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Am I considered as a Nonresident Alien Employee for Form W4?

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Filed: Timeline

Hi, I would greatly appreciate anyone who would be able to offer some advice on my situation.

I'm married to a USC and filed for concurrent AOS in July 2014, and still pending an interview date from my local office. However, I've my EAD and SSN and I've been working here in the US since Sep 2014.

In my form W4 submitted to my employee, my Personal Allowances is "1" as I entered "0" for C to avoid having too little tax withheld. I also checked "Married, but withold at higher Single rate" marital status on line 3.

According to http://www.irs.gov/Individuals/International-Taxpayers/Withholding-Exemptions---Personal-Exemptions---Form-W-4, it seems like I should be classified as a Non-Alien Resident?

I looked at http://www.irs.gov/Individuals/International-Taxpayers/Determining-Alien-Tax-Status and I obviously do not pass the green card test or the substantial presence test.

Should I need to re-submit my W4 as per the special instructions listed in that website? Thanks!

10 July 2014 (Day 1): I-485, I-130, I-131 I-765 mailed to Chicago Lockbox.

15 July 2014 (Day 5): Email & SMS Notifications from USCIS for each form filed.
18 July 2014 (Day 8): All 4 NOAs received in mail
1 August 2014 (Day 22): Completed walk-in biometrics successfully
13 August 2014 (Day 34): I-485 moved to Testing and Interview
19 August 2014 (Day 40): Reached out to congressman's office to request for expedited EAD based on job offer
25 August 2014 (Day 46): Called USCIS's office to put in request for expedited EAD processing
26 August 2014 (Day 47): Congressman's office called and informed that I-131 post decision activity, I-765 card/document production (successful expedite request)

28 August(Day 49): USCIS ordered production of I-765 EAD

6 September 2014 (Day 58): Received EAD/AP combo card

27 January 2015 (Day 201): Successfully completed interview

8 February 2015 (Day 211): 2-years conditional green card in hand

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When did you actually enter the US? You haven't updated your timeline, so I can't tell.

Depending on when that is, I suspect you will actually pass the substantial presence test for 2014, in which case you will be dual-status: non-resident alien before you entered and resident alien afterwards.

However, there is a complication: As an dual-status alien married to a US citizen, you are allowed to elect to be taxed as a US resident for all of 2014, and file married filing jointly with your spouse. It may or may not be better to make that choice, depending on how much you and your spouse each earned during the year.

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