Am I a dual status alien?

[Le_nene]

I was a tax resident for the year 2018 on an F1 visa. I left the US on January 24, 2019. As such, I believe I was a tax resident at the beginning of 2019. I then visited the US for 13 more days in November 2019; and therefore I pass the substantial presence test for 2019.

Does passing the substantial presence test for 2019 mean that I am a tax resident for the entire tax year of 2019? Or does this mean that I am a dual status taxpayer (since I no longer have a residence in the US by the end of 2019)?

[LinaJ2020]

When did you first enter the US with your F-visa?  What type of visa did you carry when re-entering the US in 2019?

@Le_nene

[Le_nene]

I first entered the US on an F-1 visa in August 2013. I terminated this status when I left the US on January 24, 2019. I re-entered the US for the the ˜ 2-week trip on a B1/B2 visa. I did not receive any US income during this short, B1/B2 trip.

[LinaJ2020]

Yes, you are considered a resident for the entire tax year of 2019.  You are not a dual-status taxpayer.

You are considered as a non-resident for five years from the first year you arrived in the US.  2013-2017

You will start counting your days from January 1st, 2018.  In 2019, if you have stayed more than 183 days or have met the Substantial Presence Test  SPT, ( counts your days in both 2018 and 2019.  Do not count days in 2017)  You will be considered as a US resident for tax purposes for the entire year.  You are not a dual-status taxpayer. 

You will be filing a Form 1040 like other Americans. 

@Le_nene

[Le_nene]

Thank you so much @LinaJ2020 for your confirmation. I just want to make sure that I understand the SPT correctly. You mentioned that I should not count days in 2017. But, per the IRS definition, I should be counting days in the current year (i.e. 2019) and the two years immediately before the current year (i.e. 2018 and 2017). Here is the IRS definition: "To meet this test, you must be physically present in the United States (U.S.) on at least

1. 31 days during the current year, and
2. 183 days during the 3-year period that includes the current year and the 2 years immediately before that, counting:
   • All the days you were present in the current year, and
   • 1/3 of the days you were present in the first year before the current year, and
   • 1/6 of the days you were present in the second year before the current year."

If we both agree that the "current year" is the tax year 2019 which we are currently filing for, then we should be counting the days in 2018 and 2017 as well, according to the formula above, correct?

[LinaJ2020]

You do not count your days in 2017 because that's the year when you still held the F-1 visa.  It is considered as an exempt year (not counting days)

Therefore, you will add all days in 2019 plus 1/3 of the days in 2018 for your calculation.

@Le_nene

[Le_nene]

Hmm, well, per this definition @LinaJ2020, I do not meet the SPT then:

Number of days in 2019 = 37

1/3 Number of days in 2018 = 108

Therefore, I am about 40 days short of the threshold of passing the SPT. So, should I file a 1040NR then? And again, should I now be a non-resident for the entire 2019, or am I a dual status?

I also want to mention that I have a pending immigration petition with USCIS as of January 2020. Would it look weird if I file as a tax non-resident while having a pending immigration petition (I believe these cannot go together if I am claiming the so-called Closer Connection to Foreign Country, but this is a different matter I suppose).

[LinaJ2020]

If 2019 is the last year you were present in the US, by not meeting the SPT, you will be a non-resident and file Form 1040-NR.

@Le_nene

[Le_nene]

@LinaJ2020 

I have a quick question Lina regarding being an exempt individual. The question concerns Form 8843, which I should attach to claim the exemption:

As you know now, I was "present in the US as a student for any part of more than 5 calendar years" as the question on Line 12 is phrased. I am therefore asked to attach a statement "to establish that I do not intend to reside permanently in the United States". What should I write in such a form?

I am, in fact, facing another dilemma. I do not meet the Substantial Presence Test, and therefore I am filing a 1040NR, as you suggested. I believe I have to attach Form 8843 to it, like I have done in 2013-2017. However, I have the intention to reside permanently in the US, because I filed an I-140 immigration petition as of January 2020. This brings us to the question in Line 13 asking:

"During 2019, did you apply for, or take other affirmative steps to apply for, lawful permanent resident status in the United States or have an application pending to change your status to that of a lawful permanent resident of the United States?"

Although USCIS has received my I-140 immigration petition in January 2020, I believe that I have "taken affirmative steps" in 2019, including paying for and mailing my complete application.

In Line 14, I am required to explain. What should I say? Should I mention information like the name of the immigration petition, receipt number, priority date with USCIS? Any other information I should mention?

Bottomline, the only reason I am filing as a non-resident is because I do not meet the substantial presence test. I am not claiming closer connection to another country or so. The problem is that the information I am required to present on Form 8843 appear to disqualify my treatment as a non-resident. What do you think?