When a draft tax return is released, normally it draws little attention, even from full-time tax-return preparers. Perhaps the one exception was in 2018 when the tax return was shortened to two one-half pages. While most people probably appreciated the simplification, the unused bottom half of the pages would make an anal-retentive person cringe at the inefficiency.
But the recent release of the draft 2026 Form 1040, one question on the return piqued the interest of some tax professionals and taxpayers, particularly in the immigrant community. On the middle of the form, it asks: “At the time you file your return, are you, and your spouse if filing jointly, a U.S. citizen, U.S. national, or an alien lawfully authorized to work in the U.S.?” Each spouse had to answer separately. Back in May, the Department of the Treasury considered asking this question in a future tax return.
If this draft was released more than 10 years ago, few people would care. Even someone who is not a U.S. citizen or legally admitted into the U.S. would have to file a U.S. tax return if that person earned U.S. source income or has lived in the U.S. for a prescribed period of time (known as the substantial presence test).
But the current president has attempted to use the IRS and its taxpayer data to look for immigrants who could be deportable. Just recently the D.C. Court of Appeals upheld a lower court order blocking the administration’s attempt to use the IRS to obtain taxpayer data due to very strict privacy laws. So people will likely be on alert to see how the president and his staff plan to use the citizenship information on the tax returns.
Another new draft tax form that asks about citizenship is the Schedule 3-A (Federal Public Benefit). This form calculates your refundable tax credits, such as the Earned Income Tax Credit and the Child Tax Credit to name a few. But on the bottom, it also wants confirmation that you are a U.S. citizen, U.S. national, or a qualified alien. If you are not, then those credits will be disallowed. “Qualified alien” is a specific term under federal benefits law (8 U.S.C. § 1641) that is narrower than merely being lawfully authorized to work.
For those who practice immigration law, the term Federal Public Benefit sounds similar to Public Charge. Basically, a public charge is a person who an immigration officer believes will be dependent on government benefits to survive. Being a public charge is grounds for inadmissibility into the United States and granting of permanent resident status or citizenship.
The rules for the use of tax benefits to determine public charge status have changed. In 2022, the USCIS’s final rule specifically prohibited the use of tax credits or deductions when considering public charge status. But in July 2026, the USCIS adopted the totality of the circumstances test for determining public charge status and explicitly stated that the use of tax credits like the Earned Income Tax Credits (which most helped low income families with children) and the Child Tax Credit can be used as one of many factors to determine whether an alien is likely to be a public charge.
The most recent memorandum from USCIS discussing this topic is unclear about the use of tax benefits in determining public charge status. But it states that they will review all relevant evidence in an alien’s record and make case-by-case decisions in the totality of the alien’s circumstance.
An alien seeking permanent resident status can have a sponsor complete an affidavit of support if he or she is at risk of being considered a public charge. An affidavit of support serves as an enforceable contract where the sponsor agrees to repay public benefits if used by the alien.
Some have speculated that given the citizenship question and President Donald Trump’s hostility toward illegal immigrants, some living in the shadows may not want to file their tax returns because they think it could lead to deportation proceedings. In most cases this would be a bad idea because it will negatively affect their chances of becoming a naturalized U.S. citizen (a lack of good moral character). Similarly, if they are in removal or deportation proceedings, not filing tax returns and paying taxes could put into question an alien’s moral character and can weigh against a favorable exercise of discretion by an immigration judge.
This draft tax return could be changed and the citizenship question may be removed in the final form. Comments can be submitted to the IRS. But it seems to suggest that the Trump administration still wants to use tax records to enforce immigration law.
Steven Chung is a tax attorney in Los Angeles, California. He helps people with basic tax planning and resolve tax disputes. He is also sympathetic to people with large student loans. He can be reached via email at stevenchungatl@gmail.com. Or you can connect with him on Twitter (@stevenchung) and connect with him on LinkedIn.
The post The IRS Draft Form 1040’s Proposed Citizenship Status Question: A Tool For Tax Compliance Or Immigration Enforcement? appeared first on Above the Law.
When a draft tax return is released, normally it draws little attention, even from full-time tax-return preparers. Perhaps the one exception was in 2018 when the tax return was shortened to two one-half pages. While most people probably appreciated the simplification, the unused bottom half of the pages would make an anal-retentive person cringe at the inefficiency.
But the recent release of the draft 2026 Form 1040, one question on the return piqued the interest of some tax professionals and taxpayers, particularly in the immigrant community. On the middle of the form, it asks: “At the time you file your return, are you, and your spouse if filing jointly, a U.S. citizen, U.S. national, or an alien lawfully authorized to work in the U.S.?” Each spouse had to answer separately. Back in May, the Department of the Treasury considered asking this question in a future tax return.
If this draft was released more than 10 years ago, few people would care. Even someone who is not a U.S. citizen or legally admitted into the U.S. would have to file a U.S. tax return if that person earned U.S. source income or has lived in the U.S. for a prescribed period of time (known as the substantial presence test).
But the current president has attempted to use the IRS and its taxpayer data to look for immigrants who could be deportable. Just recently the D.C. Court of Appeals upheld a lower court order blocking the administration’s attempt to use the IRS to obtain taxpayer data due to very strict privacy laws. So people will likely be on alert to see how the president and his staff plan to use the citizenship information on the tax returns.
Another new draft tax form that asks about citizenship is the Schedule 3-A (Federal Public Benefit). This form calculates your refundable tax credits, such as the Earned Income Tax Credit and the Child Tax Credit to name a few. But on the bottom, it also wants confirmation that you are a U.S. citizen, U.S. national, or a qualified alien. If you are not, then those credits will be disallowed. “Qualified alien” is a specific term under federal benefits law (8 U.S.C. § 1641) that is narrower than merely being lawfully authorized to work.
For those who practice immigration law, the term Federal Public Benefit sounds similar to Public Charge. Basically, a public charge is a person who an immigration officer believes will be dependent on government benefits to survive. Being a public charge is grounds for inadmissibility into the United States and granting of permanent resident status or citizenship.
The rules for the use of tax benefits to determine public charge status have changed. In 2022, the USCIS’s final rule specifically prohibited the use of tax credits or deductions when considering public charge status. But in July 2026, the USCIS adopted the totality of the circumstances test for determining public charge status and explicitly stated that the use of tax credits like the Earned Income Tax Credits (which most helped low income families with children) and the Child Tax Credit can be used as one of many factors to determine whether an alien is likely to be a public charge.
The most recent memorandum from USCIS discussing this topic is unclear about the use of tax benefits in determining public charge status. But it states that they will review all relevant evidence in an alien’s record and make case-by-case decisions in the totality of the alien’s circumstance.
An alien seeking permanent resident status can have a sponsor complete an affidavit of support if he or she is at risk of being considered a public charge. An affidavit of support serves as an enforceable contract where the sponsor agrees to repay public benefits if used by the alien.
Some have speculated that given the citizenship question and President Donald Trump’s hostility toward illegal immigrants, some living in the shadows may not want to file their tax returns because they think it could lead to deportation proceedings. In most cases this would be a bad idea because it will negatively affect their chances of becoming a naturalized U.S. citizen (a lack of good moral character). Similarly, if they are in removal or deportation proceedings, not filing tax returns and paying taxes could put into question an alien’s moral character and can weigh against a favorable exercise of discretion by an immigration judge.
This draft tax return could be changed and the citizenship question may be removed in the final form. Comments can be submitted to the IRS. But it seems to suggest that the Trump administration still wants to use tax records to enforce immigration law.
Steven Chung is a tax attorney in Los Angeles, California. He helps people with basic tax planning and resolve tax disputes. He is also sympathetic to people with large student loans. He can be reached via email at [email protected]. Or you can connect with him on Twitter (@stevenchung) and connect with him on LinkedIn.
