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Does filing an I-526 petition change the tax status of an F-1 student?

I am thinking ahead on my taxes and noticed a form asking me if I, an F-1 student, filed for lawful permanent status. Would I answer “yes” there after filing an I-526 petition, even though it has not yet been approved? Would I have to start paying taxes on my worldwide income already?

Answers

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    Daniel A Zeft

    Immigration Attorney
    Answered on

    You must pay taxes on your worldwide income when you become a conditional permanent resident. You have filed for permanent residency after you file an I-485 application with USCIS or after you file an immigrant visa application with U.S. DOS.

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    Julia Roussinova

    Immigration Attorney
    Answered on

    You should not answer yes because you are not eligible to apply for adjustment of status to a green card holder (permanent resident status) until your I-526 petition is approved (assuming you maintain an underlying immigration status in the U.S., such as F-1 or another visa while your I-526 petition is pending). Only when your green card is issued to you do you become a lawful conditional permanent resident in the U.S. subject to the worldwide income taxation rules. Until then, if you have income in the U.S., you report as a U.S. tax resident, depending on the substantial presence test. Discuss with a tax preparer or CPA.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    The filing of the I-526 does not in itself change your status, although as an expression of immigrant intent, it can certainly impact your ability to obtain F-1 travel visas and in other areas. An F-1 student is generally exempt, for an alien may become a resident alien by passing either the green card test or the substantial presence test as explained below. There are two tests that can subject a foreign national to taxation as a resident. First, the green card test foreign nationals who are immigrants are resident aliens of the United States for tax purposes, under the condition that they spend at least one day in the United States. If not, one can still become subject based on the substantial presence test here you must pass both the 31-day and 183-day tests. Regarding the 31-day test: Were you present in United States 31 days during current year? Regarding the 183-day test: A. Current year days in United States x 1 =_____days B. First preceding year days in United States x 1/3 =_____days C. Second preceding year days in United States x 1/6 =_____days D. Total days in United States =_____days (add lines A, B, and C). If line D equals or exceeds 183 days, you have passed the 183-day test. Note there are exceptions that may allow you to not count days of presence in the U.S. during which: you are a commuter from a residence in Canada or Mexico; you are in the U.S. less than 24 hours in transit; you are unable to leave the U.S. due to a medical condition that developed in the U.S.; you are an exempt individual; you are a regular member of the crew of a foreign vessel traveling between the U.S. and a foreign country or a possession of the U.S. (unless you are otherwise engaged in conducting a trade or business in the U.S.). The definition of an exempt individual is a student on F, J, M or Q visa; must wait five calendar years before counting 183 days; the five calendar years need not be consecutive; and once a cumulative total of five calendar years is reached during the student lifetime after 1984, he/she may never be an exempt individual as a student ever again during his lifetime; quality of being an exempt individual applies also to spouse and child on F-2, J-2, M-2, or Q-3 visa.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    Best to check with a tax consultant, but the I-526 is just the petition and not the adjustment or immigrant visa stage.

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    No, it does not. You are not yet a permanent resident just because you filed I-526 petition.

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    Abhinav Lohia

    Immigration Attorney
    Answered on

    I recommend answering yes to the question. With respect to taxes, you become a U.S. taxpayer when you get a green card unless you are generating income in U.S.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    Until you are adjusted as a resident, your non-resident tax status should remain. But, since this is a tax question and not an immigration question, you should consult with a CPA or a tax lawyer.

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    Belma Chinchoy

    Immigration Attorney
    Answered on

    Filing Form I-526 is not a filing for LPR status. Approval of I-526 does not grant you any immigration status; it simply gives you the right to apply for permanent residency (via adjustment or consular processing).

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    Dale Schwartz

    Immigration Attorney
    Answered on

    No. It will not affect your tax status or taxes.

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    Vaughan de Kirby

    Immigration Attorney
    Answered on

    No. However, when you become a U.S. permanent resident you are subject to U.S. taxation.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    This may be a question for an accountant; however, as far as immigration law is concerned, after filing the I-526 immigrant petition for alien investor, you are not yet a lawful permanent resident. So your immigration status has not changed from F-1/non-immigrant/student status and would not be subject to worldwide income.

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    Charles Foster

    Immigration Attorney
    Answered on

    Filing an EB-5 investor petition on Form I-526 does not change your tax status if you are in non-immigrant F-1 student status. Technically, you are not eligible to apply for permanent residency through adjustment of status until your I-526 petition is approved and visa numbers are available. It is always better to have full disclosure so you can answer the question, "No, but I have filed an EB-5 investor petition on Form I-526 in order to become eligible to apply for permanent resident status." No, by filing the I-526 petition you have not become a resident for tax purposes and you would not have to pay taxes on your worldwide income.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    I am not sure how the tax laws treat it, but from an immigration perspective, while the I-526 is technically an immigrant petition, it is not until the I-526 is approved that you file the adjustment of status application with USCIS or with the National Visa Center/U.S. consulate for your (conditional) permanent residency.

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