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Statutes of Liberty: Tax season and immigration — so much overlap!

This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Doran Shemin, Esq., and Laura Lorenzo, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Falls Church, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

In the spirit of the 2023 tax season, we would like to tell our loyal readers about the role taxes play in our immigration system, and give some very general (non-legal) advice on the topic.

For some people, tax season is exciting because that refund check will be arriving in the mail soon. For others, tax season is a dreadful moment of reckoning with Uncle Sam. If you or someone you know is going through some type of immigration process, the feelings may be mixed.

Taxes come into play in various contexts within our immigration system. Here are the most common scenarios:

  • Proving that a person trying to help a family member immigrate makes a sufficient amount of money, such that the immigrant will not become reliant on the government for survival.
  • Proving that an applicant for naturalization is of good moral character because she is up-to-date with her taxes and, if she owes taxes, she is current on a payment plan with the relevant tax authority.
  • Proving that a person has been in the United States for a certain period of time.

To begin, let’s review the first scenario. When a U.S. citizen or lawful permanent resident has filed a petition on behalf of a relative, eventually the immigration authorities will request something called an Affidavit of Support.

The Affidavit of Support is a government form, Form I-864. The I-864 is a three-way contract between the petitioner, the immigrant, and the government. The petitioner must show their income and/or assets are sufficient to support the immigrant such that the immigrant will not become reliant on government benefits. In return, the government will give the immigrant a green card.

To determine the amount the petitioner must make, we look to the I-864P, which is a chart that shows the minimum threshold of income based on household size and the Federal Poverty Guidelines. The household size includes the petitioner, her spouse, any dependent children, anyone else they have sponsored for a green card who is not a U.S. citizen, plus the immigrant currently seeking the green card.

Apart from listing the petitioner’s actual annual income, the Affidavit of Support requires that the petitioner disclose her total income as listed on her federal tax return for the last three years, if she has filed. A copy of the most recent filing, along with all W-2s or 1099s, must also accompany the Affidavit of Support as proof of income. Some petitioners also submit recent paystubs if they have recently received a salary bump or proof of significant assets if their actual income from work is on the low side.

If the petitioner cannot satisfy the requirements, then the petitioner can use a joint sponsor to help. The joint sponsor has to meet the same requirements as the petitioner based on the joint sponsor’s household size. The joint sponsor must also submit his most recent tax return.

Scenario number two is also common. When a person with a green card applies to become a U.S. citizen, the form, which is called the N-400, asks if the applicant has always filed his taxes since receiving his green card. The government also asks whether you owe the federal, state, or local government any taxes.

Why do the immigration authorities care so much? It’s because Congress made it a requirement that an applicant show he is a person of good moral character if he wants to become a U.S. citizen. That determination is influenced by following rules, including filing taxes every year, when required, and paying any taxes owed. USCIS, the agency that handles citizenship cases, is not totally unreasonable; those with large tax debt can still satisfy the good moral character requirement if they can show they are on a payment plan with the relevant tax authority and have been making their payments as required under the agreement.

Scenario three is a little less common but still quite important. In various types of immigration cases, proving that the applicant has been residing in the United States for a certain period of time is essential. One of the best ways to do this is to provide copies of federal tax returns that were filed during the relevant period of time. That way, the applicant shows that she was in fact in the United States and working. A lot of these cases also require a showing of good moral character, so filing and paying taxes helps out with that requirement, too!

So what’s our general advice about how you can responsibly file your taxes in a way that will hopefully help out in an immigration case?  Here’s what we think:

Work with a Reputable Tax Preparer

During tax season, lots of individuals or newer offices pop up to assist with tax filings. However, in our experience, these types of preparers make a lot of mistakes. For example, some preparers advise clients who are married to file as single because they will get more money back. That is a huge no-no from our perspective. Not only is that a fraudulent return, but it could result in penalties along with your immigration attorney telling you to pay someone again to amend your taxes.

To avoid these types of issues, we recommend that clients work with companies like H&R Block or a local Certified Public Accountant (CPA). Taxes is what these people do all day, every day. If you are low-income or elderly, the IRS is happy to connect you with free tax help! Here’s the link for that. Here are five good organizations near us in Arlington:

  • Enterprise Development Group
    901 S Highland St
    Arlington, VA 22204
  • CTA at Arlington DHS VITA Site
    2100 Washington Boulevard
    Arlington, VA 22204
  • Catholic Charities VITA Tax Network
    In-Person, Saturdays, 9 a.m. to 4 p.m.
    Catholic University of America Columbus School of Law
    3600 John McCormack Road NE
    Washington, D.C. 20017
  • Virginia Career Works – Fairfax – Annandale
    7611 Little River Turnpike
    Suite 300 West
    Annandale, VA 22003
    No appointment required: Tue. 4-6:30 p.m.; Thu. 4-6:30 p.m.; Sat. 10 a.m.-4 p.m.
  • American University Washington College of Law Tax Clinic
    (Focus: Tax Audits)

Pay Any Taxes Owed

If you owe taxes, pay the relevant authority or get on a payment plan — as mentioned above, it is crucial that you make a good faith effort to pay your tax bill. We know it can sometimes be a large amount, so do take advantage of payment plans if you can get one. It will save you a headache in the long run.

Always File Your Taxes

Always file your taxes if you are required to do so. All people working in the United States (with extremely minor exceptions) must file taxes. If you are working in the United States and you earn more than the minimum threshold requirement for filing taxes, file your taxes.This includes undocumented workers.

Many in the immigrant community have a misconception that filing taxes will put them on the Department of Homeland Security’s radar if they are undocumented. Good news — the IRS does not share that information with the Department of Homeland Security; in fact, the United States Code includes strong confidentiality protections regarding tax returns and returnee information. The policy reasons make sense — the United States relies on taxes to fund the nation. Undocumented workers would not file their taxes if they knew it would put them at risk for deportation. Thus, the IRS does not share this information with immigration authorities.

If You Do Not Qualify for A Social Security Number, Apply for an Individual Taxpayer Identification Number

Some people also have the misconception that if they do not have a social security number, then they cannot file taxes. This is untrue. The IRS created the Individual Taxpayer Identification Number (ITIN or Tax ID) for people who are not eligible for social security numbers. We suggest talking with your tax preparer about applying for an ITIN if you do not have one already.

We hope that all of our readers have a stress-free, happy tax season! As always, we welcome your comments and will do our best to respond.

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