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Expert James
Expert James, Immigration Attorney
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I came to USA in 2008 to work using H1B visa. In 2010, I started

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I came to USA in 2008 to work using H1B visa. In 2010, I started to apply for green card (EB3) and my I-140 was approved in 2010. Then I have been waiting for my priority date to become current. In 2012, my company sent me to another country on a 1.5-year assignment but still keeps me on US payroll and keeps my H1B, and I am supposed to come back to the old position in the US in 2014.

Recently I found that my priority date becomes current in Sep. 2013 bulletin, so as I am outside US this year, I plan to file Forms DS-230 to apply for employment-based green card through "consular processing". Assuming I get approved for immigration visa in 2014 and enter US to obtain my green card in 2014, however in 2013 I am still a tax nonresident alien (I am outside US in 2013 for the whole year), so purely based on the words in US tax law, I can still file my 2013 tax return as a tax nonresident alien (for tax efficiency consideration). And just FYI, I filed 2008-2012 tax returns all as resident because I was in US from 2008-2012.

But some people suggested that, if I file DS-230 in 2013, but afterwards I file my 2013 tax return as nonresident, even though I only get my green card in 2014, immigration service may view this negatively and the worst case they may even interpret this as I am abandoning my green card. So they suggested that, I should wait until 2014 to first file my 2013 tax return as non-resident, and then after filing tax return, I start to file Forms DS-230. I understand the rationale here, but one concern is that, as EB3 queue may retrogress, so if I wait until 2014 to file DS-230, I may lose this chance if it does retrogress.

Just would like to get some opinion on this:
- What order of steps should I take, first file Forms DS-230 or first file 2013 tax return?
- If I decide to file 2013 tax return first and then file Forms DS-230, will immigration service still view this negatively and challenge my green card application?

Thanks a lot for the help!
Hi there! Thank you for using this service. My name is XXXXX XXXXX I'll be helping you with your questions today.

QUESTION: What order of steps should I take, first file Forms DS-230 or first file 2013 tax return?

ANSWER: Unfortunately, the decision is not really up to you because your employer must be involved in your visa application p[process The employer is required to provide a letter that indicates that the offer of employment remains valid, including the description of the position and salary requirements. If the employer is not intending to offer the position at this time, you will not be able to get the visa right now.

Assuming the employer still wants to sponsor you or offer you the job, you should file whichever you want to file for the most immediate deadline. In other words, if you plan to come to the US as soon as possible, then you can file the DS-230 now, without the filing of the 2013 tax return because taxes are not due until April 2014.

QUESTION: If I decide to file 2013 tax return first and then file Forms DS-230, will immigration service still view this negatively and challenge my green card application?

ANSWER: It could, but it is not likely. The sponsorship for the green card is for a "future job offer," not the present. So one can continue to have immigrant intent and a future job offer, even if at the present time, you are not immigrating or you are considered a non-resident alien.

I hope I have answered your questions. If you need more help, please use the reply button to continue our conversation. If you do not require further assistance, kindly rate my satisfactory customer service (not the outcome or the state of the law which I cannot control) with a top-three rating, as this is the only way I receive credit for assisting you.

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Thank you!
Customer: replied 3 years ago.

My employer still wants to sponsor my job in the future, as they have been sponsoring the same job since the date I started my work until today. (My job in the company is always same as it on my approved I-140).


 


I would like to file DS-230 ASAP, but the concern is that, after I file DS-230 today, I will likely be getting my immigration visa and then green card in 2014. However, if I still file my 2013 tax return as a nonresident alien (based on US tax law, this is legit) after I get my green card (assuming I get my green card before the tax deadline April 2014), would this filing-as-nonresident-alien action be viewed to the worst case that I am abandoning my green card? Or is it possible that IRS will force me to file my 2013 tax return as a tax resident (or force me to re-pay the tax gap between resident and nonresident) because of the fact that I get my green card in 2014?

Bo,

 

No. I understand perfectly what your concern is. But as I said, the sponsorship is for a future job offer (starting at the end of 2013 or beginning of 2014), and the tax return is for 2013, when you were not residing in the US.

 

Moreover, the USCIS is not going to hold you accountable for US tax law, as long as you are fulfilling your responsibilities to it.


I hope I have answered your questions. If you need more help, please use the reply button to continue our conversation. If you do not require further assistance, kindly rate my satisfactory customer service (not the outcome or the state of the law which I cannot control) with a top-three rating, as this is the only way I receive credit for assisting you.

A bonus is appreciated, if you feel I've earned it.

If you have immigration or TSA questions in the future, just click Ask Expert James a Question! and make sure you write "FOR JAMES" in the subject or at the beginning of your question. This is the only way to ensure that I will assist you.

Thank you!

Expert James and other Immigration Law Specialists are ready to help you
Hi Bo,

I'm just following up with you to see how everything is going. Were my efforts helpful?

Also, the only way I get credit for assisting you is if you rate my customer service positively (even if the law does not provide the outcome you desire). Was my customer service not satisfactory?

Please let me know.

Thank you,
James