I’m a U.S. citizen, planning to file an I-130 petition for my husband, who has no immigration papers to be in the United States. Someone told me that when they went through the same process, the lawyer asked them to bring in copies of their joint tax returns, to help prove that they are really married. But because my husband has no work permit, he can’t get a Social Security number (although he works under the table). As a result, I’ve always filed my tax return as a single person. Is there something different I’m supposed to be doing?
: Although it’s true that an undocumented person cannot obtain a Social Security number without having a work permit or other right to live and work in the United States, there is an alternate number that such persons can – and should – apply for. This is called a Taxpayer Identification Number, or ITIN.
It’s used by many undocumented persons and so far, with a few rare exceptions, has not resulted in immigration authorities trying to track the person down. In fact, it’s in the U.S. government’s interest to have as many people as possible pay their taxes. Your husband needs to understand, however, that an ITIN does not give him any legal status in the U.S., nor the right to work, nor any rights to Social Security benefits – it is simply a processing number for tax purposes.
The IRS Publication “Understanding Your IRS Individual Taxpayer Identification Number” will help with the details of how to apply. Your husband will need to prove his foreign status and identity, most likely with a copy of a passport or birth certificate. You will need to file the ITIN application (Form W-7) along with that year’s tax return. Call the IRS toll-free at 1-800-829-1040 for additional help.
Once approved, the person receives a letter with the ITIN number. Be careful not to lose this! The applicant does not receive anything additional like an official card – because, again, having an ITIN is not the same as having any kind of status in the United States.
The key purpose of an ITIN is so that the person can have taxes deducted from a paycheck (if any) and otherwise report earnings to the Internal Revenue Service (IRS). All earnings must, by law, be reported, even if the work was done without legal authorization.
And it’s true that your joint tax return will be an important form of evidence in your husband’s marriage-based application for U.S. lawful permanent residence (a green card), showing both that you publicly acknowledge your marriage and that you have combined your financial lives.
However, this is a highly complex area of the law, and you’d be well advised to consult an immigration attorney for advice on both your husband’s green card eligibility and how to prove the bona fides of your marriage. The attorney may recommend that you amend your previous years’ tax returns to reflect your married status, as well.