Immigration authorities continue to create more and more difficult requirements from all benefit applicants in order to satisfy the burden of proof in requesting immigration status. The latest change arrives just in time for tax season: a heightened requirement for evidence of tax filings.
For reasons unknown to us, and with no regard to the additional burden on applicants, their sponsors, or the Internal Revenue Service (IRS), many immigration agencies are now requiring IRS tax transcripts as the sole form of evidence of tax filing. Some agencies are going further and requiring “certified tax transcripts.” These must be obtained by written request or by calling the IRS and being placed on hold for hours at a time.
Since the IRS has blocked efforts by immigration authorities to directly access the tax filings of individuals, it has always been up to the individuals to provide evidence of those filings to the various immigration officials who request them. For years, immigration authorities were satisfied with individuals submitting copies of their tax forms, such as the unsigned 1040 packet a tax preparer would give a client after submitting the original to the IRS, or the electronic copy a person would print out when e-filing. This administration has decided, without announcement and with more frequency, to request transcripts. the rationale offered by officers thus far has included prevention of receipt of unfiled or improperly filed returns.
HOW TO OBTAIN REGULAR AND CERTIFIED TAX TRANSCRIPTS
Tax transcripts may be ordered by using Internal Revenue Service (IRS) website. for electronic copies, a user can set up an account and simply download the desired years. However, for certified copies, Form 4506-T can be filled out and mailed in or they can be requested by calling 1-800-829-1040. Please note that you must ask for the transcripts to be mailed if the requesting immigration authority wants a certified tax transcript and has not specified that an e-mail or downloaded copy is acceptable. Again, if a downloaded copy is acceptable, the IRS website gives you the option to get the transcripts online. The IRS website is www.irs.gov .
WHAT TYPES OF CASES REQUEST TAX TRANSCRIPTS?
We expect that the government will request tax transcripts for every case where taxes are required as part of the evidence to show eligibility for the application or relief sought, as well as to show favorable discretion. For now, we have begun to see their request in the following cases:
When applying to become a naturalized U.S. citizen, there is a requirement that you show good moral character for the period relevant to your application: five years for most applicants and three years for those applying based on marriage to U.S. citizens. Citizenship and Immigration Services (USCIS) now requires that applicants bring “certified tax returns” to their naturalization interview. Failure to bring certified tax transcripts can result in a denial of the naturalization case due to failure to show that the applicant possesses the good moral character required to become a citizen. Tax evidence is NOT required in cases where the individual is applying for a replacement of an already granted citizenship or is applying based on derivation of citizenship based on a parent. For more information visit https://www.uscis.gov/files/form/G-1151.pdf
- CONSULAR PROCESSING
In cases where U.S. citizens and permanent residents petition for their families, those citizens and residents must show that they or their co-sponsors can provide financial support. The financial support is required as part of a larger evaluation to ensure that the family member coming from abroad will not become a public charge upon the U.S. government. Ability to sponsor is shown primarily by providing taxes. Consulates are now requiring that sponsors and cosponsors of intending immigrants provide IRS transcripts of their taxes and not their personal copies. Consulates are accepting downloaded, e-mailed copies of transcripts and are not requiring certified copies. A failure to provide the required tax transcript will result in a denial of the visa to the relative. There are other requirements that must also be met, such as having sufficient income. Additionally, the family member must demonstrate that he or she is of the condition, skill set, and disposition to contribute to the country.
- PERMANENT RESIDENCY
To be granted permanent residency, applicants must either be supported by their petitioner (and co-sponsor) financially or show that they have filed taxes for 10 years or more. As with consular processing, this is to avoid immigrants becoming a public charge in the U.S. Sponsors must file a form called the I-864. That form specifically gives sponsors the option to provide their copy of a tax transcript or their copy of their filing. HOWEVER, that form warns that an officer has a right to ask for a certified copy of the transcript. Some attorneys are reporting that USCIS offices have started requesting certified transcripts in certain cases, but we do not yet have information or sufficient reporting to discern a pattern. To read the instructions on the affidavit of support form go to www.uscis.gov/sites/default/files/files/form/i-864instr.pdf
- REMOVAL PROCEEDINGS
Immigration judges often request to see evidence that an individual living and working in the U.S. has filed and paid taxes prior to considering whether to grant that person any form of relief. To many judges, payment of taxes is essential if a person wishes to have favorable consideration. A failure to pay taxes or to file taxes honestly can result is a denial of benefits. While judges vary in their requirements for evidence, transcripts are good evidence because they show that the person filed and that the IRS processed and accepted the filing. An individual’s personal copy of a filing only shows what was prepared, not whether it was received.
A FINAL WORD
With tax season upon us, Antonini and Cohen reminds all of its clients and readers that the obligation to pay taxes falls upon every single person who works in the U.S., whether legally employed or not, whether working for cash or withholding, whether working with your own identity or with a false one. A failure to meet your tax obligations will impact your immigration case, present and future, as well as your ability to petition for your family. We can help you determine how to handle your immigration case and advise you about your tax filing obligations. If you misfiled or failed to file in the past, we can explain how, with the help of your tax professional, you can ameliorate and amend your tax records so that in the future, your immigration case is not compromised. Don’t hesitate to contact our experienced attorneys at 404-850-9394 so that we can help you.
At Antonini & Cohen, we have been providing energetic, effective and aggressive representation in all areas of American immigration law since 1991.