Wages Paid to Alien Workers

Wages paid to aliens (non-U.S. citizens) employed in Florida are generally subject to reemployment tax under the same conditions that would apply to wages paid to United States citizens working in Florida. By law, employment includes a service performed by an individual; therefore, unless there is a specific exemption in the law, the wages earned by aliens are taxable. In Florida, there are only two specific exemptions from employment regarding aliens.

1. The exemption in Section 443.1216(13)(v), Florida Statutes (F.S.) states "Service performed by a nonresident alien for the period he or she is temporarily present in the United States as a nonimmigrant under subparagraph (F) or subparagraph (J) of s. 101(a)(15) of the Immigration and Nationality Act, and which is performed to carry out the purpose specified in subparagraph (F) or subparagraph (J), as applicable."

   The Florida law, cited above, refers to the federal Immigration and Nationality Act. If you believe a worker fits into either subparagraph (F) or (J), as described below, the worker should not be reported to the Florida Department of Revenue for reemployment tax.

   • Subparagraph 101(a)(15)(F):

   • "(i) an alien having a residence in a foreign country which he has no intention of abandoning, who is a bona fide student qualified to pursue a full course of study and who seeks to enter the United States temporarily and solely for the purpose of pursuing such a course of study consistent with section 1184 of this title at an established college, university, seminary, conservatory, academic high school, elementary school, or other academic institution or in an accredited language training program in the United States, particularly designated by him and approved by the Attorney General after consultation with the Secretary of Education, which institution or place of study shall have agreed to report to the Attorney General the termination of attendance of each nonimmigrant student, and if any such institution of learning or place of study fails to make reports promptly the approval shall be withdrawn,

   • (ii) the alien spouse and minor children of any alien described in clause (i) if accompanying or following to join such an alien, and

   • (iii) an alien who is a national of Canada or Mexico, who maintains actual residence and place of abode in the country of nationality, who is described in clause (i) except that the alien's qualifications for and actual course of study may be full or part-time, and who commutes to the United States institution or place of study from Canada or Mexico."

   • Subparagraph 101(a)(15) (J):

   • "an alien having a residence in a foreign country which he has no intention of abandoning who is a bona fide student, scholar, trainee, teacher, professor, research assistant, specialist, or leader in a field of specialized knowledge or skill, or other person of similar description, who is coming temporarily to the United States as a participant in a program designated by the Director of the United States Information Agency, for the purpose of teaching, instructing or lecturing, studying, observing, conducting research, consulting, demonstrating special skills, or receiving training and who, if he is coming to the United States to participate in a program under which he will receive graduate medical education or training, also meets the requirements of section 212(j), and the alien spouse and minor children of any such alien if accompanying him or following to join him."

2. The exemption in Section 443.1216(13)(x) F.S., states: "Service performed in agricultural labor by an individual who is an alien admitted to the United States to perform service in agricultural labor under ss. 101(a)(15)(H) and 214(c) of the Immigration and Nationality Act." If you believe the agricultural worker fits into this exemption, the worker should not be reported to the Florida Department of Revenue for reemployment tax.

   If the employer can show that the services performed by an alien worker are included in either one of the two exemptions listed above, then the services are exempt from reemployment tax. If the services are not included in the exemptions, then the services are taxable unless another non-alien exemption applies.