F-1 AOS & Tax / I-864 question.

[Toby_HB 39]

Hello all, 

 

Me and my parter are planning on sending our Marriage/Permanent Resident package in the next couple of weeks as my OPT-EAD end date is at the beginning of August. I had a question regarding taxes and form I -864, Affidavit of Support Under Section 213A of the INA. I was originally under the impression we would both have to send in our W2/ taxes from the 2019 tax year. But from my understanding since she in the financial sponsor it's only her who has to submit her W2's and a copy of her taxes from the previous tax year. I was also told by an immigration attorney that I don't need to include a copy of my foreign taxes from 2019, I was a student in the US but I still filed in my home country but had no income as I was present in the US. 

 

I'm asking because when I filed with H&R in the US block they filed me as a resident alien but I've only been here since 2017, which I just realized is a mistake. Can we still file while I go back to H&R block to fix the issue since I am not technically submitting any of my tax info. The timing is the issue and I don't know how long it will take for H&R block to fix the tax filing from resident alien to non-resident alien. I also realized because I was a foreign student here for taxes purposes and I didn't make above 

minimum I think which is $12,000 I didn't even need to file? 

 

Sorry if this is in the wrong section. 

[JeanneAdil 6,197]

were you married in 2019?  makes a big difference 

and you would be resident alien as you were living here not out of the country

Edited July 8, 2020 by JeanneAdil

[Toby_HB 39]

No we got married 2 weeks ago here in California, June 2020.  I heard there is a rule if you have been here under 5 years you file as a non-resident alien. 

I'm just confused if we both need to submit the tax info when we send it in or just her as she in the financial  sponsor?

 

[geowrian 22,335]

35 minutes ago, JeanneAdil said:

were you married in 2019?  makes a big difference 

and you would be resident alien as you were living here not out of the country

While in F-1 status, the time within the US is not counted towards the substantial presence test. They are considered an exempt individual while in status.

Since they were single those years, they would only be able to file as an NRA (if married, there is an option to be an NRA or RA, but they married this year).

https://www.irs.gov/individuals/international-taxpayers/substantial-presence-test

 

36 minutes ago, Toby_HB said:

 I heard there is a rule if you have been here under 5 years you file as a non-resident alien.

No, that's not a thing. But yes, you would have been considered an NRA per the above link.

Yes you can amend taxes. File an 1040X.

[Toby_HB 39]

1 minute ago, geowrian said:

While in F-1 status, the time within the US is not counted towards the substantial presence test. They are considered an exempt individual while in status.

Since they were single those years, they would only be able to file as an NRA (if married, there is an option to be an NRA or RA, but they married this year).

https://www.irs.gov/individuals/international-taxpayers/substantial-presence-test

 

No, that's not a thing. But yes, you would have been considered an NRA per the above link.

 

Yes you can amend taxes. File an 1040X.

 

Thank you. Can we send our stuff in before I amend stuff granted I don't have to send in my tax stuff for 2019? 

Or should I amend before we submit anything?

[geowrian 22,335]

8 minutes ago, Toby_HB said:

Thank you. Can we send our stuff in before I amend stuff granted I don't have to send in my tax stuff for 2019? 

Or should I amend before we submit anything?

Technically, only the petitioner needs to be an I-864 sponsor. So your tax issue is only an issue with the IRS, not immigration.

Had you been trying to claim your income as well, your tax return would be needed too.

 

Are you doing AOS (green card while within US) or consular processing (immigrant visa abroad)? The forum you posted this in is for the visa. If so, I don't see anything off-hand where your taxes would be an issue.

Edit: Actually, the DS-5540 (a fairly new form used with IVs) does ask about US tax returns too.

If you are doing AOS, the I-944 requires you to provide both of your tax return transcripts.

 

An incorrect tax return is an IRS issue, not an immigration issue. Yes it should be fixed, but I wouldn't expect this to be an issue for immigration.

Edited July 8, 2020 by geowrian

[aaron2020 11,651]

1 hour ago, Toby_HB said:

Hello all, 

 

Me and my parter are planning on sending our Marriage/Permanent Resident package in the next couple of weeks as my OPT-EAD end date is at the beginning of August. I had a question regarding taxes and form I -864, Affidavit of Support Under Section 213A of the INA. I was originally under the impression we would both have to send in our W2/ taxes from the 2019 tax year. But from my understanding since she in the financial sponsor it's only her who has to submit her W2's and a copy of her taxes from the previous tax year. I was also told by an immigration attorney that I don't need to include a copy of my foreign taxes from 2019, I was a student in the US but I still filed in my home country but had no income as I was present in the US. 

 

I'm asking because when I filed with H&R in the US block they filed me as a resident alien but I've only been here since 2017, which I just realized is a mistake. Can we still file while I go back to H&R block to fix the issue since I am not technically submitting any of my tax info. The timing is the issue and I don't know how long it will take for H&R block to fix the tax filing from resident alien to non-resident alien. I also realized because I was a foreign student here for taxes purposes and I didn't make above 

minimum I think which is $12,000 I didn't even need to file? 

 

Sorry if this is in the wrong section. 

You need to amend your 2019 federal tax return.  Foreign students are not entitled to the $12,200 standard deduction.  Foreign students are considered foreign tax payers (non-resident tax payers) and every dollar earned in the US is subject to taxes.  The only exception is for students from India.

I know because I have filed tax returns for my niece who is a foreign student from Vietnam.  She earned $5000 and paid $500 in federal income taxes.  

You can thank Trump for this.

http://blog.sprintax.com/gop-tax-reform-effects-taxation-foreign-students-non-resident-aliens/

 

 

Edited July 8, 2020 by aaron2020

[aaron2020 11,651]

16 minutes ago, Toby_HB said:

 

Thank you. Can we send our stuff in before I amend stuff granted I don't have to send in my tax stuff for 2019? 

Or should I amend before we submit anything?

The I-864 will only require your spouse's tax return.  Yours is not considered.  So file for AOS now, and amend your taxes when you can.

Your spouse should get a tax transcript from the IRS to turn in with the I-864.  A copy of the tax return is sometimes not accepted and USCIS will issue an RFE for a tax transcript.

Edited July 8, 2020 by aaron2020

[Toby_HB 39]

33 minutes ago, geowrian said:

Technically, only the petitioner needs to be an I-864 sponsor. So your tax issue is only an issue with the IRS, not immigration.

Had you been trying to claim your income as well, your tax return would be needed too.

 

Are you doing AOS (green card while within US) or consular processing (immigrant visa abroad)? The forum you posted this in is for the visa. If so, I don't see anything off-hand where your taxes would be an issue.

Edit: Actually, the DS-5540 (a fairly new form used with IVs) does ask about US tax returns too.

If you are doing AOS, the I-944 requires you to provide both of your tax return transcripts.

 

An incorrect tax return is an IRS issue, not an immigration issue. Yes it should be fixed, but I wouldn't expect this to be an issue for immigration.

 

Yes I am currently here, so I will be doing the AOS.  Thank you for this. 

 

We will file and then I will fix issue /amend tax issue after. 

Edited July 9, 2020 by Toby_HB

[Ryan H 3,790]

Moved from IR-1/CR-1 Progress Reports to Adjustment of Status from Work, Student, & Tourist Visas forum.