Am I non-resident alien for tax purpose?

[jj147]

Hi, 

I'm on f1 visa from 2019, and it's fifth calendar year as a f1 student.

However, I lived in the US as F2 2017-2018, and as M2 2018-2019. I was wondering if I should file my tax as a non-resident or resident this year. I filed it as a non-resident last year. 

Thanks in advance.

[RalphH1]

A student (F1 visa) normally begins counting days toward the “Substantial Presence Test” in their fifth year in the U.S. (as the IRS discusses here). But note that it is possible to continue being an “exempt individual” (excluding days on an ongoing basis) if you have no intention of residing permanently here, and have a closer connection to your original country. So your scheduled switch to filing a 1040 as a resident does have that qualification.

However, @jj147, I’m guessing that you already knew that, and actually need help deciding where you fit into the gray area. If this is the case, can you describe your current circumstances and future plans a little more specifically? There are of course non-tax implications to all of this as well, but I or someone else here in the community (like @pk) may still have some useful thoughts on the matter.

[pk]

@jj147 , having gone through your post  and the response from @RalphH1 , I have the following to add:

(a) you were F-2  for the Calendar years 2017 & 2018, then adjusted to M-2 for the years 2018 and 2019.  This would generally mean that , yours being a dependent visa , your status would have been the same as that of the F1/M1 visa holder .

(b) You then became a F-1  for the years 2019, 2020, 2021 and 2022.

Generally , IRS says that a student whom has been exempt for  any part of more than five years  cannot be exempt.  This I interpret to mean  that , even though you are now on your own visa - F-1-- you used up at least two of the five years exempt status  between  F-2 and M-2.  Hence  in 2022 you would be Resident for Tax purposes.   So you should file form 1040  ( and  NOT form 1040-NR ).

Note that I have not found any case law  and/or direct confirmation from the IRS rulings / statements  that this is so  --- I am just conservatively  opining that out of the  total five years  that is allowed for an F-1 student ( as exempt ), you have used up two because of F-1 status  and being in the USA.  I am pretty sure that IRS would never complain  being able to tax your world income.

However , if you do want to continue being on exempt status , you can show to the IRS that  (a) you have no intention to stay in the USA once your studies are done and (b) you have closer connection to your home country.

Does this help ?  Is there more I can do for you ?