what is my status?

[jeanieCZ 228]

I arrived in the US on 26th November 2019 on a K-1 visa. Since then, I got my SSN, a driver's license and have married my US Citizen fiancee. I haven't filed AOS yet but will do that in the coming days. 

I want to open a checking account to transfer my funds from my European bank account. I have inquired with two banks, who asked me questions about my status and each of them came to a different conclusion - according to the first, I am a Resident Alien, according to the other one, I'm a Non-Resident Alien.

 

So I thought it shouldn't be that difficult and went to irs.gov. I do not pass the Green Card test (don't have one) and I do not pass the Substantian Presence test (I visited the US 3 times in 2019 for the total of 59 days, so according to the definition I should only count a third of this number, which means 19 days), so I should be a Non-Resident Alien. Or am I wrong or missing sth? Please help!

 

I also encoutered the term "US person", what does that mean? Am I a US person?

I'm quite lost in these terms and conditions.....can somebody please explain?

 

Edited February 19, 2020 by jeaniecz

[igoyougoduke 1,605]

Your conclusion is correct.  if you have an SSN you can open an account. A US Person is usually a US citizen/ green card holder/ visa holder who pass the substantial presence test for the current year.

 

did you apply the bank account online or in person. most likely you cant open account online due to the requirement of documents. try visiting a bank in person.

 

 

Edited February 19, 2020 by Donald120383

[geowrian 22,336]

Your immigration status is K-1 until your 90 days expire. Then you have no status. Once you file for AOS, you will have an authorized stay (which is not a status but lets you remain while the I-485 is pending adjudication).

 

It sounds like they are referring to taxes. It's a bit unique as you are an NRA right now as-is, but as the spouse of a USC, you have the option to elect to be treated as an RA ("US Person"). Edit: This assumes you married in 2019. If not, then you were an NRA and can't make that election.

Until you make that election, I would presume you are an NRA.

Edited February 19, 2020 by geowrian

[jeanieCZ 228]

24 minutes ago, geowrian said:

Your immigration status is K-1 until your 90 days expire. Then you have no status. Once you file for AOS, you will have an authorized stay (which is not a status but lets you remain while the I-485 is pending adjudication).

Thank you for clarification. 

 

24 minutes ago, geowrian said:

It sounds like they are referring to taxes. It's a bit unique as you are an NRA right now as-is, but as the spouse of a USC, you have the option to elect to be treated as an RA ("US Person"). Edit: This assumes you married in 2019. If not, then you were an NRA and can't make that election.

Until you make that election, I would presume you are an NRA.

We got married in 2020.

So that means in 2019 I was NRA and from now on for the purposes of the tax year 2020, so filing in 2021, I can choose to be treated as a RA. That's what you meant, right? If yes, then it's clear to me 👏

But if now somebody asks me whether I am a US person at the moment?

 

 

[geowrian 22,336]

6 minutes ago, jeaniecz said:

Thank you for clarification. 

 

We got married in 2020.

So that means in 2019 I was NRA and from now on for the purposes of the tax year 2020, so filing in 2021, I can choose to be treated as a RA. That's what you meant, right? If yes, then it's clear to me 👏

But if now somebody asks me whether I am a US person at the moment?

Correct. You were an NRA for 2019 as you met neither test nor qualified to elect to be treated as an RA.

In tax year 2020, you presumably will meet the substantial presence test, if not the bona fide resident one as well. Even if somehow that is not the case, you could elect to be treated as one anyway as the spouse of a USC.

 

I'm honestly not sure how to answer if somebody is a "US Person" right now, sorry.

Edited February 19, 2020 by geowrian

[jeanieCZ 228]

8 minutes ago, geowrian said:

I'm honestly not sure how to answer if somebody is a "US Person" right now, sorry.

So now, when trying to open a bank account, the bank asks me "Are you a U.S. resident alien or other U.S. person?" then my answer can be "yes" (because in 2020 I married the USC and therefore can elect to be treated as RA). 

Correct?

[Wuozopo 4,285]

2 hours ago, jeaniecz said:

So now, when trying to open a bank account, the bank asks me "Are you a U.S. resident alien or other U.S. person?" then my answer can be "yes" (because in 2020 I married the USC and therefore can elect to be treated as RA). 

Correct?

You are a NRA for the purpose the bank is asking. 
This is not really that complicated once you understand why they are asking.  Banks are required by law to gather information on their depositors. Each bank develops their own procedures (and files them) of how they will meet the government requirements. Some are stricter than others in how they choose to implement.

 

BUT all have to determine if they have foreign depositors. Why? Because foreigners/NRAs have a higher tax rate of 30%. Banks handle investments that may pay the depositor interest or dividends. If the depositor is NRA, the bank can not put the entire interest amount earned into the account. They have to withhold 30% for the IRS. If the depositor is a “US person” (ie citizen, green card holder, or resident alien) they can pay the full amount of interest into the account. 
 

Your banks are just trying to figure out if they give you Form W-8BEN OR Form W-9 to fill out when opening the account.

For the bank, right now you are a foreigner so they will need a Form W-BEN filled out. Once you get a greencard, or meet substantial presence, then are a US person and can do W-9 and stop the 30% withholding (if you even have an account that pays interest.).  A declaration with a tax return choosing to be a resident alien when married to a US person does not fly for this piece of paperwork. Tell the bank you are a foreigner and do the W-8BEN for them. Skip Part II (not worth the brain cells to quote tax treaties).  
 

If your account earns interest and they hold back a few pennies a month, you will get any excess back when you file your 2020 tax return next year as a RA. Interest earned from investments is taxable income, but not at 30%. Just think of it as paying in a little extra to the IRS early. It probably won’t amount to more than a small brewed coffee at Starbucks each month if you have $50k deposited. And any extra withheld for being NRA comes back to you.

 

Edited February 19, 2020 by Wuozopo

[jeanieCZ 228]

2 hours ago, Wuozopo said:

You are a NRA for the purpose the bank is asking. 

Thank you for taking the time to respond in such detail and explain how and why, your reply is very much appreciated!  It's really great when someone clarifies and explains in detail, because all I want to do is make sure I'm not in a violation of any rule or law and I certainly don't want to avoid paying any applicable taxes. 

[Wuozopo 4,285]

6 minutes ago, jeaniecz said:

Thank you for taking the time to respond in such detail and explain how and why, your reply is very much appreciated!  It's really great when someone clarifies and explains in detail, because all I want to do is make sure I'm not in a violation of any rule or law and I certainly don't want to avoid paying any applicable taxes. 

It’s really just a formality...a hoop the bank has to jump through for the government. If one of them says they don’t need a W-8BEN, go with it then because that mistake is on them, not you. The form stays at the bank in their records and does not go to the IRS.  It’s just another one of those annoying K1 things where nobody knows what to do with you because K1s are not that common and don’t fit the pattern of anybody else.

[geowrian 22,336]

@Wuozopo is a treasure to this forum. I can handle taxes pretty well, but they always teach me some things as well. Much appreciated!

[mrfrank1234 3]

Adding to the discussion: because you were a non-resident alien last year,  you do not have to comply with FBAR, i.e., fincen form 114, when doing your US taxes for 2019 (due april 2020). Lucky you -;)