6 months out of the States

[GabVal 1]

Hello everyone, I am a 2015 DV winner, I went to the States last September the 4th, and I stayed there until December the 14th. The reason why I went back to my country was because I had certain things unfinished, but now I am ready to go back for good.

My flight is this June the 21st, the thing is, I heard I might have some problems with the border officer due to my time out of the States. It's gonna be 6 months and 1 week, that's the exact time out of the States.

Am I in trouble to re enter the country? Is there anyone here with a similar experience? Do I have to actually do something or just enter with my GC in hand?

Thank you in advance for your help!

[SusieQQQ 11,586]

You'll be fine, especially if you are coming on a one-way ticket... the CBP officer may ask a couple of questions to ensure you haven't abandoned residence...just answer the same way that you have stated the reasons above. Although some people fuss about 6 months, which you've probably seen and is worrying you, it is 12 months that is the presumption of abandoning residence. 3 members of my family were out for 11 months, and I know others who did this too. (Just: don't do it repeatedly of course! They understand people, especially DV winners with a relatively quick process, may need time to sort things out before making the final move. Doing it repeatedly to keep a green card while actually living elsewhere is what causes problems, but that's not what you're doing.)

Note though that your 5-year period for naturalization will reset to starting again the next time you enter.

Edited June 3, 2016 by SusieQQQ

[GabVal 1]

You'll be fine, especially if you are coming on a one-way ticket... the CBP officer may ask a couple of questions to ensure you haven't abandoned residence...just answer the same way that you have stated the reasons above. Although some people fuss about 6 months, which you've probably seen and is worrying you, it is 12 months that is the presumption of abandoning residence. 3 members of my family were out for 11 months, and I know others who did this too. (Just: don't do it repeatedly of course! They understand people, especially DV winners with a relatively quick process, may need time to sort things out before making the final move. Doing it repeatedly to keep a green card while actually living elsewhere is what causes problems, but that's not what you're doing.)

Note though that your 5-year period for naturalization will reset to starting again the next time you enter.

Thank you SusieQQQ! Yes, this time is for real.

[preguntas 0]

Hi,

I hope I am not hijacking this post.

Since you entered the US in September 2015, aren't you supposed to file US taxes in the US for 2015? (even if you stayed only 1 day in Sept in the US and then went back to your home country).

I am in a similar boat (entered the US in Oct 2015), and since then, it looks like I am supposed to file US taxes on worldwide income.

Under $100800 earned outside the US, I have nothing to pay at the federal level (using the:

"Foreign Earned Income Exclusion").

(Also, from what I checked, you should NEVER file as a non-resident at a federal level, and you should not use the "bona fide" part...)

My other question is:

I have a NY address (friend's address). Should I also file NY state taxes for 2015?

Or is just filing federal taxes sufficient?

Thanks in advance,

P.

[SusieQQQ 11,586]

Hi,

I hope I am not hijacking this post.

Since you entered the US in September 2015, aren't you supposed to file US taxes in the US for 2015? (even if you stayed only 1 day in Sept in the US and then went back to your home country).

I am in a similar boat (entered the US in Oct 2015), and since then, it looks like I am supposed to file US taxes on worldwide income.

Under $100800 earned outside the US, I have nothing to pay at the federal level (using the: "Foreign Earned Income Exclusion").

(Also, from what I checked, you should NEVER file as a non-resident at a federal level, and you should not use the "bona fide" part...)

My other question is:

I have a NY address (friend's address). Should I also file NY state taxes for 2015?

Or is just filing federal taxes sufficient?

Thanks in advance,

P.

Yes, you need to file. We didn't file state taxes, just federal, but I'm not sure actually that was technically correct. I think it depends on state and how they define residency. Suggest you talk to a NY tax expert who is also good at filing for foreign income,

Absolutely correct that you do not want to call yourself a non-resident, you can be held to have abandoned your green card by doing that.

As you correctly note, most people who are only resident for a short time in the year fall under the exemption.

Edited July 9, 2016 by SusieQQQ

[Parsoram 2]

Hi everyone,

Did not want to open up a new topic since this one is quite related to my situation also.

I got my passport with immigrant visa at the end of march '16. We travelled to U.S. on first week of June. Now we want to move to U.S. before March '17. However something troubles us here; do we have to re-enter U.S. around Nov-Dec before 6 months expire from our first entrance or can we just wait and move at the end of one year period? (March '17) Additionally, can my family (wife, kid) stay in U.S. and can I leave? will it be a problem when I get back?

[SusieQQQ 11,586]

Hi everyone,

Did not want to open up a new topic since this one is quite related to my situation also.

I got my passport with immigrant visa at the end of march '16. We travelled to U.S. on first week of June. Now we want to move to U.S. before March '17. However something troubles us here; do we have to re-enter U.S. around Nov-Dec before 6 months expire from our first entrance or can we just wait and move at the end of one year period? (March '17) Additionally, can my family (wife, kid) stay in U.S. and can I leave? will it be a problem when I get back?

Ideally 6 months but back before a year will be fine. (The year is counted from when you first entered the US, not the date of the original visa.) And yes your wife and kids can stay while you leave, in fact that will make it much easier for you to show you have maintained ties with the US when you return.

[aaron2020 11,651]

Hi,

I hope I am not hijacking this post.

Since you entered the US in September 2015, aren't you supposed to file US taxes in the US for 2015? (even if you stayed only 1 day in Sept in the US and then went back to your home country). US citizens and LPRs are subject to US taxes based on status. Even if the person spends zero days in the US, the USC or LPR is subject to US taxes. If you were an LPR in 2015 and you had income above the minimum reporting requirement, then you should have filed a US tax return.

I am in a similar boat (entered the US in Oct 2015), and since then, it looks like I am supposed to file US taxes on worldwide income. Yes, you should have.

Under $100800 earned outside the US, I have nothing to pay at the federal level (using the:

"Foreign Earned Income Exclusion").

(Also, from what I checked, you should NEVER file as a non-resident at a federal level, and you should not use the "bona fide" part...) As an LPR, you would are suppose to have a US residence, so the FEIE would not apply. This is the intersection of immigration law and tax law.

My other question is:

I have a NY address (friend's address). Should I also file NY state taxes for 2015? Yes since you are claiming a NY residence.

Or is just filing federal taxes sufficient? No since you claimed NY residency for 2015. You need to file a NY tax return as a state residence.

Thanks in advance,

P.

Yes, you need to file. We didn't file state taxes, just federal, but I'm not sure actually that was technically correct. That is not correct. Claiming residency in a state subjects you to state taxes. I think it depends on state and how they define residency. Suggest you talk to a NY tax expert who is also good at filing for foreign income,

Absolutely correct that you do not want to call yourself a non-resident, you can be held to have abandoned your green card by doing that.

As you correctly note, most people who are only resident for a short time in the year fall under the exemption. There is no such exemption from being subject to US taxes for being a resident for a short time. USCs and LPRs are taxed on status for federal taxes. Once you become an LPR, you are instantly subject to US taxes.

[SusieQQQ 11,586]

Yes Aaron, I know there is no exemption for being resident for a short period of time. I never said there was, and you apparently did not read the sentence I was responding to, i.e. there is an exemption based on the income earned overseas during the time you were resident in the year, and it's one most people who were only resident for a short time will fall under therefore not be liable to pay tax - of course you still need to file a tax return.

Also, we never "claimed" residency in a state in the 5 days of the year that we were resident. In fact we were not even in that state in those days. It was merely an address to get things sent to. We had no driver's license, no kids in school etc. I let our tax expert deal with that. He said what is deemed residency differs by state, which is the advice I passed on - check with a tax expert in the state they are filing.

Edited July 11, 2016 by SusieQQQ

[preguntas 0]

There is no such exemption from being subject to US taxes for being a resident for a short time. USCs and LPRs are taxed on status for federal taxes. Once you become an LPR, you are instantly subject to US taxes.

Actually, there is an exemption as seen here:

Foreign Earned Income Exclusion - Requirements

To claim the foreign earned income exclusion, [..] you must have foreign earned income, your tax home must be in a foreign country, and you must be one of the following:

• A U.S. citizen or a U.S. resident alien who is physically present in a foreign country or countries for at least 330 full days during any period of 12 consecutive months.

https://www.irs.gov/individuals/international-taxpayers/foreign-earned-income-exclusion-requirements

So basically, I was a US resident alien in 2015 with less than 36 days on US territory (i.e. more than 330 days outside US between Jan 1 and Dec 31, 2015) since I entered the US in October 2015.

My point here is that I need to file US taxes for my income from outside the US but that I should be able to benefit from an exemption for the first $100800 since I was out more than 330 days.

But there is more! (and maybe this is what you are referring to)

A greencard holder should never check the "bona fide" checkbox of FEIE because of the following:

http://lawandborder.com/risk-abandoning-green-card-abroad-6-months/

Claiming the FEIE may be a red flag for purposes of determining whether you have abandoned LPR status. In particular, filing under the “bona fide resident” prong may be particularly problematic because “bona fide residence” turns on factors including lack of definite intention as to length and nature of stay in foreign country.

According to USCIS:

In contrast, filing under the “physical presence” test is not in itself problematic because it does not reflect the individual’s intent. Still, it confirms potentially negative facts, i.e., that you have been physically present abroad and have foreign-earned income.

If the legal permanent resident declared himself or herself to be a bona fide resident of a foreign country on IRS Form 2555, that means the alien declared to the IRS that he or she went abroad for an indefinite or extended period. He or she intended to establish permanent quarters outside of the United States and he or she openly declared residence in a foreign country.

P.

Edited July 11, 2016 by preguntas