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Barbara
Barbara, Enrolled Agent
Category: Tax
Satisfied Customers: 3825
Experience:  20+ years of experience in tax preparation; 30+ years of experience as a real estate/corporate paralegal.
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I arrived in the US in June 2016 (still here) on a J-2

Customer Question

I arrived in the US in June 2016 (still here) on a J-2 status and have been issued an SSN after obtaining employment authorization from USCIS/DHS. My employer offers RSUs and Employee Stock Plan, administered through E*TRADE. Recently, I was asked to submit my tax status certification using either Form W-8BEN or W-9. I think I should do W-8BEN but just want to confirm.
Submitted: 2 months ago.
Category: Tax
Expert:  Lev replied 2 months ago.

We need to verify if you are a resident alien OR a nonresident alien for tax purposes.

Generally - if you are living and working in the US - you are classified as a resident alien because of teh physical presence test and should use form W9.

But in some circumstances - based on your visa or other issues - you might be considered as a nonresident alien.

See pages 5-6

https://www.irs.gov/pub/irs-pdf/p519.pdf

Exempt individual. Do not count days for which you are an exempt individual. The term “exempt individual” does not refer to someone exempt from U.S. tax, but to anyone in the fol-lowing categories.

-- A teacher or trainee temporarily present in the United States under a “J” or “Q” visa, who substantially complies with the requirements of the visa.

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Teachers and trainees. A teacher or trainee is an individual, other than a student, who is temporarily in the United States under a “J” or “Q” visa and substantially complies with the requirements of that visa. You are consid-red to have substantially complied with the visa requirements if you have not engaged in activities that are prohibited by U.S. immigration laws and could result in the loss of your visa status.
Also included are immediate family mem-bers of exempt teachers and trainees. See the definition of immediate family, earlier, under Foreign government-related individuals.
You will not be an exempt individual as a teacher or trainee in 2016 if you were exempt as a teacher, trainee, or student for any part of 2 of the 6 preceding calendar years. However, you will be an exempt individual if all of the fol-lowing conditions are met.
You were exempt as a teacher, trainee, or student for any part of 3 (or fewer) of the 6 preceding calendar years,
A foreign employer paid all of your com-pensation during 2016,
You were present in the United States as a teacher or trainee in any of the 6 prior years, and A foreign employer paid all of your compensation during each of the preceding 6 years you were present in the United States as a teacher or trainee.A foreign employer includes an office or place of business of an American entity in a foreign country or a U.S. possession.
If you qualify to exclude days of presence as a teacher or trainee, you must file a fully completed Form 8843 with the IRS

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So - if all these conditions are satisfied - you are a nonresident alien and - in this case - you are correct to use form W8BEN.

Expert:  Barbara replied 2 months ago.

Welcome to Just Answer. I just received notification that you have requested a new expert/professional. My name is ***** ***** I will be happy to assist you.

You are correct.

As a J-2 visa holder, you are exempt from counting days for 2016 and 2017 for the substantial presence test. As you are considered as a nonresident, you will complete Form W8-BEN.

My points of reference are:

https://www.irs.gov/individuals/international-taxpayers/alien-residency-examples

https://ttlc.intuit.com/questions/3165935-i-have-a-j2-visa-and-i-just-move-to-the-us-my-wife-j1-is-a-resident-alien-am-i-resident-alien-or-non-resident-alien-for-tax-purposes

Please let me know if I can assist you further.

Thank you and best regards,

Barb

Expert:  Barbara replied 2 months ago.

Just following up with you to see if you have any other questions. If so, please let me know so I can further assist you.