How do I file taxes now that my AOS is pending? No longer F1

[slee0000 13]

Hi guys,

I'm a little confused on how to file taxes this time.

I got married just this February and I'm no longer an F-1 student at my school. I was a student up until March - when I filed my AOS and sent my confirmation letter from USCIS to my international advisor.

I haven't yet received my employment authorization card and haven't worked at all - no income, nothing to report.

What form do I need to fill out?

- While F1, I used to fill out the form 8843 (https://www.irs.gov/pub/irs-pdf/f8843.pdf)

but then questions 12 and 13 are:

12: Were you present in the United States as a teacher, trainee, or student for any part of more than 5 calendar years?

If you checked the “Yes” box on line 12, you must provide sufficient facts on an attached statement to establish that you do not intend to reside permanently in the United States. - (obviously this doesn't apply because I have filed for AOS to reside permanently in the US)

13: During 2015, did you apply for, or take other affirmative steps to apply for, lawful permanent resident status in the United States or have an application pending to change your status to that of a lawful permanent resident of the United States? -- obviously yes, but then it contradicts what they want you to write for 12.

I'm just confused. Since I was a student all of 2015, I should fill out 8843 form, but then do I just check YES for 12 and not provide explanation?

Edited April 12, 2016 by slee0000

[Nich-Nick 3,353]

I don't know those forms, but it's asking your status in calendar year 2015. You had not applied to adjust status in 2015 and did not have an application pending in 2015. What you have done or earned since Jan 1, 2016 is for next year when you file 2016 taxes.

Did you earn any money as a student in 2015?

[slee0000 13]

I don't know those forms, but it's asking your status in calendar year 2015. You had not applied to adjust status in 2015 and did not have an application pending in 2015. What you have done or earned since Jan 1, 2016 is for next year when you file 2016 taxes.

Did you earn any money as a student in 2015?

Nope, none at all. As I stated, no income - did not work at all.

[newacct 688]

But have you already been a student or trainee (F or J status) for any part of 5 calendar years before 2015? If not, that part doesn't matter. (And if you have, you probably shouldn't be filling out this form anyway.)

Basically, students are "exempt individuals" (their days as a student don't count towards to the Substantial Presence Test) until they have been in the US as a student or trainee for any part of 5 calendar years. So if you first entered the US as a student or trainee in 2011 or later, then for 2015 you hadn't been a student or trainee for any part of 5 calendar years before 2015, and you are an "exempt individual" for your days as a student in 2015, which means you are a nonresident alien for all of 2015. On the other hand, if you arrived in the US as a student or trainee in 2010 or before, and have been a student or trainee for every year since, then you have already been a student or trainee for some part of 5 calendar years before 2015 (e.g. 2010, 2011, 2012, 2013, and 2014), so your days as a student in 2015 would not be exempt from the Substantial Presence Test, and you would be a resident alien for all of 2015. If you are no longer an exempt individual for 2015, you would not be filing Form 8843.

Now, there is an exception to this 5 year cutoff, where you can claim to be a exempt individual even after 5 calendar years, if you can establish a closer connection to a foreign country. That's what those two questions are about. Most people who are over 5 years don't qualify for this, and plus, being a resident alien is often better tax-wise than being a nonresident alien anyway (you can use the standard deduction, you get access to many more credits and deductions, etc.), so people usually wouldn't want to claim to be exempt after 5 years even if they could.

Edited April 12, 2016 by newacct

[slee0000 13]

But have you already been a student or trainee (F or J status) for any part of 5 calendar years before 2015? If not, that part doesn't matter. (And if you have, you probably shouldn't be filling out this form anyway.)

Basically, students are "exempt individuals" (their days as a student don't count towards to the Substantial Presence Test) until they have been in the US as a student or trainee for any part of 5 calendar years. So if you first entered the US as a student or trainee in 2011 or later, then for 2015 you hadn't been a student or trainee for any part of 5 calendar years before 2015, and you are an "exempt individual" for your days as a student in 2015, which means you are a nonresident alien for all of 2015. On the other hand, if you arrived in the US as a student or trainee in 2010 or before, and have been a student or trainee for every year since, then you have already been a student or trainee for some part of 5 calendar years before 2015 (e.g. 2010, 2011, 2012, 2013, and 2014), so your days as a student in 2015 would not be exempt from the Substantial Presence Test, and you would be a resident alien for all of 2015. If you are no longer an exempt individual for 2015, you would not be filing Form 8843.

Now, there is an exception to this 5 year cutoff, where you can claim to be a exempt individual even after 5 calendar years, if you can establish a closer connection to a foreign country. That's what those two questions are about. Most people who are over 5 years don't qualify for this, and plus, being a resident alien is often better tax-wise than being a nonresident alien anyway (you can use the standard deduction, you get access to many more credits and deductions, etc.), so people usually wouldn't want to claim to be exempt after 5 years even if they could.

Forgive me if I'm still a little confused.

I've been F1 since 2009 - should I not be filing this form at all?

[newacct 688]

Forgive me if I'm still a little confused.

I've been F1 since 2009 - should I not be filing this form at all?

So even for 2014, you were a resident alien, and should have filed 1040 as a resident alien, and not filed 8843, unless you wanted to use this exception to be exempt past 5 years (which is what you did if you filed 8843). Same for 2015. As I said, resident alien is probably better tax-wise, but you might want to check whether that takes away any tax treaty benefits, if you are under one.