TN Question

P

palhayed

New Member
Hi,

I'm hoping to find someone here that could help me. I've had a TN for 7 years in a row now, back in 2019 I was working fulltime for my employer but I was out of the US for around 4 1/2 months after that, during that time I did a one off consulting job but the payment was made to my only account which is my american account and it was made while I was in the US, since the dates I was going to be gone changed and the person that paid me just wanted to pay me at that time and said I could do the job later when I was gone. I did the job while I was out of the states (it done in a week or so via texts and zoom calls with some doc sharing). After those months out I returned to the US and resumed my job.

Here is my where I get tricky, my accountant told me I had to declare it with my taxes and since I don't declare anything in my home country and the job was done while I was out I didn't think any declared it and paid taxes on it. After reading some many threads on this forum I'm really worried.

I got laid off because of the pandemic in April of 2020 left US shortly after, I just got a job offer from a different company to comeback to the US. How does this affect my new visa? Can I still renew my visa after this? Are they going to check my tax returns or the IRS is going to flag USCIS for this. I don't intend to get a green card or to permanently immigrate to the states, I would like to work there for 1or 2 more years.

Any advice is much appreciated. Thank you!
 
Work performed outside of the United States isn't subject to USCIS rules. File the income with the IRS.

I would keep the paperwork that proves the work was done outside of the US handy but I think it is very unlikely this would come up. The agencies don't share every little piece of information.
 
The tax advice (both from accountant and the new member) is incorrect. Tax issues are dealt with at forums.serbinski.com.
 
nelsona said:
The tax advice (both from accountant and the new member) is incorrect. Tax issues are dealt with at forums.serbinski.com.
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Thank you for your answer @nelsona, what would you advise in my position? I did work outside the US but I filed the income with my taxes and shortly after I left the US, I just received a job offer to go back to the US and I would like to take it and renew my visa, I am not sure how to handle this I thought I had done the right thing by declaring them with my regular income, Ive never been asked for tax returns while renewing my visa, not sure what triggers USCIS to look into someone. I dont intend to get a green card or live permanently in the US, I would like to be there for 1 year or 2 at the most. Any advice is appreciated. Thank you.
 
Ash Connor said:
Work performed outside of the United States isn't subject to USCIS rules. File the income with the IRS.

I would keep the paperwork that proves the work was done outside of the US handy but I think it is very unlikely this would come up. The agencies don't share every little piece of information.
Click to expand...
Thank you Ash, do you reckon I can pursue the renewal of the visa with this new job offer, like I said I've never been asked for tax returns while renewing my visa, not sure what triggers USCIS to look into someone. I dont intend to get a green card or live permanently in the US, I would like to be there for 1 year or 2 at the most. Any advice is appreciated. Thank you.
 
If you were a resident alien for US tax purposes for the year, you are subject to US taxes on your worldwide income. If you were a nonresident alien for US tax purposes for the year, you are only subject to US taxes on US-source income, and work income has a source where the work was performed (where you were when it was paid doesn't matter). Since your work was performed outside the US, it was non-US income, and so it depends on whether you were a resident alien for the year.

Whether you were a resident alien for the year depends on whether you pass the Substantial Presence Test (e.g. for 2019, the test is whether (the number of days you were present in the US in 2019 + 1/3 the number of days you were present in the US in 2018 + 1/6 the number of days you were present in the US in 2017 >= 183 days). Based on your description, you almost certainly pass the Substantial Presence Test for 2019, and was thus a resident alien for 2019, and thus you needed to report that income on US taxes (but you can claim a Foreign Tax Credit on the tax paid for that income to the foreign country where you worked, or the tax paid for that income to the US, whichever is less). What tax form did you file? If you filed 1040, then you were filing as a resident alien (nonresident aliens file 1040NR).

The other confusing thing is that you said you didn't declare the income to your home country. Unless you worked in a country with no income tax, you almost certainly have to report and pay taxes on income from work performed while in that country, regardless of the fact that the money was paid into a US bank account.
 
we try not to deal with tax matters here. There is a great forum that discusses specifically cross-border tax issues, and takes into account the tax treaty, which often supersede the regs in both US and Canada to make these determinations, as would be the case in our poster's situation.

Let's leave it for that forum.
 
The practical reality is that a border officer looking at your new TN application isn't going to start rooting through your bank statements & tax returns looking for evidence that you illegally worked in the USA.

As for the IRS tipping off the USCIS that they suspect you worked illegally in the USA... you can't change the past, and you cannot control the IRS, so you don't get any value from worrying about it.

if your description of the situation is accurate, then it sounds like did nothing wrong. So apply for your new TN as if you did nothing wrong.
 
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