April 17, 2014

PART 8: Still Pending: Totalization Agreement With Mexico Awaits


With President Obama’s Fiscal Commission working on a plan that’s expected to include cuts to Social Security benefits and cost-of-living adjustments (COLAs), TSCL continues to fight a totalization agreement that would award hundreds of millions of dollars in Social Security benefits to an estimated 1.6 million illegal Mexican workers and their dependents.  The pending totalization agreement with Mexico was signed in 2004 but has not yet been sent by the President to Congress for final review.

Last year, TSCL sought and received an opinion from a respected legal team saying that, under a totalization agreement, Mexican workers appeared to have greater rights to Social Security benefits than American citizens.  The memo said that in the 1960 Supreme Court case Flemming v. Nestor, the court ruled that American workers have no contractual right to receive Social Security payments.  “An American worker who has faithfully paid the employment tax has no legal recourse to any of those monies deposited in the Social Security trust fund,” the memo states.  The totalization agreement between the U.S. and Mexico, however, appears to create “a legally enforceable obligation in United States Courts,” the memo continues.

Totalization agreements allow workers who divide their careers between two countries to combine or totalize their work credits under both Social Security systems in order to qualify for benefits if they lack sufficient coverage under either system. The United States has 24 such agreements with nations, most having economies considered to be similar to ours.

The agreement with Mexico is highly controversial because of the millions of Mexicans working without authorization in the United States.  No other nation has so many citizens illegally working in this country.  An estimated 59% of the estimated 11 million illegal immigrants in the U.S. are from Mexico.  Despite legislation passed in 2004 that prohibits the payment of Social Security benefits to illegal immigrants, Mexicans who worked in this country illegally could become entitled to Social Security benefits under a totalization agreement, according to the Congressional Research Service.  When determining entitlement for Social Security benefits, the Social Security Administration uses all reported earnings, even for jobs worked while illegal.

“TSCL believes the President would be wise to abandon any plan to send the totalization agreement with Mexico to Congress,” states Daniel O’Connell, Chairman of TSCL.

Seniors are deeply and adamantly opposed to the payment of Social Security based on illegal work.  TSCL’s 2009 Advisor Senior Survey found that more than 86% of seniors responding said that illegal immigrants should not be allowed to earn credits toward Social Security even if payroll taxes were withheld from their wages. TSCL has mounted a national petition drive to protest the totalization agreement with Mexico.  To learn more and to sign the petition, visit the TSCL website at www.seniorsleague.org.

Sources:  “The Cost of Illegal Earnings Under Totalization With Mexico,” Mary Johnson, TSCL, April 2007.  “U.S./Mexican Totalization Agreement— Legal Basis for Superior Rights to Social Security Benefit of Illegal Aliens Over American Citizens,” Olson, Titus, Miles, TSCL, June 24, 2009.  “Social Security Benefits for Noncitizens,” Congressional Research Service, July 20, 2006, RL32004.

Terry Payne

Oldest of four brothers. Masters degree in clinical psychology. Lived in Charleston 1970-1985 and returned in June 2003. Served in US Navy for 37 years. Conducted projects for various defense contracts for 14 years. Worked with Minuteman organization for several years. I work part time. I have done a lot of research on illegal aliens impact on Social Security trust fund and costs associated with illegal immigration.

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