Immigrating to the United States often involves a variety of complexities. The immigration laws govern how individuals can legally live, work, and gain permanent residency or citizenship. One such rule that often comes up in immigration cases involves the concept of "40 quarters." An individual must have worked and paid into the system for at least 40 quarters to qualify for certain benefits, such as Social Security.
The Social Security Administration does not recognize illegal employment as eligible for credits if taxes are not paid for the earnings. Typical instances of illegal work are if you overstayed in the US on a tourist or student visa. The USCIS can also consider your work illegal if you are an illegal immigrant or you lack a work permit. Under these circumstances, the work does not count towards the 40 quarters, and you cannot enjoy social security benefits.
With the guidance of a skilled immigration attorney, you can navigate the exceptions available for the 40-quarter rule.
The 40-Quarter Rule Under California Immigration Laws
The 40-quarter rule requires certain public benefits for lawful permanent residents. It requires an immigrant to have worked or received credit for 40 qualifying quarters. Individuals seeking to sponsor their spouse for lawful permanent residency in the United States must meet the financial requirements for the Affidavit of Support.
This rule relies on the sponsor's ability to help the immigrant spouse financially. To meet the requirement, the person must have worked and paid taxes for at least 10 years. These quarters must not be consecutive, but they must total 40.
The SSA uses "quarter" to describe three months when an individual works and pays Social Security taxes. Each quarter represents a specific amount of earnings that are subject to taxes. Most people meet the 40-quarters after up to ten years of qualifying work.
The primary purpose of the 40-quarter rule is to ensure that a U.S. resident can offer financial support to the immigrant spouse. When immigrants enter the country, the government ensures that individuals will not rely on the government's help.
Exemption to the 40-Quarter Rule
There are exceptions to the 40-quarter rule for individuals sponsoring their spouses. They include:
- U.S. citizens. U.S. citizens sponsoring their spouses for green cards are not required to meet the 40-quarter rule. They can sponsor their spouse regardless of whether they have worked in the U.S. or earned enough Social Security credits.
- Income-based exceptions. A person can still sponsor their spouse if they do not meet the 40-quarter rule. However, they must prove they have enough income to support the immigrant spouse. The Affidavit of Support proves eligibility for an income-based exception, part of the green card process.
- Spouses of U.S. citizens with special conditions. Another exception to the 40-quarter rule is if the spouse of a U.S. citizen has a unique condition. These conditions include asylum or if the immigrant spouse is a widow or widower of a citizen.
Does Illegal Work Count Toward 40 Quarters?
An immigrant must have met 40 quarters to qualify for certain immigration and social security benefits. These benefits could include sponsoring a spouse to the U.S. Meeting the qualification shows that you can financially support your spouse, and they will not depend on government aid.
Most people accumulate 40–40-quarters of their work experience in the US over 10 years. However, not all types of employment or income count towards these quarters. The Social Security Administration only legally counts work performed in the U.S. when calculating the quarters.
Some types of work are illegal and do not count towards the 40 quarters. Under immigration law, illegal work is an individual's employment without proper work authorization. Instances of unlawful work include:
Undocumented Work
One of the instances when the immigrating spouse's work does not count in the 40 quarters is when it is undocumented. Some undocumented workers may still pay into the system through taxes. However, these payments do not earn the worker legitimate Social Security credits.
The SSA requires workers to have legal authorization to work in the U.S. However, their income will count toward the 40 quarters if they pay through the system using a valid SSN. The immigration laws consider these types of work undocumented and unlawful:
- Working without a valid visa or work permit. Some immigrants enter the U.S. on tourist or student visas. After the expiration of these visas, the immigrant must leave the country or seek an extension. Your work becomes undocumented if you accept employment without authorization.
- Working after visa expiration. Work done by immigrants who overstay their authorized period of stay is unlawful, and it does not count toward the 40 quarters.
- Unauthorized employment. Individuals who enter the U.S. illegally, overstay their visa, and accept work cannot use the work for the 40-quarters requirement.
Work Done under a Fake Social Security Number
Work done under a fake SSN cannot count under the forty quarters necessary to receive Social Security benefits. Additionally, it will have severe legal and immigration consequences.
The IRS issues ITINs to individuals ineligible for an SSN. While an immigrant can use the ITIN for tax purposes, it does not support eligibility for Social Security benefits. However, the individual can later adjust their immigration status and become eligible for an SSN. Under these circumstances, the SSA can credit work reported under the ITIN.
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Legal Implications of Using a Fake SSN
Using a fake SSN for employment is a state and federal law crime. When you use another person's information, you could face charges for identity theft. California law imposes stringent penalties for those who use false identification information. If an individual used a fake SSN, they could face fines or imprisonment. Facing criminal charges as an immigrant can also result in deportation or inadmissibility.
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Impact on I-864 and Immigration Applications
A person's work history is critical when they seek to sponsor a spouse to the United States. Therefore, using a fake SSN can have severe immigration consequences. When completing the I-864 form, the sponsor must provide accurate information about their income and employment history.
A fake SSN can raise doubts about a sponsor's financial reliability and honesty. U.S. Citizenship and Immigration Services will scrutinize the sponsor's history for any signs of fraud. Using a fake SSN could result in denying the immigrant's application.
If the USCIS discovers that the sponsor used a fake SSN, the sponsor may need to submit additional evidence. The evidence will prove their eligibility through other means. A sponsor can use affidavits from different employers or proof of consistent financial responsibility.
The criminal consequences of using a fake SSN could complicate the immigration process. With enough evidence of identity theft and fraud, a person can lose their immigration benefits.
Work Paid Under the Table
"Under the table" work refers to employment where wages are paid in cash and not reported to the IRS. Many individuals who work in this manner violate the tax laws. Since these wages are not reported, the income is not subject to Social Security taxes.
Because of withholding the tax, a person will not earn Social Security credits. The illegal practice of not reporting income to the IRS can lead to legal penalties for tax evasion. Additionally, it exempts the work done from the 40-quarter calculation.
Illegal or Unlicensed Occupations
Certain jobs are illegal or need specific licenses that individuals may not have. For example, unlicensed construction work is unlawful in the U.S. In such cases, the work does not contribute toward Social Security credits. Even when people receive employment from unlicensed work, they will not earn quarters for Social Security purposes.
Fraudulent Employment
Many immigrants provide false information to obtain employment in the United States. The income associated with fraudulent work will not count toward Social Security credits. Sometimes, a business can falsify employment claims to avoid paying certain taxes.
Under these circumstances, that employment does not count for Social Security purposes. In addition to the immigration consequences, falsification of employment documents can result in criminal charges.
Work for Employers Who Do Not Report Income
Failure to report employees' wages to the government violates federal and state tax laws. Even when the employee works legally, the work does not count if your employer does not report your salary to the SSA.
For this reason, workers will not earn Social Security credits for the time worked. Employers are responsible for ensuring proper wage reporting to the SSA. Failure to do this can impact the employees' ability to earn Social Security credits for their work.
Reasons Why Illegal Work Does Not Count Toward Social Security Quarters
A permanent resident in the United States must prove their ability to support a spouse they wish to sponsor. The applicant must meet the 40-quarter rule when filing the Affidavit of Support. The rule mandates that the sponsor must have gained 40 quarters working in the US. However, only the lawful work will count towards the quarters. There are several reasons why illegal work does not count toward the 40 quarters. They include
Unreported or Undocumented Earnings
Illegal work does not count toward the quarters because the earnings from such work remain undocumented. However, if a person's earnings are on the SS record and taxes are paid, they count under the 40-quarter rule. Additionally, an employer must report those earnings to the IRS. In cases of illegal work, the individual often receives cash payment without documentation or tax withholding. Cash or under-the-table payments make it impossible for the SSA to verify that the earnings were lawful.
Failure to Pay Social Security Taxes
Even when illegal work is reported to the IRS, the earnings are not subject to Social Security taxes. An employer might fail to withhold Social Security taxes if a worker lacks proper documentation. The SSA relies on these tax contributions to determine a person's work history and eligibility for benefits. Workers cannot earn quarters toward Social Security benefits without these tax contributions.
Immigration and Social Security Eligibility
The rules surrounding Social Security are complex for undocumented immigrants. The SSA can issue an Individual Taxpayer Identification Number for tax purposes. However, having the taxpayer's number is not a legal requirement for working in the United States.
Therefore, wages earned by unauthorized workers may not count toward Social Security benefits. Additionally, employers may fail to report these workers' earnings, which further complicates the workers' ability to accumulate quarters.
There is an exception for individuals who pay Social Security taxes on their unlawful earnings. In these cases, the SSA may count the quarters toward a worker's record. However, these workers face significant legal risks in other areas. If you seek to sponsor your spouse and your work is considered unlawful, you will need a skilled immigration attorney.
Resolving Issues with Illegal Work History
An immigrating spouse who worked illegally may face challenges verifying their work history for the 40-quarter rule. The following are some steps the immigrant can take to resolve these issues:
- Establishing a work history. If the immigrating spouse has worked without legal authorization, they may need to provide documentation of their employment history. This can include pay stubs, tax returns, or letters from employers. These documents can prove that they earned income and contributed to the Social Security system.
- Changing from ITIN to SSN. If the individual uses an ITIN and later receives a valid SSN, they should contact the SSA and IRS to request a transfer. The transfer helps ensure their earnings are credited to their Social Security record.
- Correcting social security records. If an individual's Social Security record contains discrepancies, they can request a correction from the SSA. Before a correction, the SSA mandates that the person provide evidence of their work history and income.
- Seeking legal advice. Social Security and immigration law are complex. It is often advisable for individuals in this situation to seek legal counsel. An immigration lawyer can help guide the individual through correcting their work history. Illegal work history can impact a person's immigration status. Thus, correcting it maximizes their eligibility for Social Security benefits and safeguards their immigration standing.
Transitioning from Illegal to Legal Work
If an immigrating spouse worked illegally in the U.S., they can transition to legal work status. However, the immigrant must have entered the country legally. There are several pathways they might take to regulate their status, including:
- Adjustment of status. If the individual marries a citizen, they can adjust their status to legal permanent resident (LPR). With LPR status, they can obtain authorization to work legally in the United States.
- Work Visas. Depending on the individual's qualifications and situation, they may apply for a work visa. H-1B is the most common type of employment visa.
- Legalization programs. There are opportunities to apply for legal status through specific programs or reforms. An immigrating spouse can explore the programs to ensure their work counts towards social security benefits.
Filing an I-864 Exemption to Avoid the 40-Quarter Rule in California
If an immigrant spouse worked illegally, they cannot use their work hours to claim eligibility for social security benefits. However, they can use their spouse's legal work hours by filing an affidavit of support.
When you file an affidavit of support to sponsor your spouse into the country, you must meet the 40-quarter rule. Unfortunately, the USCIS may deny your application if your work is illegal. You can avoid the 40-quarter rule by filing an I-864 exception.
The I-864 exemption addresses the needs of applicants who do not need financial support due to various circumstances. Applicants must submit the appropriate documentation to claim an exemption from the I-864. The documentation should include evidence of the relationship to the applicant. Additionally, you must present employment records or proof of U.S. citizenship or permanent residence status.
The process of filing the exception takes these steps:
- Prepare documentation. The documents you will need to apply for an exemption may include evidence of income or employment verification.
- Submit the exemption request. Applicants must submit an exemption request to the U.S. Citizenship and Immigration Services.
- Legal representation. Not all applicants for the exceptions will receive it. Therefore, you must consult with an immigration attorney for assistance with this process.
Find a Competent Immigrations Attorney Near Me
To enjoy social security benefits, an immigrant must meet the 40-quarters rule. You must have worked and paid social security taxes for up to 10 years. Under California law, only legal work will qualify for the 40-quarters rule.
The only option to qualify for Social Security benefits through their work is to seek legal authorization status. An immigrant can qualify for benefits through the work history of a legally employed spouse.
Understanding legal work requirements, authorized employment, and Social Security credits is critical. It helps you navigate the complex immigration system in the U.S. California immigration laws are complex. Therefore, you will need the guidance of a reliable immigration attorney.
At California Immigration Attorney, we have extensive experience in handling immigration cases. We will help you understand the 40-quarter rule and explore different available exceptions to bypass it. Contact us at 424-789-8809 today to discuss your case.