Confused regarding filing taxes: F1->H1B->GC

[anonee 8]

Hello all,

I have a rather confusing situation: I was employed by my university as an Research Assistant till Jan 15 of 2012. I then graduated, switched to OPT and started working from February. I left my job, started working for a different firm sometime early June. Then while working for that firm, I switched from F1 to H1B. I started the I485 process in November and was told recently a few days back that my Adjustment of Status was successful. I am sort of confused: Do I file as a resident-alien or a do I file as a non-resident alien?

Another additional data point for the whole substantial presence thing: I came to the country in 2009, left for a month at the end of 2011 and returned back on 19th of January 2012. So I have 92 days during the previous calendar year on an H1B and the rest in an exempt visa (F1). Now, according to the IRS substantial presence, I would think I should be filing as a Non-resident alien. However, the thing that confuses me is that the vague threats from USCIS documentation that if I don't file as a resident alien, I will be considered to have abandoned my green card.

Thanks!

[Point Mass 4]

If you read the 1040 instruction, it says you can file as a resident alien if you file jointly.

Or you can file as dual-status, which means during 2012, you were a LPR and a non-immigrant visa holder.

http://www.irs.gov/Individuals/International-Taxpayers/Taxation-of-Dual-Status-Aliens

[anonee 8]

I am single, so I am not sure how I could file jointly. Also, I got my LPR status during 2013, so does that still apply to 2012 tax filing?

[CarlosAndSveta 808]

Hello all,

I have a rather confusing situation: I was employed by my university as an Research Assistant till Jan 15 of 2012. I then graduated, switched to OPT and started working from February. I left my job, started working for a different firm sometime early June. Then while working for that firm, I switched from F1 to H1B. I started the I485 process in November and was told recently a few days back that my Adjustment of Status was successful. I am sort of confused: Do I file as a resident-alien or a do I file as a non-resident alien?

Another additional data point for the whole substantial presence thing: I came to the country in 2009, left for a month at the end of 2011 and returned back on 19th of January 2012. So I have 92 days during the previous calendar year on an H1B and the rest in an exempt visa (F1). Now, according to the IRS substantial presence, I would think I should be filing as a Non-resident alien. However, the thing that confuses me is that the vague threats from USCIS documentation that if I don't file as a resident alien, I will be considered to have abandoned my green card.

Thanks!

Did you file a Form 8843 for the years that you were in the U.S. under an F1 visa? If you didn't file that form then you are not an exempt individual for purposes of the substantial presence test. That means that for tax purposes you have been a Resident Alien since at least 2010 and you can file your 2012 return as a Resident Alien.

[newacct 688]

Hello all,

I have a rather confusing situation: I was employed by my university as an Research Assistant till Jan 15 of 2012. I then graduated, switched to OPT and started working from February. I left my job, started working for a different firm sometime early June. Then while working for that firm, I switched from F1 to H1B. I started the I485 process in November and was told recently a few days back that my Adjustment of Status was successful. I am sort of confused: Do I file as a resident-alien or a do I file as a non-resident alien?

Another additional data point for the whole substantial presence thing: I came to the country in 2009, left for a month at the end of 2011 and returned back on 19th of January 2012. So I have 92 days during the previous calendar year on an H1B and the rest in an exempt visa (F1). Now, according to the IRS substantial presence, I would think I should be filing as a Non-resident alien. However, the thing that confuses me is that the vague threats from USCIS documentation that if I don't file as a resident alien, I will be considered to have abandoned my green card.

Thanks!

You should file as non-resident alien for 2012. You were exempt from the SPT for the time on F1, since it was only the 4th calendar year you were exempt (and you have 5 calendar years of being exempt being an international student). So you do not meet the substantial presence test.

You need to file Form 8843 for every year you were in the U.S. as an exempt individual, even if you do not have any income and do not have to file a tax return. You can go ahead and file ones for previous years if you forgot to do it.

Do not file as a resident alien if you are really a non-resident alien. Doing so could get you in big trouble with the IRS. Filing as resident alien qualifies you for a standard deduction, claiming dependents, the child tax credit and other deductions and credits, all things that you do not qualify for as a non-resident alien.

It is true that if you want, you can voluntarily elect to use the "First-year Choice", which means since you will be a resident alien for 2013, and you were in the U.S. for more than a month in 2012, you can elect to be treated as a resident alien for 2012. I am not sure whether doing this election would be more or less taxes than not doing it; you will have to try it both ways to see. It is also some hassle to do this election; you must include a note that you are electing to do it, and you must wait until you satisfy the SPT for 2013 (which will take until almost the middle of the year for you), which will require you to get an extension on your 2012 taxes. You can Google about the First-year Choice if you are interested. But by default if you don't do this election then you are a non-resident alien.

I don't know what these "vague threats from USCIS documentation" you are referring to are. It is possible those threats are about people fraudulently filing as non-resident alien when they are really resident aliens. However, in your case, you *are* a non-resident alien for 2012. That is the correct status to file under, and it is rather filing as a resident alien that would be fraudulent.

Edited January 27, 2013 by newacct

[Point Mass 4]

I am single, so I am not sure how I could file jointly. Also, I got my LPR status during 2013, so does that still apply to 2012 tax filing?

See U.S. Tax Guide for Aliens Pub. 519

http://www.irs.gov/uac/Publication-519,-U.S.-Tax-Guide-for-Aliens-1

This is the guide Form 1040 tells you to read if you're not sure which status to file under.

[anonee 8]

You should file as non-resident alien for 2012. You were exempt from the SPT for the time on F1, since it was only the 4th calendar year you were exempt (and you have 5 calendar years of being exempt being an international student). So you do not meet the substantial presence test.

You need to file Form 8843 for every year you were in the U.S. as an exempt individual, even if you do not have any income and do not have to file a tax return. You can go ahead and file ones for previous years if you forgot to do it.

Do not file as a resident alien if you are really a non-resident alien. Doing so could get you in big trouble with the IRS. Filing as resident alien qualifies you for a standard deduction, claiming dependents, the child tax credit and other deductions and credits, all things that you do not qualify for as a non-resident alien.

It is true that if you want, you can voluntarily elect to use the "First-year Choice", which means since you will be a resident alien for 2013, and you were in the U.S. for more than a month in 2012, you can elect to be treated as a resident alien for 2012. I am not sure whether doing this election would be more or less taxes than not doing it; you will have to try it both ways to see. It is also some hassle to do this election; you must include a note that you are electing to do it, and you must wait until you satisfy the SPT for 2013 (which will take until almost the middle of the year for you), which will require you to get an extension on your 2012 taxes. You can Google about the First-year Choice if you are interested. But by default if you don't do this election then you are a non-resident alien.

I don't know what these "vague threats from USCIS documentation" you are referring to are. It is possible those threats are about people fraudulently filing as non-resident alien when they are really resident aliens. However, in your case, you *are* a non-resident alien for 2012. That is the correct status to file under, and it is rather filing as a resident alien that would be fraudulent.

newaccnt: I filed 8843 every year I was in the U.S. since 2009. I did have income since I came to the U.S. (I was working legally in the University as a part time student.)

Reg. your second point that I can elect to be considered a resident for 2012, that sounds interesting. Now, I did the math and I have been on an H1B since October 01. This period of time till December 31 is 92 days. I should be able to hit 180 days by March 31st and satisfy the SPT rule.

My worry is that if I don't file as a "resident" after I get the Green Card (which I should get in a week's time), I will have issues when I apply for naturalization. Now, I would rather be safe and sorry and be okay with paying extra money and filing as a resident for the last rather complicated year which is why I am trying to figure out how to do that.

[newacct 688]

newaccnt: I filed 8843 every year I was in the U.S. since 2009. I did have income since I came to the U.S. (I was working legally in the University as a part time student.)

Reg. your second point that I can elect to be considered a resident for 2012, that sounds interesting. Now, I did the math and I have been on an H1B since October 01. This period of time till December 31 is 92 days. I should be able to hit 180 days by March 31st and satisfy the SPT rule.

My worry is that if I don't file as a "resident" after I get the Green Card (which I should get in a week's time), I will have issues when I apply for naturalization. Now, I would rather be safe and sorry and be okay with paying extra money and filing as a resident for the last rather complicated year which is why I am trying to figure out how to do that.

I believe that for the SPT, prior year days count as 1/3, so I believe you would need 92 days in 2012 / 3 + 153 days in 2013 to satisfy the SPT.

Can you post a link to the documentation that says you should not file as non-resident?

[CarlosAndSveta 808]

newaccnt: I filed 8843 every year I was in the U.S. since 2009. I did have income since I came to the U.S. (I was working legally in the University as a part time student.)

Reg. your second point that I can elect to be considered a resident for 2012, that sounds interesting. Now, I did the math and I have been on an H1B since October 01. This period of time till December 31 is 92 days. I should be able to hit 180 days by March 31st and satisfy the SPT rule.

My worry is that if I don't file as a "resident" after I get the Green Card (which I should get in a week's time), I will have issues when I apply for naturalization. Now, I would rather be safe and sorry and be okay with paying extra money and filing as a resident for the last rather complicated year which is why I am trying to figure out how to do that.

Based on the information you have posted you were a non-resident alien for tax purposes at the end of 2012 since at that point you still had not satisfied the substantial presence test. You should file your U.S. Income Tax Return for the tax year 2012 on either Form 1040NR or 1040NR-EZ.

[anonee 8]

@newacct: Refer http://www.uscis.gov/USCIS/Resources/B4en.pdf where it says " Under immigration law, a

permanent resident who is required to file a tax return as a resident

and fails to do so, or who files a nonresident alien tax form, may

be considered to have abandoned his or her status and may lose

permanent resident status"

I probably have to go talk to USCIS what this means or see if I can get something in writing if I have to file as a non-resident.

Also, if I file for an extension, that should give me 150 days in the new year and satisfy the substantial presence requirement?

[CarlosAndSveta 808]

@newacct: Refer http://www.uscis.gov...ources/B4en.pdf where it says " Under immigration law, a

permanent resident who is required to file a tax return as a resident

and fails to do so, or who files a nonresident alien tax form, may

be considered to have abandoned his or her status and may lose

permanent resident status"

I probably have to go talk to USCIS what this means or see if I can get something in writing if I have to file as a non-resident.

Also, if I file for an extension, that should give me 150 days in the new year and satisfy the substantial presence requirement?

At the end of 2012 you were a non-resident alien for both income tax and immigration purposes. You should file your 2012 tax return as a non-resident alien even if when you file your 2012 tax return you are a resident alien (Green Card holder). The key is what was your status at 12-31-2012.

Edited January 28, 2013 by CarlosAndSveta

[anonee 8]

At the end of 2012 you were a non-resident alien for both income tax and immigration purposes. You should file your 2012 tax return as a non-resident alien even if when you file your 2012 tax return you are a resident alien (Green Card holder). The key is what was your status at 12-31-2012.

This appears a rational thing to do. On the other hand, I have not found immigration to be rational in their dealings which is why I have these questions