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Lev
Lev, Tax Advisor
Category: Tax
Satisfied Customers: 28082
Experience:  Taxes, Immigration, Labor Relations
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Hoon here.
, I'm on a H1B Visa and about to be

Customer Question

Customer: Hoon here.
JA: Thanks. Can you give me any more details about your issue?
Customer: I'm on a H1B Visa and about to be part-owner/member of an LLC. I will be getting profit-shares and will receive K-1 for tax filing. Is this possible for me to do?
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Submitted: 12 months ago.
Category: Tax
Expert:  Lev replied 12 months ago.

I'm on a H1B Visa and about to be part-owner/member of an LLC. I will be getting profit-shares and will receive K-1 for tax filing. Is this possible for me to do?

Yes - that is possible and allowed if you are a resident alien fro tax purposes - please be aware that residency is determined differently for tax and immigration purposes.

Expert:  Lev replied 12 months ago.

You will be considered a U.S. resident for tax purposes if you meet the substantial presence test for calendar year. To meet this test, you must be physically present in the United States on at least:

31 days during that year, and

183 days during the 3-year period that includes that year and two previous years, 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.
As you are living in the US - most likely - you are a resident alien based on the test above.

As a resident alien - you will be getting K1 on your share of income realized by the LLC.
However - in order to be eligible - you would need to have a job authorization from immigration authorities.

Customer: replied 12 months ago.
Hi there,So I do have Job Authorization and currently living in the U.S. under H1B Visa. This job authorization is from my current employer. The LLC I am talking about is separate from this employer. So am I still eligible to be a co-owner of this LLC and file K-1? Also, under the K-1 form there seems to be a profit-sharing filing section and also a income filing section. As long as it's K-1 form with these profit-sharing/income information, is this okay for me to file as a resident alien with H1B visa?
Expert:  Lev replied 12 months ago.

From IRS prospective - there is NO violations - you are a resident alien - will use form 1040 as all other US persons - and as long as you will include all your worldwide taxable income including income reported on K1 into your tax return - the IRS will be "happy"
However from immigration prospective - that would be NOT authorized work - if that work produced taxable income.

The LLC must specifically apply on your behalf for employment authorization.

H1B ONLY allows employment for the employer who sponsored your H1 visa.

So to comply with immigration regulations and your visa status - you need separate employment authorization fro each work.

Expert:  Lev replied 12 months ago.

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If you still have any doubts, need clarification - please be sure to ask.
I am here to help you will all tax related issues.

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