New Feb 2020 Green Card holder rules

[lexash 2]

Hi,

I filed for I-751 on March 2019 and soon will be available to file for N-400. I've been reading about the new rules for GC holders that took effect in February 2020. If you're not familiar the new rules are:

• Failing to admit you’re an immigrant on your tax returns or failing to report some of your income could get you deported.

• Men between the ages of 18 and 25 who hold a green card must register with the U.S. Selective Service; failure to do so could lead to deportation

• An extended overseas vacation could cost someone their green card - it could be considered "abandonment" of the green card

http://www.shrr.com/publications/legal-alert-2020-new-rules-for-green-card-holders/

https://www.nbc-2.com/story/41563323/new-green-card-laws-2020

https://www.hykellaw.com/new-laws-for-green-card-holders-in-2020/

 

My question is regarding the first point "Failing to admit you’re an immigrant on your tax returns or failing to report some of your income could get you deported.". I already filed the Federal return for this year (1040 form file jointly with my wife who is a US Citizen). I've been looking online and can't find an answer to this question: Do I have to ammend the return and specifiy somewhere that I'm an immigrant or resident alien? How do I go about this? Am I covered because we filed jointly?

 

I'm worried that with the upcoming filing of N-400 this could create problems. If it helps we live in Maine.

 

Thanks in advance.

[midwinterrose 275]

The 6+ month absence rule and the Selective Service registration requirement have always been a thing—the USCIS policy update makes more specific definitions about these policies.

 

I have not been able to find any USCIS policy updates about the tax return.  There is no place on the 1040 that asks for immigration status, so I don’t see how you could fail to report something that they haven’t asked for, unless and until they revise the 1040 to include such a question.

 

My husband filed taxes for the first time this year and we had to send in a signed declaration choosing to have him treated as a full-year resident alien for tax purposes—I imagine you must have done this your first year as well.  That is an effective claim that you are a resident alien, and it could be argued that it is implied on your following tax returns that you are a resident alien, considering that you have to wait at least 3 years to naturalize.  Thus, if you filed subsequent returns as a resident, you inherently filed as a resident alien, for at least three years.

 

It doesn’t say what date in February this policy supposedly went into effect.  Did you file in February?

 

Honestly, it sounds a lot like lawyer-speak to scare people into consulting with their law firm.  I wouldn’t worry about it until I saw something official from USCIS.

[lexash 2]

On 3/8/2020 at 11:34 PM, radharose said:

The 6+ month absence rule and the Selective Service registration requirement have always been a thing—the USCIS policy update makes more specific definitions about these policies.

 

I have not been able to find any USCIS policy updates about the tax return.  There is no place on the 1040 that asks for immigration status, so I don’t see how you could fail to report something that they haven’t asked for, unless and until they revise the 1040 to include such a question.

 

My husband filed taxes for the first time this year and we had to send in a signed declaration choosing to have him treated as a full-year resident alien for tax purposes—I imagine you must have done this your first year as well.  That is an effective claim that you are a resident alien, and it could be argued that it is implied on your following tax returns that you are a resident alien, considering that you have to wait at least 3 years to naturalize.  Thus, if you filed subsequent returns as a resident, you inherently filed as a resident alien, for at least three years.

 

It doesn’t say what date in February this policy supposedly went into effect.  Did you file in February?

 

Honestly, it sounds a lot like lawyer-speak to scare people into consulting with their law firm.  I wouldn’t worry about it until I saw something official from USCIS.

Thanks, yes I did send the signed declaration the first time we filed jointly. Under the new rule I just wasn't sure if we had to do it every year as well that's where I got confused. I'll try to investigate a little more but I don't see anything specific from the IRS or USCIS about this.

 

Thanks.

[AnnaLee24 16]

I think maybe this is the form they are referencing. From what I can tell it forces you to pay US tax on all money made outside the US or claim you aren’t a resident.

 

https://www.irs.gov/forms-pubs/about-form-8802

[midwinterrose 275]

3 hours ago, AnnaLee24 said:

I think maybe this is the form they are referencing. From what I can tell it forces you to pay US tax on all money made outside the US or claim you aren’t a resident.

 

https://www.irs.gov/forms-pubs/about-form-8802

I don’t think so, that appears to be a form to claim exemption from taxation from other countries.  Per the instructions for that form:

 

U.S. Residency Certification
Income Tax Treaty
Many foreign countries withhold tax on certain types of income paid from sources within those countries to residents of other countries. The rate of withholding is set by that country's internal law. An income tax treaty between the United States and a foreign country often reduces the withholding rates (sometimes to zero) for certain types of income paid to residents of the United States. This reduced rate is referred to as the treaty-reduced rate.

Many U.S. treaty partners require the IRS to certify that the person claiming treaty benefits is a resident of the United States for federal tax purposes. The IRS provides this residency certification on Form 6166, a letter of U.S. residency certification. Form 6166 is a computer-generated letter printed on stationery bearing the U.S. Department of Treasury letterhead, which includes the facsimile signature of the Field Director, Philadelphia Accounts Management Center.

Form 6166 will only certify that, for the certification year (the period for which certification is requested), you were a resident of the United States for purposes of U.S. taxation or, in the case of a fiscally transparent entity, that the entity, when required, filed an information return and its partners/ members/owners/beneficiaries filed income tax returns as residents of the United States.
Upon receiving Form 6166 from the IRS, unless otherwise directed, you should send Form 6166 to the foreign withholding agent or other appropriate person in the foreign country to claim treaty benefits.
Some foreign countries will withhold at the treaty-reduced rate at the time of payment, and other foreign countries will initially withhold tax at their statutory rate and will refund the amount that is more than the treaty-reduced rate on receiving proof of U.S. residency.

[RachelFara 17]

On 3/9/2020 at 6:34 AM, radharose said:

The 6+ month absence rule and the Selective Service registration requirement have always been a thing—the USCIS policy update makes more specific definitions about these policies.

 

I have not been able to find any USCIS policy updates about the tax return.  There is no place on the 1040 that asks for immigration status, so I don’t see how you could fail to report something that they haven’t asked for, unless and until they revise the 1040 to include such a question.

 

My husband filed taxes for the first time this year and we had to send in a signed declaration choosing to have him treated as a full-year resident alien for tax purposes—I imagine you must have done this your first year as well.  That is an effective claim that you are a resident alien, and it could be argued that it is implied on your following tax returns that you are a resident alien, considering that you have to wait at least 3 years to naturalize.  Thus, if you filed subsequent returns as a resident, you inherently filed as a resident alien, for at least three years.

 

It doesn’t say what date in February this policy supposedly went into effect.  Did you file in February?

 

Honestly, it sounds a lot like lawyer-speak to scare people into consulting with their law firm.  I wouldn’t worry about it until I saw something official from USCIS.

Could you explain a little more about the "signed declaration choosing to have him treated as a full-year resident alien"?  My husband got his greencard in August 2020.  So it's his first time filing taxes in the US.  Do we need to file together?  And what kind of declaration should it be?  Do you have an example or is there a site explaining more?

Thank you!!

[midwinterrose 275]

On 3/13/2021 at 12:41 PM, RachelFara said:

Could you explain a little more about the "signed declaration choosing to have him treated as a full-year resident alien"?  My husband got his greencard in August 2020.  So it's his first time filing taxes in the US.  Do we need to file together?  And what kind of declaration should it be?  Do you have an example or is there a site explaining more?

Thank you!!

So the way it works is, your husband is a Dual-Status Alien because he was a non-resident alien until he received his green card, at which point he became a resident alien.  Because he is married to you, a USC, he has the option of being treated as a resident alien for the entire tax year.  This allows you to file as Married Filing Jointly, and allows you to take the standard deduction for married couples on your tax return.  This also requires your husband to report/pay tax in the U.S. on all income that he earned during the tax year (in the US or abroad), though you may be eligible to exclude his foreign income under the Foreign Earned Income Exclusion.

 

If you don't choose to treat him as a resident for the entire tax year,  you have to file as Married Filing Separately, and you would not be eligible to take the standard deduction ($24,800).  You may also be eligible to file as head of household if you have another dependent--I'm not exactly sure how that works.

 

For our situation it made sense for us to file Married Filing Jointly, and elect to have him treated as a resident alien for the entire tax year.  I will attach a copy of the letter that we sent, which appears to have done the trick.  We had to paper-file our return because I couldn't find any tax preparation software that had the option to upload an additional document.

 

Here are a couple links explaining it in more detail:

https://www.irs.gov/individuals/international-taxpayers/nonresident-alien-spouse

https://www.irs.gov/individuals/international-taxpayers/dual-status-aliens

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

 

 

TaxResidencyStatement_Sample.doc