The term “Expedited Removal” defines a process whereby undocumented immigrants can be deported from the United States by agents of the Department of Homeland Security, instead of by an immigration judge, and without the right to apply for relief from deportation. On July 22, 2019, the Trump administration announced that it would begin applying the rules of “expedited removal” to undocumented immigrants across the United States. Previously, this process was applicable only to individuals found within 100 miles of a border or port of entry to the USA, who did not have a visa, or who committed fraud or misrepresentation, and who could not show at least 14 days of physical presence.
People who claim fear of persecution in their home country, or who can provide evidence of at least two years of presence in the USA are not subject to expedited removal. Therefore, if you are undocumented, it is critical to prepare and carry copies of documentation evidencing your time in the United States. For example, copies of official documents such as birth certificates of U.S. born children, marriage certificates issued in the USA, bills, insurance records, receipts, vehicle transfers and titles, and tax returns are good evidence of physical presence in the United States. It is important to not carry false social security numbers or other false identification, and it is best to leave at home any and all identification issued by a foreign government. For a specific plan and documentary packet, please contact Walker Gates Vela PLLC at (512) 633-1785 for a consultation.
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 [email protected].
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!
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