A little-known provision in the CARES Act — the $2.2 trillion economic relief bill that Congress passed in March — denies stimulus checks to some American citizens who happen to be married to individuals without a social security number, including undocumented immigrants who pay taxes and who are in the process of gaining legal status.
It’s a narrow but still discriminatory policy that has no sensible rationale. At least two lawsuits have been filed challenging the rule, alleging that Trump and Congress violated civil rights laws by punishing “certain United States citizens and their children from receiving the stimulus checks for the sole reason of who they chose to marry,” according to one of the lawsuits. At a time of unprecedented levels of unemployment, it’s a callous exclusion that Congress should rectify.
The rule, which exempts military families, mostly affects mixed immigration status families where one spouse is an American citizen and the other an unauthorized immigrant who pays taxes using a government-issued Individual Taxpayer Identification Number, or ITIN. That’s an estimated 1.2 million households. For any of those couples who filed taxes jointly, the spouse who is a citizen isn’t eligible for the stimulus check of up to $1,200 (unless either spouse served in the armed forces in the previous tax year).
That potentially excludes millions of American citizens and their US-born children from the coronavirus stimulus package, which is designed to help families survive this disruption and pull the economy out of free fall. The John Doe plaintiff in a class-action federal lawsuit filed in Illinois last week is one of them. He is married to an immigrant who pays taxes and files tax returns with an ITIN. He qualifies for the $1,200 check, but he is not in the military and he files jointly with his wife.
An aide to Senator Chuck Grassley, who helped write the CARES Act, told The New York Times that US citizens in such mixed-status families who file individually may still be eligible for relief. But as Vivian Khalaf, one of two lead attorneys in the Illinois case, said in an interview, that doesn’t help her client or others who are in the same boat.
“We’re looking at this from the rear-view mirror,” Khalaf said. The couple filed their taxes jointly in 2018 and 2019. “Had you filed a 2019 tax return individually, then yes, you could get a check. But it’s a choice whether you want to file jointly or not. If you file separately, you’re not going to get the benefit of certain exemptions, and your [tax] liability may be higher.”
What’s more, mixed-status families who are in the process of legalizing the undocumented spouse’s status are encouraged by their immigration attorneys to file their taxes jointly because that helps support their immigration case. If they’re trying to obtain lawful permanent status for the undocumented spouse through a marriage-based petition, filing taxes as a couple adds legitimacy to the marriage in the eyes of the federal government.
A second suit was brought by a group of six American citizens, including Christina Segundo-Hernandez, from Fort Worth, Texas, who has four US-citizen children. The lawsuit argued that these mixed-status families are “particularly vulnerable to the economic dislocation associated with the COVID-19 pandemic.“
According to the Institute on Taxation and Economic Policy, between 50 and 75 percent of the estimated 8 million undocumented workers in the country pay annual federal income taxes using an ITIN. Unauthorized workers are more likely to work in low-wage but essential jobs in the pandemic such as janitors, food delivery drivers and shoppers, and jobs in meatpacking plants. They are also among the most uninsured groups.
After the glaring loophole in the CARES Act that allowed larger companies to get bailed out by small-business loan programs while many smaller businesses have been denied or are struggling to get relief, it is especially galling to deny some Americans badly needed aid on the basis of whom they chose to marry and how they choose to file their taxes. Economic relief in this crisis should not be used to achieve a political agenda of punishing immigrants and their families. The next round of rescue programs enacted by Congress must eliminate the provision that wrongly excludes these American citizens and their children.