Questions and Answers > EB-5 Requirements

What is the tax status for F-1 students after filing for EB-5?

I was a student on F-1 status in 2015 and 2016, and then again from 2019 until now. In 2015, I filed for I-526 and got approved in the same year, but only in 2020 did I apply for I-485 to adjust my status and file for AOS to conditional permanent residency because of the application backlog. So my question is, should I be treated as a tax resident in 2015, 2016, and 2019 onward because I applied for I-526 in 2015? Or should I be treated as a tax resident only in 2020 when I applied for I-485 to adjust my status?

Answers

• Lynne Feldman

  Immigration Attorney

  Answered on March 1, 2021

  Probably best to consult a tax attorney.

• Bernard P Wolfsdorf

  Immigration Attorney

  Answered on March 1, 2021

  The filing of the petition alone is merely one aspect of showing intent. You are still exempt for 5 years based on student status but these are complex and you need to also look at your countries tax treaty with the U.S. to ensure accuracy.

• Stephen Berman

  Immigration Attorney

  Answered on February 25, 2021

  This is a question for your accounting, not your immigration lawyer.

• Dale Schwartz

  Immigration Attorney

  Answered on February 25, 2021

  You need to ask your accountant.

• Belma Demirovic Chinchoy

  Immigration Attorney

  Answered on February 25, 2021

  Filing I-526 does not grant you an immigration status; you were in the U.S. at that time incident to your F1 status. So, the answer to your question is no. You should, however, speak with a CPA to determine if you are required to file taxes, and if so, under what category. A resident for tax purposes is not the same thing as resident for immigration purposes. Finally, a mere filing of I-485 may not have any impact on whether or not you must file taxes in the U.S.

• Phuong Le

  Immigration Attorney

  Answered on February 25, 2021

  The correct answer is you should add a trusted CPA to your team of advisors. You have a few layers of tax issues to unpack (substantial presence, worldwide income, etc.), and it is best to consult with a CPA or professional tax advisor to help you properly navigate though your situation. Plus, keep in mind that unpaid tax liabilities can create immigration problems for you in the future once you apply for citizenship, so best to resolve them now. Good luck!