First just to give you a brief of my situation, I am neither US
citizen nor green card holder. 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. Because I am outside USA in 2013 only except some short business trips to USA, which is less than 30 days, so I expect to fail the Federal
"substantial presence test" in 2013 thus I plan to file my 2013 tax return
as a non-resident alien
. But I started to apply for US green card back in 2010 and have been waiting in the queue to file the paperwork for the next step (as you know, there is a long green card queue for Chinese people). And because I was physically working in USA from 2009 to 2012, so I always filed as tax resident in these years' tax return.
- With above said, I am qualified to file my 2013 tax return as a non-resident alien as long as I stay in the USA for less than 30 days this year, right?
- Because when I come back to US in 2013 for business trips, I will still use my H1B visa to enter the country, just wonder, entering the country using H1B visa does not affect that I am still qualified to file my 2013 tax return as a non-resident alien, right? In general, H1B working visa does not really have relationship with my tax status, right?
- As my green card queue is reaching my turn, I can actually file the next step of my green card application now and if I do so, I expect to get my green card in 2014. With this estimation, based on US tax law
, because I only get my green card in 2014 (I will be tax resident in 2014 for sure), I am still qualified to file my 2013 tax return as a non-resident alien with the situations mentioned above, right?
- One more concern here is that, my immigration lawyer mentioned to me that, if I file my green card next-step in 2013, even though I only get my green card in 2014, but if I still file my 2013 tax return as non-resident alien, immigration service may challenge this action negatively at worst as I am withdrawing my green card , even though it is a legit action based on US tax law. So I am trying to decide on the order of the two actions, "filing
green card next-step" first VS. "filing 2013 tax return as non-resident alien" first. Not sure what advice you would like to give me on this matter?