Virus Rebate for Guestworkers Hinges on Defining ‘Nonresident’

Guestworkers and immigrants in the U.S. with legal status still don’t know whether they qualify for any cash relief from the House-passed virus bill, because it all depends on the interpretation of one line.

There’s “a lot of confusion” because both immigration and tax rules use “nonresident” and “resident” language for immigrants and guestworkers, said immigration attorney Emily Neumann, a partner at Reddy & Neumann in Houston. “My understanding is we’re using the tax definition,” because the bill refers to the cash stimulus provision as a “rebate,” and doesn’t cover the numerous variations in visa status.

The bill’s language states that an eligible individual is a person other than a “nonresident alien individual,” and most work visa holders are considered a “resident alien” for tax purposes. But if the immigration definition of “nonresident alien” is instead how it’s interpreted, almost all visa holders would be left out because only a green card holder qualifies as a “resident alien.”

The legislation (H.R. 748) provides a one-time cash benefit for those who qualify—individuals are eligible for checks up to $1,200 and married couples filing jointly are eligible for checks up to $2,400, with an extra $500 for each child. The higher the income, the less money is received, with a cutoff for individuals earning more than $99,000 and couples with income above $198,000.

Gray Areas

People who qualify for the stimulus bill’s tax rebate are tax filers who meet the income requirements, and are in a household where everyone on the tax return has a Social Security number, said Jackie Vimo, a policy analyst for the National Immigration Law Center.

Several temporary guestworker visa categories assign a Social Security number to the visa holder, but if their spouse doesn’t have work authorization, they will have an individual taxpayer identification number. ITINs are issued to those who are required to have a U.S. taxpayer identification number, but who don’t have and aren’t eligible to obtain a Social Security number.

For example, if the spouse of an L-1 intracompany transfer visa holder has work authorization and an SSN, then the couple could receive stimulus cash, said attorney Jorge Lopez of Littler Mendelson in Miami. But if an H-1B high-skilled guestworker visa holder’s spouse doesn’t have H-4 work authorization, then they both likely would be excluded.

One might assume that temporary visa holders in professional jobs would likely earn too much to receive the stimulus cash regardless of eligibility, Lopez said. But prevailing wages are determined by many factors, one of which is location. Where the cost of living is less, then the prevailing wage is likely to also be lower. “You could have somebody who may not max out the income threshold,” he said.

Another consideration is families that may have mixed legal and unauthorized status. For example, young undocumented immigrants who came to the country as children and now are participants in the Deferred Action for Childhood Arrival program are authorized to work and have Social Security numbers, but their parents or other family members may not.

In that type of scenario, the whole family is excluded from relief, Vimo said. One exception to the SSN rule is military spouses, she added.

Foreign students on F or J visas won’t be able to access the stimulus bonus, Neumann said. While there are some F-1 students who have work authorization under the Optional Practical Training program, they generally aren’t considered residents until they’ve been in the U.S. for five years on F-1 status, she said.

More Guidance Needed

Because the bill’s language isn’t clear, the U.S. Treasury will have to provide guidance on who qualifies and for what, Neumann said.

“The only terminology in the entire bill is you’re ineligible if you’re a nonresident alien,” she said. The government will be basing the relief cash on 2018 and 2019 tax filings to determine “who they can send the checks to right now.”

And even if someone does clearly qualify for the $1,200, they may still be reluctant to accept what they fear could be considered a public benefit.

Last month, the Trump administration’s “public charge” rule went into effect. Under the rule, anyone applying for a green card must divulge their use of public assistance benefits so that the U.S. Citizenship and Immigration Service can decide whether they’re likely to become a “public charge” and thus not entitled to a visa.

“Even before we were talking about this stimulus package, there’s a lot of hesitation from the legal immigrant community that if they accept it then they’ll be denied” permanent resident status, Neumann said. “We’re trying to communicate that it’s a tax credit and not a public benefit, but they’re still going to be hesitant to accept it. They’d rather be safe than sorry.”