“I was in denial. That can’t be, I am an American citizen. My child is an American citizen. How can they exclude us? That can be real.”

While a majority of Americans have begun to receive their stimulus checks, either by direct deposit or mail, some are barred due to a provision of the CARES Act. One Illinois resident is suing President Donald Trump along with Senate Majority Leader Mitch McConnell, R–Ky., and Treasury Secretary Steven Mnuchin, CBS News reported.

ITIN Isn’t Good Enough

According to the Coronavirus Aid, Relief, and Economic Security Act, US citizens and permanent residents are eligible for relief money. To file taxes, a taxpayer is required to provide their social security number or individual taxpayer identification number (ITIN). Both of these are available to non-citizens, but in some circumstances they may not be in a position to obtain a SSN and therefore opt to use an ITIN. When it comes to filing taxes, both numbers are functionally the same.

For the CARES Act, however, the IRS is not allowing relief payments to married taxpayers who filed joint tax returners when one of them only has an ITIN. The IRS specified a SSN is required. Even in the situation whereby an American citizen with a SSN files a joint return with a spouse who has an ITIN, both the citizen and immigrant would not receive checks.

According to the IRS, to be eligible, a taxpayer must “Have a Social Security number (SSN) that is valid for employment (valid SSN).” The agency’s relief website also directly states that “when spouses file jointly, both spouses but have valid SSNs to receive a Payment.” 

The only exception is when either spouse is in the US military. The situation is avoidable, however, if the spouse with a SSN files a separate tax return. Since the IRS extended the filing deadline to July 15, couples who may be affected that have not yet filed their 2019 taxes still have the opportunity to file separate returns in order to qualify one spouse.

Exclusion Angers Spouses Who Qualify

The plaintiff from Illinois, using the pseudonym John Doe, has filed a lawsuit on the grounds that the exclusion infringes on his Constitutional rights, CBS News reported. Furthermore, he contended it qualifies as discrimination.

“Had plaintiff not been married to an immigrant, plaintiff and his children would have otherwise qualified for a stimulus check,” according to the lawsuit. “Discrimination based on the alienage of a U.S. citizen’s spouse is presumptively unconstitutional and subject to strict scrutiny.”

In Houston, an American citizen has also created an online petition in an attempt to raise awareness about the exemption. Susan, who asked not to be identified with her last name, told KHOU 11 that she is married to an immigrant and ineligible for the relief money.

“I was in denial. That can’t be, I am an American citizen. My child is an American citizen. How can they exclude us? That can be real,” Susan said. Washington isn’t just hurting immigrants with its decision, but their American families too and it’s “not fair.”

Not Enshrined in Law

Another citizen, Krista from New Jersey, is in the same predicament, Slate reported. Her husband, Roberto, is an immigrant from El Salvador. Although he is on the path to obtaining a green card, he currently only has an ITIN. Both are out of work without unemployment and struggling to support their three children. Without both parents having a SSN on a joint return, families are also ineligible for $500 per child payments.

Krista’s family is out $3,900 because of the IRS’ interpretation of the law. The text of the law reads “(d) ELIGIBLE INDIVIDUAL.—For purposes of this section, the term ‘eligible individual’ means any individual other than — (1) any nonresident alien individual,…” 

However, nowhere in the bill does it expressly prohibit payments to spouses who qualify themselves. The decision, therefore, was made by the IRS.

“The people that are in this situation are not upset because our spouses are not going to receive the stimulus package. The majority of us were not expecting a check for our spouse,” Krista said. “But we never in a million years were expecting for ourselves not to receive it and for our children to not receive it. We were all born here in America. We’re all U.S. citizens. And to think that my children are less than somebody else’s children—it’s what we’re trying to fight here.”

The Migration Policy Institute estimated 1.2 million immigrants are married to citizens, but since only those who filed jointly are impacted, it is difficult to know how many couples have been affected.

So far, there has been no comment from the Trump administration, IRS, or McConnell explaining why spouses of immigrants are excluded.