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!