Filing taxes on AOS status

[messi 0]

According to the IRS, for the year 2010 I could file as a resident or as a non-resident, however, on the instructions to file for an I-131 (advance parole) I read that if you are an alien who has established residence, having been admitted as immigrant or adjustment of status, and file as a non-resident or fail to file, you may regarded as having abandoned residence.

So it is not very clear to me if the IRS allows you to file as a non-resident and the USCIS tells you not to, when you are on AOS, waiting for greencard.

Any ideas, experiences?

thanks,

[YuAndDan 153]

I-131 is used for several purposes, one being a travel doc, for a green-card holder who needs to remain out of the country for 1 to 2 years, it is telling them to NEVER claim they are a NON-Resident while having a green-card, as in while they are out of the USA for 1-2 years using the travel doc, the doc will not protect the green-card if they claim non-resident while out of the USA.

If you are not yet a green-card holder, you are a NON-resident, and CAN claim that on the 2010 return, you wer not a green-card holder "resident" for the year 2010, however if you did have green-card before end of 2010, then will need to file as a resident for 2010.

[haruko83 1]

as far as i know you can claim yourself as a resident even if you dont have a green card. its different to be a resident, than to be a resident "for tax purposes".

I have been working in the US on J1 and H2B visas and always filed as a resident before, never had a problem, always get all my money back!

I would recommend you to double check though as our situations might be different.

[CarlosAndSveta 808]

According to the IRS, for the year 2010 I could file as a resident or as a non-resident, however, on the instructions to file for an I-131 (advance parole) I read that if you are an alien who has established residence, having been admitted as immigrant or adjustment of status, and file as a non-resident or fail to file, you may regarded as having abandoned residence.

So it is not very clear to me if the IRS allows you to file as a non-resident and the USCIS tells you not to, when you are on AOS, waiting for greencard.

Any ideas, experiences?

thanks,

You can elect to be treated as a Resident Alien for U.S. Income Tax purposes if you file a joint return with your husband and attach an election statement with your return. Look at page 10 of IRS Publication 519 - U.S. Tax Guide for Aliens. Here is a link for the 2009 version of the publication:

Publication 519 - U.S. Tax Guide for Aliens

[Brother Hesekiel 2,235]

Resident, unless you are not residing in the US.

[bahisgirl 11]

You can elect to be treated as a Resident Alien for U.S. Income Tax purposes if you file a joint return with your husband and attach an election statement with your return. Look at page 10 of IRS Publication 519 - U.S. Tax Guide for Aliens. Here is a link for the 2009 version of the publication:

Publication 519 - U.S. Tax Guide for Aliens

That's what we are doing! And I can't wait for the refund

[Sgt. McGee 27]

Sorry for a potential threadjack, but my situation's a little different... We married in 2010, AOS was approved in 2011. She didn't work in 2010, so will I file as married filing jointly, even though she had no taxable income (actually, there may be a few cents in interest on a bank account) and she didn't have legal resident status during the year?

[CarlosAndSveta 808]

Sorry for a potential threadjack, but my situation's a little different... We married in 2010, AOS was approved in 2011. She didn't work in 2010, so will I file as married filing jointly, even though she had no taxable income (actually, there may be a few cents in interest on a bank account) and she didn't have legal resident status during the year?

Your wife can also elect to be treated as a Resident Alien by filing a joint tax return with you and attaching the election statement. She will be taxed on her worldwide income but if it is earned income (wages, salary, commissions, etc.) then she can see if she is entitled to the Foreign Income Exclusion.

[Nich-Nick 3,354]

Sorry for a potential threadjack, but my situation's a little different... We married in 2010, AOS was approved in 2011. She didn't work in 2010, so will I file as married filing jointly, even though she had no taxable income (actually, there may be a few cents in interest on a bank account) and she didn't have legal resident status during the year?

Taxable income for a spouse doesn't matter. You can file jointly. Your other option of Married Filing Separately will, in most cases, result in higher taxes.

[Kathryn41 3,205]

moved from AOS forum to "Moving Here and Your New Life in America" forum as a more appropriate location for this topic