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Expert James
Expert James, Immigration Attorney
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Q: Is it safe to file 2014 Taxes as A US NON-RESIDENT

Customer Question

Q: Is it safe for me to file 2014 Taxes as A US NON-RESIDENT if my Green Card (family based) has just been applied for in April 2015?
Question is simple; US residency & tax background has longer history.
[SUMMARY]
I’m working with KPMG (employer provided tax consultants) to file a (i). 2013 US tax amendment & (ii). 2014 US tax return (I'm yet to file for 2014 & have an extension to file).
I was living outside the US from Oct 13 2013 – 12 Feb 2015. REASON: I ran out of H1B status and was relocated to employer’s London, UK office.
I returned to USA in Feb 2015 on K-1 visa to marry my finance (a NATURALIZED US CITIZEN). And have filed FAMILY BASED I-485 Green Card & Employment Authorization I-765 on April 24 2015.
To help manage my tax situation & potentially avoid double taxation (since I’m also filing RESIDENT STATUS TAX RETURN IN UNITED KINGDOM on SAME employment income for 2013 and 2014), KPMG has recommended the following:
1. AMEND prior filed Full-Year Resident 2013 US tax return to A PART-YEAR RESIDENT return
2. FILE 2014 tax return as NON-RESIDENT
3. FILE 2015 tax return next year as PART-YEAR RESIDENT again
Essentially, I'm showing what tax experts call a "BREAK IN RESIDENCY" (for tax purpose).
The above is consistent with my real residency status in USA over 2013-15. However, the only doubt we have is IF IT IS100% SAFE TO DO SO, IF SIMULTANEOUSLY, I FILED FOR FAMILY BASED GREEN CARD and the same is under processing. Does filing/amending taxes this way RAISE ANY DOUBT REGARDING MY IMMIGRATION INTENT OR JEOPARDIZE MY PERMANENT RESIDENCY PROCESS IN ANY WAY?
[QUESTION]
More specifically, the Question I have is as follows (3 parts) :-
(A). Can I file my 2013 and 2014 tax returns as US part-year and Non-Resident, respectively, given my family based Green Card (I-485) was just applied for on Apr 24 2015?
(B). As USCIS processes my Green Card application this year, will it make any difference if:
- i). I have over the same period, chosen to amend my 2013 return from Full-Year to Part-Year resident?
-- AND --
- ii). Chose to file 2014 tax return as US Non-Resident?
- iii). Does doing so (i.e. filing returns as part- year/non-resident) create any CONFLICT OF INTEREST/INTENT in my said intent to immigrate?
As you will understand, the UNDERLYING CONCERN is to NOT do anything that will jeopardize the status of my Green Card Application.
____________
I though it should be safe to file as part-year or non-resident because:
a). I was forced to leave USA in 2013 due to H1-B status expiring (I had no options to extend USA stay)
b). As of Oct 2013, my plans to return to USA in 2015 were not firm. I did not now 100% for sure that I may be returning in 2015 to marry & settle down (I was not engaged to my husband in Oct 2013).
However, will be grateful if you can help me confirm 100% what the right action would be to ensure 100% safety in securing Green Card with no glitches or USCIS questioning.
_______________________
[TIMELINE] - US VISA HISTORY
- (2005-2007) - Entered first in July 2005 on F1 (student visa) = MBA program at UPenn
- (2007 – Oct 2013) - H1-B visa: Oct (worked with same firm in New York). Always filed taxes as US Alien Resident.
- (Aug 2012): Employer filed for PERM on Aug 02, 2012
- (Feb 2014): Got engaged to a US Citizen living in Seattle (we were dating since May 2012)
- (April 2014): File 2013 US tax return online as Full-Year Resident (perhaps, shouldn’t have but I didn’t know any better!)
- (April 2014): Fiance filed for K-1 (fiancee visa)
- (Nov 2014): PERM was still in process as of Nov 2014. Process was withdrawn (as I now had plans to re-enter & immigrate based on impending marriage to my fiancée, a US citizen who is sponsoring me)
- (Dec 2014): K-1 Visa Granted
- (Feb 2015): Re-rentered USA after a ~16 months stay in UK. Got married same month in New Jersey and relocated to Seattle, where I'm now permanently based. Husband has lived and worked here >20 year.
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Please let me know if there’s further information you need.
Regards,
Swati
Submitted: 2 years ago.
Category: Immigration Law
Expert:  Expert James replied 2 years ago.
Hello, I am James. I will be helping you today. I do not get a salary here. But just like you, I want to get credit for doing my job. And you are the only person who can help me get credit by giving me a positive rating before leaving this site today. So please do not forget to do that.
Also, if you want me to be your personal immigration Expert, just write “FOR JAMES" at the beginning of your question and I will be sure to answer your questions as your personal Expert.
I will make this nice and simple. The underlying immigration issue is your INTENT at the time you decide to become a permanent resident and throughout your status as a permanent resident. But what the tax authorities define as "residence" is not exactly the same as what the immigration authorities consider, for the purposes of showing your intent to immigrate to the US.
Just because you are considered a part time resident for tax purposes prior to applying for permanent resident status, it does not mean that at some point after that your intent was to be a permanent resident. So if you meet the definition of non-resident or part-time resident 20013, 2014 and 2015, say so. After that point, I would not.
Note that if the definition of a part-time resident is that you are in the US for less than 6 full months a year, that would be a problem.
Do not claim "part-time resident" once you've become a permanent resident. That might cause you problems down the road.
QUESTION 1: Can I file my 2013 and 2014 tax returns as US part-year and Non-Resident, respectively, given my family based Green Card (I-485) was just applied for on Apr 24 2015?
ANSWER: Yes. The H1B can have either immigrant or non-immigrant intent. The K-1 is a non-immigrant visa. The I-485 requires immigrant intent.
QUESTION 2: As USCIS processes my Green Card application this year, will it make any difference if I have over the same period, chosen to amend my 2013 return from Full-Year to Part-Year resident?
ANSWER: No. You were still a non-immigrant.
QUESTION 3: As USCIS processes my Green Card application this year, will it make any difference if I chose to file 2014 tax return as US Non-Resident?
ANSWER: No. You were still a non-immigrant.
QUESTION 4: Does doing so (i.e. filing returns as part- year/non-resident) create any CONFLICT OF INTEREST/INTENT in my said intent to immigrate?
ANSWER: Not for 2014 or 2013. 2015 is questionable. You should be prepared to explain the definition of part-time resident while also explaining that you had immigrant intent once you came to the US and decided to get married in early 2015. Your intent from that point was immigrant.
I know these issues can be confusing. If you want to talk on the phone for a fee, I can send you an offer for that.
I hope I have answered your questions. Kindly rate my customer service with a positive rating so I get credit for doing my job. This is very important. You can do that by giving me 3 or more stars, or any of the smiling faces. And you can keep asking questions even after you have given a rating.
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Thank you!
Expert:  Expert James replied 2 years ago.
Hi again,
I received a message that you reviewed my response and have responded. But I cannot see that response above.
Please post it again, so I can continue to help you.
Thank you!

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