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Guillermo J. Senmartin, Esq.
Guillermo J. Senmartin, Esq., Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 107997
Experience:  10+ years of experience in various aspects of U.S. Immigration Law.
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Guillermo, I have maybe 10-20 questions that I would need to

Customer Question

Hi Guillermo, I have maybe 10-20 questions that I would need to get answered. How much will this cost me?
JA: I'm not sure of the exact price, but there's only a $5 deposit. The rest of the price information will be on the page I send you to.
Customer: Sure thats fine
JA: Have you talked to a lawyer yet?
Customer: No
JA: Anything else you think the lawyer should know?
Customer: Yes, I will write all the information in one email with the questions
Submitted: 9 months ago.
Category: Immigration Law
Expert:  Guillermo J. Senmartin, Esq. replied 9 months ago.

Hello! Thank you for requesting me. I am a licensed attorney with more than 14 years of experience. I am here to assist you with your questions. Please understand that if I ask you for additional information, you are NOT charged again and our communications are NOT timed. So please see this as a relaxed conversation between friends. I am here to help.

What do the questions have to do with?

Customer: replied 9 months ago.
I am a UK citizen and I work from my computer and am paid in the UK. But I base myself in Los Angeles and I enter on the visa waiver. Typically I enter for 1-2 months, I then go away to far away countries like Asia or Middle East and then return. My girl friend is an American citizen and I wouldconsider to marry her.My questions are:1- This year I have spent around 5 months on and off in the US on my ESTA, is there a maximum amount of time I can spend in the USA? For example if I go back to USA now for 2 months and then leave until January 2017 meaning total time is 7 months in USA in 2016, what implications does that have?2- If the answer to the above is that 6 months is the maximum time allowed to stay. What would be the case if I decide to marry my GF whilst in the USA and apply for the green card?
Expert:  Guillermo J. Senmartin, Esq. replied 9 months ago.

1) There is no set maximum. It's 90 days per trip, but no set limit of trips. HOWEVER, if it seems to the officer at the port of entry that you are spending too much time in the U.S., living in the U.S., they could deny you entry. As to what "too much" time is, it is what the officer reasonably believes is too much. It's wide discretion. The idea is that you are supposed to spend more time outside than inside.

2) It is possible to be in on an ESTA and even overstay, and marry a U.S. Citizen and get Residency without having to leave. That stopped for a very brief period, but someone sued the U.S. and won, so USCIS went back to how it was before which was allowing persons to adjust status if they had entered on an ESTA but had an immediate relative U.S. Citizen petitioning for them.

My goal is to provide you with excellent service – if you feel you have received anything less, please reply back as I am happy to address follow-up questions and there is no additional charge. Also, should you need to chat on the phone, private email or need help reviewing documentation, I am happy to do so for a small additional cost. Let me know if you are interested in these – I am happy to give you more details! If you have no further questions (at this time) please leave a positive rating for my service. I would sincerely ***** ***** You can do that by clicking on the 3rd, 4th or 5th stars or smiley faces if you see them. If you do not see any stars or smiley faces, please click on my name and they should come out. Also, your session does NOT close when leaving a positive rating, so you can continue to ask additional questions without additional charge. Thank you for your understanding.

Customer: replied 9 months ago.
Ok understood. And what implications would that have on tax? What amount of time would a non US citizen have to spend in the US before they are obliged to pay US tax, even if they are not making money in the US?So, I may be able to stay 9 months in the US entering and leaving, but will there be a point where I am automatically expected to pay tax?
Expert:  Guillermo J. Senmartin, Esq. replied 9 months ago.

Well, that's 183 days according to the IRS. Here is the link:

https://www.irs.gov/individuals/international-taxpayers/substantial-presence-test

But the other problem is that you should not think that you are safe just because you are getting paid from an outside source. You are not supposed to be working while physically present in the U.S. Take a look at the B-1 business visa chart:

https://travel.state.gov/content/dam/visas/BusinessVisa%20Purpose%20Listings%20March%202014%20flier.pdf

Even while on an ESTA, if your activity does not fit into that chart, you could get into trouble.

And if you are staying 3 months, leaving for a month then coming back, then staying for another 3 months, then leaving again for a month to come back for 3 more months, you may get away with it 2 or 3 times, but at some point they will make a determination that you are living in the U.S. As I said, you are supposed to be spending more time outside of the U.S. than inside of the U.S. So better one month in, 3 months out, etc.

Let me know if you need anything else, but please do not forget to rate me positively. You can do that by clicking on the 3rd, 4th or 5th stars if you see them, or the smiley faces if you see them. If you do not see the stars or smiley faces, please click on my name and they should come out. Also, we do NOT finish just because it says "Rate to Finish" or something like that. Your question does NOT close and you can continue to ask questions without additional charge on the same question thread even after you leave a positive rating. Thank you for your understanding!

Customer: replied 9 months ago.
thank you.So in that case if I spend more than 120-160 days in the US I would become a US tax paying citizen. But what if I got my green card, would that still mean I would have to pay US tax if I was a green card holder and my income was in another country?
Expert:  Guillermo J. Senmartin, Esq. replied 9 months ago.

It's 183 days and you don't become a citizen or Lawful Permanent Resident or any other legal status just because you stay 183 days. You just becomes subject to U.S. taxes. If you got your green card, that is separate. Taxes and immigration status are two separate things. You are supposed to spend more than 180 days per year in the U.S. to maintain your Lawful Permanent Residency. It is possible that you could stay 181 days which is enough to maintain Lawful Permanent Residency, but leave before you reach 183 days to avoid U.S. taxes. But to make sure, you should verify with an accountant as I am an immigration attorney, not a tax attorney.

Let me know if you need anything else, but please do not forget that positive rating. Thank you!

Expert:  Guillermo J. Senmartin, Esq. replied 8 months ago.

Hello. I'm just following up with you to see how everything is going. Did my answer help? Please let me know. Thank you!