Hi all,
I have a question about the tax status, I appreciate if you can help. Here is my story.
I came to US on F1 student visa and I'm still continuing as full time student, but last year my wife (she was on F2) applied for asylum and added me as derivative asylum applicant. Our case is still pending, but both of us got our EADs last year in August. I worked part time on an off campus job, so created some income that I should file tax. I also have an on campus job which is eligible through F1 before asylum. Since our case is still pending I am confused whether should I file tax as non-resident alien (like F1) or resident alien? Before applying for asylum, I used to file 1040NR form for 2018 and 2017. But which form should I file now, is it 1040 or 1040NR? Thank you for your answer in advance.
I have a question about the tax status, I appreciate if you can help. Here is my story.
I came to US on F1 student visa and I'm still continuing as full time student, but last year my wife (she was on F2) applied for asylum and added me as derivative asylum applicant. Our case is still pending, but both of us got our EADs last year in August. I worked part time on an off campus job, so created some income that I should file tax. I also have an on campus job which is eligible through F1 before asylum. Since our case is still pending I am confused whether should I file tax as non-resident alien (like F1) or resident alien? Before applying for asylum, I used to file 1040NR form for 2018 and 2017. But which form should I file now, is it 1040 or 1040NR? Thank you for your answer in advance.
msv5450
Active Member
Filing as non-resident may cause issues for your if you later attempt to adjust status from F-1 to green card.
Can you share your asylum timeline and office?
Have you been interviewed?
So first, if you came in 2014 or before, you are a resident alien for all of 2019, because you are not an "exempt individual" (exempt from the Substantial Presence Test) as a student if you have been an exempt individual for some part of 5 previous calendar years. So I will assume you came in 2015 or later.
Assuming that the off-campus job is not through OPT or CPT or F1 economic hardship EAD, working on it violates F1 status. You are only an if you are substantially complying with your student status. So from when you started working on your off-campus job, your days of presence started counting in the Substantial Presence Test. If you started in August, you probably don't pass the Substantial Presence Test for 2019, so you are by default a nonresident alien for all of 2019.
However, you can use the "First-Year Choice" since you will pass the Substantial Presence Test for 2020 (you likely already pass it as of right now, based on the number of days in 2020 plus 1/3 the number of days in 2019 that are counted). When you make this choice, you will become resident starting from when your days started to be counted in the Substantial Presence Test, so you will be a dual-status alien for 2019.
Since you are married, you can then choose to use either the Choosing Resident Alien Status or the Nonresident Spouse Treated as Resident choices. (If both of you use First-Year Choice, both of you will be resident for the end of 2019, so you can use Choosing Resident Alien Status. If only one of you uses First-Year Choice, one of you will be resident at the end of 2019, while the other will still be nonresident, so you can use Nonresident Spouse Treated as Resident.) Either way, the result is the same -- both of you become resident aliens for all of 2019 and must file as Married Filing Jointly. That way you can avail of the benefits of filing jointly (nonresident and dual-status aliens cannot file jointly).
I definitely not want to file as non resident alien if I have legal option to file as resident . It looks like I'm qualified as resident alien for tax purpose.
Sure, we submitted our documents on January 17, 2019. February 11, 2019 finger print. February 28, 2019 interview in Miami office, but very unfortunately, interview was terminated by the supervisor after about 30 minutes in interviewing because they can't find monitor (for language) that day. They apologized and promised to reschedule very soon, but nothing so far, already one and half year passed and not rescheduled. We called the office several times always reply "we are working on it", case status show "interview scheduled " and not changed since February2019, days keep counting. God knows when they will reschedule it. Keep waiting.
Thank you so much your answer.
Yes, I came on December 2016. Off campus work is through EAD.
So, you are saying that I'm not in F1 status anymore since I worked using EAD, is that correct? And we can go for 1040 without any problem? Thanks again
I guess you are still need to file as non resident since pending asylum is not status. If you came in 2014 on F or you are J, green card holder, you are resident for tax purpose otherwise non resident.
1. Pending Asylum case is not a status, even if they give an EAD. This EAD, you are free to use it.
2. In the eyes of the law, you are an F1 student. You are not allowed to work off campus as an F1 student. You violated your status by working of campus.
It's a technical loophole that we have discussed here.
You are not in F1 status anymore after you worked on your pending-asylum EAD. However, you were still in F1 status when you filed for asylum as long as you didn't stop going to school or otherwise violate F1 rules. So you were still an "exempt individual" up until you started working on your EAD, and the days you were not an exempt individual in 2019 is less than 183 days so you do not pass the Substantial Presence Test for 2019, so you are by default a nonresident alien for all of 2019, unless you use First-Year Choice.