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A Project of The Annenberg Public Policy Center

No Back Taxes in Immigration Action

President Barack Obama misspoke when he said that immigrants living illegally in the U.S. would have to “pay any back taxes” in order to qualify for work papers under the plan he initiated via executive action. They would not.

We wouldn’t normally be inclined to weigh in with a fact-check when someone erroneously slips an inaccurate word into an impromptu response to a live question. But this is the third time we’ve heard this mistake from a prominent Democrat.

In the prepared part of his speech at an immigration town hall in Nashville, Tennessee, on Dec. 9, Obama correctly noted that in order to register, qualified immigrants would — going forward — have to “pay taxes, contribute more fully to our economy.” But he added the “back taxes” line when answering a question from the audience.

Obama, Dec. 9: What we’re also saying, though, is that for those who have American children or children who are legal permanent residents, that you can actually register and submit yourself to a criminal background check, pay any back taxes and commit to paying future taxes, and if you do that, you’ll actually get a piece of paper that gives you an assurance that you can work and live here without fear of deportation. That doesn’t apply to everybody, but it does apply to roughly 5 million — about half of what is estimated to be the number of undocumented workers here.

Two days earlier, Julian Castro, Obama’s secretary of Housing and Urban Development, misspoke on this same point in an interview on CNN’s “State of the Union.”

Castro, Dec. 7: The president, by taking that executive action, is very clearly trying to address a broken immigration system, and take a strong first step to fix it, focusing on felons, not families, ensuring that we do everything we can to secure the border, and also give folks who have been here oftentimes for many years the opportunity to pay back taxes, to stay here with their family, to get right by the law as he has said.

And Senator-elect Gary Peters of Michigan, currently a congressman, issued a press release the day after the president’s immigration announcement making the same error.

Peters, Nov. 21: We need leadership on this critical issue, and in light of Congress’ lack of action on immigration reform, this will not only help keep families together, but bring workers out of the shadows, conduct background checks, require payment of back taxes and ensure taxes are paid going forward while Congress works on a long-term, bipartisan and comprehensive solution.

The immigration plan announced by Obama on Nov. 20 provides a temporary relief of three years from the threat of deportation to parents who are in the country illegally but who have children who are U.S. citizens or lawful permanent residents. The parents must have lived in the United States for at least five years, and they must register, and pass background checks in order to obtain the reprieve. The White House estimates that 5 million people are eligible for “provisional unlawful presence waivers.” If they meet certain requirements, those immigrants also would be given work authorization for three years.

For immigrants who step forward, the procedure is to make sure that they “start paying their fair share of taxes” so they can “temporarily stay in the U.S. without fear of deportation for three years at a time,” says a White House fact sheet. The key word in there is “start.” There is no mechanism to require immigrants in the country illegally to pay any back taxes in order to obtain a three-year work authorization.

An Obama administration official told us the president misspoke when he said that immigrants would have to “pay any back taxes.”

The confusion likely stems from a requirement in the 2013 Senate-passed immigration bill, which included a path to citizenship. In order to take the first step — provisional status — immigrants in the country illegally would have had to have, among other things, “satisfied any applicable Federal tax liability.” (See page 146 of the bill.) In other words, they would have had to pay back taxes.

Obama has repeatedly included that back taxes requirement when talking about legislation he’d like to see come out of Congress, as he did again in the immigration town hall.

It’s understandable that the president and others might inadvertently say that the executive action includes a provision on back taxes as they toggle back and forth between describing the particulars of the executive action, and still advocating for a congressional solution like the Senate bill. But for anyone who is directly affected by the president’s action and is considering stepping forward to register, it should be clear that currently, the executive action includes no such requirement.

— Robert Farley