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Immigration Related Eligibility for Unemployment and Tax Rebates

The Congressional Research Service published an analysis of immigration-related eligibility criteria for certain benefits under CARES Act on April 7, 2020. Below are the relevant excerpts from the report which can be found here.

The following Table provides an overview of the immigration-related restrictions for each benefit type.

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ELIGIBILITY FOR RECOVERY REBATES:

Broad categories of work-authorized aliens living in the United States, including many DACA and TPS recipients, will be able to qualify for the recovery rebates because they have SSNs and are resident aliens for tax purposes. The CARES Act prohibits payment of the recovery rebate to anyone who does not include a social security number (SSN) on their tax return for the taxable year. Joint filers must include an SSN for both spouses, unless one spouse is in the Armed Forces. For any qualifying child, parents must include the child’s SSN or adoption taxpayer identification number. Although the SSA also issues SSNs to aliens who lack work authorization but need a number to obtain benefits or services, such non-work numbers do not fulfill the SSN requirement under the CARES Act.

Aliens who do not have SSNs—including unlawfully present aliens who pay taxes using individual taxpayer identification numbers (ITINs)—are not eligible for the rebates.

ELIGIBILITY OF UNEMPLOYMENT INSURANCE BENEFITS:

The specific UI benefits made available under the CARES Act are federally funded and might therefore be restricted to “qualified aliens” – a term that PWRORA defines to exclude unlawfully present aliens as well as some aliens whose presence is authorized. Even so, states may continue to grant regular UI benefits to aliens with work authorization, but alien eligibility for such regular UI benefits may vary.  Many nonimmigrant workers do not qualify for UI in some states because they’re not considered “able and available to work” when they are unemployed. The terms of their visas authorize many nonimmigrant workers to work only for a single employer. Losing a job with that employer therefore means losing their work authorization, under the analysis of some state cases. Even though H-1B and some other nonimmigrant workers have flexibility to change employers, federal law requires the new employer to file a new visa petition before the employee may work (and for some visa categories, the petition must be approved first). Thus, the analysis goes, if a nonimmigrant worker has lost a job and does not have a new visa petition filed by a new employer, the worker is not “able and available” to work and does not qualify for benefits.

PUBLIC CHARGE:

An alien’s receipt of the recovery rebate or unemployment compensation is not to be factored into determinations made under the new Department of Homeland Security (DHS) public charge rule about whether the alien is ineligible for LPR status due to likely future dependence on public benefits. That’s because neither type of benefit appears in the exclusive list of benefit types that count as “public benefits” under the rule. In the preamble to the rule, DHS explained that it considers unemployment compensation an “earned benefit” not appropriate for public charge consideration. DHS also explained its decision not to consider other types of tax credits under the rule, such as the Earned Income Tax Credit and the Child Tax Credit: “DHS is not including tax credits because many people with moderate incomes and high incomes are eligible for these tax credits, and the tax system is structured in such a way as to encourage taxpayers to claim and maximize all tax credits for which they are eligible.” That said, DHS could amend the rule in the future to add new types of benefits to the list of those considered for public charge purposes, but it seems unlikely to do so for unemployment benefits and tax credits given these recent statements.

Source: Congressional Research Service Legal Sidebar, Recovery Rebates and Unemployment Compensation under the CARES Act: Immigration-Related Eligibility Criteria published  August 7, 2020.

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