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jgordosea
jgordosea, Enrolled Agent
Category: Tax
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Experience:  I've prepared all types of taxes since 1987.
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First just to give you a brief of my situation, I am neither

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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?
Submitted: 1 year ago.
Category: Tax
Expert:  jgordosea replied 1 year ago.

Greetings,

 

In general, H1B working visa does not really have relationship with my tax status, right?

That is correct.

The two tests are the green card or the substantial presence.

 

If you do not meet substantial presence in 2013 you file as nonresident alien despite filing as resident in prior years due to substantial presence.

 

Unless you qualify under one of those two tests then you are not allowed to file as a resident alien (despite any implication that may or may not have on immigration status which is a question for the immigration lawyers).

 

As you seem to know the substantial presence requires you must be physically present in the United States on at least:

  1. 31 days during the current year, and
  2. 183 days during the 3-year period that includes the current year and the 2 years immediately before that, counting:
    • All the days you were present in the current year, and
    • 1/3 of the days you were present in the first year before the current year, and
    • 1/6 of the days you were present in the second year before the current year.

For more detail see http://www.irs.gov/Individuals/International-Taxpayers/Substantial-Presence-Test

 

If you and your immigration lawyers decide that it is important to file as a resident alien for 2013 you will have to be physically present in the United States for at least 31 days to be able to use the resident filing status. Less than 31 days in the United States and no green card means you must file as a nonresident alien.

 

Please ask if you need more discussion or clarification.

Thank you.

 

 

jgordosea, Enrolled Agent
Category: Tax
Satisfied Customers: 3093
Experience: I've prepared all types of taxes since 1987.
jgordosea and other Tax Specialists are ready to help you
Customer: replied 1 year ago.

Thanks a lot for the reply! Just to follow up on "substantial presence", the two conditions need to be both met in order to pass this test, right? For example, if I am physically in the US for LESS than 31 days in 2013, even though I stay MORE than 183 days during the 3-year period (using the formula above), I will still fail the substantial test, right?

Expert:  jgordosea replied 1 year ago.
Hello again,

Yes both must be true - 31 days during the current year, AND
183 days during the 3-year period ...

For 2013 you will have to be physically present in the United States for at least 31 days to be able to use the resident filing status. Less than 31 days in the United States and no green card means you must file as a nonresident alien for 2013.

Please ask if you need more discussion or clarification.
Thank you.
jgordosea, Enrolled Agent
Category: Tax
Satisfied Customers: 3093
Experience: I've prepared all types of taxes since 1987.
jgordosea and other Tax Specialists are ready to help you
Customer: replied 1 year ago.

Got it. Then in this case, I will definitely stay less than 31 days in 2013 thus have to file as a non resident alien. To be aligned with this status, is it also advised that I should submit W-8BEN forms to all my bank accounts and brokerage accounts so that they can also update my tax status in their system and their year-end reports to government accordingly? Thanks.

Expert:  jgordosea replied 1 year ago.

Indeed you've got it!

 

Thank you for the opportunity to be of service and your positive ratings.

 

 

 

jgordosea, Enrolled Agent
Category: Tax
Satisfied Customers: 3093
Experience: I've prepared all types of taxes since 1987.
jgordosea and other Tax Specialists are ready to help you

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jgordosea
jgordosea
Enrolled Agent
2839 Satisfied Customers
I've prepared all types of taxes since 1987.