I am a foreigner and came to this country on June 30th of last year. I have a H-1 VISA. What is my tax status regarding resident, nonresident alien, or resident alien?

You were a dual status alien last year. As an H-1 VISA holder in the country for 183 days or more, you are taxed as a resident. However, for that part of the year that you are a nonresident, file Form 1040NR, U.S. Nonresident Alien Income Tax Return. For that part of the year you are a resident, file Form 1040 or 1040A.

References:

• Publication 519, U.S. Tax Guide for Aliens
• Form 1040NR, U.S. Nonresident Alien Income Tax Return
• Instructions for Form 1040NR, U.S. Nonresident Alien Income Tax Return

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?

If you have your H-1 VISA status for over 183 days, then you will have met the substantial presence test and qualify as a resident alien. You may elect to be treated as a resident for the entire year. If so, you may file a joint tax return if your husband makes the choice to be treated as a resident for the entire year. Generally, you cannot claim tax treaty benefits as a resident alien on Form 1040, U.S. Individual Income Tax Return. Please refer to Publication 519, U.S. Tax Guide for Aliens, for additional information.

References:

• Publication 519, U.S. Tax Guide for Aliens

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 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:

• Publication 519, U.S. Tax Guide for Aliens

I am a nonresident alien with no dependents. I am working with my H-1 VISA. Do I file a Form 1040NR or 1040NR-EZ?

A nonresident alien must file Form 1040NR, U.S. Nonresident Alien Income Tax Return, or Form 1040NR-EZ, U.S. Income Tax Return for Certain Nonresident Aliens With No Dependents, if you are engaged in a trade or business in the United States, or have any other U.S. source income on which the tax was not fully paid by the amount withheld.

You can use Form 1040NR-EZ instead of Form 1040NR if all nine of the following apply.

1. You do not claim any dependents.
2. You cannot be claimed as a dependent on another person's U.S. tax return (such as your parent's return).
3. Your only U.S. source income was from wages, salaries, tips, taxable refunds of state and local income taxes, and scholarship or fellowship grants.
4. Your taxable income (line 14 of Form 1040NR-EZ) is less than $50,000.
5. The only adjustments to income you can claim are the student loan interest deduction or scholarship and fellowship grants excluded.
6. You do not claim any tax credits.
7. If you were married, you do not claim an exemption for your spouse.
8. If you itemize deductions, the only deduction you claim is for state and local income taxes.
9. The only taxes you owe are:

1. The tax from the tax tables.
2. The social security and Medicare tax on tip income not reported to your employer.
3. The household employment taxes.

References:

• Publication 519, U.S. Tax Guide for Aliens

I live in a foreign country. How do I get a social security number for my nonresident alien dependent?

Form SS-5-FS may be obtained from the Social Security Administration.

References:

• Social Security Administration

My spouse is a nonresident alien. How can I get a nonworking social security number for her?

Since 1997, each foreign person who does not have and cannot obtain a Social Security Number must use an IRS Individual Taxpayer Identification Number (ITIN) on any U.S. tax return or refund claim filed. This would include:

• filing a U.S. tax return to report U.S.-source income;
• filing a U.S. tax return only to claim a refund of tax withheld;
• being the spouse of a U.S. citizen or resident who elects to file a joint tax return;
• being claimed as a spouse for an exemption on a U.S. tax return; or,
• being claimed as a dependent on another person's U.S. tax return.

Use IRS Form W-7, Application for IRS Individual Taxpayer Identification Number, to apply for an ITIN by mail or in person at most IRS offices. Complete Form W-7 at least 5 to 6 weeks before you need an ITIN. Sign and date the form and be sure to provide all information requested.

Provide original, or certified or notarized copies of identity documents (examples of acceptable documents include an original passport, national identity card, etc.). Original documents will be returned.

NOTE: If you have an INS document showing you are allowed to work in the U.S., you are eligible for an SSN and should not file Form W-7.

Mail the completed Form W-7 and all information requested to the following address:

Internal Revenue Service
Philadelphia Service Center
ITIN Unit
P.O. Box 447
Bensalem, PA 19020 USA

You can apply for an ITIN at most Internal Revenue Service offices. You will find a list of IRS offices abroad which accept the Form W-7 at the end of Publication 1915, Understanding Your IRS Individual Taxpayer Identification Number.

If you have not heard from the IRS regarding your ITIN application within 30 days after you filed Form W-7, you may call 215-516-ITIN (215-516-4846) to find out the status of your application. This is not a toll-free number. Be sure to have a copy of your Form W-7 application available when you call. Please allow 30 days from the date you filed Form W-7 before calling the IRS about the status of your application.

For additional information about ITINs, refer to Publication 1915, Understanding Your IRS Individual Taxpayer Identification Number.

References:

• Publication 1915, Understanding Your IRS Individual Taxpayer Identification Number
• Publication 519, U.S. Tax Guide for Aliens
• Form W-7, Application for IRS Individual Taxpayer Identification Number

I am a nonresident alien and invested money in U. S. stock market through a U.S. brokerage company. Are the dividend and the capital gains taxable? If yes, how are they taxed?

Generally, capital gains received by a nonresident alien who does not reside in the United States for 183 days or more are not taxable. Dividends are withheld upon at the 30% or reduced tax treaty rate. Generally, interest received by a nonresident alien from U.S. sources that is not connected with a U.S. trade or business is not taxable. However, there are exceptions to this rule. Please refer to Publication 519, U.S. Tax Guide for Aliens. If your withholding is not at the correct tax rate, you would have to file Form 1040NR, U.S. Nonresident Alien Income Tax Return, to receive a refund or pay any additional amount of tax due.

References:

• Publication 1915, Understanding Your IRS Individual Taxpayer Identification Number
• Publication 515, Withholding of Tax on Nonresident Aliens and Foreign Corporations
• Publication 519, U.S. Tax Guide for Aliens
• Publication 597, Information on the United States-Canada Income Tax Treaty
• Publication 686, Certification for Reduced Tax Rates in Tax Treaty Countries
• Publication 901, U.S. Tax Treaties
• Form 1040NR, U.S. Nonresident Alien Income Tax Return
• Instructions for Form 1040NR, U.S. Nonresident Alien Income Tax Return
• Form 8833, Treaty Based Return Position Disclosure Under Section 6114 or 7701(b)
• Tax Topic 851, Resident and nonresident aliens

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