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H1B - Resident Alien or Non Resident Alien?

Discussion in 'General H-1 and H-3 Visa and Related Issues' started by LEO_TX, Mar 4, 2007.

  1. LEO_TX

    LEO_TX Registered Users (C)


    I have a general question for the people who were on F1 & their status got changed to H1B. My status got changed in early November in 2006 to H1B from F1. So, now will I be considered as a resident alien or non resident alien? I was going to file taxes based on that because IRS has 1040NR/NR-EZ & 1040/EZ forms depending upon resident alien or non resident alien status. I read about substantial presense test & exempt individuals. F & J students are considered as Non resident alien throughout(as I understood). But, H1B makes it a dual intent status & IRS says if we have stayed for atleast 183 days in United States including current year, then we can be considered as resident aliens. But, it is a confusing statement because they include current year too which means it would depend upon how much we delay & add up the months to make it 183+ days.

    Any views or advice on that?

    Looking forward to hear from you.

  2. immiq

    immiq Registered Users (C)

    You file your 2006 tax return, right? Did you live in the USA 183 + days in 2006?
  3. LEO_TX

    LEO_TX Registered Users (C)


    Thanks for replying.

    Yea I am filing 2006 return. I lived in US for 183+ days in 2006 but I was a student(F1 visa) and on OPT(which is F1 too I guess) after I finished school in 2006. And on F1 visa I would be an exepmt individual where I can not count days for my substantial presence as I read on IRS website. My status changed to H1-B only in early November and it has not been 183+ days since then. That is why I am not sure. Getting it done professionaly would be stupid when only thing I care to know is form type (1040 or 1040 NR).

    Please let me know how everyone else in same situation is handeling this.

    Looking forward to hear from you guys.

    Thanks a lot.
  4. immiq

    immiq Registered Users (C)

    183+ days test asks whether you have lived in the USA for 183 days. Does it ask whether you live in the USA 183 + days in H-1B status?
  5. escoz

    escoz New Member

    I'm on the exact situation. My status changed from F1 (non resident) to H1B (resident) in october. I stayed on the USA as a resident for only 90 days in 2006.

    I've been living here for over 3 years, but F1 visa holders are only considered resident after the 5th year on the US.

    I also would appreciate any help!
  6. ajnd80

    ajnd80 Registered Users (C)

    The 183 days test does not let you count days on F visa (unless you have spent more than five calender years on F visa). This means that if you spent less than five years on F visa and if you switched over from F to H on November, you will not meet the substantial presence test, and hence will not qualify to be a resident alien for tax purposes. If you have already spent five calender years on F visa, then you are anyway a resident alien for tax purposes.

    The problem situation is when you were on F visa for less than five calender years and you satisfy the substantial presence test (for example, if you switched to H1 visa in the early part of the calender year). In that case, you are a non-resident during the part of year that you were on F, and resident during the part of year that you were on H. You are then considered a dual-status alien, in which case your tax return is really messed up and you might want to ask for professional help.

    If you have a spouse and one of you is resident and the other non-resident, you can not file jointly (and hence you lose out on the benefits of filing jointly). However, in such a case, IRS lets the non-resident spouse to be treated as a resident, provided the non-resident spouse pays tax to the IRS for all his/her worldwide income!

    All standard disclaimers apply :)


  7. escoz

    escoz New Member

    Thank you very much!! That was really useful, I really appreciate.

    I also just hang up from a call with the IRS support line, and they're very helpful with questions about taxes for non-americans. I recommend anybody with questions to give them a call.

    I was also told that by the IRS, if I prefer, I can fill now a request for extension of the date, and then in june, once I get status as resident, I can fill taxes as non-resident from january until the date I got the H1B, and fill a 1040 for the remaining days of 2007. That information should be on the publication 519 - pages 8 9 and 10 and chapter 6 - dual status

    Again, thanks a lot!


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