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Law360 (March 26, 2020, 9:37 PM EDT )
Thousands of tax-paying immigrants won't be eligible for stimulus checks under the $2.2 trillion coronavirus relief package that sailed through the Senate, which excludes "nonresident aliens" and those without Social Security numbers.
The Coronavirus Aid, Relief and Economic Security Act specifically mandates that people considered "nonresident aliens" won't be eligible for the $1,200 per adult and $500 per child benefit that Congress is hoping to slip into people's bank accounts sometime this spring.
It requires check receivers to have filed their 2018 or 2019 taxes with a "valid identification number," which the bill specifically defines as a Social Security number, although other taxpayer identification numbers exist.
It's a move that cuts of thousands of immigrants off from accessing the relief caused by massive layoffs across the country as business is rolled back and people are asked to remain at home to prevent the spread of COVID-19, the disease caused by the novel coronavirus.
The United States leads the world in number of diagnosed COVID-19 cases as of Thursday afternoon, surpassing much larger China and heavily afflicted Italy.
The National Immigration Law Center called the decision to pass a bill that cut off so many in the country from financial aid during a public health crisis as "disgraceful," noting that many immigrants will end up playing "an essential role in our recovery as a nation."
"Immigrant workers and families who are paying taxes have been cut out from receiving a single dollar," NILC Executive Director Marielena Hincapié said in a statement. " Since no other relief package appears imminent, the stakes are high for millions of low-wage workers and immigrants, who also need economic support and access to health care."
New York Rep. Alexandra Ocasio-Cortez blasted the bill Thursday afternoon on Twitter, saying, "Thanks to [the] GOP, these checks will be cut off the backs of taxpaying immigrants, who get nothing."
Many immigrants don't have Social Security numbers, but they do pay taxes, using an Individual Taxpayer Identification Number, or ITIN. The identification number was created specifically for those that don't have and aren't eligible for a Social Security number, so that they can still pay taxes.
But per the Senate bill — dubbed the CARES Act — they won't be able to use that number to prove their identity, leaving them with no way to receive the aid.
The language blocking "nonresident aliens" from eligibility delivers another blow to immigrants hoping to receive a stimulus check.
"Nonresident alien" is a tax term, not an immigration one, and the Internal Revenue Service defines it as any immigrant who does not have a green card and hasn't passed the substantial presence test.
The substantial presence test is a complicated standard that requires counting up the number of days that the immigrant was actually in the United States over the past three years. They have to prove that they were in the country for at least 31 days of the current year and 183 days over the last three years, including the current one, but not all the days count.
Only one-third of the days from the year before the current one count toward that total, and only one-sixth of the days from the year before that. The method does allow immigrants to count each day they were present in the United States in the current year as a full day.
Immigrants who do a lot of traveling or spend chunks of time outside the country in past years or in the current one fail the test and are taxed differently than U.S. citizens and residents — at a flat 30% rate, according to the IRS.
But even then, the IRS can whop taxpayers with nonresident alien status for other reasons, including if they find that they have a "closer connection" to a foreign country than to the United States.
Because it's a tax term, it's unclear exactly how many immigrants fall under the umbrella of "nonresident alien," but it's a broad one, encompassing thousands of taxpayers at the least.
--Editing by Gemma Horowitz.
For a reprint of this article, please contact reprints@law360.com.
