Act of March 27, 2020, provides $2 trillion in direct financial assistance, including paid leave, unemployment insurance benefits, and rebates to eligible individuals. Immigrants and foreign nationals in the United States may be eligible for some or all of these benefit, depending on the circumstances. Specifically, the CARES Act provides for the issuance of one-time payments, called recovery rebates (or commonly referred to as "stimulus checks") to help individuals recover from the economic impacts of the COVID-19 pandemic.
Eligible individuals with an adjusted gross income up to $75,000 can receive a one-time payment of $1,200. Married couples filing a joint tax return are eligible to receive a payment of $2,400, as long as their adjusted gross income is less than $150,000. Eligible individuals can also receive an additional $500 for each eligible child under the age of 17. Reduced amounts will be issued to individuals making up to $99,000 per year, or up to 198,000 for married couples). The recovery rebate is to be automatically advanced to eligible individuals in 2020 based on their 2019 federal income tax return. For eligible individuals who did not file a 2019 return, the rebate is to be automatically advanced based on 2018 tax return information.
Who Is Eligible For The CARES Recovery Rebate?
Only individuals with valid Social Security numbers and people who qualify as " resident aliens" as defined by the IRS are eligible to receive the payment. Non-U.S. citizens are considered nonresident aliens unless they meet one of two tests set forth by the IRS: the green card test or the substantial presence test.
Green Card Test:
Lawful permanent residents of the United States are considered resident aliens if they were lawful permanent residents at any time during the calendar year.
Substantial Presence Test:
A foreign national is considered a "resident alien" if he or she meets the substantial presence test for the calendar year. To meet this test, an individual must have been physically present in the United States for a designated minimum threshold period outlined by the IRS. Note that the IRS exempts certain nonimmigrant visa statuses from the physical presence calculation, such as individuals temporarily present in the U.S. under a F, J, M, or Q visa. Most work-authorized immigration statuses, such as H-1B, L-1, O-1, and TN, are not exempted and may be able to meet the substantial presence test.
Importantly, those who file their taxes using an Individual Taxpayer Identification Number (ITIN) are not eligible for a recovery rebate. Moreover, under the CARES Act, eligible individual with a Social Security number will not receive the recovery rebate, if the individual filed a joint return with a spouse who has an ITIN, or filed a return with a qualifying child who has an ITIN. There is a limited exception for adopted children and military families. Since only foreign nationals with U.S. work authorization may apply for SSNs, this excludes broad categories of foreign nationals who are otherwise lawfully present in the United States, including but not limited to spouses and children of some H-1B visa holders.
Thus, many H-1B and other work-authorized nonimmigrants will not be eligible for a recovery rebate if they filed a joint income tax return with a spouse who does not have, a social security number. For example, an H-1B worker whose H-4 spouse is not eligible for a social security number, and who filed a joint income tax return with his or her H-4 spouse, will not be eligible for a recovery rebate.
Will Receiving A CARES Recovery Rebate Impact An Immigration Application Under The Public Charge Rule?
The recovery rebates are structured as automatically advanced tax credits to be disbursed by the Treasury Department. The DHS Final Rule on Inadmissibility on Public Charge clear that tax credits are not taken into account for the purpose of a public charge determination.. Similarly, the Department of State Interim Final Rule indicates that for the purposes of defining "public benefit", cash assistance for income maintenance does not include tax credits.
Therefore, if you are a non US citizen, eligible for a recover rebate under the CARES Act, such a benefit would not impact your application for immigration benefit under the public charge rule, even though you may have to disclose the receipt of such benefit on an immigration application.
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.
