First Year Choice or 1040 NR

[sidhere]

I have worked on H1B from 2013 to 2018 and left US in Nov 2018 along with family.

I came back on L1A this time in July 2023 along with family.

I was not in US for 183 days last year which is making me to file 1040NR. But few tax consultants are advising me to file 1040 using First Year Choice which I never used in the past. Some are advising to use 6013H and 7701B.

When I did some research - some blogs advised that, I should file for extension and wait until I pass SPT this year to file around June 2024 for 2023 year.

Can someone please clarify the best and safe route?

Thanks in Advance

[DaveF1006]

Yes, you may file using the first year choice if you qualify. Here is the procedure to file if you elect to make the first year choice.

It depends.  According to the IRS, you can file as a US resident for 2023 if you make the first year choice election. First of all, to qualify for the first-year choice. 

1. Be present in the United States for at least 31 days in a row in the current year (2023), and
2. Be present in the United States for at least 75% of the number of days following the 31-day period, beginning with the first day of the 31-day period and ending with the last day of the current year (2023). (For purposes of this 75% requirement, you can treat up to 5 days of absence from the United States as days of presence in the United States.)

 You must attach a statement to Form 1040 to make the first-year choice. The statement must contain your name and address and specify the following: 

• That you are making the first-year choice for the current year (2023).
• That you were not a U.S. resident in the prior year (2022). (You were non-resident because of the F-1 exemption).
• That you qualified as a U.S. resident under the substantial presence test in the following year (2024).
• The number of days of presence in the U.S. during the current year (2023).
• The date or dates of your 31-day period of presence and the period of continuous presence in the U.S. during the current year (2023).
• The date or dates of absence from the U.S. during the current year (2023), if any, that you are treating as days of presence under the first-year choice – see (2), above.

You cannot file Form 1040 or the statement for the current year (2022) until you meet the substantial presence test in the following year (2023). If you have not met the test for the following year (2023) as of April 15 of 2023 (the filing due date of the current year), you can request an extension of time for filing your Form 1040 for the current year (2023) until a reasonable period after you have met that test for the following year (2023).  

If you make this first year election, you will need to print and mail the return along with a detailed statement. If you do not choose the first year choice, you would file a 1040 NR because you will not qualify for the Substantial Presence Test (SPT) because the days that were exempted on your F-1 visa do not count toward the SPT. You will need to file with Sprint Tax if you make this choice.

First Year Choice Election