I am on H1B visa since last year. I did not know I do not meet the Substantial presence test and I filed my federal taxes using turbo tax. What can I do to correct this?

[DavidS127 · Accepted solution]

Before you conclude that you need to amend, make sure you aren't eligible for the First-Year Choice for 2019.  Your days of presence in the U.S. "start to count" when you got the H1B visa.  If you can count more than 31 days in 2019, and will meet the Substantial Presence Test in 2020, you may be eligible to use Form 1040 for the period starting when your H1B was effective.  See the First-Year Choice section of IRS Publication 519 at this link for more information.

To the extent you filed a Form 1040 as a U.S. resident when you should have filed Form 1040NR, you will need to file an amended return with a Form 1040-NR attached.  You will need to prepare a Form 1040-NR tax return.  SprintTax is a software that can prepare a Form 1040-NR.  Once you have prepared the Form 1040-NR, you can print and manually complete the Form 1040X at this link, using the instructions shown below (from Form 1040X at this link).  Here is a summary of how you file your Form 1040X:

• Enter your name, current address, and social security number (SSN) or individual taxpayer identification number (ITIN) on the front of Form 1040X.
• Don’t enter any other information on page 1. Also, don’t complete Parts I or II on page 2 of Form 1040X.
• Enter in Part III the reason why you are filing Form 1040X.
• Complete a new or corrected return (Form 1040, Form 1040NR, etc.).
• Across the top of the new or corrected return, write "Amended."
• Attach the new or corrected return to the back of Form 1040X.

[prashantgupta805]

Hi - I have a similar situation. I was working on H1 since 2012 and filed resident return till 2018. However, I left US on 27-JUL-2019 and moved to Canada. I pass substantial presence test but I was not in US on last day of year 2019. Can I still file tax as US resident ? Also, is filing dual status return an option too ?

Thanks !

[Anderson Cruz]

Hi David,

When you said "Your days of presence in the U.S. "start to count" when you got the H1B visa." it is only for people that were already here in US, or for example In my case I got my VISA (L1) in my country in 06/27/2019 but I physically arrive in US only in 07/12/2019. So When it starts to count in my situation, can you help me, please?

Thank you

[SusanY1]

You begin to count days for the physical presence test once you physically arrive in the United States.  So, in your case, 07/12/2019.  

@Anderson Cruz