China Tax treaty F1 OPT

[ashs]

Hi, I've been claiming the US-China tax treaty as an F-1 student since 2015. I'm now a resident alien. In 2020, I graduated and obtained F-1 OPT status and am currently in the middle of applying for OPT STEM extension (2021). I now work for a company, no longer with a research institute. Do I still qualify for treaty 20(c) for 2020 taxes as an F-1 OPT individual, and for 2021 when I'm using the OPT STEM extension status?

I'm a little confused about the qualification requirements for being able to claim the treaty. Time, status, occupation, and etc - any information is helpful. Thank you!

[pk]

@ashs , as far as I remember, China uses  the term "reasonable period" rather than a fixed number of years as to how long you can avail of the  exclusion of  the first $5000 from US taxes.  All it requires  is that you are a student /trainee and NOT be a resident of the USA i.e. temporary presence. The fact that US   tax authority  looks at you as a resident for tax purposes does NOT negate  you immigration status as a temporary residing in the USA  under F-1 visa.   So in my view  you should be able to use the  $5000 exclusion  in 2020 and 2021, as long as you have not applied for  Green Card or similar  steps  or are no longer a student/researcher/trainee.

Is there more I can do for you ?

[ashs]

Thank you very much!! This is very helpful. 

Additional question since you mentioned green card filing - if I apply for the green card in 2021, when I file for 2021 taxes in 2022, would I still qualify for the treaty? Thank you!

[pk]

@ashs  till the day your visa status is changed to permanent resident, in the eyes of both China ( I assume ) and the USA you are a temporary resident/ Non-Resident Alien.  Thus the article 20(c) still applies but   one would think that once you have applied (i.e.  taken steps )  you have  decided/ declared your intention to settle down in the USA and thus probably violated the requirements/intents of  article 20(c) -- which assumes that you are in the USA  temporarily.  That IMHO -- others may disagree.

BTW -- I have confirmed that there is no totalization agreement between  US & China and thus  my comments about FICA stands as is.

Good Luck

[ashs]

Thank you very much!!