Tax Advice for Households with a Non-US Citizen Spouse

Advice from Laurel Scott:

Three important tax tips for couples where one is an unlawfully present immigrant and the other is a US citizen:

1. "Head of Household" is for single parents. You can only claim to be "Head of Household" if you did not reside with your spouse for at least half the tax year. if your spouse was in another country for at least six months, then you can claim to be Head of Household. If you lived with your spouse in the US, you cannot file as Head of Household even if your spouse does not have a valid social security number. You must file as either Married, Filing Jointly or Married, Filing Separately.

2. If you are filing either as Married, Filing Jointly or Married, Filing Separately and your spouse does not have a valid social security number, you cannot take the Earned Income Credit. Once your spouse 'legalizes", you can retroactively get the Earned Income Credit for some of the previous years even when he/she wasn't lawfully present. But you can't file the request for the credit retroactively until after he/she 'legalizes'.

3. You can only claim other people's children (e.g. nieces, nephews) or adults (e.g. sibling, parent) as dependents on your tax return if either (a) you live with the person, or (b) you provide at least half that person's support. Even where you provide half that person's support, the person must be a US citizen or national or lawful permanent resident OR must reside in the US, Mexico or Canada (due to NAFTA). So, if you are sending money to your niece and nephew in Mexico that is more than half their support, you can claim them even if they aren't US citizens or permanent residents. But you cannot do the same for your niece and nephew in Guatemala. If you reside with the children and the parents of the children, you can only claim them if you make more money than their parents.


I would then add that if a spouse is not eligible for a Social Security Number, s/he is eligible for an Individual Tax ID Number (ITIN).  You must apply for an ITIN when you file your taxes, and you must apply for it on paper (meaning you cannot file an electronic return).  If your tax preparer does not know what a form W-7 is, find a new tax preparer - one who is experienced with non-citizen filers.



So what's up with immigration reform?

Comprehensive immigration reform has been crafted to address four main issues:  (1) What to do about the 11 million-plus undocumented immigrants who live in the U.S. currently;  (2) How to further secure our borders; (3) How to ensure businesses are only employing immigrants authorized to work legally in the U.S.; and, (4) How to improve the legal immigration system.  A Senate billed passed in June, by a vote of 68-32.  That bill is currently stalled in the House of Representatives, although it is not yet completly dead, things are not looking good.

The bill is certainly not perfect, but it was something.  It was an acknowledgment that the system is broken and something must be done.  I only hope something actually will be done...


Poor Baby Veronica

I have only handled one domestic infant adoption in my career.  I was very excited about it and anxious to learn about the ICPC (Interstate Compact on the Placement of Children) and parental consents given shortly after birth, etc.  It was the second adoption for my clients.  The first had gone so smoothly, they were so looking forward to bringing their new baby home.  The mother lived in another state, so my clients flew there to be present at their daughter's birth.  Everything went just as clockwork - until about 6 hours after the birth.  The mother changed her mind.  She could not consent to the adoption.  She had spoken to family in another state and they offered to take her in and help out until she got back on her feet.  Devastated.  Heartbroken.  Angry.  Those words don't really convey all that my clients (and I) felt.  It was one of the worst moments of my career.

I have been following the Baby Veronica case for quite some time now.  I agreed with the Supreme Court's decision last month, but that doesn't mean I was happy about it.  There is no winning or losing with contested adoptions.  My heart aches for the parents who had the child taken from them.  I am angry with the biological father for using an outdated and misapplied law to overcome his failures as an expectant father, but I can sympathize with his desire to parent his child.  But mostly I'm so sorry for this little girl.  No matter the outcome, she either has already lost her parents, or she will soon lose her father. 

Helping to arrange and finalize international adoptions is one of the best parts of my job.  One of the reasons prospective parents chose international adoptions is to reduce the risk of a parent withdrawing their consent.  There are other risks involved, but not so much that one.   I can't say I blame them at all. 

For the most recent updates on the Baby Veronica story, click here.




The Thrill of 'Real' Courts

Immigration attorneys are rarely in 'real' courts.  We can spend significant amounts of time in Immigration Court or even appellate court for some of us, and certainly at our local USCIS office for client interviews.  But appearances in district or circuit courts can easily become few and far between. 

This morning I attended a name change hearing for a client.  Name changes are simple and routine, for the most part.  Even still, I find myself getting up earlier than usual, wearing a nice suit, and experiencing more butterflies than usual when I sign up for a 'regular' legal case, like a client's divorce or traffic ticket.  I rarely get the opportunity, but when I do, it's worth it.  I have no intentions of marketing myself as a 'name change specialist' or domestic relations attorney, but it is certainly nice to be able to add that extra service to my resume and be able to offer it to my clients, should they ask.

And it is especially nice to step out of my comfort zone every now and then - even if it is just for a name change.


Same-Sex Couple Seeks Immigration Relief From High Court