Fact check on Cruz, Durbin argument: No, not all undocumented immigrants will get relief checks. Yes, some of them probably will

WASHINGTON, DC — Last weekend, a prominent Republican senator, Ted Cruz of Texas, and the second-ranking Democratic senator, Dick Durbin of Illinois, had an argument on the Senate floor about whether undocumented immigrants are eligible to receive checks from the pandemic relief bill President Joe Biden signed on Thursday, the American Rescue Plan Act.

Cruz said “every illegal alien in America” would get a $1,400 check. Durbin responded that Cruz’s statement is “just plain false,” because, he said, “undocumented immigrants do not have Social Security numbers, and they do not qualify for stimulus relief checks, period.”

They were both wrong.

Facts First: Cruz was inaccurate when he said “every” undocumented immigrant will get a $1,400 relief check; it is clear that most undocumented immigrants will not. Durbin was inaccurate when he categorically said undocumented immigrants do not have Social Security numbers and do not qualify for checks “period.” A minority of undocumented people, such as those who came to the US on work visas that later expired, do have Social Security numbers; those numbers do not expire. The new law, like relief legislation signed last year by then-President Donald Trump, does not distinguish between Social Security numbers undocumented people use on their tax forms and Social Security numbers citizens and legal residents use on their tax forms.

“You can be in the country without authorization to work, you can be a non-US citizen, and still have your SSN and qualify for the payments,” said Janet Holtzblatt, a senior fellow at the Urban-Brookings Tax Policy Center and a former tax official in the federal government.

The text of the new law says that, to get checks, a person needs a valid Social Security number and can’t be a “nonresident alien.” The IRS explains on its website that undocumented immigrants qualify as resident aliens for tax purposes if they spend enough days physically present in the US.

Julia Gelatt, senior policy analyst at the Migration Policy Institute think tank, said that “the way the bill is written, as long as someone has a valid Social Security number issued by the (Social Security Administration), they would be eligible for the stimulus payments.”

Social Security Administration spokeswoman Dorothy Clark said that “once a Social Security Number (SSN) has been assigned to an eligible person, it remains a valid SSN. Social Security does not void or rescind SSNs after valid assignments.”

Gelatt cautioned that we don’t yet know how the Internal Revenue Service will interpret the law with regard to the eligibility of undocumented people who have Social Security numbers. The IRS did not respond to a request for comment.

However, there is no current indication that the Biden administration will try to get the IRS to undertake a difficult and time-consuming effort to distinguish undocumented people with Social Security numbers from others with Social Security numbers.

Holtzblatt said that, in the past, the IRS has not been able to get the immigration details that would be necessary to try to separate the two groups. And the White House says payments under the relief bill are going out as early as this weekend.

“President Biden and his administration are focused on getting Economic Impact Payments out as quickly as possible to lawful recipients,” a White House spokesperson said on condition of anonymity after we explained that some undocumented people appear eligible for checks.

Not the first time

It’s important to note that this would not be the first time that undocumented people with Social Security numbers were able to access some government benefits.

The nonpartisan Congressional Research Service said in a 2012 report that visa-overstayers with Social Security numbers could attempt to use those numbers to get certain tax credits — and that even though it appeared Congress did not intend for this group of people to receive the credits in question, the IRS did not, at that point, try to figure out “whether a taxpayer with a facially valid SSN has overstayed his or her visa.”

And the Congressional Research Service said in a 2020 report that an undocumented immigrant who has a Social Security number, like someone who overstayed a visa, would “generally” have received a check under the first pandemic relief bill Trump signed last March, the CARES Act, “assuming they met the other eligibility requirements.”

Cruz voted for that bill, which the Senate passed 96-0. Cruz voted against Trump’s second relief bill, which the Senate passed 92-6, and against the new bill under Biden, which the Senate passed 50-49 along party lines.

A smaller group

Steve Guest, a communication adviser for Cruz, conceded in an email that Cruz misspoke when he said “every illegal alien in America” would get a check under the American Rescue Plan Act. Guest said Cruz intended to say a check would go to “every illegal alien in America who has a Social Security number.” (Guest said it’s important to note that Cruz’s Senate misstatement came during the second morning of a marathon meeting that had kept senators up all night voting, and that Cruz had only one minute to speak on a complex subject.)

Cruz doesn’t deserve any medals here given that his severe exaggeration started this chain of inaccuracy. But he had a valid point when he complained about early media coverage that suggested Durbin was entirely correct in his response to Cruz.

A Durbin aide, who commented on condition of anonymity, did not explicitly concede Durbin had been inaccurate but did acknowledge that some undocumented people have Social Security numbers. The aide noted that Cruz is now talking about a much smaller group of people potentially receiving checks than he did in his comments on the Senate floor.

It’s not clear how many people are in this smaller group. It consists of undocumented people who were granted a Social Security number (for example, as a visa-holder or as an asylum applicant), later lost their legal authorization to stay in the country, stayed anyway, and continued filing tax forms using the Social Security number.

The Migration Policy Institute estimates that 46% of the total US undocumented population of about 11 million people is made up of visa-overstayers, Gelatt said. But a large percentage of these visa-overstayers were never eligible for Social Security numbers because they came to the US on short-term tourist or business visas. So the population of potential relief check recipients is a subset of another subset of the total undocumented population.