I came to US in 07/2015 on F1 student visa and graduated in 05/2021. I worked on a F1 OPT visa for a year until July 2022 and left the US. What's my tax status for 2022?

[-w--sy48]

Thanks PK, 

Apologies if my question was not clear. I understand what a resident alien and non resident alien for tax purposes are for tax purposes. My question is what's my status in 2023. I was living in the US full time from 2015 to Mid-2022 when I moved out of the country after my visa expired. I filed a dual status return in 2022 given I moved out Midyear and my visa status expired although I meet the SPT for the first half of 2022. 

Do I need to file dual status return for 2023, a resident alien or non resident alien? 

Although I left the country in July 2022, would the days I was present in the US the first half of 2022 and the years prior count toward determining the SPT for 2023?

Please see below for more info

Country and citizenship: Guinea 

F-1 student from July 2015 to May 2021

F-1 OPT: From July 2021 to July 10, 2022

July 10, 2022: F-1 OPT Visa expired and I left the country.

Returned to the US on H1B: October 2023

[-w--sy48]

Looking forward to your response!

[AmeliesUncle]

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@-w--sy48 wrote:

Hi Dave - I was a dual status in 2022, a resident alien for the half of the year and a non resident aliens for the rest of 2022 as I moved out of the US in July 2022.

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By default, you were a full-year Resident in 2022, unless you filed the specific statement/election to change your ending residency date.  The prior answers that mentioned the dual-status were wrong/incomplete.

And even then, depending on the Substantial Presence Test for 2023 that pk mention, *IF* you are considered a Resident for 2023, then you would have almost definitely been a full-year Resident in 2022 (you wouldn't have ended your US Residency).

https://www.irs.gov/publications/p519#en_US_2022_publink1000222182

[-w--sy48]

Thanks, 

I'm confused by your response. When I left the US in Mid 2022, I had no active legal or immigration status in the US. Would make me a full-year Resident in 2022? How about 2023? Is it possible to amend a dual status return?

[AmeliesUncle]

Did you read the link that I provided?  If you are a US Resident for the first part of the year, you are considered a Resident for the entire year, unless you specifically qualify for and make a separate election statement (but if you are considered a Resident for 2023, you don't qualify for that).

As for 2023, have you added up the "days" for the Substantial Presence Tax like pk asked?  The number of days you were in the US in 2023, plus 1/3 of the days in 2022, plus 1/6 of the days of 2021.  If that is over 183, you are still a Resident for 2023 as well.

Yes, if your 2022 tax return is incorrect, it can be amended.

TurboTax is NOT set up for residency issues like this, so in my opinion it is really in your best interest to go to a tax professional that is very experienced with Nonresident Aliens and Dual Status Aliens.  There could be other factors to consider that a good tax professional can help you with.

[-w--sy48]

Yes I did read the link and the info is very helpful. I will meet the Substantial presence test for 2023 as well. Thank you so much for your guidance. Very grateful for the clarification. 

[pk]

@-w--sy48 , while recognizing  comments b y colleague  @AmeliesUncle ,  and  going over your answers above, let us just re-capitulate what the situation as I see it :

(a)  you  came here in 2015 and assuming  that there were NO other visitations priorly, you would have been a Non-Resident alien and exempt ( from counting days present )  through 12/31/2019. Thus you would have been a Resident for Tax purposes for the years  2020 and 2021.

(b) Because you left the country in July  2022, you would have been a Resident for Tax purposes  till that date  and assuming that your visa to stay  had expired,  you would have been a Non-Resident Alien thereafter.  Thus you should have a 2022 return as Dual Status ---  Resident from 01/01/2022  till 07/10/2022   ( filed on form 1040 ) and  for the period   07/XX/2022 till 12/31/2022 as a Non-Resident Alien  ( on form 1040-NR  for any US sourced / connected income ).

(c) You re-entered US on  10/XX/2023 with H-1B and thus  you are a Resident Alien for the year 2023 because   you will probably pass the SPT  (  probably 90 days in 2023 + 1/3  of a8 all days in 2022 = 63? + 1/6 the days in 2021 =60 days approx. = =213 days > than the required 183 days.  So you file as a resident on form 1040 but your residency start date  of 10/xx/2023 may exclude the use of standard deduction  ( because generally the  first day of presence in the country  is the  start date of Residency  , in SPT cases..

Does this make sense  or have I missed something ?

pk

[AmeliesUncle]

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@pk wrote:

you would have been a Non-Resident Alien thereafter.  Thus you should have a 2022 return as Dual Status ---  Resident from 01/01/2022  till 07/10/2022   ( filed on form 1040 ) and  for the period   07/XX/2022 till 12/31/2022 as a Non-Resident Alien  ( on form 1040-NR  for any US sourced / connected income ).

 So you file as a resident on form 1040 but your residency start date  of 10/xx/2023

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If you look at "Last Year of Residency" in Publication 519 (this stupid forum redacts the direct link), the Residency Termination date is December 31st, unless an election is made.  And because the OP was a Resident in 2023, that isn't even an option.   Leaving the country doesn't change that.  The OP is a full-year Resident for both 2022 and 2023.

There is more in 519 to support that, but here is an excerpt:

If you are a U.S. resident during any part of 2023 and you are a resident during any part of 2022, you will be treated as a resident through the end of 2022. This applies whether you have a closer connection to a foreign country than the United States during 2022, and whether you are a resident under the substantial presence test or green card test.

And another excerpt a bit earlier in the section:

If you were a U.S. resident during any part of the preceding calendar year and you are a U.S. resident for any part of the current year, you will be considered a U.S. resident at the beginning of the current year. This applies whether you are a resident under the substantial presence test or green card test.

[-w--sy48]

Thank you so much for recapitulating. All the points you have mentioned is 100% accurate. I fully agree with point A and B. I filed a dual status (1040 and 1040NR) in 2022. I was confused by the other guidance from your colleague which led me to the conclusion that I might need to amend my Dual status return for 2022. So no amendment is needed here?

Regarding point C: I will for sure meet the SPT by year end 2023. However, given I re-entered the US on 10/XX/2023 with H-1B and will meet the SPT by year-end, would I also be considered a US Resident Aliens for the entire year even though I lived abroad for the first 3/4 of 2023? Meaning I would only file the 1040 for 2023? If so, I would have to to report income from abroad for the first 3/4 of 2023 on my 1040 correct? 

Thank you again for your response