On the N-400, there is a question which asks:

Have You EVER filed with non-resident status after becoming a permanent resident. Well, Yes, Most folks probably did the first year. My wife got here in late April of 05 and for the 05 tax year, she filed as a non-resident on the advice of our accountant. She did file a US return however. Will this cause any issues with the N-400? We will be able to file the N-400 in seven months. Just thinking ahead!

The question is asking "Did you file as a non-resident after getting the green-card?"

This is what they are trying to get at:


http://www.uscis.gov/portal/site/uscis/men...00045f3d6a1RCRD

Is OK to be declared as a Non-Immigrant before becoming a permanent resident (Green-Gard holder), not after, it is a sign of abandoning permanent resident status.

Well pffft.. that makes no sense at all. What if you get your green card say in November. Then what, just because you have a green card, you are going to file as a resident for the whole year? I kind of get the point of the question. But she qualifies under the Bona Fide residence Test to make her tax home in Canada for the year she immigrated. She’s just following the law and the advice of her financial advisor. I was hoping someone else may have run into this issue themselves and am curious on how they may have dealt with it or if it even became an issue.

Just to mention further, we filed a joint 1040. Not a 1040 NR or anything like that. The only resident type questions are in the foreign earned income statement (2555) where it asks about her foreign address and employer. It is here, in part II of the 2555 where she qualifies herself for the foreign earned income exclusion under the Bona Fide Residence test.

So, at this point, what did she do? Did she file as a non-resident and throw away her chances at becoming a USC? Or, did she simply take a foreign earned income exclusion as a permanent resident? Lawyers love this crap I am sure lol. I am thinking we just answer NO instead of YES and then act confused if they say anything, which is appropriate in this case anyways.

I had always filed as a resident when I was on TN status, way before the green card. The IRS's Resident is quite different from the USCIS's resident. For the IRS, if you have lived and worked (regardless of nationality, immigration status) in the US for more then I think 6 months, you need to file as a resident. So doesn't matter if you had a green card, EAD, H1-b or what, if you've been in the US working for more then 6 months (might be shorter) you need to file as resident...

Yes.. that's the way US tax law reads.. if you got your Permanent Resident Status on December 31, you are considered a resident alien for tax purposes for the entire tax year...

She only took the foreign income exclusion as a permanent resident... If you read the legend on the 2555 it states Foreign Income Exclusion fo US Citizens and Resident Aliens. What the N-400 is getting at is did she file a 1040-NR... a tax return specifically for non-residents...

In this case, she filed her tax return as a resident alien, you can safely check the No box...

Yay.

Thanks Everybody. We are going to say NO on that box.

<sigh>

Only 6 months to go.

YuAndDan,

Note that cmartyn's wife got her green card in April of 2005, on her arrival in the USA. She was a LPR when she filed her 2005 tax return.

Yodrak

I doubt a financial advisor will be looking out for her immigration welfare. The best financial solution may not match the best immigration/naturalization solution.

I agree. Thats my job :-) But it would have cost like 8000.00 in taxes had he not taken the exclusion. Shoot me for being a greedy pig. But I don't think the exclusion is the same as filing as a non resident. Interestingly enough, on Part II, question 14 of the 2555, he left it blank. When I questioned him on this he says that that is always left blank unless you are trying to build a case where you are trying to make your tax home abroad for the first time. I dunno, he studies this stuff, I don't.

Yes, exactly.
The DAH became a PR in November 03. He had to file as a resident for that entire year.

Yeah, I think that makes sence to me now. Becauae of the exclusion. There a tax guy in Canada running numbers for cities like Toronto vs Detroit, Vancouver vs. Washington and using incomes like 60K USD, hes coming up with lower taxes in Canada vs the US. Interesting.

It sounds like she took the foreign earned income exclusion as a resident, which is what most people do. Or at least, it sounds like what we did, and we definitely filed with G. as a resident every year including the year he moved here, before he had his green card.

I believe that if she were filing as non-resident you'd have had to file MFS because MFJ requires both spouses to be resident in the US.

It's no different that if you had a baby born on December 31 or you got married on December 31... you get to claim the baby or file as married for the entire tax year...

There has to be a cutoff at some point... in taxes, it's December 31...

It is different if the income was earned in Canada and they allready deducted all the tax and now you have to mush the forms around to get the most back (or pay the least) in our case. With a baby, they should only give partial deduction and prorate it lol.