International Social Security Agreements: The U.S. Experience
International Social Security Agreements:The U.S. Experienceby Paul Butcher and Joseph Erdos*This article discusses the United States’ program of international social security agreements. These agreements, commonlyknown in the United States as “totalization” ,agreements, provide for limited coordination of the U.S. Old-Age, Survivors,and Disability Insurance program with the comparable programsof other countries. The agreements were authorized for theUnited States by an amendment to the Social Security Act in1977, but they have been common among European countriessince the period between the two World Wars. Agreements arenow in force between the United States and ten other countries,and agreements with two others have been signed. The primarypurpose of the agreements is to eliminate dual U.S. and foreignsocial security coverage and taxation of the same work for expatriate workers and their employers. Agreements also assureadequate continuity of social security protection for individualswho have acquired credits under the system of the United Statesand the system of another country. The article describes thespecial characteristics of U.S. agreements and compares themwith the agreements of other countries.The United States recently marked the 15th anniversary of the signing of its first international social security (totalization) agreement. Since the signing of thatagreementwith Italy in 1973, the United Stateshas concluded agreementswith 11 other countries, and 10 ofthe 12 agreementsare currently in force. This articletraces the progress of the agreementsprogram anddescribes some of the special features that distinguish thesocial security agreementsof the United Statesfron1those of other countries.General Features of AgreementsThe totalization agreementsconcluded by the UnitedStatesare designed to eliminate dual social securitycoverage and taxation of the same work. They also provide benefit protection to persons with careers dividedbetween the United Statesand a foreign country.Dual CoverageIn the absenceof an international agreement, a workermay be covered under the social security systemsof two*Oftice of International Policy, Office of Policy, Social SecurityAdministration.4countries simultaneously for the same work. In thesecases,both countries generally require the employer andemployee or self-employed person to pay social securitycontributions.The U.S. program, referred to in this article as OldAge, Survivors, and Disability Insurance (OASDI),covers expatriate workers-those coming to the UnitedStatesand those going abroad-to a greater extent thanthe programs of most other countries. This broad U.S.coverage increases the likelihood that U.S. citizensworking abroad, as well as aliens working temporarilyin the United States, will be subject to dual socialsecurity coverage.The OASDI program covers a U.S. citizen or residentemployed abroad by an American employer or by one ofits foreign affiliates’ without regard to the duration ofthe employee’s foreign assignment, and even if theemployee has been hired abroad. Similarly, OASDIcoverage continues indefinitely for U.S. citizens orresidents who are self-employed outside the UnitedStates, even if they maintain no businessoperations in‘U.S. citizens and U.S. resident aliens employed outside the UnitedStates by the foreign affiliate of an American employer are coveredunder the U.S. program only if the American employer has entered into an agreement with the U.S. Treasury Department pursuant to section 3121(l) of the Internal Revenue Code.Social Security Bulletin, September1988/Vol. 51, No. 9
this country. Due to the extraterritorial application ofU.S. law, many expatriate workers are covered underboth the OASDI program and the social security systemof the foreign country in which they work. Dualcoverage will be the usual case when a U.S. citizen orresident alien works in a foreign country for anAmerican employer for a period of more than a fewmonths.United Stateslaw provides compulsory coverage forservice performed in the United Statesas an employee,regardless of the citizenship or country of residence ofthe employee or employer, and irrespective of the lengthof time the employee stays in the United States.Although many foreign countries provide coverage exemptions for nonresident aliens or for employees whohave been sent to work within their borders for shortperiods, the United States does not. Thus, most foreignworkers in the United Statesare covered under theOASDI program.The cost of paying dual social security contributionscan bc especially burdensome for the employer becauseof “tax equalization” arrangements. A firm that sendsan employee to work in another country will oftenguarantee that the assignment will not result in a reduction of the employee’s after-tax income. Under these arrangements, employers usually pay both the employerand employee contributions that are owed to the hostcountry’s social security system on behalf of theirtransferred employees. The income tax laws of manycountries, however, consider an employer’s payment ofan employee’s share of a social security contribution tobe compensation to the employee and, therefore, taxableincome to the employee. Under the tax equalization arrangement, the employer will generally pay theemployee’s additional income tax as well and thereby increase the employee’s taxable income even further. Thetax burden that results from the employee’s foreignsocial security coverage thus may become substantiallygreater than the nominal social security tax alone.The enormous cost involved in paying dual socialsecurity taxes adversely affects the competitive positionof American companies operating in foreign markets anddiscourages U.S. firms from expanding their operationsabroad. Moreover, this financial drain discouragesAmerican companies from assigning their U.S.-basedemployees to overseasmanagementpositions thar wouldgive them valuable experience in international trade andbusinesspractices.A worker who is subject to dual coverage often doesnot receive any additional social security protection forthe contributions paid to the host country. Even if theworker resides abroad for several years, the duration ofemployment may not be sufficient for the individual tobecome insured for benefits under the social securityprogram of the foreign country. For all practical purposes, the contributions are lost.Totalization agreementshelp to solve these problemsby eliminating dual coverage and taxation for the samework under the social security systemsof both countries.For this reason, American multinational companieshavestrongly supported the social security agreementsprogram.Benefit ProtectionAnother major problem addressedby internationalsocial security agreementsis the loss of benefit protection incurred by workers when they divide their careersbetween two or more countries. Americans, for example, who move abroad to work for a foreign employergenerally interrupt their OASDI coverage. If the personhas not worked long enough to meet the minimumcoverage requirements of the OASDI program beforedeparting the United States, neither the worker nor theworker’s dependentsor survivors will be able to qualifyfor OASDI benefits. Moreover, if the worker does notwork long enough in the foreign country, he or she maynot acquire the necessary coverage credits to qualify forbenefits from the foreign social security program either.Of course, workers who immigrate to the United Statesmay face the same loss of benefit protection.Gaps in social security protection can be a particularproblem for workers who become disabled. The U.S.disability insurance program, like that of many foreigncountries, has a “recency of work” provision. Toqualify for benefits under this provision, workers musthave substantial covered work immediately before thedisability onset.2 As a result of this provision in U.S.law, disability insurance protection generally is lostwithin 5 years or less after a worker leaves coveredemployment. Under some foreign systems, disability insurance protection ceasesas soon as a person leavescovered employment or self-employment.If an individual has not worked long enough, orrecently enough, to become entitled to retirement, survivors, or disability benefits from a country, a bilateralagreementcan allow that country to determine the individual’s entitlement by considering his or her combined coverage credits from both countries. The process ofcombining periods of coverage to determine benefiteligibility is called “totalization.“’ If a worker qualifies2To qualify for benefits under the U.S. Disability Insurance program, a worker, in addition to meeting other requirements, must haveat least 20 quarters of coverage during the 4Oquarter period endingwith the quarter of disability onset. This requirement does not apply ifthe worker is blind, and the required duration of recent coverage maybe shorter for workers who become disabled before age 31.‘International social security agreements are ofien referred to in theUnited States as “totalization”agreements. However, the termtotalization is properly applied only to agreement provisions for combining periods of coverage acquired under the social security systemsof different countries so that benefits may be. paid.Social Security Bulletin, September 19WVol. 51. No. 95
for social security benefits based on totalized credits, theamount of the benefit is proportional to the length oftime the worker was covered in the country paying thebenefit.Even if a worker has enough coverage credits toqualify for a benefit, the benefit may not he payable ifhe or she crossesa national frontier. Given certain conditions, most countries will reduce or suspendbenefitpayments to specified categories of beneficiaries who areabsent from or reside outside their territory. Intemational social security agreementsgenerally exemptresidents of the agreeing countries from these restrictions on hcnelit portability.Agreements of Foreign CountriesMany countries had social security agreementsinpIace long before the United States first consideredthem. In 1919, Italy and France became the first cormtries to conclude an agreement providing for the totaIization of coverage credits to determine social securityeligibility. Since then, virtually all the countries ofWestern and Central Europe have entered into socialsecurity agreements. In addition to bilateral agreements,several regional groupings of these countries have concluded multilateral arrangements. These regional groupsinclude the 12 member states of the European Community, the 21 countries of the Council of Europe, the 5countries have bilateral agreementsamong themselve’, and with the countries of Western Europe, and variousregional groupings in Africa have adopted multilateralsocial security conventions under the auspices of the Intemational Labor Organization (ILO).The ILO, founded in 1919, is the oldest of thespecializedagencies of the United Nations. Among itsprimary objectives are the.extension of social securitymeasuresthroughout the world and the protection of theinterest of workers when employed in countries otherthan their own. For many years, the IL0 has sought toencourageits member states to conclude internationalsocial security agreementsamong themselves. The IL0has also adopted two conventions4 that are themselves‘Convention No. 48 (the Maintenance of Migrants’ Pension RightsConvention), adopted in 1935, established a system of totalization andbenelit portability for old-age, survivors, and disability insurance. Convention No. 157 (the Maintenance of Social Security Rights Convenlion), adopted in 1982, established a system of coordination applicableto all forms of social security (contributory and noncontributory).6multilateral agreementscoordinating the social securitysystemsof any countries that ratify the conventions.The United Stateshas not ratified either convention.Development of U.S. ProgramBefore World War II, the United Statesentered into anumber of bilateral treaties that included provisions toguaranteecertain rights of aliens under workers’ compensation programs. No U.S. treaty or agreement concluded during the pre-War period addressedthe issue ofOASDI cash benefits.In 1948, the United States and Italy concluded a Treaty of Friendship, Commerce, and Navigation (FCN).This treaty guaranteesthat each country will pay its oldage, survivors, and disability insurance benefits tocitizens of the other country who are outside the territory of the paying country under conditions no lessfavorable than those applied to its own citizens. From1948 to 1956, the United Statesconcluded FCN treatiescontaining similar guaranteeswith seven other countries:the Federal Republic of Germany, Greece, Ireland,Israel, Japan, the Netherlands, and Nicaragua.’In 1951, the United States and Italy signed a treatysupplementing the FCN treaty. Under article VII of thesupplementary treaty, the two countries declared theiradherenceto a policy of permitting coverage creditsfrom both countries to be totalized for purposes of deter-sidered he first step h &.U.S. fi& j ] ij ia]security agreementsprogram.The Senate understanding regarding the supplementarytreaty was an important factor in determining the legalform of all future U.S. social security agreements.In1973, U.S. and Italian representatives signed the agrcement establishing the totalization arrangementsenvisagedin the supplementary treaty. Italy concluded this instrument as a formal treaty. However, the United States, inview of the Senateunderstanding. concluded the accordas an executive agreement to enter into force only afterthe enactment of authorizing legislation.The statutory authority to bring the agreement intoforce was enacted as part of the Social Security Amendments of 1977 and is contained in section 233 of thesThe treaty with the Netherlands has been interpreted as applying only to survivor benefits; the treaty with Nicaragua was abrogated, effective May 1986.Social Security Bulletin, September 1988/Vol. 51, No. 9
Social Security Act.6 All U.S. social security agreementshave been concluded as executive agreementsunder theauthority contained in section 233, although most U.S.agreementpartners, like Italy, consider the instrumentsto be formal treaties.Section 233 requires the President to submit an agreement to Congress before it may become effective. Theagreementmay enter into force only after a reviewperiod during which either the Senateor House ofRepresentativeshas been in session for at least 60 daysfrom the date of submittal.’The United Stateshas signed social securityagreementswith 12 countries. Among them are some ofits most important trading partners. A number of factorshave entered into the Social Security Administration’s(SSA’s) decision whether to negotiate an agreement witha particular country. These factors include the extent towhich an agreement would benefit U.S. citizens,residents, and American businesses;if it would furtherU.S. foreign policy interests, including internationaleconomic policy; and if it would impose excessive program or administrative costs. The decision to negotiateis always reached in consultation with the Department ofState. If SSA decides that an agreement with a particularcounty would be beneficial, these same factors may influence the priority given to negotiations with that country, compared with the priority given to negotiationswith other potential agreement partners.Special Characteristics ofU.S. AgreementsBy the time the United States inaugurated its socialsecurity agreementsprogram, most of its major tradingpartners had an extensive network of these arrangementsin place. This large body of international precedent hasheavily influenced the form and content of U.S.agreements.In negotiating agreements, SSA has beensuccessful in adapting some of the traditional provisionsof other countries’ agreementsto take account of factorssingular to the United States: the Federal structure of itsGovermuent. employment practices, and special‘Authority for social security tax exemptions provided by agreementsis contained in sections 1401(d), 3101(c), and 3111(c) of the InternalRevenue Code.‘The agreements approval process differs from the approval processfor treaties. Under Article II, section 2, of the U.S. Constitution,treaties are submitted only to the Senate; to enter into force, they mustreceive the consent of two-thirds of the Senators present. Althoughsection 233 includes a provision that either House may block the entryinto force of a social security agreement by adopting a resolution ofdisapproval, tire Supreme Court ruled a similar “one House veto” provision in another statute unconstitutional. The oversight provision insection 233, therefore, can probably be considered a “report andwait” provision that allows Congress time to make its views knownand, if necessary, to enact legislation (subject to a Presidential veto) toblock the agreement’s entry into force.U.S. Social Security AgreementscountrySignedEntered into forceItalyGermany, FederalRepublic ofSwitzerlandEtelgiumNorwayCanadaUnited KingdomSwedenSpainFranceNetherlandsPortugalMay 23, 1973November 1. 1978January 7, 1976July 18, 1979February 19, 1982January 13, 1983March 11, 1981February 13, 1984May 27, 1985September 30, 1986March 2, 1987December 8, 1987March 30, 1988December 1, 1979November 1, 1980July 1, 1984July 1, 1984August 1, 1984January 1, 1985January 1, 1987April 1, 1988July 1, 1988Expected in 1989Expected in 19891characteristics of the social security law. Above all, SSAneeded to ensure that the agreementsconform to thelegislation that authorizes them.Section 233 of the Social Security Act specifically requires agreementsto include provisions on dualcoverage, totalization, and computation of pro ratabenefits. It permits agreementsto override the alien nonpayment provisions of U.S. law in certain casesandprohibits them from affecting eligibility for Hospital Insuranceunder the Medicare program. Section 233 allowsadditional provisions in agreementsif they are not inconsistent with Tide II (Federal Old-Age, Survivors, andDisability Insurance) of the Social Security Act. On anumber of occasions, U.S. negotiators have been unableto agree to other countries* proposals becauseof thisprovision.ScopeIn general, the United States includes fewer programsin its social security agreementsthan do other countries.Under section 233. the only U.S. program that an agreement can affect is the Federal OASDI program. Theagreementsof other countries, however, often includetheir workers’ compensation, unemployment insurance,health care, cash sickness and maternity benefits, andfamily allowances programs.* To include such programsin U.S. agreementswould be difficult primarily becausein this country most of these programs are under thejruisdiction of the individual States.*Akhougb U.S. agreements cannot apply to Medicare benefits, workthat is exempt from U.S. coverage as a result of an agreement is exempt from the entire Social Security contribution, including the amountthat finances Medicare Hospital Insurance. A worker excluded fromU.S. coverage by an agreement cannot accrue coverage credit towardeither Hospital Insurance or OASDI benefit eligibility. Where a singlecontribution to a foreign system finances not only the foreign OASDIprogram but other programs as well (for example, workers’ compensation and health care), a foreign coverage exemption that results froman agreement may, depending on the terms of the agreement, exemptworkers and employers from coverage and contributions under all theseforeign programs.Social Security Bulletin, September 1988/Vol. 51, No. 97
CoverageIn their provisions for eliminating dual coverage, U.S.agreementsare similar to those of other countries. Theprovisions are not intended to change basic coveragerules of a country’s social security law-such as thosethat define covered earnings or work. The agreementssimply exempt workers from coverage under the systemof one country or the other when their work wouldotherwise be covered under both systems.9The aim of all U.S. social security agreementsis tomaintain the coverage of as many workers as possibleunder the system of the country where they are likely tohave the greatest attachment both while working andafter retirement. Each agreement seeks to achieve thisgoal through a set of objective rules. Unlike theagreementsof some countries, those of the UnitedStates-with the single exception of the U.S.-Italianagreement-do not allow workers or employers to electthe system that will provide coverage.Territoriality rule. The coverage rules applicable toemployed persons are generally similar in all U.S.agreements.First, they establish a territorial basis ofcoverage-that is, an employee who would otherwise becovered by two systemsremains subject exclusively tothe coverage laws of the country in which he or she isworking.‘oDetached-worker rule. The agreementsinclude an exception to the territoriality rule designed to minimizedisruptions in the coverage careers of workers whoseemployers send them on temporary assignment from onecountry to the other. Under this “detached-worker” exception, a person who is temporarily transferred to workfor the same employer in another country remainscovered only by the country from which he or she hasbeen sent. A U.S. citizen or resident, for example, whois temporarily transferred by an American employer towork in another country party to the agreement continues to be covered under the OASDI program and isexempt from coverage under the system of the hostcountry. The worker and employer pay contributions only to the U.S. program.The detached-worker rule can apply whether theAmerican employer transfers an employee to work in abranch office in the foreign country or in one of itsforeign affiliates. However, for OASDI coverage to con-‘Some countries’ agreements also extend coverage to expatriateworkers otherwise not covered by.any national system. United Stateslaw includes authority for agreements to cover work otherwise excluded (subject to specific exceptions in sections 210 and 211 of the SocialSecurity Act and sections 1402 and 3121 of the Internal RevenueCode). This authority, however, has been exercised in only a fewsituations.‘OAlthough an agreement may provide that a person will remain subject exclusively to the social security laws of one country or the other,the national legislation of that country determines the actualconditions of coverage.8tinue when a transferred employee works for a foreignaffiliate, the American employer must have entered intoan agreement with the U.S. Treasury Deparmrent to provide OASDI coverage for U.S. citizens and U.S. resident aliens employed by the foreign affiliate.”Period of detachment. The detached-worker rule inU.S. agreementsgenerally applies to employees whoseassignmentsin the host country are expected to last 5years or less. Although most other countries’ agreementsinclude some form of the detached-worker rule, the timelimit on transfers is usually much shorter. Themultilateral social security rules adopted by the European Community, for example, permit a coverage exemption from the host country when the worker’sassignmentis not expected to exceed 12 months. If, forunexpected reasons, the transfer must be prolonged, theexemption may be extended for up to 12 additionalmonths. Some other countries provide a 36month limiton the period of detachment.For practical reasons, the United Stateshas successfnlly sought to include a minimum of at least 5 years in itsagreements.While a l- or 2-year assignmentmay betypical for a worker assignedbetween countries on thesamecontinent, overseas transfers to and from theUnited Statesare generally for longer durations. A timelimit of less than 5 years would fail to provide contiuuity of coverage for workers assigned to or from theUnited States.The U.S. agreement with Italy is the only one thatdoes not use the detached-worker rule. As in otheragreements,its basic coverage criterion is the territoriality rule. For expatriate workers, however, nationality is the principal determinant of which countrycovers the worker. A U.S. citizen-employed or selfemployed in Italy, for example-who would be coveredby the U.S. OASDI program absent the agreementremains covered only under the U.S. program. An Italiancitizen or dual national who would be covered by bothcountries may elect either U.S. or Italian coverage. Thisprovision is the only exception to the general rule thatU.S. agreementsassign coverage to one country or theother without offering an option to the employer oremployee.Self-employment rule. United Statesagreementsgenerally assign the coverage of self-employed personsto their country of residence. For example, a U.S.citizen who lives in Sweden where he or she is selfemployed is covered under the Swedish system and isexcluded from U.S. coverage.Under the agreementswith Italy and the FederalRepublic of Germany, however, the same coverage rulesapply to employees and self-employed persons. Thus, aself-employed person, who, absent the U.S.-Italian“See section 3121(l) of the Internal Revenue Code.Social Security Bulletin, September1988/Vol. 51, No. 9
agreement, would be covered by both countries remainscovered only by the U.S. program if the person is anAmerican citizen and by the program of the country ofhis or her choice if the person is an Italian citizen ordual national. Under the U.S.-West German agreement,a self-employed person’s coverage is generally determined by the territoriality rule. However, if a self-employedperson travels from one country to the other country totransact business on a temporary basis, the detachedworker rule applies.Under the recently concluded agreement with France,self-employed persons who transfer their business fromone country to the other for 2 years or less remaincovered only by the country from which the businesswas transferred. Workers who are self-employed in bothcountries during a taxable year, remain covered by thecountry in which they perform their “principal activity,” as defined in the agreement.All U.S. agreementshave coverage provisions forgovernment employees, and some include rules applicable to employees in air and ship transportation. Thegeneral effect of these provisions leaves employees’coverage status unchanged.Special exceptions. Although the goal of theseagreementsis to assign coverage to the country wherethe worker has the greatest attachment, unforeseen situations occasionally arise in which the agreementhas aclearly inequitable result. Therefore, the agreementsallow the authorities in both countries to agree to exceptions to the normal coverage rules. These exceptionshave been agreed to in rare instancesonly. An exceptionmight be granted, for example, if the overseasassignment of a U.S. citizen were unexpectedly extended for afew months beyond the 5-year limit under the detachedworker rule. In this case, the worker could be grantedcontinued OASDI coverage for the additional period.Certificates of coverage. Workers who are exemptfrom coverage in a country by virtue of an agreementdocument their exemption by obtaining a certificate ofcoverage from the country that will continue theircoverage. Employers generally are required to requestsuch certificates on behalf of employees they havetransferred abroad; self-employed persons request theirown certificate. During 198587, SSA issued an annualaverageof 5,800 certificates for U.S. workers on temporary assignment abroad. In view of the typical duration of a foreign assignment, salary levels of detachedworkers, and relatively high levels of social security taxation in countries with which the United Stateshasagreements,it is estimated that American employers andtheir U.S.-based employees are able to save about 165million annually in foreign social security contributions.By contrast, the 10 existing agreementshave made itpossible for foreign-based workers and employers tosave an estimated 60 million a year in U.S. contributions.BenefitsIn addition to eliminating dual coverage and taxationof the same work, social security agreementshelp solvethe problem of workers who lose benefit rights becausethey have divided their careers between two countries.To quality for OASDI benefits, a worker must haveenough credit for covered work (quarters of coverage) tomeet specified “insured status requirements.” For example, a worker who attains age 62 in 1988 must have 37calendar quarters of coverage under the OASDI programto be fully insured for retired-worker benefits. Thisnumber of quarters is scheduled to increase annually until 1991. Workers attaining age 62 in that year or laterwill need 40 quarters of coverage to be insured. Underan international social security agreement, if a workerhas some OASDI coverage but not enough to qualify forbenefits, SSA will count periods of coverage that anagency of an agreement country certifies are creditableto the worker for eligibility purposes under the foreignsocial security program. Similarly, a country party to aU.S. agreement will take into account a worker’scoverage under the U.S. program if it is needed toqualify for that country’s social security benefits.Following the practice of most countries, the UnitedStatesdoes not try to determine whether the work orother circumstance that gave rise to a period of coverageunder a foreign social security system would haveresulted in a period of coverage based on the provisionsof U.S. law. For example, SSA can take account offoreign coverage for totalization purposes even thoughthe coverage is based on self-employment performedbefore 1951-a period when self-employment was notcovered under the U.S. program.Unlike some countries, the United Statesdoes notallow a person to qualify for benefits by applyingseveral agreementssimultaneously. Thus, a person withsocial security coverage in the United States, West
Agreements are now in force between the United States and ten other countries, and agreements with two others have been signed. The primary purpose of the agreements is to eliminate dual U.S. and foreign social security coverage and taxation of the same work for ex- patriate workers and
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