Why and How to Pay Taxes Regardless of Your Immigrant Status | Santiago Law Services

So…, you are living in the United States and you are earning money but, you are not a citizen nor a legal permanent resident (LPR). Maybe you are living in this country as a visitor, or as a student or as a non-resident alien who is working in the U.S; maybe you are an unlawful immigrant. Bottom line: you cannot have a social security number (SSN) and probably you have not received a work authorization from the U.S.C.I.S., yet you are making earnings (wages, salary, income).  Then, you must pay taxes, no excuses. At this point in the reading, you are asking yourself, why should I pay taxes and how do I do that if I do not have a SSN?

The “why” is because it is required by law. Residents and non-resident aliens may have a reporting requirement under the U.S. Internal Revenue Code, hence, they need to file their tax reports each year. Simply put, if you are making any kind of earnings while living in the U.S., you are obliged to file tax reports regardless of your immigration status.

The “how” is answered by the Internal Revenue Service (IRS). You will need an Individual Taxpayer Identification number (ITIN) issued by the IRS. The ITIN is a tax processing number aimed to ensure that people pay taxes, even if they do not have a legal immigration status. The IRS issues ITINs to both resident and nonresident individuals (aliens) who are required to have a U.S. taxpayer identification number. These are individuals who do not have, and are not eligible to obtain a SSN from the Social Security Administration (SSA). The ITIN is a 9-digit number, beginning with the number “9” and is formatted like an SSN (NNN-NN-NNN) with the fourth and fifth digits ranging from 70-80, and will remain valid as long as the person is filing tax reports or the person does not file tax reports for three consecutive years.

To obtain an ITIN, you must complete the Form W-7, IRS Application for Individual Taxpayer Identification Number and provide documentation corroborating your identity and  foreign/alien status like the original or certified copy of your passport.  If you do not have your passport, then you must provide other unexpired documents (at least one must include a photo identification), for example:

  • Birth certificate (original or notarized copy)
  • Driver’s license from the U.S.
  • Driver’s license from your country of origin
  • National Identity Card (with photo, name, current address, date of birth and expiration date)
  • State identification card
  • Voter registration card from your country of origin

You can mail Form W-7 to the IRS, personally present it (with required documentation) at an IRS office or process your application through an Acceptance Agent authorized by the IRS. It takes around seven to eight weeks for the IRS to send you a letter with your ITIN information.  The phone numbers to call for ITIN questions are 800-829-1040 (toll-free) if you are in the United States or 267-941-1000 (not a toll-free number) if you are outside the United States.

Additional Considerations About ITIN and Immigrants

Not only is it required by law, but there may be additional considerations as to why obtaining an ITIN is necessary. For example, if in the future, an unlawful immigrant has the opportunity to become a legal immigrant, having filed tax reports may be used as evidence to prove the person’s “good moral character” since, he or she is complying with federal tax laws. Also, filing tax reports can be used to prove how long a person has been physically present in U.S. Regardless of your immigration status, when you file tax reports, you may benefit from certain tax-based claims, like the Child Tax Credit and the Additional Child Tax Credit. Having an ITIN may also help you in the process of opening a bank account and obtaining a state identification card or driver’s license (it will depend on the State law).

In summary, if you are not lawfully in the U.S., you may need to obtain an ITIN issued by the IRS in order to comply with federal tax laws.  Additionally, some individuals that are lawfully in the country and may not be eligible for an SSN, may need to obtain an ITIN. Some of these individuals are:

  • A dependent or spouse of a U.S. citizen or lawful permanent resident.
  • A dependent or spouse of a foreign national on a temporary visa.
  • A dependent or spouse of a nonresident alien visa holder
  • A non-resident foreign national who owns or invests in a U.S. business and receives taxable income from that U.S. business, but lives in another country.
  • A foreign national student who qualifies as a resident of the United States (based on days present in the United States).

It is important to understand that the ITIN is not an SSN and it is issued for federal tax reporting purposes only. Having an ITIN will not give individuals a legal immigrant status, will not give you Social Security benefits. Since the ITIN is not proof of (nor a) work authorization, employees and employers cannot use it as a means to comply with the I-9 form requirements.

Also, remember that the IRS will not share ITIN taxpayer’s information with the Bureau of Citizenship and Immigration Services or Immigration and Customs Enforcement (ICE).  The privacy of a taxpayer (including ITIN recipients) is highly protected by law. Section 6103 of the Internal Revenue Code, prohibits the IRS from disclosing taxpayer information, including other federal agencies. There is exception to that prohibition when the IRS is required to disclose taxpayer information to certain U.S. Treasury Department employees when they request it for tax administration purposes.  Also when it is requested by other federal agencies when conducting a nontax criminal investigation or when a federal court has ordered that the taxpayer information must be provided. The ITIN application process is not used as a means for the government to enforce immigration laws but as a mechanism for individuals to comply with the federal tax laws.

1. This article provides general information and is not intended to provide legal advice to any particular individual.  The author encourages individuals to seek legal advice with a lawyer in order to receive accurate legal orientation aligned with their specific factual situations. This article is not meant to address the legal implications of working in U.S. without a work authorization issued by the U.S.C.I.S.

2. You can find more information at https://www.irs.gov/individuals/general-itin-information.

3. The U.S.C.I.S. Policy Manual, defines “good moral character” as “character which measures up to the standards of average citizens of the community in which the applicant resides” (Policy Manual Volume 12, Part F, Chapter 1).  Proving good moral character is extremely pivotal when an applicant is seeking certain types of immigration relief.

4. For more information, visit https://www.americanimmigrationcouncil.org/research/facts-about-individual-tax-identification-number-itin.

5. The I-9 Form, is used for verifying the identity and employment authorization of individuals hired for employment in the United States. All U.S. employers must ensure proper completion of Form I-9 for each individual they hire for employment in the United States, whether a citizen or a noncitizen. Both employees and employers must complete the form. On the form, an employee must attest to his or her employment authorization. The employee must also present his or her employer with acceptable documents evidencing identity and employment authorization.  For more information, refer to https://www.uscis.gov/i-9.