stimulus check amount for a US citizen and her nonresident spouse with a SSN

[lalatinga 1]

Hello all!

 

OK so my husband and I just got married in November, and have yet to apply for AOS due to financial hardships.

He entered the US legally and did his OPT so he DOES have an SSN. He is not authorized to work anymore though because his visa expired so he is currently out of status until we apply for AOS. He is a nonresident since he does not meet the substantial presence or green card tests for taxation, so we made the election for him to be treated as a resident for taxation purposes and filed jointly for 2019.

 

We make much less than the required AGI for the stimulus check. Will we be eligible to receive the $2400 the CARE act delegates to married couples? Does it matter that he has a SSN if he can't work with it right now? I would hope they would view us as a married couple and send the $2400, but I can totally imagine them being cheap and declaring that because my spouse is a nonresident in an immigration and not tax context, or because his SSN is attached to an expired visa and he can't work right now, I only get the $1200 and he gets excluded. 

 

I was hoping so much to get the $2400 so we could put it towards filing for AOS, it would break my heart if he was not eligible 

THANK YOU everyone! 

[arken 4,197]

1. There is no minimum AGI to get the stimulus.

2. As long as it’s filed jointly using SSNs of both, you’ll get $2,400

3.There is no need to call them cheap for no reason.

[lalatinga 1]

10 minutes ago, arken said:

1. There is no minimum AGI to get the stimulus.

2. As long as it’s filed jointly using SSNs of both, you’ll get $2,400

3.There is no need to call them cheap for no reason.

Thanks for your response!

1. Is his SSN still valid even if he can't work right now due to his status?

2. Would they say that since he's a nonresident, even though he's married to a US Citizen, we're not eligible? Nonresident aliens aren't eligible but I couldn't find anything about those who are married to citizens so I'm confused

[arken 4,197]

You elected him as a resident for tax purposes. If they accepted your tax return filing, that means he is a resident for tax purposes. So why would they say he is a nonresident alien?

[NancyNguyen 1,657]

3 minutes ago, arken said:

You elected him as a resident for tax purposes. If they accepted your tax return filing, that means he is a resident for tax purposes. So why would they say he is a nonresident alien?

Non-Resident Alien won't receive it.

 

https://www.irs.gov/coronavirus/economic-impact-payment-information-center

[lalatinga 1]

1 minute ago, arken said:

You elected him as a resident for tax purposes. If they accepted your tax return filing, that means he is a resident for tax purposes. So why would they say he is a nonresident alien?

because i only elected him as a resident for taxation purposes. he is technically a nonresident alien until we file for AOS.

are you saying they will honor the election i made in regards to his eligibility for the stimulus payment? 

[lalatinga 1]

2 minutes ago, NancyNguyen said:

Non-Resident Alien won't receive it.

 

https://www.irs.gov/coronavirus/economic-impact-payment-information-center

this link is exactly what caused me concern and made me write this post originally. what about non-resident aliens who are married to US citizens and are being treated as residents for taxation purposes? it doesn't say anything about anyone in that situation...

[Crazy Cat 39,177]

8 minutes ago, lalatinga said:

he is technically a nonresident alien until we file for AOS.

To be clear about his immigration status, he is out of status, and he will remain out of status after filing for Adjustment of Status.  He will be granted "authorized stay" in the US until the I-485 is adjudicated....but that is not a legal status.......

Edited April 13, 2020 by Lucky Cat

[arken 4,197]

10 minutes ago, NancyNguyen said:

Non-Resident Alien won't receive it.

 

https://www.irs.gov/coronavirus/economic-impact-payment-information-center

Yes non resident alien won’t receive it. Non resident alien can’t file 1040. What did OP and her husband file? 1040 because OP’s husband is the resident alien in 2019 tax return filing and stimulus for them is based on that return filing.

Edited April 13, 2020 by arken

[NancyNguyen 1,657]

1 minute ago, arken said:

Yes non resident alien won’t receive it. Non resident alien can’t file 1040. What did OP and her husband file? 1040 because OP’s husband is the resident alien in 2019 tax return filing and stimulus for them is based on that return filing.

My DACA and out-of-status friends all file tax with 1040, FYI.

[lalatinga 1]

2 minutes ago, arken said:

Yes non resident alien won’t receive it. Non resident alien can’t file 1040. What did OP and her husband file? 1040 because OP’s husband is the resident alien in 2019 tax return filing and stimulus is based on that return filing.

i think that's what the root of my question was, what is their basis for determining his eligibility? if it really is the return filing, and the fact that we elected for him to be treated as a resident alien, then i think we'll be good. thank you!!

[lalatinga 1]

9 minutes ago, Lucky Cat said:

To be clear about his immigration status, he is out of status, and he will remain out of status after filing for Adjustment of Status.  He will be granted "authorized stay" in the US until the I-485 is adjudicated....but that is not a legal status.......

yes sorry that was my bad, nonresident alien is a term for taxation only right? 

i thought he would remain in pending status after filing for AOS... which is not as bad as 'out of status'... how is 'authorized stay' not legal? i'm learning the ropes here so any insight is welcome

[Crazy Cat 39,177]

1 minute ago, lalatinga said:

yes sorry that was my bad, nonresident alien is a term for taxation only right? 

i thought he would remain in pending status after filing for AOS... which is not as bad as 'out of status'... how is 'authorized stay' not legal? i'm learning the ropes here so any insight is welcome

"Authorized stay" is not a legal status in itself.  He will be authorized to stay in the US while the I-485 is pending, and he will stop accruing illegal presence while the I-485 is pending.

 

https://www.murthy.com/2018/12/17/differences-between-lawful-status-period-of-authorized-stay-unlawful-presence-2/

"Period of Authorized Stay

Even if a foreign national is, for a period of time, not holding a lawful nonimmigrant status, s/he may be in a “period of stay authorized by the Attorney General” (i.e. period of authorized stay). One of the most common situations in which this occurs is when a properly filed application or petition to extend or change nonimmigrant status is filed with the USCIS on behalf of a foreign national.

A request to change or extend status is only considered properly filed if it is submitted while the individual is still in a valid nonimmigrant status. As explained above, this generally means that the foreign national holds an unexpired I-94 and is complying with the requirements of the status indicated on that form. In most situations, if the individual’s status subsequently expires while the request to change or extend status is pending, the foreign national falls out of nonimmigrant status, but remains in a period of authorized stay. This period of authorized stay continues until the USCIS issues a decision on the pending case. If the application or petition is approved with an extension or change of status, the decision has a retroactive effect, meaning that the period without status is cured. If it is denied, and the I-94 expired since the application or petition was filed, the individual typically begins to accrue unlawful presence from the date of the denial.

Another very common example of authorized stay is when a foreign national is present in the United States while an application to adjust status (I-485 form) is pending. An adjustment-of-status applicant who does not also have lawful nonimmigrant status (e.g. H or L) generally is considered to be in a period of authorized stay, as long as the properly filed I-485 remains pending."

[lalatinga 1]

5 minutes ago, Lucky Cat said:

"Authorized stay" is not a legal status in itself.  He will be authorized to stay in the US while the I-485 is pending, and he will stop accruing illegal presence while the I-485 is pending.

 

https://www.murthy.com/2018/12/17/differences-between-lawful-status-period-of-authorized-stay-unlawful-presence-2/

"Period of Authorized Stay

Even if a foreign national is, for a period of time, not holding a lawful nonimmigrant status, s/he may be in a “period of stay authorized by the Attorney General” (i.e. period of authorized stay). One of the most common situations in which this occurs is when a properly filed application or petition to extend or change nonimmigrant status is filed with the USCIS on behalf of a foreign national.

Quote

A request to change or extend status is only considered properly filed if it is submitted while the individual is still in a valid nonimmigrant status.

As explained above, this generally means that the foreign national holds an unexpired I-94 and is complying with the requirements of the status indicated on that form. In most situations, if the individual’s status subsequently expires while the request to change or extend status is pending, the foreign national falls out of nonimmigrant status, but remains in a period of authorized stay. This period of authorized stay continues until the USCIS issues a decision on the pending case. If the application or petition is approved with an extension or change of status, the decision has a retroactive effect, meaning that the period without status is cured. If it is denied, and the I-94 expired since the application or petition was filed, the individual typically begins to accrue unlawful presence from the date of the denial.

Another very common example of authorized stay is when a foreign national is present in the United States while an application to adjust status (I-485 form) is pending. An adjustment-of-status applicant who does not also have lawful nonimmigrant status (e.g. H or L) generally is considered to be in a period of authorized stay, as long as the properly filed I-485 remains pending."

thanks for the article! i understand.

one question this brought up: we can still file our AOS even if he has gone through a period of unlawful presence and is currently out of status, correct? because there is an exception for spouses of USCs. the wording of the phrase i bolded made me unsure. 

[arken 4,197]

27 minutes ago, NancyNguyen said:

My DACA and out-of-status friends all file tax with 1040, FYI.

We are talking about resident/non resident alien for tax purpose. DACA with SSN filing 1040 will get the stimulus.