Whether you are petitioning for a family member, applying for naturalization, defending yourself against deportation, or serving as a co-sponsor for another immigrant, there are many circumstances that require the Department of Homeland Security to scrutinize your tax records.
Here at WGV, we have seen many tax documents with errors and omissions, some of which have cost our clients many thousands of dollars to rectify, plus subjected them to fines, penalties, and findings that they lack good moral character. With tax season now in full swing, here are five tips to keep in mind if you or a loved one are an immigrant tax filer in the United States.
You do not need to have a social security number to file taxes
All workers in the United States – whether authorized or not – are able to file tax documents with the IRS. If you do not have a valid social security number, you may apply for an “ITIN” or “Individual Tax-Payer Identification Number” when you file your return. The ITIN will substitute for a social security number on your taxes, though including it may render you or your spouse ineligible for certain benefits.
You should not file as “Head of Household” if you live with your spouse
Many spouses of undocumented individuals file as “Head of Household” even though they are married and living with their spouse. While there are many tax benefits granted to persons filing as “Head of Household,” this filing status is essentially a declaration that you are either single or residing separately from a spouse. If you need to convince the immigration service that you are residing with your spouse in a good faith marriage, having tax returns filed as “Head of Household” works against you and could even be considered fraudulent.
Do not declare Dependents unless you have paid at least 50% (half) of that person’s living expenses
In order to legitimately claim a dependent on your tax return, you need to be able to prove that you have provided, during the tax year, at least 50% of that person’s living expenses. Naming relatives on your tax return as dependents in order to maximize a tax refund is illegal and a bad idea for anyone trying to avoid problems with the IRS or DHS.
Do not declare children for the Child Tax Credit unless they are living with you
To properly claim a child for the Child Tax Credit, the child must physically reside with you, be younger than 17 years, unmarried, and dependent on you for care. Do not claim your children if they are living outside your home.
Beware of tax preparers who promise big refunds
At WGV, we have seen that some tax preparers routinely file returns for clients with the objective of maximizing the tax refund. In order to do so, the preparer often includes questionable dependent information, designates an improper filing status (e.g. “single,” “head of household,” etc.), or includes children that do not reside with the filer.
This approach often leaves clients vulnerable to fines, penalties, and even potential criminal charges, while the preparer him or herself faces little to no liability. Beware of tax preparers who do not conduct a complete interview each year to see how your circumstances may have changed, or who encourage you to claim dependents or children that are not legitimately yours to claim. You should NEVER sign a blank tax return – always insist on seeing the tax preparer’s work. Also be wary of tax preparers who offer to prepare and file immigration documents for clients, as doing this is a crime unless the person is an attorney or accredited by the government for non-profit work.
WGV encourages clients to work with well-established, accredited, and reputable tax preparers. For a listing of tax preparers and their credentials in your area, visit https://irs.treasury.gov/rpo/rpo.jsf.
Smart phones. Tablets. Laptops. It’s hard to imagine life without them anymore. However, if you’re about to travel across an international border, you should know that your devices will likely be subject to searches by Customs and Border Protection (CBP). Whether you’re a U.S. citizen or not, your electronics are not anonymous safe-havens for your personal information. The Department of Homeland Security has recently expanded searches of electronic devices and other personal belongings for anyone – citizen or non-citizen – trying to enter the United States.
Can I refuse to allow DHS to search my belongings?
The sad reality is that even United States citizens have almost no right to refuse searches by CBP upon entry to the United States. Citizens, however, cannot ultimately be denied entry to the U.S., while any noncitizen may be at risk of being turned away or even detained if she refuses to allow a search of her personal effects, including electronic devices.
The law generally allows DHS to conduct searches of travelers’ personal effects if there is a reasonable cause to suspect inadmissibility. While CBP directives regarding searches of electronic devices date back to at least 2009, CBP has notably ramped up its searches of personal devices since the beginning of the year. By some accounts, such searches are reaching unprecedented levels, surpassing in one month the total number of searches conducted in previous years. Horror stories about CBP searches of smartphones and laptops have flooded the news. Even U.S. citizens have not been immune to these invasive searches of personal data.
How can I protect my personal information?
DHS has clarified that for U.S. citizens searches of devices will be limited to the information “physically resident” on the device. Searches of social media, “cloud” information, or any other data that is maintained by a third-party server will not be permitted without a warrant. While this clarification is small comfort, it does provide a blueprint for U.S. citizens on how to safeguard information from invasive searches at the border: Save it in the cloud and be certain when travelling that private information is cleared from your devices.
Non-citizens are of course far more vulnerable. They may be denied entry for refusing to cooperate with a search. Even lawful permanent residents may be subject to arrest and detention. The current administration has even announced the inclusion of social media handles as part of a non-citizen’s alien file. See Notice of Modified Privacy Act System of Records, 82 Fed. Reg. 43556 (Sept. 18, 2017). The administration has hinted that, for non-citizens, they may search all social media accounts, files, and records, whether “physically resident” on the device or not.
Thus, the best advice for citizens and non-citizens alike is to leave devices at home, and keep any sensitive information in the cloud or on an external hard drive that you do not take with you.
Consider purchasing a temporary flip phone for use on trips. Arrange for use of a computer at your destination so that you do not have it with you when crossing the border. Buy an old-fashioned book or magazine and leave that tablet behind. If you must travel with a computer or other device, transfer all sensitive information to the cloud or an external hard drive and disconnect it before you leave. Oh, and remove all your social media apps. Your Facebook friends will be there when you get back.
For questions or additional information about protecting your rights at the border, contact our office at 512-633-1785 or firstname.lastname@example.org.
If your loved one’s from Mexico, more than likely, he or she’s going to be simply picked up, turned around and sent right back home. However, if he or she is from any other country in the world, then he will be placed into what’s called the “expedited removal” process.
Expedited removal is a process by which the government detains you and then it contacts your home country to get you a passport or travel document. Once the passport is obtained then you’re simply put on the next flight home and sent right back to your home country. The only way to get out of the expedited removal process is to request asylum in the United States or to express fear of returning to your home country.
The way to request asylum in the United States is to express fear of returning to your home country and request what’s called a “credible fear” interview. You need to do this at every opportunity because a lot of the agents that are processing individuals entering the United States have so many cases to handle that they may not initially take your case seriously if you are saying that you’re afraid, so it’s important to repeat and insist that you need a credible fear interview and that you should not be sent home to your home country.
In the credible fear interview, you’ll have a chance to talk to an asylum officer about your case. You’ll be able to explain why you’re afraid, who you’re afraid of, what’s happened to you that’s made you afraid, whether your family has been harmed, whether the government can protect you from future harm or whether you can return and live in any other part of the country.
You may be able to have an deportation attorney present at a credible fear interview. However, most likely the attorney will only be able to be present by telephone. This is because most of the detention centers in the United States are located in remote areas. The attorney may be far away and will not have time between the time he or she is notified of the credible fear interview to travel to the detention center to actually be physically with you. However, he or she can be present by telephone and sometimes this is very helpful.
Documents are not required at the credible fear interview. However, it can be helpful if you do have documentation regarding your claim, such as police reports, newspaper articles, letters from friends or family about what’s happened, etc.
Having a positive credible fear interview doesn’t give you asylum in the United States. However, it does give you the opportunity to ask for asylum before the immigration judge. It is the immigration judge, not the immigration officer, in these cases that can grant asylum. So most of the time, if your credible fear interview has a positive outcome, you’ll be allowed to exit detention and present your case before the court after you’ve had some time to prepare it with evidence, documentation, and testimony.
What’s most important about the credible fear interview is to be truthful and thorough. You don’t want to leave out major events that have occurred that left you feeling fearful for your life in your home country. Try to remember to include everything that you possibly can, that resulted in you having fear of returning to your home country and needing asylum in the United States. However, don’t exaggerate your story or embellish your story. Be as truthful as possible so that later when you present your asylum case to the court, it matches as closely as possible the story that you told the officer during the credible fear interview.
Crossing the Texas-Mexico border without a visa is extremely dangerous. The best way to request asylum in the United States if you need protection here, is to simply approach the immigration agents that work on the international bridge between Texas and Mexico, rather than trying to cross in illegally into the United States. Such crossings have resulted in many deaths and do not help your case. What’s best for your case is to simply request asylum from the Mexican side of the border to the immigration agents that work on the bridge. Please be careful and let us know if we can help.
The good news is — we’re growing. We have recently added some new staff, and consequently have grown out of our current space. So, as of JUNE 1, 2014, our Austin office will open in our new location at Centennial Towers, 505 E. Huntland Drive, Austin, Texas 78752. We will be in Suite 300. Take the elevators to the third floor and we’ll be inside the two glass doors on your right as soon as you step off the elevator. In our new location, we’ll have plenty of space for clients and staff, as well as abundant free (and shaded!) parking. We look forward to seeing you all there!