Over the past few months, the Trump administration has sent out checks to individuals below a certain income level in response to the COVID-19 pandemic. According to the IRS, only U.S. citizens and U.S. legal permanent residents are eligible to receive the Economic Impact Payment. Although certain nonresident immigrants are not allowed to receive this payment, there have been reports that the IRS has issued checks to some of these individuals. Foreign nationals who have mistakenly received these checks are unsure of how to return them and whether receiving a stimulus check would cause any complications with their immigration status and benefits. Below is a closer look at who qualifies, what happens if you receive the payment in error, and whether there are any inadmissibility concerns should you receive the check in error.

 

Do I Qualify for the Economic Impact Payment?

U.S. citizens and lawful permanent residents (green card holders) are eligible to receive the Economic Impact Payment (EIP). Others who are in nonimmigrant status are not eligible to receive this payment; however, there are certain circumstances in which an otherwise ineligible nonimmigrant may be categorized as a “qualifying resident alien” and would be eligible to receive EIP payments. 
To fall under this category, the IRS conducts a “Substantial Presence Test.” To meet this test, you must be physically present in the United States 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; 

             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.

For example, say you were physically present in the U.S. for 120 days in each of the years 2012, 2013, and 2014. To determine if you meet the substantial presence test for 2014, you would count the full 120 days of presence in 2014, 40 days in 2013 (1/3 of 120), and 20 days in 2012 (1/6 of 120). Since the total for the 3-year period is 180 days, you would not be considered a resident under the substantial presence test for 2014.

Many individuals who are here on H-1B visas, for example, would likely meet this substantial presence test. Alternatively, individuals on intermittent L-1 visas may not necessarily meet this test, if most of their physical presence is outside of the country. 

Despite this substantial presence test, there are certain visa categories that are exempt, meaning that any days in the U.S. in these statuses would not count towards the substantial presence test. The most common of these visas include students temporarily present in the U.S. on an F visa or teachers and trainees on a J visa. These individuals are not allowed to count any time spent towards the substantial presence test, and are therefore ineligible for the EIP. 

Ultimately, there are various factors and exceptions when determining who is a resident alien – so the best thing to do is to reach out to a tax specialist or your attorney to see if you qualify.

 

What Do I Do If I Receive the Payment in Error?

The IRS has indicated that if you received the payment in error, you should return the check using various methods, including the following:

  • If payment was a paper check, returning it to the IRS with a brief explanation stating the reason for returning the check
  • If payment was cashed or came through direct deposit, submitting a personal check to the IRS with a brief explanation stating the reason for submitting the check
  • If payment came as a debit card, to return the card to the appropriate cardholder services listed on the IRS website with a brief explanation as to why the card is being returned.

Despite these options, there have been reports of difficulties in trying to return the money to the IRS. Instead, some universities have instructed their students to file an amended tax return to send back the check.

 

Are There Any Inadmissibility Concerns If I Received the Payment?

U.S. Citizenship and Immigration Services (USCIS) has not clarified whether accepting the stimulus check is considered a public benefit for purposes of inadmissibility. Experts in the immigration field do not believe these checks count as public benefits, as the stimulus check is technically a 2020 tax credit paid in advance. In this scenario, the check does not fall under the income maintenance category per chapter 10 of the USCIS Policy Manual, which states, “USCIS considers any other federal, state, and local tribal cash assistance for income maintenance (other than tax credits).”