file tax return for 2018 when submitting i485 in 2019

[Lily M 0]

Hi, everyone! This might be a silly question but I'm actually very confused about it. 

I submitted my i485 package with i130 on 03/01/2019. I haven't received anything from USCIS yet. Now, I'm filling my tax return for 2018. I was under F1/ OPT visa all year 2018. I got married to my US citizen spouse in early Jan 2019. He filed his tax return for 2018 as single.  I came to the U.S. in Aug 2015 under F1 visa and kept the F1 visa. 

My question is what my tax status was for year 2018?

I would say NRA is the closest. Does that mean I don't need to pay the FICA tax(I believe under F1, you don't need to pay FICA) and can get the tax treaty benefit? (my country has $5000 tax treaty benefit) When I tried to file the 1040nr-ez form, it asked me "Have you ever applied to be a green card holder (lawful permanent resident) of the United States? " Should I say Yes to this question? Another question is "Have you ever changed your visa type (nonimmigrant status) or U.S. immigration status? . . . . . . If “Yes,” indicate the date and nature of the change." Should I answer Yes and list that I submitted my I485 in 2019? 

Or, should I still file as NRA but gave up the deduction of FICA tax refund and tax treaty benefit becasue I have immigration tendency?

I don't think I should file as RA but I could be wrong. If I can file as RA, that would be great since the new tax act is not friendly to NRA at all

Thanks, if anyone can give me any advice!

[geowrian 22,337]

13 minutes ago, Lily M said:

I don't think I should file as RA but I could be wrong.

If you meet the substantial presence test, then you must file as an RA.

https://www.irs.gov/individuals/international-taxpayers/substantial-presence-test

You would still file as Single (unless you qualified for HOH) since you married in 2019.

[Lily M 0]

5 minutes ago, geowrian said:

If you meet the substantial presence test, then you must file as an RA.

https://www.irs.gov/individuals/international-taxpayers/substantial-presence-test

You would still file as Single (unless you qualified for HOH) since you married in 2019.

Thank you for your response!!! You're right about the substantial presence test but I stayed here last year (and all the years ) under my F1 student visa. I was an exempt individual according to IRS. So, I didn't meet the substantial test. I definitely didn't pass the green card test either. I don't know how I should prepare my tax return. I don't want to mess up my I485 later in the future either.  

[geowrian 22,337]

9 minutes ago, Lily M said:

Thank you for your response!!! You're right about the substantial presence test but I stayed here last year (and all the years ) under my F1 student visa. I was an exempt individual according to IRS. So, I didn't meet the substantial test. I definitely didn't pass the green card test either. I don't know how I should prepare my tax return. I don't want to mess up my I485 later in the future either.   

Ah, sorry...I overlooked the student part. Yes, individuals with F-1 status can have their time exempt from consideration for that test.

Edited March 6, 2019 by geowrian

[Arete88 4]

I have a follow-up question. Once you file the I485 do you keep your F1 status while the AOS is pending?

[Lily M 0]

On 4/4/2019 at 8:14 AM, Arete88 said:

I have a follow-up question. Once you file the I485 do you keep your F1 status while the AOS is pending?

I'm not quite sure. My F1 status expired anyway. But, as far as I read, I think your status changes to AOS pending once you file for AOS, and you don't have your F1 anymore. Not sure though. 

[arken 4,197]

On 4/4/2019 at 11:14 AM, Arete88 said:

I have a follow-up question. Once you file the I485 do you keep your F1 status while the AOS is pending?

If you want to keep the F1 status you can but you don’t have to. Some people do so if I485 is denied, they would still be in legal status. As long as you satisfy F1 requirements, pending AOS doesn’t not affect its status.

 

 

[geowrian 22,337]

4 minutes ago, arken said:

 As long as you satisfy F1 requirements, pending AOS doesn’t not affect its status.

Bingo.

Note that this means NOT using (having is fine) an AOS-based EAD or using AP to re-enter the country. Either of those activities would violate F1 status and leave just the AOS-based authorized stay.

Edited April 8, 2019 by geowrian