Spending Legislation Enacted; Extends Expiring Immigration Programs, Broadens Recovery Rebate Eligibility for Nonimmigrants

The issue

President Trump has signed into law the Consolidated Appropriations Act of 2021, which funds the Department of Homeland Security, the Department of Labor, the State Department and other federal agencies through FY 2021, extends several expiring immigration programs, and provides a limited cap exemption for the H-2B temporary nonagricultural worker program. The legislation also creates a second stimulus check program for U.S. taxpayers, including eligible nonimmigrants.

Extension of expiring immigration programs

The E-Verify, Conrad 30 and non-minister religious worker green card programs are reauthorized under the Act through September 30, 2021. 

The EB-5 Regional Center Program is reauthorized without change for six months, through June 30, 2021. In the past, the program had typically been reauthorized in one-year increments. The six-month extension means that the program will expire in midyear unless Congress reauthorizes it once again. The short reauthorization also means Congress will have a midyear opportunity to make statutory changes to the program, which have long been discussed in the legislature.

H-2B cap relief

The spending law authorizes the Department of Homeland Security to increase the 66,000 H-2B cap for FY 2021 after consulting with the Department of Labor and if DHS determines that there are not enough willing, qualified and available U.S. workers to meet the needs of American businesses for temporary non-agricultural work this fiscal year. However, the cap cannot be increased by more than the highest number of H-2B workers who participated in the now-expired H-2B returning worker cap exemption in a year in which that exemption was in place. 

Stimulus payments

The law provides a tax credit (also known as a recovery rebate) of (1) $600 for eligible individuals (or $1,200 for those filing a joint return); and (2) an additional $600 per qualifying child, for those with an adjusted gross income of not more than $75,000 for individual taxpayers, $150,000 in the case of a joint income tax return, or $112,500 in the case of a head of household. The credit is reduced by $5 for every $100 in income above the threshold. 

For purposes of the rebate, an eligible individual is any individual who is a resident alien, as that term is defined under the Internal Revenue Code. A foreign national is a resident alien for income tax purposes if they meet either the green-card test or the substantial presence test for the calendar year. 

Nonimmigrants who pay U.S. income taxes as resident aliens and who are not listed as dependents on another’s income tax return are likely to be eligible for the recovery rebate, provided they meet the income criteria and U.S. Social Security Number requirements. 

Taxpayers filing individually must list a valid SSN on their income tax return to be eligible for the rebate. Eligible taxpayers claiming additional rebates for dependent children must list a valid SSN for each child claimed.

In an important change from the Spring 2020 recovery rebate program, SSN requirements have been eased for married couples filing jointly. To qualify, one spouse must have an SSN. Previously, both spouses needed to have an SSN to qualify for the rebate. Thus, under the new law, an H-1B principal who files jointly with her H-4 spouse could qualify for a rebate as long as the couple meets the income requirement – and even if the H-4 spouse does not have employment authorization or an SSN. Married couples who were ineligible for the Spring 2020 rebate because one spouse did not have an SSN may claim that rebate on their joint 2020 income tax return.

Because it is structured as an advance tax credit, the recovery rebate is not a cash public benefit for purposes of public charge bars to admissibility.

This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.