Fully legal but shrouded in fear: paying taxes if you’re undocumented

Harnessing class privilege to assuage a dicey transaction at the tax office.

March 18, 2019

by Sierra Dickey

“Undocumented immigrants pay more in US taxes than Amazon or Facebook,” NY Congresswoman Alexandria Ocasio Cortez tweeted in February. The responses promptly exploded into racist memes countered by detail supported arguments from her fans. While many citizens don’t like to entertain any discussion of immigrants as more useful and law-abiding than major corporations, the Congresswoman was correct.

The problem with undocumented people paying US taxes is that they can’t access any of the benefits or support their earnings go to pay for. And, because many are forced to use fake Social Security Numbers (SSNs) to access the job market, getting right with the US tax system can be fear-inducing.

ITINs (individual taxpayer identification numbers) are one way that undocumented people can pay taxes above board. Besides getting their taxes in order, ITINs can also be used to apply for credit cards which are largely inaccessible to undocumented people. With a credit card you can rent or buy a car, apply for loans, solve cash flow problems, order goods and services online, send money internationally via PayPal or Venmo (which are cheaper than the commonly used Western Unions and Moneygrams) and access other financial services.

Using an ITIN as an undocumented person is not a shady work-around or a manipulation of the tax code. ITINs were created in 1996 expressly for undocumented “aliens” and other non-citizens with various forms of temporary status. In its own pamphlets, the IRS describes how it works: “Can I get an ITIN if I am an undocumented alien? Yes, if you are required to file a U. S. Federal income tax return or qualify to be listed on another individual’s tax return as a spouse or dependent, you must have either a valid SSN or an ITIN. If you are an undocumented alien and cannot get a SSN, you must get an ITIN for tax purposes.”

In a perfect world, ITINs should be readily available to any undocumented person seeking one, but there are issues accessing them. “In this climate, anything related to reaching out to the government is a scary process.” said Margaret Sawyer, co-director of the Pioneer Valley Workers Center (PVWC). The PVWC focuses on organizing and worker issues, and does not specialize in tax help, but they are able to provide basic information about referrals. Their membership consists of Spanish-speaking people working low-wage jobs within the food system.  “Many of our members have ITINs,” said Sawyer, and “people are very concerned about wanting to be faithful to paying taxes.”

Tax speak, like legalese, is mostly incomprehensible to me, and I am a native English speaker. Non-English speaking immigrants seeking ITINs from tax prep offices must contend with the language barrier and the risk of revealing that they have an incorrect SSN listed on their W-2s. Apart from a handful of legal aid and tax help organizations focused on immigrant populations, there isn’t much support for lower and middle class immigrants who want to do their taxes in greater New England. In the Pioneer Valley area, another immigrant-focused organization, the Center for New Americans, offers free English classes and immigration counseling but does not assist with taxes. The Trans Asylum Seeker Support Network provides rides to court dates and various other supports but those seeking asylum are instructed not to engage in work until they receive a work authorization and therefore don’t initially require ITINs. For-profit tax preparers and private banks can file ITIN applications for a fee.

In eastern Massachusetts, Greater Boston Legal Services (GBLS) is a legal aid program that serves immigrants among others, and houses a tax clinic. I spoke to Luz Arévalo, Senior Attorney at GBLS about the ITIN application process. “People are afraid, but they also need to function,” she said of her undocumented clients. When counseling undocumented workers who need to file tax returns, Arévalo counsels “you may not want to use your home address.” The IRS is legally prohibited from disclosing any taxpayer information, but having the worker’s address on the document can be risky if they then use it as proof of address for other purposes. However, Arévalo was also clear that obtaining an ITIN, even with a history of W-2s with an incorrect social security number, would not put someone in direct risk of deportation. In fact, she said “the IRS is completely aware that workers use made-up social security numbers to be able to work.”

What’s more, Arevalo commented, “when someone brings me their W-2 I know they have been paying the required taxes.” In the longer-term process of applying for status, a record of paying taxes, even on money earned with a made-up social security number will be proof of good moral character. “My clients are between a rock and a hard place because they need to work, but they also need to contribute their tax on the money earned. And the ITIN does not authorize them to work. Only to file their tax returns.”

I worked in immigrant worker support roles for three years. Assisting with ITINs was never a part of our toolbox, though it should’ve been. I didn’t know about the number until an undocumented parent asked me about it. He was Guatemalan and had heard about the number from other undocumented farm worker friends. (From here on I will refer to this man as my client). I had never heard of it but went home and read all I could. My mind was blown by the quantity of facts on the DACA subreddit, where Dreamers and allies discussed the nitty gritty ways in which having precarious legal status makes things more difficult: College applications, donating to political campaigns, joining the military, joining a union, passing background checks, renewing a passport, etc.

From there, I discovered this brief from The American Immigration Council (a non-profit specializing in pro-bono legal help for immigrant communities) and it answered all the risk-based questions I had, like, can an ITIN be used to track immigrants? No. Can an undocumented immigrant get penalized for having an ITIN in the past if they later become legal residents? No. Similar to the privacy laws that keep educational (FERPA) and health-related (HIPPA) information protected from other state agencies, taxpayer information cannot be shared with immigration enforcement. To that point, it is arguably more dangerous for an undocumented person to apply for a driver’s license than it is for them to seek an ITIN, due to the unregulated but well-documented ways in which local DMV’s collaborate with ICE.

After reading and re-reading this brief, I felt armed with enough knowledge to accompany my client to an appointment at a tax preparer’s office. He gathered up all of the requisite documents (2 proofs of local address, foreign passport, W-2s, paystubs, foreign birth certificate), and I did an inventory of my currencies: I am white, cis woman, and middle class, and I present as such.

I knew from my research that a tax preparer couldn’t out my client to ICE. As the AIC says, “Taxpayer privacy is an important cornerstone of the U.S. tax system.” However, he could refuse our business which would have been painful. When we got around to passing over my client’s W-2s, he very nearly did.

My client had been using a made-up SSN to receive pay from his agriculture job, and our tax preparer took major issue with that. He asked repeatedly: “Where did he get that number?” “How did they get a number for him?” “What is that number?” Citing all I had read, I insisted that information was not necessary for the task at hand. Rebuffing his distaste over and over was likely easier with privilege. I was confident in my information, and I was a native speaker of English, but that didn’t seem to matter as much as my white citizenship planted next to a brown person without status. A finger scratched in my brain: was this real solidarity? Truthfully, undocumented people should be able to complete this process on their own, and many do. I thought that my carefully prepared arguments would be key to our success. Instead, it was just companionship. Similarly to how Jews for Racial and Economic Justice have organized direct actions using citizen’s bodies to slow or halt deportations and ICE raids, I took a seat and loaned my client some legitimacy.

Our preparer took a lot of convincing before he could move forward and process the application. Key to his transition was a call he made to corporate, asking if there was a protocol for ITIN seekers with suspicious SSNs. God bless him, the representative on the other end said exactly what I had been saying: disregard that number on the W-2s and process the application. At the end of the day, we want to help more people pay into the tax base. 

If it’s perfectly legal to seek an ITIN, and also incredibly common to use a made-up social to get work, how do we encourage immigrant people to seek tax help and how do we prepare tax professionals for the inherent complexities? Once someone receives an ITIN, they can begin to access more means, and provide for themselves and their families with less friction.

Part of resisting is taking grand advantage of whatever tools or expertises are at your disposal. A second part of it is deciding to actively counter the culture of fear that surrounds interactions with the present US government. As Arévalo said, people need to function.

If you work in or alongside communities of immigrant folks, here are some tentative steps for supporting someone seeking an ITIN.

  1. Read all about the number
  2. Prepare with your person and put their safety and concerns first
  3. Make an appointment ideally at a free tax help location or at a commercial tax preparer’s. GBLS has outreach staff in Springfield (1-800-639-1109), and many local United Way’s offer free tax help in collaboration with banks.
  4. Have all the documents ready
  5. Use any privilege you have that has currency in a space like a tax prep office

 

Sierra is a writer, educator, and organizer in Vermont. Read her on Twitter @dierrasickey.

The Shoestring is committed to bringing you ad-free content. We rely on readers to support our work! Please donate to The Shoestring on Patreon.