Unauthorized Employment, Back-Taxes and Greencard

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prunenoire

Registered Users (C)
I’m new to this forum. I have been trying to avoid going to a lawyer, because my fiancé and I don’t have the money to pay for extensive legal advice as we are trying to save up for our wedding and the greencard fees.

My fiancé overstayed the expiration date on his I-94 by six years. It’s an unfortunate situation, but we’re trying to make the best out of it. My fiancé and I are planning to get married in October. Personally it would be sooner, but the church we attend requires pre-marital counseling sessions that will take a couple of months.

As I am a USC I would like to sponsor his greencard. I’ve read up on the entire process and it seems very streamlined, especially because of the fact that it’s a greencard application through marriage; however I have some questions that I can’t get answered through searching on the internet.

My fiancé has been employed at the same company for 2 ½ years. He never filled out any application forms, I-9s or anything, but he receives a 1099-MISC for tax purposes. The 1099 doesn’t show any taxes being deducted from his paycheck and he never filed for a TIN, which I feel like is complicating the situation severely.

After searching the internet I came across this: http://www.boston.com/news/nation/w...requiring_back_taxes_from_illegal_immigrants/

1) What does this mean for our situation? Does he receive something like “tax amnesty”?

2) If that is so, does anyone have experience with filing the joint-tax return for the year the marriage was consummated?

3) Isn’t the IRS going to become suspicious, when he suddenly shows up on the radar? They already have two 1099s for 2006 and 2007. Don’t they put one and one together? Or do they go by TIN/SSN and not names (1099 has no TIN/SSN)?

3) Should he file for a TIN before we get married? Or should we just wait until 2009, when he has his SSN and pay for the 2008 taxes after we file the joint-return?

4) Do we have to file back-taxes for 2006 and 2007? Or can we just see it as a fresh start?

5) Does he have to quit his job after we get married, because he doesn’t have his EAD? Or does he just submit his EAD to his employer and legalize his employment?

6) Will his company get into trouble if we indicate on the I-130 and G325A that he is/was employed?

I know these are a lot of questions, but I keep seeing these wishy-washy answers in the internet that really don’t come to the point.

Thanks in advance for any help!

P.S. Sorry if I posted in the wrong forum. :)
 
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prunenoire said:
) What does this mean for our situation? Does he receive something like “tax amnesty”?
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No. That was never passed. He needs to see a CPA right away.

3) Isn’t the IRS going to become suspicious, when he suddenly shows up on the radar? They already have two 1099s for 2006 and 2007. Don’t they put one and one together? Or do they go by TIN/SSN and not names (1099 has no TIN/SSN)?
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They eventually will, and when they come after him it won't be pretty. He needs to proactively get in touch with IRS after consulting with a CPA and determining how much he owes.

4) Do we have to file back-taxes for 2006 and 2007? Or can we just see it as a fresh start?
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Absolutely!

Does he have to quit his job after we get married, because he doesn’t have his EAD? Or does he just submit his EAD to his employer and legalize his employment?
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He's working illegally already, so I don't see why he needs to quit. He just provides the EAD when he gets it.

Will his company get into trouble if we indicate on the I-130 and G325A that he is/was employed?
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Potentially, but that's not your problem. Any trouble that they can get into pales in comparison to the trouble you can get into if you lie on your forms.
 
Thank you for your answer.

Lying was never up to debate.

However, the question was if the US forgives back-taxes of undocumented immigrants. And according to the article and anti-immigration forums, that are pretty pissed at the fact that this provision was dropped, that seems to be the case. But if I am told that is not the case, I will seek advice from a CPA.
 
prunenoire said:
However, the question was if the US forgives back-taxes of undocumented immigrants.
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It does not, and never has.

And according to the article and anti-immigration forums, that are pretty pissed at the fact that this provision was dropped, that seems to be the case.
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Keep in mind that the article is old and the bill died anyways. See a CPA, then talk to the IRS. It's always better to contact IRS than to have them contact you.
 
prunenoire said:
Thank you for your answer.

Lying was never up to debate.

However, the question was if the US forgives back-taxes of undocumented immigrants. And according to the article and anti-immigration forums, that are pretty pissed at the fact that this provision was dropped, that seems to be the case. But if I am told that is not the case, I will seek advice from a CPA.
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Its a moot point because neither of last year's senate or house immigration bills passed and became law.

If the IRS figures out someone owes money, regardless of whether it was for legal work or not, they are going to want their share of it. Under the worst case scenario, your fiance might come to the attention of both the IRS and ICE. If he is deported, he will be subject to a 10yr ban, so I strongly suggest that you get married sooner and get the I-485 paperwork started.
 
You will not be able to adjuicate your status if you owe the US government money. No ifs or buts about it.

If he got 1099 for the last couple of years he will definetely owe taxes and probably a lot. 1099s are even tricky since he'll also owe self employment tax (almost 8% extra) because the employer did not pay for their portion of Social security and medicare.

If you are saying you do not have money to consult a lawyer for immigration, paying the taxes are going to be much higher than a few hundred dollars a lawyer would have asked for couple of hour of consultation.

You should expect to pay around 30% of his 1099 wages, plus interest and penalties. Best to get in touch with CPA to see how you can potentially lower your legal tax liability and then backfile your taxes immediately and get into a payment plan with the IRS. The IRS does offer payment plans.

My friend recently had the same situation where he owed $3000 to the IRS from the previous year. At the interview they asked him to pay the IRS before they can do anything. And he got into a payment plan and paid it off and got his greencard now. So if you act now and do the right thing, it will work out.
 
The IRS wants money from you for the weirdest things. It even instructs you that if you steal items of value, you must report them as your income. If they want you to report income from stealing, certainly they'll want you to report all your employment income too, no matter if it was derived with or without employment authorization!

On the bright side ... hopefully by reporting the income properly, your fiance will be credited with social security quarters for the previous years that he worked (but I'm not sure if they award them retroactively, maybe you should find out!).
 
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twopac3 said:
You will not be able to adjuicate your status if you owe the US government money. No ifs or buts about it.
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The USCIS will not adjust my fiance's status if he owes back taxes? Even if we file the tax forms and negotiate a payment plan with the IRS?
 
I know we have to consult a lawyer, but can anyone give me an idea on what they think is reasonable? What are we looking at here: :confused:

Option 1)
Get married
File for green card
File back taxes
Get green card

or

Option 2)
File back taxes
Get married
File for green card
Get greencard

Option 3)
Get married
File for green card and back taxes
Get green card


:o It can get very depressing at times, because we're talking about a ish load of debt and deportation, but we're trying to keep our heads up.

Doesn't the IRS forgive taxes or something like that?

I can't believe that there is NO ONE on this entire board that didn't get married to someone that was out-of-status and didn't pay taxes... Would you people please come out of the woodworks? :p Not everything is always 'hollywood'.

Oh, and has anyone ever dealt with the free CUNY Immigration Centers lead by Allan Wernick? Any thoughts on that?

Can anyone make a serious recommendation for a law office that deals with immigration and taxes in Manhattan?

I'm not trying to start a advertisement frenzy, but I'm kind of lost right now. I've looked at the Bar Association's website, but that doesn't tell me which lawyer is good and which is not.

Thanks!
 
IRS forgive taxes? Not likely or we'd all be in line:-)

Look at AILA org website for find a lawyer with immigration specialty in your area. Immigration law is federal paractice so you are not limited to ones where you live.

Check with Catholic Charities or local university law schools for free legal clinics. They may have income limits for assistance.
 
prunenoire, don't consider back taxes "debt" as if it's a financial burden that can be forgiven. Think of it as money your fiance was never legally entitled to (and probably should have known that?), and the system is only fair if everyone pays taxes. I'm not sure to what degree USCIS will care about his back taxes (they definitely would care about your taxes if you're his sponsor), but the IRS will definitely care.

Of course, the penalty and interest are going to be steep, and I'll agree with you that can be a big financial burden on top of the taxes owed. (I'm guessing 20% substantial underwithholding penalty and about 7% interest?)

I'm not sure if bankruptcy might release someone from back taxes perhaps. But I doubt you want to go down that route.
 
I understand that it's not real debt, but we owe it, so I use the term that way. The reason why my fiance never paid was because at first he didn't know that it was possible for undocumented immigrants to do that and now we're trying to figure out if and how we would address the problem. I don't want him getting deported over money. It wasn't his fault that his mother decided to bring him over here without proper papers, you know?

We know what we owe and that's fine by us. It's just, when I came across the abovementioned article, I thought there was something that we didn't know about.

I don't go out marrying immigrants everyday, you know? *lol

But thank you to everyone for your help! :-)
 
I don't think bankruptcy is an appropriate option in this case anyway, but just to follow up, this and several other articles claim that your tax debt can be forgiven in bankruptcy in some circumstances (depends on bankruptcy chapter, age of the debt, if fraud was involved, and if a return was timely filed; since no return was filed here I agree it cannot be forgiven even in bankruptcy).

prunenoire, fair enough that your fiance didn't know. Just so you know, there is a 10 year statute of limitations for the IRS to collect a tax debt, but this is 10 years from when they assess the debt, not 10 years from when you owe it (i.e. the 10 years have not even started yet for your fiance!).

You may want to google these terms:
-"currently not collectible" (you owe taxes but don't have to pay at this time)
-"partial payment installment agreement" (where the IRS agrees to a partial payment of the amount if it is paid regularly over time)
-"Offer in Compromise" (this one might sound attractive in your case but would probably be based on hardship, which may be problematic because the affidavit of support will make your income available to your husband).

There may also be the possibility that your fiance will have to pay back taxes but can have the penalty (which will be a substantial amount, especially for the taxes from 6 years ago) waived or reduced. I suppose it also helps that your husband will probably qualify as a resident for tax purposes and as such can take the standard deduction for every year.

So you have a couple of options ... having the tax debt forgiven is not one of them, but certainly you can try to reduce it. If your fiance does end up paying a substantial tax debt, think of it as down payment for the federal public and individual benefits your future permanent resident husband will enjoy for paying taxes.
 
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dont worry tooo much

prunenoire said:
I understand that it's not real debt, but we owe it, so I use the term that way. The reason why my fiance never paid was because at first he didn't know that it was possible for undocumented immigrants to do that and now we're trying to figure out if and how we would address the problem. I don't want him getting deported over money. It wasn't his fault that his mother decided to bring him over here without proper papers, you know?

We know what we owe and that's fine by us. It's just, when I came across the abovementioned article, I thought there was something that we didn't know about.

I don't go out marrying immigrants everyday, you know? *lol

But thank you to everyone for your help! :-)
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hi prunenoire.
i want you to calm down both you and your fiancee because you are making the situation complicated while it is not. here is what you need to do, depending from my own experience and based on what my lawyer told me. just to make you feel comfortable i was asking myself the same exact questions and i consulted with my lawyer and he told me what my situation is and what needs to be done.
first i am on AOS based on my citiZen wife, first thing to have in mind is IF EVERY PERSON HAD TO PAY BACK TAXES IN ORDER TO BE GRANTED A GREENCARD I DOUBT ANYBODY WOULD EVER WANT TO APPLY FOR IT ESPECIALLY IF THEY WORKED ILLEGALLY FOR LONG YEARS AND ENDED UP OWING 20 OR 30 THOUSAND DOLLARS.
so my lawyer told me that i wont owe any back taxes, what is important is to file jointly an income tax for the last year. so my advice to you is this:
1-get married
2-dont worry about filing jointly this year since i guess by the time you get married the filing deadline of april 15 will be gone. and anyway even if you get married you dont qualify to file jointly until the next tax season of 2009.
3-tell your husband not to change his behavior, meaning since he never filed let him keep it that way until next year. and if possible make him ask his employer for a w-2 instead of a 1099.
4-about CUNY immigration center, you should use them i heard they are of great help. i am a cuny student myself. if you need more help in paperwork and legal advice, there is an immigration help center in steinway street in astoria queens between 26th ave and astoria boulevard, they do everything for free there.
5-dont think you are off the hook, be prepared next year to still be paying a bunch of money to uncle sam, even if it is only for one year income. especially if your husband gets a 1099 instead of w-2.
6- enjoy your life together and good luck:)
 
I second what bourne24 said. I was in a similar situation of not paying taxes although without a 1099. I paniced when I saw read USCIS wanted me to bring in w2s for the last 3 years. I went to a CPA and he filed the back taxes, i wanted to cry when I saw all what I owed :( long story short i ended up not taking them to the irs, went to my interview and it was not mentioned and I was approved . I don't know, maybe it's because I am 245i beneficiary:confused:
 
bourne24 said:
IF EVERY PERSON HAD TO PAY BACK TAXES IN ORDER TO BE GRANTED A GREENCARD I DOUBT ANYBODY WOULD EVER WANT TO APPLY FOR IT ESPECIALLY IF THEY WORKED ILLEGALLY FOR LONG YEARS AND ENDED UP OWING 20 OR 30 THOUSAND DOLLARS.
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If they didn't feel obligated to pay taxes, why would any person ever decide to work legally in the United States? My wife and I pay the IRS 20 grand every year, and it hasn't inspired me to try to evade taxes. (Call me stupid, but I even report income that was not reported to the IRS.)

bourne24 said:
so my lawyer told me that i wont owe any back taxes, what is important is to file jointly an income tax for the last year.
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Is this a tax professional or immigration lawyer? You can only file jointly for the first year you are married, and it makes no difference if you marry before or after April 15 ... you can file jointly if you were married on the last day of the year for the year you file.

bourne24 said:
tell your husband not to change his behavior, meaning since he never filed let him keep it that way until next year. and if possible make him ask his employer for a w-2 instead of a 1099.
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This will just delay the inevitable, that he'll have to pay the taxes later, and it will cause more penalties and interest later. Once they are married, it may not only be his tax obligation but also hers to pay for his income (esp. if they reside in a community property state).

How do you propose a W-2 lessens his tax burden if he doesn't withhold taxes, as opposed to a 1099? I suppose if he wants to let the Social Security Administration know that he has an income but no withholding, yes.
 
envision said:
I second what bourne24 said. I was in a similar situation of not paying taxes although without a 1099. I paniced when I saw read USCIS wanted me to bring in w2s for the last 3 years. I went to a CPA and he filed the back taxes, i wanted to cry when I saw all what I owed :( long story short i ended up not taking them to the irs, went to my interview and it was not mentioned and I was approved . I don't know, maybe it's because I am 245i beneficiary:confused:
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Maybe it's because the USCIS wants the three years of W-2's from your sponsor, not you? Or am I missing something, is there actually a requirement for those who were employed illegally to present their tax documents? I was not required to present my tax documents for the AOS.
 
Let me clarify my position here, I'm not even saying you have to be proactive in filing your back taxes. Let the IRS catch up to you if you want, although your penalties and interest will only keep increasing. Make no mistake about it, this is no different than waiting for a long time to pay your credit card bills, only much worse. If no income was ever reported to the IRS, I suppose you might be off the hook (but probably in a similar predicament to being here illegally ... having to be concerned that it will later come back to haunt you, with even higher penalties and interest).
 
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