Tax Resources
 

Illegal Aliens & Earned Income Tax Credit

Every year the IRS faces the problems of illegal aliens claiming earned income tax credit. The tax laws state that a taxpayer has to be either a US citizen or US resident alien all year. Illegal aliens are not allowed to claim the earned income tax credit from the IRS. IRS tax Publication 519 deals with resident aliens.

Can illegal aliens claim the earned income tax credit (EIC)?

No. Only US citizens and legal US resident aliens can claim the earned income tax credit. If a taxpayer or the taxpayer's spouse if married is a nonresident alien for any part of the tax year, then he or she cannot claim the earned income tax credit unless the taxpayer is married and filing jointly with a US citizen or US resident alien.

Illegal Aliens vs nonresident aliens

Also note that illegal aliens are not the same as nonresident aliens. While nonresident aliens can lawfully be in the United States, illegal aliens should not be in the United States. However, even illegal aliens must pay taxes to the IRS. Illegal aliens that meet the substantial presence test for the calendar year may be considered US resident for tax purposes. See IRS publication 519 to determine if you are a US resident alien or a US nonresident alien.

I am married to non citizen and nonresident, can I claim the earned income credit (EIC)?

If you are married and filing jointly, then you can claim the earned income tax credit only if you are a US citizen or resident alien. you can treat the nonresident spouse as a US resident. Note that a nonresident alien for tax purposes may not be a nonresident alien for other purposes.

Who is a US resident alien for tax purposes according to the IRS tax rules?

A resident alien is a resident alien of the United States for tax purposes if he or she meets either:

  • the green card test or
  • the substantial presence test for the calendar year

Even if a taxpayer does not meet either of these tests, he or she may be able to choose to be treated as a U.S. resident for part of the year.

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