Over the last few weeks, thousands of foreign workers, including many living overseas, began receiving stimulus checks from the U.S. Internal Revenue Service (IRS). In some cases, those checks were issued in error. In other cases, the foreign workers, including H-1B workers, are entitled to receive these stimulus checks.
According to a report issued by the Congressional Research Service (CRS), certain nonimmigrants are in fact eligible to receive these stimulus checks pursuant to the Coronavirus Aid, Relief, and Economic Security (CARES) Act. In order to qualify for the stimulus check, the nonimmigrant would have to qualify as a “resident alien” under U.S. tax law, which is different from being considered a resident for U.S. immigration law.
In order to be considered a “resident alien” for tax purposes and for purposes of qualifying for the stimulus check, the nonimmigrant must be either a lawful permanent resident (i.e. a green card holder) or meet the “substantial presence test” under the tax law, which requires being physically present in the U.S. on at least:
- 1. 31 days during the current year; and
- 2. 183 days during the 3-year period that includes the current year and the 2 years immediately before that, counting:
- a. All the days you were present in the current year; and
- b. 1/3 of the days you were present in the first year before the current year; and
- c. 1/6 of the days you were present in the second year before the current year.
Thus, H-1B workers who meet the “resident alien” test above by having been physically present in the U.S. for the requisite period of time may be eligible to receive stimulus checks.
Furthermore, the CRS report also reiterates that a foreign worker’s receipt of the stimulus check will not be considered a negative factor for purposes of determinations under the new DHS public charge rule, such as when determining whether the individual should be granted lawful permanent resident status (i.e. a green card), because receiving a stimulus check is not considered a “public benefit”, but is rather an earned tax credit.
Any individual with specific questions regarding eligibility for the stimulus check should consult with a tax attorney. Individuals who have questions about the impact of receiving a stimulus check or unemployment on their immigration should contact an attorney at Minsky, McCormick & Hallagan, P.C.