13.3 Aliens and U.S. Citizens Living Abroad: Foreign Income & Foreign Income Exclusion
Do I have to meet the 330-day presence test or have a valid working
resident visa to meet the requirement for foreign income exclusion?
To claim the foreign earned income exclusion, the foreign housing exclusion,
or the foreign housing deduction, you must have foreign earned income, your
tax home must be in a foreign country, and you must be one of the following:
A U.S. citizen who is a bona fide resident of a foreign country or countries
for an uninterrupted period that includes an entire tax year,
A U.S. resident alien who is a citizen or national of a country with which
the United States has an income tax treaty with a nondiscrimination article
in effect and who is a bona fide resident of a foreign country or countries
for an uninterrupted period that includes an entire tax year, or
A U.S. citizen or a U.S. resident alien who is physically present in
a foreign country or countries for at least 330 full days during any period
of 12 consecutive months.
U.S. tax law does not specifically require a foreign resident visa or work
visa for this purpose, but you (must/should) comply with the other country's
laws.
References:
13.4 Aliens and U.S. Citizens Living Abroad: Nonresident Alien - General
I am a foreign national and came to this country on June 30th of
last year. I have a H-1 visa. What is my tax status regarding residency nonresident
alien, or resident alien?
You were a dual status alien last year. As an H-1 visa holder in the U.S.
for 183 days or more, you likely became a resident, for tax purposes, as of
June 30th. For the part of the year you are a resident alien, you are taxed
on income from all sources.
For the part of the year that you are not a resident alien, you are not
taxed on income from sources outside the United States, unless the income
is effectively connected with a trade or business in the United States.
Income from U.S. sources is taxable whether you receive it while a nonresident
alien or a resident alien unless specifically exempt under the Internal Revenue
Code or a tax treaty provision. Generally, tax treaty provisions apply only
to the part of the year you were a nonresident and only if you are a resident
for treaty purposes of a country that has a treaty with the United States.
For that part of the year that you are a nonresident, file Form 1040NR (PDF), U.S. Nonresident Alien Income Tax Return. For that
part of the year you are a resident, file Form 1040 (PDF) .
Refer to Tax Topic 852 for dual-status information.
References:
I have an H-1 visa and my husband has an F-1 visa. We both lived
in the United States all last year and had income. What kind of form should
we file? Do we file our taxes separately or jointly?
You will have met the substantial presence test and will be taxed as a
resident alien for last year, while your husband is likely to be a nonresident
alien. Refer to Tax Topic 851 for an explanation of the relevant tax
forms. You may file a joint tax return if your husband makes the choice to
be treated as a resident for the entire year. Generally, however, you cannot
claim tax treaty benefits as a resident alien. Please refer to Publication 519, U.S.
Tax Guide for Aliens , for detailed instructions on making this choice.
References:
I was an international student (F-1 visa) until October 1, then
my visa status was changed to H-1. Should I file my income tax return as a
dual status or nonresident alien?
Assuming you were not in the U.S. on your F-1 student visa for over 5 years,
you may file as a nonresident for the entire year or, if you qualify under
the first year choice, you may file as a dual status alien. Please refer to Publication 519, U.S. Tax Guide for Aliens, for additional information.
References:
13.7 Aliens and U.S. Citizens Living Abroad: U.S. Citizens Overseas
I am a U.S. citizen and married a nonresident alien last year. At
that time, we filed an application with the Bureau of Citizenship and Immigration
Services (BCIS, formerly INS) for my spouse's adjustment of status. We plan
to file married filing jointly. Will I need to use Form 1040NR?
As a U.S. citizen, you cannot file Form 1040NR (PDF), U.S.
Nonresident Alien Income Tax Return. If you make an election to file
a joint return with your nonresident alien spouse (your spouse must, in turn,
elect to be taxed as U.S. resident), file Form 1040 (PDF),
U.S. Individual Income Tax Return (or Form 1040A (PDF) or Form 1040EZ (PDF) if otherwise applicable), and report
both incomes from worldwide sources.
You will need to get an ITIN for your spouse. To apply for an ITIN, file Form W-7 (PDF), Application for IRS Individual Taxpayer
Identification Number.
References:
- Form 1040NR (PDF), U.S. Nonresident
Alien Income Tax Return
- Form 1040 (PDF), U.S. Individual
Income Tax Return
- Form W-7 (PDF), Application for
IRS Individual Taxpayer Identification Number
- Tax Topic 857, Individual Taxpayer Identification
Number - Form W-7
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