NewsFlash! Government Report Confirms Many Nonimmigrants Eligible for Stimulus Payment

The Congressional Research Service (CRS), which works exclusively for the United States Congress to provide nonpartisan policy and legal analysis, has released a report confirming that many nonimmigrants are eligible to receive recovery rebates (frequently referred to as stimulus checks) under the Coronavirus Aid, Relief, and Economic Security (CARES) Act. This analysis is consistent with the conclusion reached by Murthy Law Firm attorneys as the most logical reading of the CARES Act. The report also examines the question of nonimmigrant eligibility for unemployment benefits, and discusses public charge implications.

Requirements for Eligibility Grounded in Tax Law

As detailed in the CRS report, in order to qualify for the recover rebate, the foreign national must have a Social Security Number, and must be considered a resident alien under tax law. To be a resident alien, one must either be a lawful permanent resident (i.e., green card holder) or meet the “substantial presence test” under tax law. The report summarizes the substantial presence test as follows:

To meet the substantial presence test, you must be physically present in the United States 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:

– All the days you were present in the current year, and

– 1/3 of the days you were present in the first year before the current year, and

– 1/6 of the days you were present in the second year before the current year

The substantial presence test has special rules for some aliens considered “exempt individuals,” such as nonimmigrant diplomats and students, and other aliens who demonstrate a closer connection to a foreign country.

Any individual with specific questions regarding eligibility for the recovery rebate should consult with a tax attorney.

Eligibility for Unemployment Benefits Less Clear

The report notes that eligibility for unemployment insurance (UI) benefits is not entirely clear. There are UI benefit programs found in the CARES Act that carry certain restrictions on eligibility. This could exclude many nonimmigrants, such as those in H1B or L-1 status. However, the report was unable to reach a definitive conclusion on this matter.

In addition to the UI benefits found in the CARES Act, there are also state programs. The rules for eligibility vary from state to state. Therefore, foreign nationals in the U.S. who have been laid off should check with their respective state unemployment agency to determine eligibility for UI benefits.

No Public Charge Issue

Finally, the report clarifies that receipt of the recovery rebate and/or UI benefits will not be considered for public charge purposes.

Conclusion

It is encouraging to know that many tax-paying nonimmigrants will be eligible for recovery rebates under the CARES Act. As for UI benefits, it appears we will need to wait for clarification on this issue.

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