Since at least the early 1900’s, immigrants, legal or not, have received some protections under U.S. law. One illegal immigrant, Sergio Garcia, filed suit and won before the California Supreme Court the right to practice law in California. Now a lawyer and motivational speaker, Mr. Garcia is still not a citizen. He arrived in the U.S. at the age of seventeen months. Local San Antonio private school, St. Mary’s Hall invited Mr. Garcia to speak at their annual United Nations conference. They planned to pay him $2,500. Of this amount, half would go to Mr. Garcia’s foundation for students who have financial problems.
The school asked Mr. Garcia to submit to them a signed W-9. The W-9 form asks for the taxpayer’s tax identification number, whether it is a Social Security Number or some other number.
Mr. Garcia responded that he could not sign that form. He asked to be paid as an independent contractor. An independent contractor would be paid via the Form 1099. With a 1099, no taxes would be withheld. And, in reality, Mr. Garcia surely is an independent contractor. He is not an employee of the school. And, the school will not direct his job duties as a one-time speaker .
He said he has used the Form 1099 in the past when he was paid for speaking. But, the school responded no, he must use the W-8BEN or the W-8ECI forms. The W-8BEN is for persons of foriegn citizenship. The W-8BEN also assumes the recipient of the pay is an employee. The school president told him in an email that it appeared that he was trying to avoid paying taxes and that he was refusing to follow the laws of "my country." One school accountant said they should not hire "illegal aliens." See Buzzfeed post. But, again, a one-time speech does not make him an employee.
The school claims to be relying on an opinion from their auditor. But, that does not sound right, since Sergio Garcia is very likely an independent contractor. Perhaps, the school’s stance is based more on over-reaction complicated by some bias toward illegal immigrants. In any event, the school’s attempt to avoid bad publicity may lead to worse publicity.