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Lev, Tax Advisor
Category: Tax
Satisfied Customers: 29933
Experience:  Taxes, Immigration, Labor Relations
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I am a L-1B visa holder and arrived in the US on Aug. 21st,

Customer Question

I am a L-1B visa holder and arrived in the US on Aug. 21st, 2015. I opened and account at Bank of America (while I still did not have the SSN), and I got the for W-8Ben by mail to be filled out. I already filled out the form W-2 for the Company and I am not sure that I should fill the W8BEN. Can you help me on this?
Submitted: 2 years ago.
Category: Tax
Expert:  Lev replied 2 years ago.

Based on your information - you will be a resident alien - that is based on the substantial test.
However - you might be considered a nonresident alien for 2015 as you might be less than 183 days in the US fort that year.
So if you will be a nonresident alien - you may use form W8BEN - but will need to change it to W9 starting 2016 when you will become a resident alien.
If you will be a resident alien in 2015 - you woudl need to send W9 now.

Expert:  Lev replied 2 years ago.

Regarding of your immigration status - because you are living in the US - you are classified as a resident alien fro tax purposes - please do not confuse with your status for immigration purposes.

That is based on so-called the substantial presence test .

You will be considered a U.S. resident for tax purposes if you meet the substantial presence test for the calendar year. To meet this test, 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.

Expert:  Lev replied 2 years ago.

In additional - you might be eligible for so-called "first year choice"
You have a dual-status tax year when you have been both a resident alien and a nonresident alien in the same year. Dual status does not re-fer to your citizenship; it refers only to your resi-dent status in the United States. In determining your U.S. income tax liability for a dual-status tax year, different rules apply for the part of the year you are a resident of the United States and the part of the year you are a nonresident.
The most common dual-status tax years are the years of arrival and departure.
See page 7 First Year of Residency

So - it would be very common if you treat yourself as a resident alien starting the day you arrived to the US.
When you started your employment - I bet you filed form W9 - correct? If yes - that means - you admitted yourself as a resident alien - if so - you woudl need to use the same W9 form for your bank account to be consistent.