Non-resident or resident?

[user271154]

Here are 2 cases.

1. I was a F-1 student visa holder from 2011-2014. I went back to my home country (2014.7) and re-entered the US in 09/2016 as a J-1 student visa holder. In 2017 tax year, am I still a non-resident since the first 2-year J-1 is considered non-resident. Or am I a resident since I have been in the US for more than 5 years?

2. My wife came to the US in 08/2019 (typo, this should be #08/2017) (she stayed in the US for less than 3 months in 2014). Since she has incomes, should she fill out W-9 or W-8BEN? Thanks!

[bine22 · Accepted solution]

the rules for J1 student visas are the same as for F1 student visas. Since you were in the US already for 5 years on the F1 visa, you would count the days of presence in 2016 and 2017 towards the substantial presence test. For 2016 you did not meet the test so were a nonresident alien. For 2017 you do meet the test and are a resident alien.

What is your wifes visa status? when did she come to the US (you wrote 2019) and on what visa? What was her visa in 2014?

[user271154]

Thanks so much for answering my question! My wife was on a tourist visa in 2014 (B2). Currently, she is on J-2 visa. She has EAD, and currently is an independent contractor for a US company. * I mean she came to the US in 08/2017. I assumed that she is a non-resident and should file W-8BEN, am I correct? Thanks!

[bine22]

Theoretically, your wife is a nonresident alien in which case she would provide a W8BEN. However, since you are a resident alien, you can both make the choice to treat her as a resident alien as well and then file a joint return. So she would fill out a W8BEN now, but once you filed your return making that choice change that to a W9.