Immigrants and Recovery Rebates under the CARES Act
On March 27, 2020, the Coronavirus Aid, Relief, and Economic Security (CARES) Act was signed into law, providing the U.S. economy with a $2 trillion dollar economic recovery package. The package offers financial relief to state and local governments, individuals, small and large businesses, and hospitals that were affected by Coronavirus pandemic. Of particular interest to some of my clients is a provision in the CARES Act that provides for the issuance of a one-time payment, called a “recovery rebate” (or also referred to as a “stimulus check”) to provide individuals with financial recovery assistance.
Who Is Eligible to receive a Recovery Rebate?
Individuals with valid social security numbers AND individuals who qualify as “resident aliens” under IRS guidelines are eligible to receive Recovery Rebates. Note that Non-U.S. citizens are considered to be NON-resident aliens, and thus NOT eligible to receive a Recovery Rebate UNLESS they meet either the “Green Card Test” or the “Substantial Presence Test”.
The Green Card Test: U.S. Lawful permanent residents are considered under the law to be resident aliens if they were lawful permanent residents at any time during the calendar year. Such permanent residents will continue to meet this definition UNLESS: (1) they voluntarily renounce and abandon their status in writing to USCIS; (2) their status is terminated administratively by USCIS; or (3) their status is terminated by a U.S. Immigration Judge or a U.S. federal Judge.
The Substantial Presence Test: If a foreign national is physically present in the U.S. for a designated minimum period of time (as outlined by the IRS here), he or she will meet the substantial presence test for that calendar year. It should also be noted that certain nonimmigrant visa categories are EXEMPTED from the physical presence calculation, including nonimmigrants who are in the U.S. under an F, J, M, or Q visa. These nonimmigrants will NOT meet the Substantial Presence Test. On the other hand, according to the IRS, most work-authorized nonimmigrant visas are may actually be able to meet the substantial presence test (and are not exempted), including nonimmigrants in H-1B, L-1, O-1, and TN visa status.
What if I do not have a Social Security Number, but I have an Individual Tax Payer Identification Numbers (ITIN)? Am I still eligible to receive a Recovery Rebate?
No. Individuals who file their taxes using an ITIN are not eligible to receive a recovery rebate. Also along these lines, the CARES Act appears to deny a recovery rebate to anyone with a Social Security Number who filed a joint tax return with a spouse who has an ITIN, or a child with an ITIN (except for adopted children and military families).
If I am eligible to receive a Recovery Rebate, how much money will I receive?
Without going into too much detail, for most eligible individuals (whose adjusted gross income on their tax return is less than $75,000), the stimulus check will be $1,200. Married couples filing jointly will receive a stimulus check for $2,400 (if their combined adjusted gross income is less than $150,000). Also, eligible individuals can receive an additional $500 stimulus payment for each eligible child under the age of 17. Individuals who have gross income above $75,000 are still eligible to receive stimulus checks, but their payments will be reduced by $5.00 for every $100 of adjusted gross income they have above $75,000. And for heads of household, this phase-out amount is $112,500; and for married joint filers, this amount is $150,000. Finally, the amount is completely phased-out for single tax filers with adjusted gross incomes exceeding $99,000, $146,500 for head of household filers with one child, and $198,000 for joint filers with no children.
When will eligibility be determined? When will the Recovery Rebates be sent out? If I am eligible, how do I apply?
The recovery rebate will be automatically sent to eligible individuals in 2020 based on the numbers reported in their 2019 federal income tax return. For eligible individuals who did not file a 2019 return, the rebate will be automatically sent based on information contained in their 2018 federal tax return. Thus, if you are eligible to receive a Recovery Rebate, you do not need to take any action or apply. The U.S. Treasury will automatically send your Stimulus check to you in the mail, presumably to the last address that they have on file for you (which would probably be the address you used on your 2018 or 2019 federal income tax return).
If I receive a Recovery Rebate, will this affect my Immigration status or my application for Immigration benefits?
No. That is because the recovery rebates are set up as automatically advanced tax credits to be disbursed by the U.S. Treasury Department. As far as the DHS is concerned, the final Public Charge Rule clearly states that tax credits will not be considered in making a public charge determination. More specifically, only public benefits that are set forth in 8 CFR 212.21(b) will be considered, which includes means-tested benefits from programs such as Medicaid and cash assistance for income maintenance. Note, however, that the law also specifically states that “cash assistance for income maintenance” does NOT include tax credits. USCIS has also specifically stated in its Policy Manual that tax credits are not considered to be public benefits for purposes of making a determination of inadmissibility under the Public Charge Rule. In addition, the U.S. Department of State has also taken the position that tax credits are not considered to be public benefits for purposes of making public determinations at U.S. consulates overseas.
If you have questions about this article or whether your Recovery Rebate will effect your U.S. Immigration Status, call Immigration Lawyer Sean D. Hummel to schedule a consultation.
