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Lev
Lev, Tax Advisor
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Experience:  Taxes, Immigration, Labor Relations
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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!
Submitted: 1 year ago.
Category: Tax
Expert:  Lev replied 1 year ago.

Lev :

Hi and welcome to our site!
Your residency determination for income tax purposes and for immigration purposes are based on different laws.
Thus filing the tax return as a nonresident when you do not have a green card may NOT be interpreted as an abandonment of the permanent resident status which you actually do not have.
So - your worries seems as based on speculations and have no ground.
If you are a nonresident alien for tax purposes - you have to file your tax return as a resident alien - and that is not a matter of interpretations.

Lev :

If you have a concern about interpretations - you may - but are not required - attach a note with explanations of facts to your DS230 application. But personally I would think that is overreaction.
You should however be prepared to explain why your 2012 tax return was filed as a resident alien and 2013 tax return as a nonresident alien. You may also provide documents that your income was taxable in your country of residence where you was a resident during 2013 - thus you respects tax laws regardless where you live.
I honestly do not think that an immigration officer will pay much attention to this issue - but still suggest to be prepared.
However - as long as you are following tax law requirements - there is nothing may negatively impact your green card application.

Customer:

Thanks for the reply. So seems it should be safe for me to start filing DS230 application even today in 2013 and by next year 2014, I can still file my tax return as nonresident alien based on tax law.

Customer:

I meant for my 2013 tax return.

Customer:

The concern here is that, if I file DS230 application in 2013 and actually get my green card in 2014 before I file my 2013 tax return. Then the action that I am filing my 2013 tax return as nonresident alien is actually after I get my greencard. Do you think this could be an issue? If so, should I wait until I file my 2013 tax return as nonresident alien and then get my greencard?

Customer:

Which date will be used to decide my greencard obtain date, DS230 application filing date OR the date my immigration visa is approved OR the date I enter US territory using my immigration visa OR the date I obtain my greencard in my hand physically?

Lev :

If you would not receive your green card in 2013 - very unlikely as you have not submitted your application yet - the green card test would not be applicable for determination of your residency status for tax purposes.
The date for the green card test will be the date on your green card - which will be the first day of your admission into the US after your permanent resident status is approved.

Customer:

Thanks for the reply. Yes, I also think I would not receive my greencard in 2013 either, but I would receive it in 2014. For example, I enter US using my immigration visa (i.e. the first day of my admission) is April 1st, 2014. However, I file my 2013 tax return by the deadline April 15, 2014, which is later than my green card date. Would this filing action negatively affect my greencard status (even though this action is retrospectively for the last year) ?

Expert:  Lev replied 1 year ago.
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Expert:  Lev replied 1 year ago.
Would this filing action negatively affect my green card status (even though this action is retrospectively for the last year) ?
Your residency determination for income tax purposes and for immigration purposes are based on different laws.
Thus filing the tax return as a nonresident when you do not have a green card will NOT negatively affect your future green card status.
So - your worries seems as based on speculations and have no ground.
If you are a nonresident alien for tax purposes - you have to file your tax return as a non resident alien according to tax law regulations.
As long as you are following tax law requirements - there is nothing may negatively impact your green card application.
Lev, Tax Advisor
Category: Tax
Satisfied Customers: 22990
Experience: Taxes, Immigration, Labor Relations
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Lev
Lev
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Taxes, Immigration, Labor Relations