the United States for more than six consecutive months, unless one of several broad exceptions is met. For example, an alien may receive benefits outside the United States if he or she is a citizen of a country that has a social insurance or pension system that pays benefits to eligible U.S. citizens residing outside that country (a "social insurance country"), or if he or she is a resident of a country with which the United States has a totalization agreement (see Table 1 ). If an alien does not meet one of the exceptions to the alien nonpayment provision, his or her benefits are suspended beginning with the seventh month of absence and are not resumed until he or she returns to the United States lawfully for a full calendar month.

In addition, to receive payments outside the United States, alien dependents and survivors must have lived in the United States for at least five years previously (lawfully or unlawfully), and the family relationship to the worker must have existed during that time (see Table 2 ). The law provides several broad exceptions to the five-year U.S. residency requirement for alien dependents and survivors. For example, an alien is exempt from the five-year U.S. residency requirement if he or she is a citizen of a "treaty obligation" country (i.e., if nonpayment would be contrary to a treaty between the United States and the individual's country of citizenship), or if he or she is a citizen or resident of a country with which the United States has a totalization agreement (see Table 3 ).

Legislative History of Payment Rules for Noncitizens

When the Social Security program began paying benefits in 1940, there were no restrictions on benefit payments to noncitizens. In 1956, amid concerns that noncitizens were working in the United States for relatively short periods and returning to their native countries where they and their family members would collect benefits for many years, Congress approved restrictions on benefits for alien workers living abroad (restrictions did not apply to alien dependents and survivors). The Social Security Amendments of 1956 (P.L. 84-880) required noncitizens to reside in the United States to receive benefits and suspended benefits if the beneficiary remained outside the United States for more than six consecutive months, with broad exceptions (see Table 1 ).

In 1983, Congress placed restrictions on benefit payments to alien dependents and survivors living abroad. The Social Security Amendments of 1983 ( P.L. 98-21 ) made dependents and survivors subject to the same residency requirement as workers (described above) and further required that they (or their parents, in the case of a child's benefit) must have lived in the United States for at least five years, with broad exceptions (see Table 2 and Table 3 ).

Several factors led to the enactment of tighter restrictions on benefit payments to alien dependents and survivors living abroad in 1983, including the large number of dependents who were being added to the benefit rolls (in some cases under fraudulent circumstances) after workers had returned to their native countries and become entitled to benefits, and difficulties associated with monitoring the continued eligibility of beneficiaries living abroad.

At the time, the U.S. General Accounting Office (GAO, now the U.S. Government Accountability Office) estimated that 56,000 of the 164,000 dependents living abroad in 1981 were added to the benefit rolls after the worker became entitled to benefits. Of that number, an estimated 51,000 (or 91%) were noncitizens. Two years earlier, the Social Security Commissioner stated that SSA investigators had found evidence that some beneficiaries living abroad were faking marriages and adoptions and failing to report deaths in order to "cheat the system." At the time, the Commissioner stated that such problems were particularly acute in Greece, Italy, Mexico and the Philippines, where large numbers of beneficiaries were residing. He stated further that, in some countries, "there is a kind of industry built up of so-called claims-fixers who, for a percentage of the benefit, will work to ensure that somebody gets the maximum benefit they can possibly get out of the system."

In 1996, Congress approved tighter restrictions on the payment of Social Security benefits to aliens residing in the United States. The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) prohibited the payment of Social Security benefits to aliens in the United States who are not lawfully present, unless nonpayment would be contrary to a totalization agreement or Section 202(t) of the Social Security Act (the alien nonpayment provision). This provision became effective for applications filed on or after September 1, 1996. Subsequently, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 added Section 202(y) to the Social Security Act. Section 202(y) of the act, which became effective for applications filed on or after December 1, 1996, states, "Notwithstanding any other provision of law, no monthly benefit under [Title II of the Social Security Act] shall be pay able to any alien in the United States for any month during which such alien is not lawfully present in the United States as determined by the Attorney General."

Social Security Cards and Noncitizens

All U.S. citizens are eligible for SSNs. In addition, noncitizens (aliens) authorized to work in the United States are eligible for SSNs. Noncitizens eligible to work in the United States include those who are admitted to the United States permanently and are often referred to as immigrants (e.g., legal permanent residents, asylees, refugees), and those who are admitted temporarily (e.g., H-2A– temporary agricultural workers, H-2B– temporary professional workers, J-1– cultural exchange visitors).

Social Security cards issued to noncitizens who are residing permanently in the United States are identical to those issued to U.S. citizens. Social Security cards issued to noncitizens who are in the United States temporarily bear the inscription, "VALID FOR WORK ONLY WITH DHS AUTHORIZATION." SSA also issues SSNs to noncitizens not authorized to work if the noncitizen is legally in the United States and needs an SSN to receive state or federal benefits or services. SSNs issued for this purpose bear the legend, "NOT VALID FOR EMPLOYMENT."

Importantly, the SSN issued to a noncitizen does not change if the noncitizen adjusts status (e.g., a person who is in the United States temporarily may marry a U.S. citizen, become a legal permanent resident, and then naturalize and become a U.S. citizen). Although the noncitizen is supposed to report any change of status to SSA, this does not always occur. As a result, it is possible that some U.S. citizens have Social Security cards with the inscription, "VALID FOR WORK ONLY WITH DHS AUTHORIZATION."

In addition, there are statutory evidentiary requirements to receive an SSN. The Social Security Amendments of 1972 (P.L. 92-603) required SSA to obtain evidence to establish age, citizenship or alien status, and identity of the applicant. SSA requires applicants to present for identification a document that shows name, identifying information, and preferably a recent photograph. SSA also requires that all documents be either originals or copies certified by the issuing agency.

Tax Treatment of Social Security Benefits

Noncitizens who reside outside the United States are subject to different rules regarding federal income tax treatment of Social Security benefits. U.S. citizens and resident aliens pay federal income tax on a portion of their benefit if their income exceeds specified thresholds. Specifically, they pay federal income tax on up to 50% of their benefits if their provisional income is more than $25,000 but no more than $34,000 for a single person, or more than $32,000 but no more than $44,000 for a married couple filing jointly. They pay federal income tax on up to 85% of their benefits if their provisional income is more than $34,000 for a single person or more than $44,000 for a married couple filing jointly. These thresholds do not apply to married couples who live together and file separate returns. The Congressional Budget Office (CBO) estimated that 49% of Social Security beneficiaries (25.5 million people) were affected by the income taxation of Social Security benefits in tax year 2014.

Noncitizens who live outside the United States pay federal income tax on their benefits without regard to these thresholds. Section 871 of the Internal Revenue Code imposes a 30% rate of tax withholding on the U.S. income of noncitizens who live outside the country (unless a lower rate is established by treaty) because there is no practical way for the U.S. government to determine the income of such persons (26 U.S.C. §871). Under the withholding, noncitizens who reside outside the United States pay 30% of the maximum taxable amount of Social Security benefits (85%) in federal income taxes. For example, the tax withholding on an annual Social Security benefit of $12,000 would be $3,060 [($12,000 x 0.85) x 0.30].

Totalization Agreements

As shown in Table 1 and Table 3 , alien workers and alien dependents/survivors may receive payments while living outside the United States if they are a resident or, in some cases, a citizen of a country with which the United States has a totalization agreement. Section 233 of the Social Security Act authorizes the President to enter into a totalization agreement with a foreign country to coordinate the collection of payroll taxes and the payment of benefits under each country's Social Security system for workers who split their careers between the two countries. For example, without a totalization agreement, an individual who is sent by a U.S. company to work in a foreign country (and his or her employer) must contribute to the Social Security systems in both countries, resulting in dual Social Security coverage and taxation based on the same earnings. With one exception, totalization agreements allow workers (and their employers) to contribute only to the foreign system if the worker is employed in that country for five or more years, or only to the U.S. system if the worker is employed in that country for less than five years.

Totalization agreements also allow workers who divide their careers between the two countries to combine earnings credits under both systems to qualify for benefits if they lack sufficient coverage under either system. Although a worker may combine earnings credits to qualify for benefits under one or both systems, his or her benefit is prorated to reflect only the number of years the worker paid into each system. The same treatment applies to foreign workers in the United States.

Totalization agreements are subject to congressional review. Section 233(e) of the Social Security Act requires the President to submit to Congress the text of the agreement and a report on (1) the estimated number of individuals who would be affected by the agreement and (2) the estimated financial impact of the agreement on programs established by the Social Security Act. Section 233(e)(2) of the Social Security Act specifies that a totalization agreement automatically goes into effect unless the House of Representatives or the Senate adopts a resolution of disapproval within 60 session days of the agreement's transmittal to Congress.

Section 233(e)(2), which allows for the rejection of a totalization agreement upon adoption of a resolution of disapproval by either house of Congress, is functionally identical to the legislative veto provision that was held unconstitutional in INS v. Chadha . Because Congress has never rejected a Social Security agreement, the apparent constitutional infirmity of Section 233(e)(2) has not been an issue. Congressional use of the mechanism in Section 233(e)(2) to reject a Social Security agreement could give rise to a judicial challenge.

Since 1978, the United States has entered into totalization agreements with 26 countries. (The effective date for each agreement is shown in Appendix A .)

In addition to these 26 totalization agreements, the United States has pending totalization agreements with Mexico (signed June 29, 2004) and Brazil (signed June 30, 2015). After an agreement is signed, officials from SSA and the foreign Social Security agency address implementation issues, formulating operations procedures to be used in administering the agreement. When that process is complete, the agreement is forwarded to the U.S. Secretary of State for review. Following review by the State Department, the agreement is sent to the President for review. The President is required by law to transmit the agreement to Congress for a period of review (60 session days) before the agreement can go into effect.

Although the specific terms of each totalization agreement may differ, the provisions of a totalization agreement must be consistent with the Social Security Act. Section 233(c)(4) of the Social Security Act states, "any such agreement may contain other provisions which are not inconsistent with the other provisions of [Title II of the Social Security Act] and which the President deems appropriate to carry out the purposes of this section." For the month of December 2015, a total of $51 million in Social Security benefits was paid to approximately 221,000 beneficiaries under totalization agreements.

Perceived Disparate Treatment Under Social Security and Immigration Law

Some believe there is a disconnect between how the Social Security and immigration rules treat unauthorized aliens. Immigration policies are designed to discourage and penalize foreign nationals who work without authorization in the United States. In contrast, under the Social Security program, there are certain circumstances when a foreign national who worked in the United States without authorization can collect Social Security benefits based on taxes paid while the foreign national was working illegally. As a result of this perceived inconsistency, some oppose paying Social Security benefits to unauthorized aliens and others who worked without authorization, arguing that foreign nationals who violate immigration law should not be rewarded by receiving Social Security benefits. Others contend that foreign nationals who work in Social Security-covered employment (i.e., had payroll taxes withheld from their earnings) should be eligible for benefits whether or not they had employment authorization, because they "paid into the system." The following section presents an example of this tension.

No-Match Letters

In 1994, SSA began sending "no-match" letters to employers to inform them of a discrepancy between a W-2 form and SSA records. As discussed above, receipt of a no-match letter does not imply that the employee is using a fraudulent SSN; the discrepancy could be the result of a clerical error. For tax years 1993 through 2000, an employer received no-match letters only if more than 10 employees had discrepancies and the number of employees with mismatches equaled more than 10% of the employer's workforce.

In 2002, SSA implemented a policy change that substantially increased the number of no-match letters sent to employers; it received much attention because of the impact on unauthorized aliens. Under the revised policy, SSA began sending no-match letters to every employer that had at least one employee with discrepancies on his or her W-2 form. The number of no-match letters sent by the agency increased from approximately 110,000 to approximately 950,000 for tax year 2001. Employers were not required to respond to or act on the letters; however, under the Immigration and Nationality Act (INA) employers may be subject to penalties for hiring or retaining unauthorized alien workers. In addition, the Internal Revenue Service can penalize employers for providing incorrect information on W-2 forms.

Although SSA maintained that the letters were sent to employers to ensure that workers were properly credited with their earnings, due to the controversy surrounding the increase in the number of no-match letters, SSA quickly altered their policy, reverting to one similar to the previous policy.

Some argued that SSA should not have reduced the number of no-match letters that were sent to employers. They contended that SSA should coordinate with other agencies to locate unauthorized alien workers, and that no-match letters can be a tool to help reduce the unauthorized population in the United States. In addition, the no-match letters could have helped employers who do not know that the employees' documents are fraudulent but would be liable if they were caught employing unauthorized aliens.

Others contended that SSA has no immigration-related enforcement powers, and it is not the job of SSA to enforce immigration laws. In addition, some immigration advocates contended that tens of thousands of foreign nationals left their jobs or were fired as a result of the letters. They argued that no-match letters do little to combat unlawful employment as those who use false documents simply find employment in another company, increasing the risk of workplace exploitation. They also contended that some firms may have experienced a loss of revenue caused by worker shortages or by terminated employees who do not have employment authorization moving to competitors. The letters also raised concerns that employers were discriminating based on alienage (i.e., that an employer who received a no-match letter for a noncitizen would fire the noncitizen worker without ascertaining if they have employment authorization).

Appendix A. Exception Countries

The following lists of countries, which are subject to change periodically, are taken from the Electronic Code of Federal Regulations ( e-CFR ) with data current as of November 1, 2016, and the SSA Program Operations Manual System (POMS).

Social Insurance or Pension System Countries

Under the alien nonpayment provision, a noncitizen's benefits are suspended if he or she remains outside the United States for more than six consecutive months, unless one of several broad exceptions is met. For example, an alien may receive benefits outside the United States if he or she is a citizen of a country that has a social insurance or pension system that pays benefits to eligible U.S. citizens residing outside that country. The following countries meet the social insurance or pension system exception in Section 202(t)(2) of the Social Security Act:

Albania, Antigua and Barbuda, Argentina, Australia, Austria, Bahamas, Barbados, Belgium, Belize, Bolivia, Bosnia-Herzegovina, Brazil, Bulgaria, Burkina Faso, Canada, Chile, Colombia, Costa Rica, Cote D'Ivoire, Croatia, Cyprus, Czech Republic, Denmark, Dominica, Dominican Republic, Ecuador, El Salvador, Finland, France, Gabon, Grenada, Guatemala, Guyana, Hungary, Iceland, Jamaica, Jordan, Latvia, Liechtenstein, Lithuania, Luxembourg, Macedonia, Malta, Marshall Islands, Mexico, Federated States of Micronesia, Monaco, Montenegro, Nicaragua, Norway, Palau, Panama, Peru, Philippines, Poland, Portugal, Romania, St. Kitts and Nevis, St. Lucia, St. Vincent and the Grenadines, Samoa, San Marino, Serbia, Slovak Republic, Slovenia, South Korea, Spain, Sweden, Switzerland, The Netherlands, Trinidad-Tobago, Trust Territory of the Pacific Islands, Turkey, United Kingdom, Uruguay, Venezuela.

Treaty Obligation Countries

To receive benefits outside the United States, alien dependents and survivors must have lived in the United States previously for at least five years (lawfully or unlawfully), and the family relationship to the worker must have existed during that time. The law provides several broad exceptions to the five-year U.S. residency requirement for alien dependents and survivors. For example, an alien dependent or survivor is exempt from the U.S. residency requirement if he or she is a citizen of a treaty obligation country (i.e., if nonpayment of benefits would be contrary to a treaty between the United States and the individual's country of citizenship). As indicated in the Code of Federal Regulations (20 C.F.R. §404.463), the following countries meet the "treaty obligation" exception in Section 202(t)(3) of the Social Security Act:

Germany, Greece, Ireland, Israel, Italy, Japan, Netherlands*

*The Treaty of Friendship, Commerce, and Navigation now in force between the United States and the Kingdom of the Netherlands creates treaty obligations precluding the application of the alien nonpayment provision to citizens of that country with respect to monthly survivor benefits only.

Totalization Agreement Countries

The following countries meet the "totalization agreement" exception in Section 202(t)(11)(E) of the Social Security Act. The effective date is shown for each agreement.

Appendix B. Definition of "Lawfully Present"

The following is the definition of the term lawfully present aliens for purposes of applying for Title II Social Security benefits under P.L. 104-193 (the Personal Responsibility and Welfare Reform Act) as defined in 8 C.F.R. §103.12.

An alien who is lawfully present in the United States includes

(1) A "qualified alien" as defined by the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA);

(2) An alien who has been inspected and admitted to the United States and who has not violated the terms of his status;

(3) An alien who has been paroled into the United States pursuant to Section 212(d)(5) of the act for less than one year, except: (i) Aliens paroled for deferred inspection or pending exclusion proceedings under Section 236(a) of the act; and (ii) Aliens paroled into the United States for prosecution pursuant to 8 C.F.R. §212.5(b)(3);

(4) An alien who belongs to one of the following classes of aliens permitted to remain in the United States because the Attorney General has decided for humanitarian or other public policy reasons not to initiate deportation or exclusion proceedings or enforce departure: (i) Aliens currently in temporary resident status pursuant to Section 210 or 245A of the INA; (ii) Aliens currently under Temporary Protected Status (TPS); (iii) Cuban-Haitian entrants, as defined in Section 202(b) P.L. 99-603 , as amended; (iv) Family Unity beneficiaries pursuant to Section 301 of P.L. 101-649 , as amended; (v) Aliens currently under Deferred Enforced Departure (DED); (vi) Aliens currently in deferred action status pursuant to Service Operations Instructions at OI 242.1(a)(22); (vii) Aliens who are the spouse or child of a United States citizen whose visa petition has been approved and who have a pending application for adjustment of status;

(5) Applicants for asylum and applicants for withholding of removal under Section 241(b)(3) of the act or under the Convention Against Torture who have been granted employment authorization, and such applicants under the age of 14 who have had an application pending for at least 180 days.

An alien may not be deemed to be lawfully present solely on the basis of the Service's decision not to, or failure to, issue an Order to Show Cause or solely on the basis of the Service's decision not to, or failure to, enforce an outstanding order of deportation or exclusion.